^ HIGH COURT OF CHHATTISGARH AT BILASPUt n^vy bIVISION BENCH: HON. MR. bHIRENbRA MISHRA <& HON. MR. R.N. CHANDRAKAR. JJ Writ ADpeal No. 71/2007 ^ APPELLANTS (Respondentsy Senior Regional Manager, FCI, Raipur <& another ^ Versus ; RESPONDENT Nandram Banjare JUD&MENT FOR CONSIDERATOIN Sd/- JU DGE i^_.08.2009 ^"w- HON'BLE MR. JUSTCCE R.N. CHAN&RAKAR 3 cu^-e-fi- POST FOR JU&6EMENT ON ^08-2009 Sd/- R.N. Chandrakar Judge Sd/- Dhirendra Mishra Judge „.- :-^' ^»^ <0^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON. MR. bHIRENDRA MISHRA & HON. MR. R.N. CHANbRAKAR. JJ Writ ADDeal No.71/2007 (Writ Appeal u/s 2 (1) of C.Q. High Court (Appeal to Oivision Bench) Act, 2006 APPELLANTS 1. Senior Regional Manager, FCI, Regional Office, (Respondents) Ring Road Junction, NH No.6, Near Railway Crossing, Telibandha, Raipur (Chhatisgarh) 2. Oistrict Manager, FCI, Link Road, Bilaspur (CG) Vs RESPONbENT: (Petitioner) Nandram Banjare, S/o Dileshwar Banjare, Aged about 47 yrs. R/o Near Raipur Naka, Behind Shivam Clinic, Bilaspur (C.6.) ^ Present: Mr. B.P. Gupta, Advocate for the appellant. Mr. M.b. bhote, Advocate for respondent. JU DGM ENT (Passed on 1&..8.2009) bhirendra Mishra. J; 1. This writ appeal is directed against the order dated 23.1.2006 passed in W.P. No.55/2003 whereby learned Single Judge allowing the writ petition of the respondent/petitioner has held that the petitioner's date of birth is 16.8.1955 and accordingly directed the appellants/ respondents to take appropriate steps. 2. For the sake of convenience, the parties shall be referred hereinafter as per their status before the writ court. 3. The petitioner's case before the writ court was that he joined his services as 'Watchman' under the respondents on 1.6.1973. He was medically examined before joining and he also submitted his Class 8th mark-sheet according to which his date of birth is 16.8.1955. Howeyer, the respondents incorrectly recorded the petitioner's date of birth in his service record as 16.7.1946. The petitioner passed higher secondary school certificate examination in the year 1979 and in the certificate of AnnexureP-3 and mark-sheet of Annexure P-4 also his date of birth is recorded as 16.8.1955. He was promotedon the post of Assistdnt Grade- III on the basis of higher secondary school certificate in the month of Au9ust, 1985 and thereafter he was again promoted to the post of Assistant Grade-II. He had submitted his date of brrth certificate at the time of joining in the year 1973 as well as in the year 1979, however, ^^ /^^ ^ w^ 63 his date of birth was not corrected. Finally, he made representations for correction of his date of birth on 27.11.2000 & 17.4.2002 (Annexure P-7 & P-8). However, when his date of birth was not corrected/the petition was filed. 4. The respondents in their return submitted that the petitioner himself affirmed his dateof birthas 16.7.1946 at the time of his appointment through declaration made by him. beclaration submitted by the petitioner was also supported by the medical certificate and the report sent by the employment exchange sponsoring his name. Though he has mentioned in his declaration that he passed Class 8 in the year 1969, however. if it is so, then he could have attached the certificate showing his date of birth along with his declaration. Suppression of certificate at the time of appointment and producing the same after 30 years is legally not permissible. After the petitioner submitted certificate to the respondents, the respondents vide memo dated 10.4.1980 (Annexure R-l) directed the petitioner to explain the circumstances under which he tried to cheat the organization as he procured employment by cheating the organization. When the petitioner failed to submit explanation another memo of Annexure R-4 dated 20.10.1981 was issued to the petitioner. However, representations for correction of date of birth were made by thepetitioner only on 27.11.2000 <& 19.4.2002 i.e. at the fag end of his career. 5. Mr. B.P. Gupta, learnedcounsel for appellants/respondnets submits that observation of the learned Single Judge that there is overwriting in the date of birth column of the service record of Annexure R-l is without any pleading of the petitioner, as the petitioner never challenged the same in his writ petition. On the contrary, before joining the petitioner himself made declaration vide Annexure R-2 dated 29.5.1973 inwhich he has stated his age as 27 years. Along with declaration he also submitted medjcal certificate issued by the Civil Surgeon, Bilaspur dated 29.5.1973. The petitioner never applied for correction of his date of birth in the month of July, 1979.as he only prayed for entering his name in the list of matriculate Watchmen for further promation in the Class-III cQtegory. ^ The petitioner did not file any document to establish that he applied for correction of date of birth in his service record before 27.11.2000. He further submits that Note-6 of the Fundamental Rule 56 provides for request for change of date of birth according to which date of birth 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 only if a request is made in this regard within five years of his entry into the government service. The aforesaid provision was duly circulated by the respondent-Food Corporation of India for information, guidance and necessary action. As per Standing Orders applicable to the employees, where the date of birth certificate is not made available by the employee, the date of birth in the service recordis to be entered on the basis of a medical certificate issued by a medical officer not below the rankof Assistant Surgeon. It further provides that a date of birth once recorded in the service record in the establishment, the same shall be considered as the only evidence of age of the employee and all the formalities for recording date of birthis to be completed within the period of three months from the date of appointment. The petitioner is estopped by his conduct and he cannot be permitted to change the date of birth from one given by him at the time of his entry in the service, particularly. when the difference is of nine years. Further relying upon the judgment in the matter of 6.M. Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and others reported in (2000) 8 SCC 696 it was argued that in the matters of determination of date of birth where certificates produced by the employee showing his date of birth different from that entered in his service record acceptable is a disputed question of fact and the same cannot be decided in exercise of jurisdiction under Article 226 of the Constitution of India by undertaking an inquiry into such question. It is settled law that correction in the service record with respect to entry in "^ -^ INIB^ 7wm1Niaui^.- date of birth of the emplbyee long after joining service particularly when the employee is on the verge of retirement, should not generally be accepted. 6. Mr. bhote, learned counsel for the petitioner submitted that the petitioner had submitted Class 8th certificate at the time of joining in which his date of birth was mentioned as 16.8.1955. The petitioner further submitted his higher secondary school certificate in the month of Juty, 1979 inwhich also his date of birth was duly mentioned, however, when the respondents didnot correct his date of birth evenafter more than 20 years, representations were filed by the petitioner in the year 2000 & 2002. Learned Single Judge has elaborately discussed the above fact in the impugned order and reached to the conclusion that it is established from the school certificates that the date of birth of the petitioner is 16.8.1955, there is no delay in applying for correction of date of birth as the fact was admittedly brought to the notice of the respondents way back in the year 1979 and when no action was taken the petition was filed after submitting representations to the respondents. 7. We have heard learned counsel for the parties. We have perused the record and also the impugned order. 8. The petition of the petitioner was allowed by the learned Sin9le Judge with the observation that date of birth has been entered in the service record (Annexure R-l) after blackening the earlier entry; in the memorandum dated 10.4.1980 (Annexure R-3) it is stated that the petitioner has submitted mark sheet of higher secondary school certificate examination according to which his death of birth was 16.8.1955. Since the petitioner had submitted an application on 10.7.1979 along with higher secondary school certificate wherein his date of birth was recorded as 16.8.1955, therefore, it cannot be said that the petitioner has raised the dispute regardin9 change of date of birth after more than twenty years. Since the respondents kept quite and did not proceed against the pett'tioner, as proposed in their memorandum of Annexure R-3 <& R-4, it is clearly established on the basis of record that the dispute was raised in the year 1979 itself and thus, there is no delay -^ -t" 11»^1^, in making the application for correction of date of birth on the basis of highersecondary school certificate which indicates his date of birth as 16.8.1955 and therefore, representation dated 27.11.2000 cannot be taken as first application/representation for correction of date of birth. 9. Learned Single Judge has expressed his doubt regarding entry against date of birth column in the service record on the ground that the entry has been made after blackening the entry earlier made and that too without initials. However, we find force in the arguments of Mr. Gupta, learned counsel for the appellants-Food Corporation of India that it is not the case of the petitioner that entry against the date of birth made in the service record has been fabricated by the respondents, On the other hand, there is no explanation by the petitioner as to under what circumstances he made declaration at the time of joining showing his age as 27 years and submitted his medical certificate issued by the Civil Surgeon showing his age as 27 years. 10. In reply to our pointed query, learned counsel for the petitioner could not demonstrate as to when the petitioner applied for correction of his date of birth in the service record. He has not filed any document before the writ Court or this Court to show that he requested for alteration of his date of birth recorded in the service book before 27.11.2000. From perusal of the photocopy of application dated 9.7.1979, produced by the respondents during the course of arguments and not disputed by learned counsel for the petitioner, we observed that the petitioner annexed his higher secondary school certificate and requested for including his name in the list of matriculate Watchmen for further promotion in Class-III category and there is no prayer in this application for change of his date of birth and the prayer was made for the first time in the year 2000. The petitioner did not reply to the explanation sought by the respondents with respect to discrepancy in the date of birth entered Jn the service record on the basis of declaration made by him and matriculation certificate submitted by him in the year 1979. 