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Judgment
Suresh Kait, J.—The Petitioner being aggrieved by the order dated 4th August, 2008 passed in OA No. 257/2008 by the Central Administrative Tribunal, Principal Bench, New Delhi, has filed the present writ petition.
The Petitioner filed OA before the Tribunal asking to rectify his date of birth from 2nd July, 1949 to 27th September, 1953 in the service book. The Petitioner joined Indian Economic Service in November, 1979 on the base of 2nd July, 1949 as his date of birth. He enjoyed service till 2006. It is admitted fact that in between he has not made any representation/request to the Respondent for the correction of his date of birth. Only on 17th August, 2007 he made a representation along with the certificates stating that his date of birth is 27th September, 1953. His request was considered and rejected vide order dated 5th/6th December, 2007 and on subsequent representation vide OM dated 20th December, 2007.
The case of the Petitioner is that he is a Group ''A'' Officer and Fundamental Rules (FR) 56 would not apply in his case since he belongs to All India Service. He further submitted that Rule 16 is applicable, therefore, he can challenge his date of birth at any point of time during his service with the Respondents.
The Respondents have strongly opposed the contention of the Petitioner. They have stated that the Petitioner is an officer of the Indian Economic Service, therefore, Department of Economic Affairs is his cadre controlling authority, though presently the Petitioner is posted as Advisor in the Ministry of Tribal Affairs. As per the contention of the Respondents, the Petitioner joined Central Government Service on 8th November, 1979 and had himself declared his date of birth as 2nd July, 1949. After a lapse of 28 years, the Petitioner requested on 17th August, 2007 only for the first time to change his date of birth from 2nd July, 1949 to 27th September, 1953 when he was at the verge of his superannuation.
Since the Department of Economic Affairs was his cadre controlling authority, his request was examined. The certificates produced by the Petitioner were issued in the month of August, 2007 only, whereas he had studied in the school way back in 1960. As per the instructions issued under Fundamental Rules 56, the date of birth of the Government servant can be altered on request within five years of entry into Government service. Since the Petitioner had requested after putting in 28 years of service, his request was rejected.
The Ministry has not made any comments on the genuineness of the certificate/request made by the Petitioner, but the Department of Economic Affairs had taken the decision as per Fundamental Rules 56 as amended by DPAR dated 30th November, 1979. Though the present Date of Birth Certificate produced by the Petitioner is neither issued on School Letter Head nor issued by the regular Headmaster. On the contrary, it seems that some Incharge had issued the certificate. Similarly the other Certificate of Date of Birth was also issued on 8th August, 2007 by the Headmaster of Tangarpada Nodal UP School.
If the request of the Petitioner is accepted as his date of birth was 27th September, 1953, he has no explanation why he entered in the service on the base of 2nd July, 1949 as his date of birth.
The legal question raised by the Petitioner was that Fundamental Rules 56(m) would not apply in his case as it relates to Class III Government servant. At this stage, it would be relevant to refer FR 56 for ready reference as under:
(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years.
(m) A Government servant in Class III service or post who is not governed by any person rules, may, by giving notice of not less than three months in writing to the Appropriate Authority, retire from service after he has completed thirty years'' service.
We have gone through the aforesaid provision. Bare perusal of this clause would show that it has nothing to do with the change of date of birth, therefore, reference to FR 56 (m) is not relevant. As far as FR 56 is concerned, it does not refer to any clause in particular, it simply reads as under:
The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the Appropriate Authority on production, as far as possible, of confirmatory document evidence such as High School or Higher Secondary School or Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the Appropriate Authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving, if:
(a) a request in this regard is made within five years of his entry into Government service;
(b) It is clearly established that a genuine bona fide mistake has occurred.
Therefore, said note made it clear that date of superannuation will be determined with reference to the date of birth as declared by the Government servant at the time of appointment and accepted by the appropriate authority, that too on the basis of documentary evidence such as High School or Higher Secondary School or Secondary School certificate or extracts from Birth Register. Alteration in the date of birth, if any, on request can be made only within five years of his entry into Government service.
