Appeal No 502 of 1993
From the Judgment and Order dated 29592 of the Central Ad ministrative Tribunal Principal Bench New Delhi in OA No 1252 of 1992
VC Mahajan CVS Rao and VB Misra for the Appellant
SK Mehta Dhruv Mehta Aman Vachhar and Arvind Verma for the Respondent
ANAND J Aggrieved by an order passed by the Central Administrative Tribunal Principal Bench New Delhi in OA No 12521992 on 29th of May 1992 allowing an application filed by the respondent and directing the petitioner herein to correct the date of birth of the respondent in the service record and not to retire him before 30th of April 1996 the petitioner Union of India has filed this special leave petition
Leave granted
The respondent joined Government service in the Ministry of Finance Defence in class IV post as a peon on 22nd of February 1956
At the time of entry into the Government service his service book was prepared and the date of birth was recorded as 20th of May 1934 and since he failed in the matriculation examination against the column of educational qualification matric failed  was recorded
It appears that the respondent later on again appeared in the matriculation examination of the Punjab University under Roll No 21653 and passed the said examination in May 1956
On passing the matriculation examination the respondent was appointed as LDC in the Ministry of Home Affairs on 951957
In the service book of the respondent an entry was accordingly made showing his educational qualification as matric Punjab University Roll No 21653 year 1956
This entry was made underneath the earlier entry matric failed and the changed entry was signed by the SO of the Ministry of Home Affairs on 791957
Though the date of birth of the respondent as 867 recorded in the matriculation certificate is 741938 but while amending the entry about his educational qualification the entry relating to his date of birth was not altered to correspond to the date given in the matriculation certificate and it continued to be recorded as 20th of May 1934
In 1963 the respondent was transferred to the Ministry of Human Resources Development Department of Education
On being notified about his date of superannuation as 3151992 the respondent realised that he was being retired on the basis of his date of birth as originally recorded in the service record as 2051934 ignoring the date of birth as reflected in the matriculation certificate
He made a representation in September 1991 for the alteration of his date of birth but the same was rejected on 4121991
He submitted yet another representation of 311992 wherein a request was made the consider his case for the correction of date of birth afresh on the basis of the date of birth as recorded in the matriculation certificate
The request of the respondent was turned down vide OM dated 2911992
The respondent submitted yet another representation on 2631992 wherein he asserted that he had submitted the matriculation certificate on 491957 when the entry about his educational qualification was altered and that thereafter since he did not hear anything to the contrary he presumed that the appellants had also corrected his date of birth in the service book
While making that representation the respondent had also drawn attention of the Department to an order of the Central Administrative Tribunal in the case of one Darshan Singh wherein the Department had been directed by the Principal Bench of CAT to correct the date of birth of Darshan Singh on the basis of the date of birth given in the matriculation certificate and it was submitted that his date of birth should also be corrected on the basis of the matriculation certificate
That representation was rejected on 2241992 by an order which reads thus SubjectRequest for alteration in the Date of Birth of Sh
Harnam Singh Asstt
in the Service Book
With reference to his representation dated 26th March 1992 regarding alteration in his date of birth Sh
Harnam Singh Asstt
is informed that his representation has been considered once again and it has not been found possible to accede to his request for changing his date of birth from 2051934 to 741938
As regards his contention that he had submitted a copy of matriculation certificate 868 in 1956 Sh
Harnam Singh has already been informed vide OM dated 2911992 about DOP  T s ruling that furnishing a copy of matriculation certificate does not automatically imply change in date of birth unless the Govt
servant specifically applies for it within the prescribed time limit and the appointing authority accepts his request
In so far as CAT s judgment in the case of Sh
Darshan Singh a copy of which has been enclosed by Sh
Harnam Singh with his representation it may be stated that in the said judgment the CAT s order is based on the fact that Sh
Darshan Singh had not been shown his service book even once during his entire service
Harnam Singh had seen his service book several times latest being in 1976 and he has signed the Service Book in verification of the Correctness of the entries made therein and he had never pointed out the incorrectness  in his date of birth
The CAT s Judgment enclosed by Sh
Harnam Singh with his representation is thus distinguishable from the case of Sh
Harnam Singh
Apart from this Sh
Harnarn Singh has not furnished any new grounds for reconsideration of his case
Harnam Singh is also informed that no further representation on the subject will be considered
unless he furnished any new factsinformation
 The respondent challenged the above order through OA No 125292 dated 2951992 before the CAT
