1 MMJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1401 OF 2009 Yashwant G. Tambe ) Old Chikhal Wadi, Raju Manaji Chawl ) Room No.20, Chawl No.46-E ) Grant Road, Mumbai 400 007 )..Petitioner Versus 1. Union of India ) Through General Manager/ Government ) of India Mint, Shahid Bhagat Singh Road, ) Mumbai 400 023 ) 2. Government of India Mint ) Shahid Bhagat Singh Road, Mumbai-23 )..Respondents Mr. S. N. Deshpande for the Petitioner Mr. V. S. Masurkar with Ms. N. V. Masurkar and Mr. N. R. Prajapati for the Respondents CORAM : J. N. PATEL & A.P. BHANGALE, JJ. DATE : 18th MARCH, 2010. ORAL JUDGMENT (Per Shri A.P. Bhangale, J) : 1. Heard. Rule. Learned Counsel appearing on behalf of the respondents waives notice. By consent, rule is made returnable forthwith. 2 2. The petitioner seeks to invoke the writ jurisdiction of this Court under Article 226 of the Constitution of India on the ground that he was prematurely retired with effect from 31st March, 2007, claiming that his real date of birth is 1st June 1950 and not 18th March, 1947. 3. The case of the petitioner, briefly stated, is that he had joined the services of the respondents on 29th March 1971 as a labourer. The petitioner had produced a School Leaving Certificate dated 22nd December, 1970 of Jeevan Shikshan Shala, Nate and on that basis his date of birth was recorded as 1st June 1950 which the petitioner had confirmed as correct. The Petitioner was issued retirement memo dated 25th September, 2006, retiring him from the services w.e.f. 31st March, 2007. 4. The Petitioner, in response, had called upon the respondents to withdraw the retirement memo. The authorities asked the petitioner to produce the original School Leaving Certificate dated 22nd December, 1970 and asked him to bring a fresh School Leaving Certificate from the school. According to petitioner, he had produced the fresh School Leaving Certificate from the school and in December, 2006 the authorities concerned had confirmed genuineness thereof but told the Petitioner that he was free to go to Court instead of asking for withdrawing the retirement memo. 3 5. The Petitioner had moved the Central Administrative Tribunal by filing Original Application No.49 of 2007, which directed the respondents to produce the original service record of the petitioner. According to petitioner, the original service record was not produced by respondents on the ground that it was missing but an attested form was produced in which the petitioner’s date of birth was shown as 1st June 1950. The Tribunal was of the opinion that the respondents should first consider the representation of the Petitioner and upon decision on such representation by the respondents, the Petitioner, if aggrieved by the decision of the Competent Authority, can approach Central Administrative Tribunal. Hence Original Application No. 49 of 2007 was disposed of. Thus, the petitioner approached the respondents on 16th April, 2007 with his representation. The General Manager who acted as competent authority on behalf of the respondents, rejected the representation, without allowing the petitioner to be represented by Union’s representative at the time of personal hearing. The petitioner, aggrieved by order dated 12th May, 2007 filed Original Application No.327 of 2007 before the Central Administrative Tribunal which was rejected on 31st December, 2007. The Petitioner filed Review Application No.4 of 2008 which was allowed and Original 4 Application No.327 of 2007 was restored on 18th March 2008. 6. The Central Administrative Tribunal, after hearing the parties, dismissed Original Application No.327 of 2007 by order dated 31st March, 2009 which is under challenge. 7. Learned Counsel for the petitioner submitted that the petitioner had challenged his retirement on the ground that it was not based on the correct date of birth. The respondents came up with false defence that the original service record was missing and overlooked the attestation form filled-up at the time of the appointment which shows the petitioner’s correct date of birth as 1st June 1950. Learned Counsel submitted that the duplicate service book sought to be relied upon by the respondents, showing the date of birth of the petitioner as 18th March 1947, was not prepared after giving an opportunity of hearing to the petitioner and hence is not binding on the petitioner. 8. Learned Counsel made reference to Swamy’s Fundamental Rules as to retirement of Government Servants that a workman governed under the Rules shall retire from service in the afternoon of the last day of the month in which he attains the age of sixty years. Note 6 to FR 56 of the Swamy’s Fundamental Rules mentions that the date of birth of the Government servant shall be determined with 5 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 the Birth Register. Such date of birth shall not be subject of alteration except when: (a) a request in this regard is made by Government servant within 5 years of his entry in Government service. (b) It is clearly established that a genuine bona fide mistake occurred. (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 in to Government service on the date on which he first appeared at such examination or on the date on which he entered Government service. 