We have observed that there is no distinction in this note to suggest that it would apply only to Class III Government servant and not to Group ''A'' Officer as contended by learned Counsel for the Petitioner.
The Tribunal has also observed that Chapter 58 of Swamy''s ''Complete Manual on Establishment and Administration'' deals with date of birth and its subsequent alteration (page 973), which clearly mention that every person newly appointed to a service or a post under Government, shall at the time of appointment, declare the date of birth by the Christian era, with as far as possible confirmatory documentary evidence, such as Matriculation Certificate, Municipal Birth Certificate and so on.
Since learned Counsel for the Petitioner has relied on Rule 16-A(1) of All India Service (Death-cum-Retirement Benefits) Rules, 1958, wherein no limitation is prescribed. It has become very necessary to examine Rule 16-A(1) at this stage.
Rule 16-A (1) is reproduced as under:
16-A (1) For the purpose of determination of the date of superannuation of a member of the service, such date shall be calculated with reference to the date of birth as accepted by the Central Government under this rule.
As per Sub-rule (4) of Rule 16-A, it clarifies that the date of birth as declared by a person who is recruited to the service shall be accepted by the Central Government as the date of birth of such person.
Sub-rule 4 only states as follows:
The date of birth as accepted by the Central Government shall not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under Sub-rule (2) or (3).
As per the aforesaid Rule, it is clear that if at the time of recording the date of birth, by the Central Government, there has been some bona fide clerical mistake, only in such a case any alternation in date of birth may be considered, otherwise not.
Admittedly, in the present case there is no bona fide mistake of the Central Government in accepting the date of birth of the Petitioner. He himself had declared his date of birth as 2nd July, 1949 which was accepted by the Central Government and that is on the base of the certificate of Board of Secondary Education which was submitted by the Petitioner only, none else.
In our opinion no stretch of imagination can be drawn that the Central Government had committed any clerical mistake, therefore even Rule 16-A(4) would not help the case of the Petitioner. Here, it is the case, the Petitioner is not an illiterate person, whereas he entered in a Group ''A'' services of the Central Government.
Learned Counsel for the Petitioner has relied on the judgment of the Supreme Court in the case of Union of India Vs. C. Rama Swamy and others, .
On a perusal of the aforesaid judgment of the Hon''ble Supreme Court, it goes against the Petitioner because in that case the Government had declared his date of birth as 17th June, 1939 at the time of All India Service Competitive Examination 1967, after he was allotted Indian Police Service (IPS).
After referring to Rule 16-A(4) of All India Services (Death-cum-Retirement Benefits) Rules, 1958, Hon''ble Supreme Court observed on correct interpretation of the said rules and clarified that bona fide clerical error would normally be one where an officer had indicated a particular date of birth in his application form or any other documents at the time of his employment but, by mistake or oversight, a different dates has been recorded. Whereas in the present case, admittedly, the date of birth in the application form was mentioned as 2nd July, 1949.
But in the case of Union of India v. C. Rama Swamy (supra) the Department of the Government recorded the date of 17th June, 1939 instead of 15th June, 1941 as per the School Leaving Certificate produced by the candidate. The aforesaid case is contrary to the present situation, therefore, not applicable and do not give any benefit to the Petitioner in the present case.
After hearing both the parties, we are of the considered opinion that the order/judgment dated 4th August, 2008 of the Tribunal in OA No. 257/2008 is correctly recorded because in the present case, the Petitioner himself had produced the date of birth certificate issued by the school, therefore, there is no error/mistake on the part of the Respondents.
We have no hesitation to record that the Petitioner has made request to change his date of birth after 28 years of service and especially when he is on the verge of the retirement, just to have the benefit of approximately more than four years which seems to be mala fide, unfair, unbecoming of a Group'' A'' Officer of the Central Government.
We hereby dismiss the writ petition with costs of Rs. 5000/- to be deposited in the name of Registrar General of this Court within four weeks of receipt of this order, who will make it available for utilization of Juvenile Justice. List for compliance on 20th February, 2009.
Keeping in view the above discussion, the writ petition is disposed of accordingly.