The application was contested by the appellant on various grounds including the plea of limitation
It was urged by the appellant that the OA was barred under FR 56 Note 5 and General Financial Rules 1979 and therefore did not merit any consideration
The appellant had further asserted that the respondent knew about the entry of his date of birth as 2051934 in his service record since he had signed his service book on various occasions ever since he joined the service but his representation for correction of date of birth was made only in September 1991 much belatedly and even beyond a period of five years from the date of entry into Government service and as envisaged by SO 3997 dated 30th of November 1979 the same could not therefore be 869 entertained
The Tribunal however did not agree with the appellant and allowed the application filed by the respondent directing the appellant to correct his date of birth in the service record as per the date of birth recorded in the matriculation certificate
Mr VC Mahajan the learned Senior Advocate appearing for the Union of India has reiterated the arguments raised before the Tribunal and has further submitted that in view of the law laid down in Amulya Chandrakalita vs Union of India  Ors the judgment in the present case rendered by only a single member of the Tribunal is invalid and therefore the order deserves to be set aside and the case remanded to the Tribunal for its fresh disposal in accordance with law
Learned counsel for the respondent has on the other had argued for dismissal of the appeal and supported the impugned order of the Tribunal
The fact that the date of birth was recorded on the first sheet of the service book when the respondent joined as a peon as well as in various seniority lists of UDC and LDC issued from time to time as 2051934 is not in dispute
It also is not disputed that the date of birth of the respon dent in the matriculation certificate issued by the Punjab University is 741938
The fact that the matriculation certificate has been produced before the department by the respondent after he had passed the matriculation examination and an alteration of his educational qualification was made in the service book is also beyond controversy
There is also no doubt that while submitting the matriculation certificate the respondent had not requested for any alteration in the date of birth and that he had filed the representation for correction of his date of birth for the first time only in September 1991 just a few months before his notified date of superannuation
A Government servant after entry into service acquires the right to continue in service till the age of retirement as fixed by the State in exercise of its powers regulating conditions of service unless the services are dispersed with on other grounds contained in the relevant service rules after following the procedure prescribed therein
The date of birth entered in the service records of a civil servant is thus of utmost importance for the reason that right to continue in service stands decided by its entry in the service record
A Government servant who has declared his age at the initial stage of the employment is of course not precluded from making a 870 request later on for correcting his age
It is open to a civil servant to claim correction of his date of birth if he is in possession of the irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth the Government servant must do so without any unreasonable delay
In the absence of any provision in the rules for correction of date of birth the general principle of refusing relief on grounds of latches or stale claims is generally applied to by the courts and tribunals
It is nonetheless competent for the Government to fix a time limit in the service rules after which no application for correction of date of birth of a Government servant can be entertained
A Government servant who makes an application for correction of date of birth beyond the time so fixed therefore cannot claim as a matter of right the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous
The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire
Unless altered his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age
Indeed as held by this Court in State of Assam  Anr
vs Daksha Prasad Deka  Ors  a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he can not claim to continue in service on the basis of the date of birth claimed by him
This court said The date of compulsory retirement under FR 56a must in our judgment be determined on the basis of the service record and not on what the respondent claimed to be his date of birth unless the service record is first corrected consistent with the appropriate procedure
A public servant may dispute the date of birth as entered in the service record and may apply for correction of the record
But until the record is corrected he cannot claim that he has been deprived of the guarantee under Article 311 2 of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record
 871 Note 5 to Fundamental Rule 56 governing correction of date of birth in the service record substituted by Government of India Ministry of Home Affairs Department of Personnel and Administrative Reforms Notification No 1901779Estt A dated 30th November 1979 published as SO 3997 in the Government of India Gazette dated 15th of December 1979 limits the exercise of the right by the government servant to seek alteration of his date of birth only within the specified period
