IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24/03/2004 CORAM THE HON'BLE MR.JUSTICE R.JAYASIMHA BABU AND THE HON'BLE MR.JUSTICE M.KARPAGAVINAYAGAM W.P.No.11234 of 2000 Union of India, rep. by the Chief Secretary to Government, Union Territory of Pondicherry, Pondicherry. .. Petitioner -Vs- 1. Central Administrative Tribunal, (Addl. Bench), Madras, rep. by the Registrar. 2. Adimoolam .. Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of a writ of certiorari, to call for the records on the file of the first respondent pertaining to the order passed in O.A.No.855 of 1996 dated 3.3.1999 and quash the same and dismiss the O.A.No.855 of 1996 preferred by the second respondent herein on the file of the first respondent with costs throughout. !For petitioner : Mr.T.Murugesan, Government Pleader (Pondicherry). ^For respondents: R-1 Tribunal, Mr.V.Ajaya Kumar for R-2 :ORDER M.KARPAGAVINAYAGAM, J. The question involved in this writ petition is whether Adimoolam, the second respondent herein is entitled to ask for correction of his date of birth as 8.6.1940 instead of 12.9.1938 which was according to him wrongly entered in his service record at the time when he had joined service. 2. The facts in brief are as follows: Adimoolam, the second respondent herein joined the cadre of Police Constable on 1.7.1964. At the time of joining, his date of birth was entered in the Service Register as 12.9.1938. In the year 1979, he was issued with a memo directing him to appear before the Office of the Inspector General of Police for appending his signature in the service register. The second respondent refused to sign in the Service Register as he found that wrong entries have been made in regard to the native place, father's name and date of birth and he sent his representation. On 5.11.1981, he was issued with another memo directing him to appear before the I.G. Office to append his signature. When he found that mistake was not rectified, he refused to sign. Again he sent a representation to the I.G. Office to rectify the mistake. There was no response. On 12.12.1991, he gave representation for rectification. On 24.2.1992, he got a reply from the I.G. Office that the alteration in the date of birth is not possible because alteration could be made only within five years from the date of entry into service. It was further directed through the memo that he could approach the Court and obtain necessary order for alteration of the date of birth. Thereafter, in the year 1996, he filed a Civil Suit before the Civil Court, Pondicherry, for a direction to correct the date of birth. Pending suit, on on 25.7.1996, he received a memo from the I.G. Office that he is attaining the age of superannuation from service on 30.9.19 96 on the basis of the date of birth entered in the Service Register. On 6.8.1996, he gave representation requesting the authorities to correct the date of birth and to allow him to continue in service till his actual superannuation. There was no reply. He withdrew the suit and filed an application in O.A.No.855 of 1996 before the Tribunal seeking for the calling of the records relating to the impugned order dated 25.7.1996 and quash the same on the ground that he had not given particulars of date of birth, etc. to the Department at the time of joining service and the Department itself had wrongly entered in the Service Register and to direct the authorities to correct the date of birth as 8.6.1940 instead of 12.9.1938 and allow him to continue in service. 3. This application was contested by the Office of the Inspector General of Police contending that the entries in the Service Register were made at the time when he joined service only on the basis of the information furnished by the applicant. Despite the memos issued directing to append his signature in the Service Register in 1979 and 198 1, he had not done the same. He never made any representation for rectification in the years 1979 and 1981. Originally, he went to the Civil Court. After withdrawal of the suit, he filed the application before the Tribunal. His claim cannot be sustained, as the request for alteration of his date of birth after five years of joining service is not permissible under law. 4. Having considered the contentions of respective parties, the Tribunal allowed the application and directed the Department to enter the date of birth of the applicant as 8.6.1940 and to give consequential reliefs as prayed for. This order dated 25.7.1996 passed by the Tribunal is challenged in this writ petition filed by the Department through the Union of India, represented by the Chief Secretary to Government, Pondicherry, before this Court. 5. Mr.T.Murugesan, learned Government Pleader, Pondicherry would submit that the order under challenge would be against the principles laid down by the Supreme Court rendered in various decisions and the Tribunal has exceeded its jurisdiction by going through some other records and on that basis, wrong finding has been given to the effect that the real date of birth is 8.6.1940. He cited several authorities in support of his submissions. 