11. On the basis of show cause notice issued by the respondent Food Corporation of India to the petitioner in the year 1980 for explaining ^3 discrepancy in his date of birth recorded in the matriculation certificate and entered in the service record and by not tQking any action against the petitioner, learned Single Judge has arrived at a conctusion that by submitting his matriculation certificate in the year 1979 the petitioner had impliedly applied for correction of his date of birth. It has been further held that when no action was taken in pursuance of notice dated 10.4.1980 against the petitioner and the date of birth was also not corrected in the service record for a period of 20 years, the petitioner filed an application for correction of date of birth on 27.11.2000 and therefore, it cannot be said that the application for correction of date of birth was made for the first time in the year 2000. 12. We are unable to accept the reasoning of the learned Single Judge in this regard. The petitioner did not muster courage to reply the notice issued to him in the year 1980 and did not challenge the entry regarding date of birth in his service record made on the basis of his own declaration though he had opportunity to chaltenge the entry by referring to Class 8 certificate, which he claims to have submitted at the time of his joining and in which his correct date of birth is mentioned i.e. 16.8.1955. However, he did not reply to the show-cause notice and reminders sent by the respondents in this regard. Therefore, simply because no action was taken in pursuance of the notice dated 10.4.1980, it cannot be concluded that the petitioner had requested for correction of his date of birth in the service record. Further, by the two datesof birth given by the petitioner, firstly at the time of joining service and thereafter on the basis of matn'culati'on certificate, an irresistible conclusion can be drawn that either the petitioner deliberately gave incorrect date of birth at the time of his entry in service to his employer as well as employment exchange to seek employment by presenting himself as 27 years old though he was less than 18 years and was not eligible for employment or he has procured the subsequent document by appearing in the matriculation examination by showing wrong date of birth. .^^^ ..'^ % ^•s ^ ^ ^' ; ^.' ^ ' 13. We also note that thepetitioner haspleaded in his petition that he passed Class 8th examination in the year 1969 and annexed the documents of Annexure P-1 <& P-2, however, the documents of Annexure P-1 <& P-2 pertain to certificate and mark sheet of Class-7 passed in the year 1969 and the petitioner has not filed any certificate or mark sheet of Class 8th. 14. In the matter of Union of India Vs. Harnam Singh reported in AIR 1993 SC 1367 the Hon'ble Supreme Court while dealing with the right of a government servant to seek alteration of his date of birth has held that Note-5 to the Fundamentat Rule 561imits the exercise of the right by the government servant to seek alteration of his date of birth onty within a specified period. Relevant provision has been quoted 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 wi'th reference to the date of birth declared by the Government servantat the time of appointment and accepted by the appropriate authority on production, as far as possible, of confrrmatory 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 shalt 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 Comptrotler and Auditor-General in regard to persons serving in Indian Audit and Accounts bepartment,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; and (c) the date of birth so altered woutd 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 Government Service." It has been further held that according to 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 ..f' '' / |/-g •<-\ ^.> IS' ^ 'v^ *l»HfW'^ 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. 15. In the instant case, if the dateof the petitioner is accepted according to his matriculation certificate/then he was admittedly minor i.e. below 18 years, at the time of entry in the service and thus, ineligible for the post. Therefore, request of the petitioner for alteration of his date of birth on the basis of matriculation certificate procured by him after joining the service cannot be accepted in viewof clause (c) of Note-5 of the Fundamental Rules 56. / 16. On the basis of aforesaid discussions, we are of the opinion that entry regarding date of birth of the petitioner was made in his service record on the basis of declaration made by him in the year 1973 at the time of his joining, the petitioner did not apply for correction of his dateof birth in the year 1979 and applied for the same only for the first time on 27.11.2000 when he raised a dispute regardin9 his date of birth in his service record. Therefore, in view of the settled law in this regard and also considering the provisions under Fundamental Rules 56, weare of the considered opinion that no direction, as prayed for by the petitioner, for change of his date of bi'rth in his service record on the basis of his matriculation certificate could be issued. 17. Accordingly, we allow this writ appeal, set aside theimpugnedorder dated 23.1.2006 .passed in W.P. No.55/2003 and dismiss the writ petition filed by the petitioner. -^.i. 18. No order as tocosts. Sd/- Dhirendra Mishra Judge Sd/- R.N. Chandrakar Judge Roshan/-