Brigadier Gurdial Singh vs Union of India and others

Shiv Dayal, J.

This is a petition under Article 226 of the Constitution for a, writ of mandamus requiring the Central Government to decide an appeal preferred by the petitioner for the determination of his age.

The petitioner was employed as a Sepoy on October 25, 1929 He was given Emergency Commission on June 13, 1941, and Regular Commission in 1946. At the time of his entry in service, he gave his date of birth as November 5, 1912. The petitioner''s case is that his father died in his early childhood and his mother being a Pardanashin and uneducated lady, one of his relations, Sardar Ishwarsingh, had got him admitted to a primary school at Nawashahar, district Jullundur, on November 5, 1920 Sardar Ishwarsingh gave out the petitioner''s age to be about 8 years and the school authorities entered his date of birth as November 5, 1912, (exactly 8 years preceding the date of his admission). The same date was accordingly entered in his Matriculation certificate.

On the basis of the Ministry of Defence letter dated September 30, 1957, Army Order No. 410 was issued on August 2, 19S8, by the Army Head quarters. The order prescribed the procedure to be adopted for correction of date of birth of military officers. It required certain documents to be filed in support of the application for correction of age. It is not disputed before as that that order applied to the petitioner.

On April 11, 1959, the petitioner submitted an application for correction of his date of birth. He produced an extract from the Municipal Birth Register, which showed the date of his birth as May 10, 1915. The petitioner contends that he also moved the Punjab University for making the correction in the Matriculation certificate, but the University refused to do so. He then filed a civil suit on July 14, 1962, in which a decree was passed on September 19, 1962, declaring the petitioner''s date of birth to be May 10, 1915, and a mandatory injunction was issued to the University to give effect to the said declaration. In compliance with the mandatory injunction and in accordance with the decree, the University corrected the certificate. All this happened during the pendency of the verification proceeding.

By a communication dated October 24, 1962 (annexure F), the petitioner''s head quarters, were informed that the Government had not accepted bis date of birth as May 10, 1915. The relevant portion may be reproduced here:-

In his application for the grant of Emergency Commission Brig. GURDIAL SINGH gave his date of birth as 5th November 1912. This date is based on the entry in his original matriculation certificate and has been acted upon as his correct date of birth for ail official purposes.

Application for change of date of birth of officers are not normally entertained unless made within a reasonable time of commencement of service and no requests for change of date of birth made about the time of superannuation are entertainable Brig. GURDIAL SINGH was commissioned in the year 1940, but it was not until recently that he took steps to have the entry regarding his date of birth amended in his matriculation certificate,

In the circumstances, the Government have not accepted his date of birth as 10 May 1915 and he will retire with effect from 5 November 1962, as already ordered.

The petitioner''s contention is that this order is discriminatory. He filed in this Court a statement (annexure G to show that the age of three Brigadiers were altered as follows:

No. Rank Name Age recorded at time of Commissioning Feference Altered Reference

IC 128 Brigadier SHIVDARSHAN SINGH TUR 27-9-1910 Army List 1958 Page 20A 6-2-1913 Army List 1962 Page 11

IC 154 Brigadier IC439 Brigadier MUKHTAR SINGH

GYAN SINGH 25-10-1910 27-4 1918 Army List 1958

Army List 1962 Page 48 8-5-1912 12-4-1916 Army List 1962 Page 14

Army List 1964 Page 32 Date of birth corrected after retirement.

This is not controverted in the return filed by the respondents. It is clear from the above statement that in three similar cases, age was in fact corrected. Thus discrimination is established.

The petitioner filed an appeal on October 25, 1962. The petitioner was informed by letter dated December 18, 1962 (annexure K) from the officiating Military Secretary that his appeal was dismissed. The letter reads thus:-

To

Lt. Col. GURDIAL SINGH (Retd.),

No. 5. The Mall,

JULLUNDUR CANTT.

Subject :- CHANGE IN THE DATE OF BIRTH.

Your statutory appeal dated 25 October 1962 forwarded through Head Quarter Western Command has been examined by the Government.