6. Mr.V.Ajaya Kumar, learned counsel appearing for the second respondent, in justification of the impugned order passed by the Tribunal, would contend that the bar of limitation and Note 6 to the Fundamental Rule 56(m) would not apply to the second respondent/applicant, as the relevant rules relating to the limitation of five years have been introduced subsequent to his entry into service and the said Rule will not have any retrospective effect and the finding by the Tribunal with reference to the wrong entries made at the time of joining service, has been given on the basis of the documentary evidence produced by the second respondent and as such, the order impugned is perfectly justified. He also would cite authorities in support of his submissions. 7. We have heard the learned counsel for the parties and perused the records and the impugned order. 8. Before going into the merits of the case, it would be worthwhile to refer to the reasonings given by the Tribunal for allowing the application filed by the second respondent. (i) The rule of five years will not apply to the applicant, since the applicant has not asked for alteration of date of birth, but he was only asking for a correction of the mistake that had crept in, in the service register. Both in the years 1979 and 1981, the Department did not get attestation in the Service Register. Since the Department did not take any action to get the attestation in the Service Register from the applicant, despite the refusal of the applicant to attest the entries, his claim that his original date of birth is only 8.6.19 40 and not 12.9.1938, shall be considered to be genuine. (ii) A perusal of the Service Register throws a doubt on the way it is maintained by the Department. In the Service Register, the date of birth is written in different ink when compared to other entries made therein. Therefore, the contention of the Department that the entries were made on the basis of the particulars given by the applicant at the time of joining cannot be accepted. (iii) At the time of arguments, the Date of Birth Certificate was produced by the counsel for the applicant. That shows the correct date of birth, father's name, mother's name and native place. Therefore, the entries made in the Service Register of the applicant in the year 1964, are purely wrong entries and this might have been due to the mistake committed by the Department man who recorded the entries at the time of joining. 9. On perusal of the records including the impugned order and on going through the authorities cited by both parties, it is clear that the reasonings given by the Tribunal would suffer from perversity, not only for the reason that the same are against the legal principles laid down by the Supreme Court, but also on the reason that the findings have been given against the fact situation. 10. Let us now evaluate the relevant facts for deciding the issue involved in this case. 11. On 1.7.1964, Adimoolam, the second respondent herein joined the Police service. He was promoted as Head Constable on 27.7.1995. On his joining the Department, Service Register was opened. According to the Department, the particulars relating to age, qualification, date of birth, etc. were all obtained from him and only on the basis of the particulars given by him, entries were made in the Service Register. The entry in the Service Register discloses that his date of birth is 12.9.1938. 12. On 2.11.1979, the Department issued a memo asking the second respondent-Constable to appear in the Office to attest his signature in the Service Register. The same was not complied with. Again on 5.11.1 981, another memo was issued for the same purpose. This time also, he failed to do so. According to the Constable, he made a representation both in the years 1979 and 1981, requesting the Department to correct his date of birth and other particulars. However, this was denied by the Department. Despite this, second respondent had not chosen to establish that the said representations that were sent, were received by the Department. However, the Department admitted that he sent a representation on 12.12.1991, requesting for correction of his date of birth and other particulars, and the same was received by the Department. For this requisition, a reply was sent on 24.2.1992 informing that the alteration of date of birth is not possible as the same could be done only within five years from the date of entry into service and if he is so advised, he could approach the court and get the order to that effect. Relevant portion in the said reply dated 24.2.1992 is this: "With reference to his representation for change of his father' s name SGPC 585 Adimoolam is hereby informed that any alteration in the date of his birth not possible at this juncture, as such alteration is possible only within five years of entry into service. 2. If his genuine desire is to get only the name of father changed in the Service records, he may file an affidavit in the court and get a certificate regarding the change, which will be accepted." The applicant though received the same in the year 1992, had not gone to the Court. 