The provision reads as under Note 5 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 documentary evidence such as High School or Higher Secondary 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 bonafide mistake has occurred and c the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered 872 Government service
 According to the above amendment it is obvious that the request for correction of date of birth is required to be made by the Government servant within five years of his entry into Government service and his date of birth may be corrected if it is established that a genuine bona fide mistake had occurred while recording his date of birth at the time of his entry into Government service
The CAT in the instant case was of the opinion that the bar of five years could only apply to such Government servants who joined service after 1979 when the amendment came into force and that the said period of limitation would not apply to Government servants who were in service for more than five years prior to 1979
The Tribunal while allowing the application filed by the respondent and directing the appellant to correct his date of birth in the service record noticed the objection raised on behalf of the appellant to the effect that the mere filing of the matriculation certificate in 1956 did not imply that the date of birth already recorded in the service record stood altered by the appellants automatically even without the concerned Government servant making a prayer in that behalf or raising the issue at the relevant time after his posting as LDC
CAT held that there was no period of limitation for the correction of date of birth and in so holding relied upon the judgment in the case of Darshan Singh vs Union of India decided by the Principal Bench of CAT on 981990 and observed that only on the basis of coming very late for alteration of the date of birth the State could not oust the claim of the respondent
The Tribunal observed It is trite that at any time during the service it is open to an employee to make a request for the alteration of the recorded date of birth and that if the request is supported by cogent evidence to establish that the recorded date is wrong correction has to be made The Tribunal also noticed the submission of the learned counsel for the appellant to the effect that the judgment in Darshan Singh s case supra was not applicable because unlike in Darshan Singh s case who had no occasion to see his service book even once during his entire service career the respondent herein had not only seen his service book several times but had also signed the same at various places in verification of the correctness of the entries made therein and had never objected to 873 the date of birth as contained in the first page of the service book or as given in various seniority lists prepared and published form time to time till September 1991
The Tribunal disposed of the submission by observing A perusal of the service record does show that the pages which the applicant has signed is not the first page where the date of birth is recorded but subsequent pages where other service particulars like pay fixation etc
are mentioned
As regards the entry of date of birth in the seniority list that may be within the knowledge of the applicant but seeing to the nature of the job on which the applicant is engaged being ministerial it is not expected that the seniority would have mattered much as the promotion is made only on the basis of seniority cum fitness in due course
Moreover there is no authenticity regarding the date of birth recorded in the seniority list and more emphasis is attached to the position of the person in the lis t vis a vis other similarly placed persons in the cadre
 The approach of the Tribunal does not commend to us as it tends to create an invidious discrimination unsustainable in law by creating two artificial classes of Government Servants between those who joined service before and after 1979
It is a too simplistic way of looking at the issue ignoring the ground realities and the intention of the rule making authority to discourage stale claims and non suit such government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation
To say that the respondent even though he signed the service book at a number of places at different times and saw the seniority lists may not have still come to know as to what his recorded date of birth was is to ignore human conduct and put premium on negligence
The observations of CAT quoted above are neither logical nor sound
Of course Note 5 to FR 56 m was incorporated only in 1979 and it provides for request to be made for correction of date of birth within five years from the date of entry into Service but what is necessary to be examined is the intention of the rule making authority in providing the period of limitation for seeking the correction of the date of birth of the Government Servant viz to discourage stale claims and belated applications for alteration of date of birth recorded in the service book at the time of initial entry
It is the duty of the courts and tribunals to promote that 874 intention by an intelligible and harmonious interpretation of the rule rather than choke its operation
The interpretation has to be the one which advances the intention and not the one which frustrates it
It would not be the intention of the rule making authority to give unlimited time to seek correction of date of birth after 1979 to those government servant who had joined the service prior to 1979 but restrict it to the five year period for those who enter service after 1979
