THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE K.G.SHANKAR W.P.NO.16837 OF 2011 ORDER: ( Per GM,J) This writ petition is filed seeking to call for the records pertaining to the order dated 11-4-2011 in O.A.No.659 of 2010 on the file of the Central Administrative Tribunal, Hyderabad. The brief facts of the case are as follows: 1st respondent-applicant is a Group ‘A’ Officer. He was recruited through UPSC as Labour Officer ( c ) in the year 1979 and joined in the service on 29-1-1980. He was promoted as Senior Labour Officer/Regional Labour Commissioner in the year 1990 and Deputy Chief Labour Commissioner ( c ) in the year 1998 and presently working as Welfare & Cess Commissioner at Hyderabad. At the time of joining into service, his date of birth had been entered as 4-6-1951 based on the date of birth entered in the educational record. When he came to know that his date of birth is 19-12-1952 and not 4-6-1951, he filed WP No.9761 of 1983 before this Court, for correction of his date of birth as 19-12-1952 instead of 4-6-1951. When the matter was pending adjudication, consequent to the formation of the Tribunal, the said writ petition was transferred to the Tribunal and re-numbered as TA No.79 of 1988. The said TA No.79 of 1988 was disposed of with a direction to the applicant to approach the concerned authority for alteration of date of birth. In pursuance of such direction, the applicant made a representation on 2- 11-1988 for correction of his date of birth in the service record. The said representation was rejected vide order dated 27-11-1992. Aggrieved by the same, the applicant filed OA No.210 of 1993. The said OA was dismissed vide order dated 8-11-1995. Thereafter, the applicant has approached the authorities under Registration of Births and Deaths Act, 1969 for issuing correct certificate of his date of birth. After obtaining such certificate, he made representation to the authorities for correction of his date of birth as per the certificate issued by the competent authority. When there was no response, he filed O.S.No.931 of 2003 on the file of III Junior Civil Judge’s Court, City Civil Court, Hyderabad for correction of his date of birth in the education records as well as in the service records. The said suit was dismissed vide order dated 25-10-2005. Challenging the same, the applicant filed appeal in A.S.No.49 of 2003 on the file of XII Additional Chief Judge, City Civil Court, Hyderabad and the same was allowed declaring that the applicant was born on 19-12-1952. In pursuance of the said order, the applicant submitted a representation on 22-2-2008 to the respondent-authorities for correction of his date of birth in the service record as 19-12-1952 instead of 4-6-1952. As there is no response, the applicant filed OA No.204 of 2010 before the Tribunal and the same was disposed of on 3-3-2010 with a direction to the respondent to dispose of the detailed representation made by the applicant on 14-12-2009. On 25-5-2010, the authorities have passed the impugned order dated 25-5-2010 rejecting the claim of the applicant for change of date of birth on the ground that the applicant has not made request for change of date of birth within five years from the date of entry into Government service and that no genuine or bona fide mistake has occurred while entering the date of birth of the applicant in the service records and as such the request of the applicant cannot be acceded to. Hence, the applicant filed OA No.659 of 2010. The Tribunal vide order dated 11-4-2011 while allowing the OA set aside the impugned order with a direction to the respondent therein to record 19-12-1952 as the date of birth of the applicant instead of 4-6-1951 in the service record of the applicant basing on the judgment and decree dated 30-11-2007 passed in A.S.No.49 of 2005, within six weeks from the date of receipt of copy of the order. Challenging the same, the present writ petition has been preferred. 1st respondent-applicant filed counter-affidavit contending the averments made in the petition. Heard the learned Assistant Solicitor General appearing on behalf of the petitioner and the learned counsel appearing on behalf of respondent No.1. Learned Assistant Solicitor General appearing on behalf of the petitioner contends that the authorities concerned at first instance issued a certificate showing the date of birth of the 1st respondent as 19-12-1953 and subsequently, the 1st respondent produced another certificate showing his date of birth as 19-12-1952 quite contrary to the date mentioned in SSLC certificate. He further contends that the authorities rejected the claim of the applicant for correction of date of birth as 19- 12-1952 instead of 4-6-1951 vide order dated 25-5-2010 stating that the 1st respondent has not fulfilled certain conditions as required under FR 56 note 6. He also contends that the 1st respondent did not make any request for change of date of birth in the service records within five years from the date of joining into service and that there is no bona fide mistake occurred while entering his date of birth in the service records. In support of his contention, he placed reliance on the judgment of the Apex Court in Union of India vs., Harnam Singh [1] wherein it is held that “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.” He also placed reliance on the judgment of the Apex Court in Secretary and Commissioner , Home Department and others vs., R.Kirubakaran[2] wherein it is held that “Most of the states