13. On 25.7.1996, the Department sent an intimation informing the applicant Adimoolam, Constable that he is attaining the age of superannuation on 30.9.1996 as per the service records. The following is the extract: "It is intimated to HC 585, Adhimoulam that he is attaining the age of superannuation for retirement from service on 30.9.1996 as per service records available in this Department. In order to process pension/DCRG to him, he is directed to submit the relevant application along with enclosures to the Chief Office forthwith." Only thereafter, he filed the suit in O.S.No.1252 of 1996 before the II Additional District Munsif, Pondicherry, seeking for a mandatory injunction directing the Department to correct his date of birth as 8.6.1940 instead of 12.9.1938. The suit was entertained. The summons were served on the Department. Strangely, on 13.8.1996, i.e. after receipt of intimation dated 25.7.1996, the second respondent, for the best reasons known to him, represented before the Civil Court through his counsel, that the matter has been settled out of Court and so suit may be dismissed as not pressed. To this effect, endorsement also has been made in Court Records and on the basis of the said representation, the suit was dismissed as not pressed on the same day. 14. Then, on the next day itself, i.e. on 14.8.1996, he rushed to the Tribunal and filed an application seeking for the relief for the quashing of the impugned order dated 25.7.1996 intimating him about the date of superannuation and praying for correction of date of birth as 8.6.1940. Even though the second respondent had mentioned in the above application about the withdrawal of the same, he did not give the actual reason given before the Civil Court for withdrawal, but he stated that he wrongly filed the suit in the Civil Court on the wrong advice of his counsel and on coming to know that Civil Court had no jurisdiction, he withdrew the same and then filed an application before the Tribunal. 15. From the above facts, two things are clear: (i) Even though by the order dated 24.2.1992 issued by the Superintendent of Police, Pondicherry informing him that alteration of his date of birth is not permissible under law, as five years from the date of entry into service has already elapsed and he could move before the Court and get an order, the second respondent-Constable had not chosen to approach either the Court or the Tribunal immediately. (ii) Only in 1996, he filed the suit in O.S.No.1252 of 1996 for a direction to the Superintendent of Police, for correcting his date of birth and the same was taken on file on 27.6.1996. On 25.7.1996, an intimation was sent by the Superintendent of Police informing the applicant-Constable that he was attaining the age of superannuation on 30.9.1996 as per the service records. In the meantime, summons were served on the defendant, namely the Department. After receipt of the intimation dated 25.7.1996, he rushed to the Civil Court on 13.8.1996 and made an endorsement through his counsel praying for the dismissal of the suit as settled out of Court and on the strength of the endorsement, the suit was dismissed. Having received the intimation dated 25.7.1996 from the Superintendent of Police that he was attaining the age of superannuation on 30.9.1996, there is no reason as to why an endorsement had been made before the Civil Court that the matter has been settled out of Court and got the suit dismissed. Having made such an endorsement before the Civil Court that the matter has been settled out of Court, there is no reason as to why the applicant before the Tribunal had to falsely state in his application that the suit was withdrawn as it was found that Civil Court has no jurisdiction. 16. These two things would make it clear that the applicant has not come with clean hands either before the Civil Court or before the Tribunal. 17. Let us now come to the reasonings given by the Tribunal one by one. 18. The first finding of the Tribunal is that the five years limitation rule will not apply to the applicant as he had asked only for rectification of the mistake and not for alteration of his date of birth. On the strength of this finding, learned counsel for the second respondent would elaborate his argument contending that, that rule of five years limitation under Note 6 to Fundamental Rule 56(m) had been introduced only subsequent to the second respondent's entry into service and therefore, the Rule which is not having any retrospective effect, would not apply to the second respondent/applicant. 19. This contention by the learned counsel for the second respondent as well as the finding of the Tribunal, in our view, are untenable. According to the Department, the particulars have been entered in the Service Register relating to the applicant-Constable only on the basis of the information given by the applicant. Though the applicant would state that the particulars contained in the Service Register are wrong and those particulars were not furnished by him, the Department would emphatically deny the same. On the other hand, it is the specific stand of the Department that the applicant never raised any objection with reference to those entries relating to date of birth, etc. at any time and that he never sent representations in the years 1 979 and 1981, requesting for correction of his date of birth, as he claimed. 