CWP No.7872-CAT of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CASE NO.: CWP No.7872-CAT of 2005 DATE OF DECISION: March 4, 2009 UNION OF INDIA AND ORS. ...PETITIONERS VERSUS HARBHAJAN SINGH AND ANR. ...RESPONDENTS CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MS. JUSTICE NIRMALJIT KAUR. PRESENT: MR. NAMIT KUMAR, ADVOCATE FOR THE PETITIONERS. NONE FOR THE RESPONDENTS. ASHUTOSH MOHUNTA, J. The challenge in the writ petition is to the order of the Central Administrative Tribunal (hereinafter referred to as 'the Tribunal') dated 25.1.2005, in OA No.623-PB of 2004 vide which the petitioners herein were directed to correct the date of birth of the respondent No.1 herein from 5.5.1945 to 15.4.1949. Brief facts of the case are that respondent No.1 herein, namely, Harbhajan Singh was appointed as Casual Labourer on 5.5.1965, by 3 FOD Suranassi, Jalandhar. At that time his date of birth on his declaration was recorded as 5.5.1945, by the Medical Officer. Some time in June, 1965 the respondent No.1 submitted his Matriculation Certificate showing his date of birth as 15.4.1949. Later on he was redesignated as Civilian Assistant Store Keeper in July, 1966. In March, 1969 the AOC Secunderabad noticed the discrepancy in respondent's No.1 date of birth recorded in the service book CWP No.7872-CAT of 2005 -2- and that shown in his matriculation certificate. However, it was decided that since the Matriculation certificate was submitted by the applicant after entry into the service, no cognizance thereof should be taken and the date of birth as recorded at the time of entry in the service be treated as correct. The confusion regarding the date of birth of the respondent No.1 prevailed and finally in the year 1989, disciplinary proceedings were initiated against the applicant for having given wrong date of birth at the time of his entry into service while he was underage of entry into Govt. service. The respondent submitted his explanation to the said charge, maintaining the stand of his date of birth being 15.4.1949, as per matriculation certificate. The court of inquiry which was held in the matter concluded that:- “a. The date of birth 5.5.1945 shown at the time of initial appointment as casual labourer be deemed to be correct and b. if the date of birth recorded in the matriculation certificate viz. 15.4.49 were to be taken as correct, the applicant would be under age for entry into Govt. service.” Respondent No.1 made various representations for correction of his date of birth on the basis of his matriculation certificate, but the same were finally rejected by order dated 27.5.2004. Respondent No.1 challenged the said order before the Tribunal vide OA No.623-PB of 2004. The learned Tribunal allowed the said OA for correction of date of birth of the respondent No.1 herein holding: “6. In the face of matriculation certificate giving the date of birth of the applicant as 5th May, 1949 no reliance can be CWP No.7872-CAT of 2005 -3- placed on any other date of birth muchless a date of birth recorded on the date of the verbal statement of the applicant or the assessment made by the medical officer. Even if the applicant had concealed the fact at the time of initial appointment, presumption of truth given to the Matriculation Certificate cannot be changed. The respondents could have proceeded against the applicant for having given wrong date of birth at the time of initial appointment. When they have given him promotion to the post of Civilian Store Keeper on the strength of his educational qualification, it is fallacious on their part to ignore the date of birth recorded in the Matriculation Certificate either on the ground that it did not tally with the date recorded in the medical certificate produced at the time of initial appointment or on the ground that acceptance thereof would amount to giving initial appointment to an underage person. It was open to the respondents to proceed against the applicant if they had found that he was responsible for wrong declaration of his age in order to get initial appointment. But they cannot say that they would disregard the date of birth given in the Matriculation Certificate because acceptance thereof would amount to giving employment to an underage person. It is a fit case where the date of birth should be taken as per the Matriculation Certificate which is considered to be the best evidence of age. 7. In view of what has been said and discussed above, the OA is allowed. The impugned order dated 27.5.2004 CWP No.7872-CAT of 2005 -4- (Annexure A-1) is quashed. The respondents are directed to correct the date of birth of the applicant as per the date given in his matriculation certificate. This direction shall be complied with by the respondent within a period of two months for the date of receipt of a copy of this order. No orders as to costs.” Aggrieved by the said order of the learned Tribunal, the petitioners have filed the present petition, seeking quashing of the impugned order. In reply to the facts alleged in the petition, we have considered the original application which was filed by respondent No.1 before the Tribunal. We have heard the learned counsel for the parties and have perused the record. Learned counsel for the Union of India has vehemently argued that if the date of birth of respondent No.1 is taken to be 15.4.49, then his initial appointment itself would be in doldrums. He has also placed reliance on