have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. In the case of ‘State of Assam v. Daksha Prasad Deka[3]’, this Court said that the date of the compulsory retirement “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 consistently with the appropriate procedure”. This Court in the case of Government of A.P. v. M.Hayagreev Sarma[4] had occasion to examine the A.P Public Employment (Recording and Alteration of Date of Birth) Rules, 1984. The public servant concerned had claimed correction of his date of birth with reference to the births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births and deaths register ignoring the rules framed by the State Government referred to above.” This Court said: (SCC p.685, para 7) “The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth.” An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the Court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court of the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in may cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.” He also relied on the judgment of the Apex Court in Union of India vs. C.Rama Swamy and others[5], wherein it is held that “It was faintly submitted that on the basis of the birth certificate obtained form the Sub-Registrar’s Office by the respondent as well as his horoscope it should be held that there was a bona fide clerical mistake and therefore, the date of birth could be corrected. We are unable to accept the submission. Bona fide clerical error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded. In the present case admittedly the date of birth indicated in the application form filled in for the purpose of taking the competitive examination was that of 17-6-1939. This date was then incorporated in his descriptive roll kept in his service record and this was duly signed by the respondent. Admittedly the respondent also believed this to be his correct date of birth, therefore, it was not a case where the date of 17-6-1939 had been incorrectly recorded in the service book as a result of any bona fide clerical mistake. In fact in his original representation it was not even suggested by the respondent that there had been any clerical mistake. The positive case put forth by the respondent was that it is after the demise of his mother that he had discovered that his real date of birth was 15-6-1941 and not 17-6-1939.” On the other hand, learned counsel appearing on behalf of the first respondent submits that the Tribunal has not committed any error while allowing the OA. He further submits that the 1st respondent agitated for correction of his date of birth in educational records and service register within five years of his joining service by filing W.P.No.9761 of 1983. He further submits that the Civil Court after contest by the Department allowed A.S.No.49 of 2005 declaring that the date of birth of the first respondent is 19-12-1952 as per entry in the Birth Register. He also submits that the writ petitioner should implement the judgment of the civil Court as well as the Tribunal by making corrections in Service Register. A perusal of the material brought on record goes to show that the first respondent was recruited through UPSC as Labour Officer ( c ) in the year 1979 and joined in service on 29-1-1980 and his date of birth was entered in the service register as 4-6-1951 based on the date of birth entered in the educational record. On coming to know the about the said mistake, he filed WP No.9761 of 1983 and the same was transferred to Central Administrative Tribunal. The Tribunal while disposing of the same directed the first respondent to approach the concerned authority for alteration of date of birth and as such he approached the authorities concerned. As there was no response, he filed O.S.No.931 of 2003 and the same was dismissed, against which he filed AS No.49 of 2003 and the same was allowed declaring the date of birth of the first respondent as 19-12-1952. The approach of the first respondent is clear that he started his efforts for change of his date of birth in the service records, from three years of his service viz., 1983. It goes to show that he made representations to the concerned authorities within five years of his joining service as required under FR 56 Note.6. Further, after declaration of the date of birth of the first respondent as 19-12-1952 in A.S.No.49 of 2005, the writ petitioner- authority had not filed any further appeal and as such the judgment and decree of the Civil Court attained finality. In view of the same, now the petitioner cannot take a stand that there is neither genuine nor bona fide mistake in entering the date of birth of the 1st respondent-applicant in the service register. The basis for entry of date of birth in the service record is the date of birth entered in the school register. Only because of such bona fide mistake, the civil Court decreed the suit. Apart from that, the first respondent has fulfilled the requirements of FR 56 Note 6. In the facts and circumstances of the case, we are of the view that there is no illegality or irregularity in the order passed by the Tribunal and the writ petition is liable to be dismissed. Accordingly, the writ petition fails and is accordingly dismissed. No costs. _________________________ GHULAM MOHAMMED,J _______________ K.G.SHANKAR,J Dated: 27-6-2011 Note: Issue CC by two days. (B.O) rkk [1] (1993) 2 SCC 162 [2] 1994 Supp (1) SCC 155 [3] (1970) 3 SCC 624 [4] (1990) 2 SCC 682 [5] (1997) 4 SCC 647