Indeed if a government servant already in service for a long time had applied for correction of date of birth before 1979 it would not be permissible to non suit him on the ground that he had not applied for correction within five years into service but the case of government servant who applied for correction of date of birth only after 1979 stands on a different footing
It would be appropriate and in tune with harmonious construction of the provision to hold that in the case of those government servants who were already in service before 1979 for a period of more than five years and who intended to have their date of birth corrected after 1979 may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979
This view would be in consonance with the intention of the rule making authority
The interpretation which we have placed on the provision with regard to the cases of those government servants who were in service prior to 1979 but had not sought the alteration in the date of birth till after the amendment in 1979 is followed by the view which this court has taken earlier
By way illustration we may refer to the case of New India Insurance Co Ltd vs Smt
Shanti Misra  where the husband of the respondent in that case died in an accident in 1966
A period of two years was available to the respondent for instituting a suit for recovery of damages
In March 1967 the Claims Tribunal under Section 110 of the was constituted barring the jurisdiction of the civil court and prescribed 60 days as the period of limitation
The respon dent filed the application in July 1967
It was held that not having filed a suit before March 1967 the only remedy of the respondent was by way of an application before the Tribunal
So far the period of limitation was concerned it was observed that a new law of limitation providing for a shorter period cannot certainly extinguish a vested right of action
In view of the change of the law it was held that the application could be filed within a reasonable time after the constitution of the Tribunal and that the time of about four months taken by the respondent in approaching the 875 Tribunal after its constitution could be held to be either reasonable time or the delay of about two months could be condoned under the proviso to Section 110 A3
Similarly in Vinod Gurudas Raikar vs National Insurance Co  the precise question which was considered by the Bench was The period of limitation for filing a claim petition both under the old Act and the new Act is six months from the date of the accident
The difference in the two Acts which is relevant in the present case is in regard to the provisions relating to condonation of delay
In view of the proviso to sub section 3 of Section 166 of the new Act the maximum period of delay which can be condoned is six months which expired on January 22 1990
If the new Act is held to be applicable the appellant s petition filed in March had to be dismissed
The case of the appellant is that the accident having taken place before the new Act came into force the proceeding is governed by the old Act where there was no such restriction as in the new Act
The question is as to which Act is applicable the new Act or the old
 The Bench opined If in a given case the accident had taken place more than a year before the new Act coming in force and the claimant had actually filed his petition while the old Act was in force but after a period of one year the position could be different
Having actually initiated the proceeding when the old Act covered the field a claimant could say that hi s right which has accrued on filing of the petition could not be taken away
The present case is different
The right or privilege to claim benefit of a provision for condonation of delay can be governed only the law in force at the time of delay
Even the hope or expectation of getting the benefit of an enactment presupposes applicability of the enactment when the need arises to take its benefit
In the present case the occasion to take the benefit of the provision for con donation of delay in filing the claim arose only after repeal of the old law
Obviously the ground for condonation set 876 up as sufficient cause  also relates to the time after the repeal
The benefit of the repealed law could not therefore be available simply because the cause of action for the claim arose before repeal Sufficient causes a ground of condonation of delay in filing the claim is distinct from cause of action  for the claim itself The question of condonation of delay must therefore be governed by the new law
We accordingly hold that the High Court was right in its view that the case was covered by the new Act and delay for a longer period than six months could not be condoned
 In the instant case the date of birth recorded at the time of entry of the respondent into service as 20th May 1934 had continued to exist unchallenged between 1956 and September 1991 for almost three and a half decades
The respondent had the occasion to see his service book on numerous occasions
He signed the service book at different places at different points of time
Never did he object to the recorded entry
The same date of birth was also reflected in the seniority lists of LDC and UDC which the respondent had admittedly seen as there is nothing on the record to show that he had no occasion to see the same
He remained silent and did not seek the alteration of the date of birth till September 1991 just a few months prior to the date of his superannuation
Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him