Regional Manager Central Bank of India vs. Madulika Guruprasad and others, 2008(3) RCR (Civil) 855 and Amit Chillar vs. State of Haryana and another, 2008(4) SCT 329. Per contra, the learned counsel for respondent No.1 argued that the order of the Tribunal needs no interference as the same is based on Matriculation certificate which is the best evidence of date of birth of a person. After hearing the rival contentions of the counsel for the parties, we are of the view that the contentions advanced on behalf of the CWP No.7872-CAT of 2005 -5- petitioner failed to convince our mind. The Regional Manager's case (supra) is distinguishable on facts as in that case the respondent had obtained employment on the basis of a false caste certificate. Her services were terminated on the ground that she played deception for obtaining employment. This is not the controversy before us. Amit Chillar's case (supra) pertains to the interpretation of Rule 12.6(2) Punjab Police Rules. Therefore, both the cases do not advance the case of the petitioner. This Bench is not oblivious of the law laid down by the Hon'ble Supreme Court in Union of India vs. C. Ramaswamy (1997) 4 SCC as:- “25. In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different then that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particulars date of birth, is obliviously his intention that his age calculated on the basis of that date should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. Infact where maturity is a relevant factor to assess suitability, an older person is ordinarily considered more mature and therefore, more suitable. In such a case it cannot be said that advantage is not obtained by a person because of an earlier CWP No.7872-CAT of 2005 -6- date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to appointed may be a relevant consideration to asses his suitability. 26. In such a case, even in the absence of statutory rule like Rule 16(A), the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. If such decision is challenged the court also ought not to grant any relief even if it is shown that the date of birth, as originally recorded, was incorrect because the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that that would be to his advantage. Once having secured into the service possibly in preference to other candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent the decision in Manak Chand case does not lay down the correct law.” Thus, when the employee has already been taken advantage by declaring a wrong date of birth then later on he is estopped from showing a different date of birth. But we are afraid, even this law cannot be pressed to aid of the CWP No.7872-CAT of 2005 -7- petitioner as firstly there is no nexus between age of the respondent and the employment he was taken in, i.e. casual labour. It is not the case of the petitioner that a person under the age of 20 years could not be appointed as casual labour. Secondly, from the perusal of the date of birth certificate (Annexure A-2), it is clear that the same was issued on 25.6.1965. Thus, it cannot be said by any stretch of imagination that the respondent was in possession of the same on 5.5.1965 (the date of his appointment) and that he held it back only to produce it later on. Moreover, the fact that respondent No.1 was appointed as casual labour even when he did not disclose his qualification itself shows that the said job did not require any qualification. Consequently, it was not obligatory upon the respondent to disclose the fact that his matriculation result/certificate was awaited. Moreover he was prompt enough to produce the said certificate in June, 1965 itself, when it was received by him. The promptness on the part of the respondent is evidence of the fact that he never intended to deceive the petitioner. Had he so intended, he could have digested the fact of receipt of the certificate only to be produced at a later stage, when probably he could not anticipate any danger to his service. Finally, the last stroke which sinks a death nail into the case of the petitioner is the fact that in July, 1966 respondent No.1 was redesignated as Civilian Assistant Store Keeper. As reflected by Annexure A-6 dated 22.11.89, one K.S. Kanwal, Administrative Officer after perusing the service book of respondent No.1 had reported at point (b) that he was redesignated as Civilian Assistant Store Keeper w.e.f. 7.7.1966, on the basis of his Matriculation Certificate. It is settled law that a document shall either swim or sink as a whole. It is not open for the petitioner to accept the CWP No.7872-CAT of 2005 -8- Matriculation Certificate as regards qualification and ignore the same as regards date of birth. Moreover, when in 1965 itself the petitioner became acquainted with the fact that the date of birth of respondent No.1 is infact 15.4.49, instead of proceeding against him they chose to redesignate him in the year 1966. Lastly, it is incredible that as boy of 16 years of age is underage for being employed as casual labour and that the same boy is not underage for being appointed as Civilian Assistant Store Keeper at the age of 17 years. Accordingly, we do not find any infirmity in the order of Tribunal, so as to interfere in the writ jurisdiction under Article 226/227 of the Constitution of India. Therefore,the present petition is dismissed. (ASHUTOSH MOHUNTA) JUDGE March 4, 2009 (NIRMALJIT KAUR) Gulati JUDGE