20. Admittedly, the applicant has not produced any material to show that he sent such representations in the years 1979 and 1981, requesting for rectification of mistake and the same were received by the Department. Though the applicant has enclosed the copy of the alleged representation that was sent in the year 1981 in the typed set, it would not prove that he sent two representations in the years 1979 and 1981, particularly when the Department denied having received the same. But, it is to be noted that the Department would specifically admit that a representation dated 12.12.1991 was sent by the applicant to the Department, requesting for alteration of date of birth and the same was considered and rejected by its order dated 24.2.1992, which was received by the applicant-Constable. 21. As indicated above, in the said order dated 24.2.1992, the Department has specifically pointed out to the applicant that alteration of date of birth is not permissible under law after five years after entry into service and that the applicant could go to the Court and get suitable orders. Thus, the Department admitted only the representation sent on 12.12.1991 by the applicant-Constable, but did not admit any such representation earlier made. When there is such denial, the second respondent should have established that he sent the representations both in the years 1979 and 1981 and the same were received by the Department. This is not done. 22. Having entertained the representation dated 12.12.1991 and sent a reply dated 24.2.1992, there is no necessity for the Department to state that the applicant never sent any such representation earlier. As noted above, despite the receipt of ord f refusal for alteration through the endorsement dated 24.2.1992, directing him to go to Court, there is no explanation for the applicant as to why he kept quiet for five years. As indicated earlier, he went to the Civil Court only in 1996. 23. Thus, it is clear that for the first time, the second respondent made a representation seeking for correction of his date of birth only on 12.12.1991, i.e. after a lapse of five years of his date of entry into service which was on 1.7.1964. The second respondent himself would admit that he received the memo dated 2.11.1979 sent by the Department asking him to appear in the Office to attest his signature in the Service Register. Atleast from this date, within five years, he could have approached appropriate forum for rectification of the mistake, which was not done. It is not disputed by the second respondent that he received another memo dated 5.11.1981 sent by the Department asking him to attest his signature in the Service Register. Atleast from this date, within five years, he could have approached appropriate forum for rectification of the date of birth. This was also not done. 24. In this context, it would be appropriate to refer to the relevant Rule governing the correction of date of birth in the Service Records with reference to the procedure to be adopted for correction or amendment of date of birth. Note-6 to Fundamental Rule 56(m) in Chapter IX dealing with "Retirement" is as follows: "Note 6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 bona fide 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 Government service." 25. According to the above Rule, it is obvious that there are two requirements: (i) The request for correction of the date of birth shall be made by the Government servant within five years of his entry into service. (ii) The 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 entry into the service. 26. Strange argument has been advanced by learned counsel for the second respondent that the limitation of five years would only apply to such Government servants who joined service after 1979 when this amended Rule came into force and the said period of limitation would not apply to the Government servants who were in service for more than five years prior to 1979. When a similar argument was advanced before the Supreme Court with regard to the very same issue, the Supreme Court would turn down this argument as untenable. Relevant portion of the observations of the Supreme Court contained in 1993 (2) Services Law Reporter 42 = 1993 (24) Administrative Tribunals Cases 92 (Union of India vs. Harnam Singh) is as follows: "12. 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 nonsuit such government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. .... 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 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 could 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. .... 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.