Even if the respondent had sought correction of the date of birth within five years after 1979 the earlier delay would not have non suited him but he did not seek correction of the date of birth during the period of five years after the incorporation of note 5 to FR 56 in 1979 either
His inaction for all this period of about thirty five years from the date of joining service therefore precludes him from showing that the entry of his date of birth in service record was not correct
In the facts and circumstances of this case we are not satisfied that the Tribunal was justified in issuing the direction in the manner in which it has been done
The application for correction of date of birth entered in the service book in 1956 for the first time made in September 1991 was hopelessly belated and did not merit any consideration
As already noticed it had not been made even within the period of five years from the date of coming into force of Note 5 to FR 56 m in 1979
The Tribunal therefore 877 fell in error in issuing the direction to correct his date of birth and the impugned order of the Tribunal cannot be sustained
Ordinarily keeping in view of judgment of this Court in Amulya Chandra Kalita s case supra we should have remanded the case to the Tribunal for a fresh disposal because of the fact that the order of the Tribunal was rendered by only one member or to have awaited the decision of some cases pending in this Court in which the validity of the order passed by single member of the tribunal is under consideration but since we have ourselves looked into all the facts and circumstances of the case and given an interpretation to Note 5 to FR 56 m we do not consider it
expedient to adopt either of these course
In view of the interpretation placed by us the appeal succeeds and is allowed
The impugned order of the Tribunal is set aside
There shall however be no order as to costs
NVK Appeal allowed


Summary:
Some of the proprietors of the former State of Madhya Pradesh granted to the several petitioners rights to take forest produce mainly tendu leaves from the forests included in the Zamindaris belonging to the proprietors
The agreements conveyed to the petitioners in addition to the tendu leaves other forest produce like timber bamboos etc the soil for making bricks and the right to build on and occupy land for the purpose of their business
These rights were spread over many years but in the case of a few the period during which the agreements were to operate expired in 1955
Some of the agreements were registered and the others unregistered
After the coming into force of the Madhya Pradesh Abolition of Proprietary Rights Estates Mahals Alienated Lands Act 1950 the Government disclaimed the agreements and auctioned the rights afresh acting under section 3 of the Act under which  all proprietary rights in an estate   in the area specified in the notification vesting in a proprietor of such estate or in a person having interest in such proprietary right through the proprietor shall pass from such proprietor or such other person to and vest in the State for the purposes of the State free of all encumbrances
The petitioners filed petitions under article 32 of the Constitution of India challenging the legality of the action taken
by the Government on the ground that it was an invasion of their fundamental rights
They contended 1 that the Government stepped into the shoes of the quondam proprietors and was bound by the agreements into which the latter had entered before their proprietary rights were taken over by the Government 2 that the petitioners were not proprietors as defined in the Act and therefore sections 3 and 4 of the Act did not apply to them 3 that the agreements were in essence and effect licenses granted to them to cut gather and carry away the produce in the shape of 340 tendu leaves or lac or timber or wood 4 that the agreements granted no interest in land  or benefit to arise out of land  and that object of the agreements could only be described as sale of goods as defined in the Indian Sale of Goods Act and 5 that the interest of the petitioners was not proprietary right but only a right to get goods in the shape of leaves etc The petitioners relied on the decision in Firm Chhotabhai jethabai Patel and Co vs The State of Madhya Pradesh  Held  1 that the agreements required registration and in the absence of it the rights could not be entertained
Srimathi Shantabai vs State of Bombay   followed
2that in cases where the period stipulated in the agree ment had expired the only remedy if any was to sue for breach of contract and no writ to enforce expired agreements could issue
 3 that on their true construction the agreements in question were not contracts of sale of goods
4 that both under the Act in question and the Central Provinces Land Revenue Act 1917 the forests and trees in the Zamindari area belonged to the proprietors and they were items of proprietary rights
Consequently the rights conveyed to the petitioners under the agreements were proprietary rights which under sections 3 and 4 of the Act became vested in the State
5that assuming that the agreements did not amount to grant of any proprietary right by the proprietors to the petitioners the latter could have only the benefit of their respective contracts or licenses
In either case the State had not by the Act acquired or taken possession of such contracts or licenses and consequently there had been no infringement of the petitioners  fundamental rights which alone could support a petition under article 32 of the Constitution
Chhotabai jethabai Patel and Co vs The State of Madhya Pradesh   not followed
Ananda Behera vs The State of Orissa 1955 2 SCR gig followed