In your application for emergency Commission, you had given your date of birth as November 1912 and this date is the same as given in your matriculation certificate originally. Inasmuch as your date of birth has been changed in your matriculation certificate only a month before the date of your retirement. The previous decision was taken after careful consideration of all the facts relating to your case and the Government do not see any reasons to change it.

Brig.

Offg. MILITARY SECRETARY.

It appears that the petitioner preferred another representation to the President of India on January 31, 1963. That representation was also rejected. It is conceded before us that such a representation did not lie.

The contentions before us are three-fold. First, the order (annexure F) is discriminatory. Second, the order (annexure K) is illegal as it was not made in compliance with Article 77 of the Constitution. Third, the petitioner''s appeal dated October 25, 1962, was a statutory appeal, but it was decided without any application of the mind. No reasons were given for the decision.

Shri Munshi, learned counsel for the respondent (Union of India) and others, first relied on annexure J, dated October 30, 1962, in which certain reasons were given. For instance, "At no time prior to April 1959 did you claim that your date of birth was other than 5 November 1912. Until a different date is accepted, your date of birth for all official purposes, other than commutation of pension, remains 5 November 1912.......... It is apparent from your plaint filed in the Court of Senior Sub-Judge, Jullundur, that your date of birth as originally recorded in your matriculation certificate was 5 November 1912...... The amendment of the date of birth in the matriculation certificate at this stage tantamounts to effecting a change in your date of birth recorded for official purposes, near about the date of your retirement. Your case was given careful consideration before the decision conveyed to you in this Head Quarter letter of 24 October 1962 was arrived at and it is regretted, no change can now be made." It is obvious enough that this letter addressed by the Military Secretary to the petitioner, could not be said to be a decision of his statutory appeal. It merely contained comments on his appeal. The order, which was passed on the appeal, was really communicated with the Military Secretary''s letter dated December 18, 1962 (annexure K).

Shri Munshi then contends that reasons for not allowing the appeal are given in the return filed in this Court. One of those reasons is that Brigadier Gurdial Singh was originally enrolled in the Army as a Sepoy on October 25, 1929. At that time his age was 17 years. If his real date of birth was May 10, 1915, he would not have been eligible for enrolment, as he would have been only 141/2 years of age at that time, while the minimum prescribed age was 16 years. It is contended that the Government acted upon his representation and gave him the advantage of enrolment in service. He is now estopped from denying the correctness of the original date given by him. Shri Munshi further emphasised that in the civil suit instituted by the petitioner, the respondents were not made parties and the decree was obtained behind their back. We are not prepared to go into these reasons, which do not find any place in the order (annexure K). It was the appellate authority who had to apply its mind and to give reasons. The respondents cannot avail themselves of reasons subsequently thought of. They may or may not be good reasons; the fact remains that the order (annexure K) does not show any application of the mind and it is patent enough that the petitioner''s statutory appeal was mechanically dismissed. In our judgment this order (annexure K) is bad and must be set aside. In Pragdas v. Union of India 1867 MPLJ 868 , their Lordships held:

If the right to appeal is intended to be effective, the tribunal must record its reasons and male them available to the parties to the dispute ............... ...... Since no reasons were given in support of the order passed by the Central Government, the order was ex facie defective, and the defect could not be remedied by looking into the file maintained by the Government and constructing the reasons in support of that order. The reasons in support of the order had to be recorded and disclosed to the parties concerned by the Central Government, the reasons could not be gathered from the ''notings'' made in files of the Central Government. Recording of reasons and disclosure thereof is not a mere formality.

Their Lordships added that it was not for the High Court to give reasons which the Government might have, but did not choose to give, in support of its conclusion. Their Lordships referred to their earlier decision in Bharat Raja Vs. The Union of India (UOI) and Others, .

This petition, therefore, succeeds. The order communicated with letter dated December 18, 1962 (annexure K) of the Military Secretary is quashed. A writ of mandamus shall be issued to the respondents to consider and decide afresh the petitioner''s statutory appeal dated October 25, 1962 in accordance with law. We leave the parties to bear their own costs. The outstanding amount of security shall be refunded to the petitioner.