9. Learned Counsel for the Petitioner urged that even an administrative order which entails civil consequences must be made consistently with the rules of natural justice i.e., after giving an opportunity of hearing. Reference is made to rulings in: (1) State of Orissa Vs. Dr. (Miss) Binapani Dei and others 6 1967(II) LLJ 266(SC) (2) Sarjoo Prasad Vs. General Manager & Anr. 1981(43) FLR 408. (3) NTC (W.B.A. B.R.) Ltd. Vs. Sudhanya Biswas 1996 (72) FLR 81 (86) (Calcutta) (4) Mohd. Isa Vs. State of Bihar 1998 (79) FLR 104 (Patna) (5) 2006 (2) LLN 23 (SC) 10.On the other hand, Learned Counsel for respondents submitted that the petitioner had availed of opportunity of hearing and to produce documents in support of his contentions and the Central Administrative Tribunal by its well reasoned Judgment and Order dated 31st March, 2009, dismissed Original Application No.327 of 2009. According to Learned Counsel for the respondents, the petitioner since had joined the services in 1971, his name figured in the seniority list pertaining to the years 1978, 1984, 1992, 2000 and 2006 and he also came to be promoted as an Assistant Class-III (Security Edging), Assistant Class-II (Security Edging), Assistant Class-I (Security Edging), Mistry (Security Edging) but he never disputed his date of birth as 18th March, 1947 but chose to challenge it at the fag end of his career when he was issued a retirement memorandum dated 25th September, 2006. He never raised any 7 grievance despite repeated seniority lists. In view of note 6 to FR 56 of Swamy’s Fundamental Rules the petitioner ought to have raised such grievance within five years of his joining the service or in any eventuality after the seniority list was issued on the basis of his date of birth as 18th March, 1947. During the hearing pursuant to his representation, the petitioner also did not produce documentary evidence such as Mint Identity Card, Election Identity Card, original LIP, CGHS Card issued by Mint, Driving License/Passport, date of birth of wife and children to establish his genuine date of birth. Learned Counsel for the respondents argued that in the ruling in the case of NTC (supra), the Calcutta High Court observed that a writ court can not pronounce the age of retirement or date of birth when facts are disputed. According to the learned counsel for the respondents, the rulings cited by the Learned Counsel for the Petitioner are not of any assistance to the petitioner as the opportunity of personal hearing and to produce documents in support of his claim, is already availed of by the Petitioner. 11.Learned Counsel for the respondents contended that the Petitioner had raised dispute conveniently at the fag end of his service regarding the correct date of birth which suffers from delay and laches and cannot be entertained at a belated stage, after the 8 petitioner had enjoyed benefits of promotions based on seniority lists circulated from time to time. 12.We have considered the submissions made across the bar and also perused the record brought to our notice. The duplicate service book of the petitioner brought to our notice, which according to respondents was reconstructed on the basis of office records, indicates the date of the petitioner’s birth as 18th March, 1947 with his educational qualification as VIIIth standard passed when he joined the services of the respondents on 19th March, 1971 as a labourer. In State of Gujarat and others Vs. Vali Mohd. Dosabhai Sindhi, reported in (2006) 6 SCC 537, the Supreme Court has held that when an employee remained silent for long years and when on the verge of his retirement raised dispute about the correctness of the date of birth, the service record of whom was made on the basis of his own statement, the High Court should not have granted relief under suspicious circumstances merely on the basis of so called School Leaving Certificate. In para 12 of the said decision, it has been held thus: “12. An application for correction of the date of birth should not be dealt with by the courts, 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 9 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 the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 and that too within a reasonable time as provided in the rules governing the service, the court or the tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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 within at least a reasonable time. 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 about 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 or the tribunal on the eve of their retirement questioning the correctness of the entires in respect of their dates of birth in the service books. By this process, it has come 10 to the notice of this Court that in many 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 or 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 thereby caused injustice to his immediate junior.” 13.In many cases it is a part of strategy on the part of public servants to approach the Court or Tribunal on the eve of their retirement questioning the correctness of the entries in respect of their date of birth in the service books. The tendency to obtain advantage/benefit on the basis of interim orders in such cases without production of evidence of unimpeachable character was deprecated as it results in undeserving benefit of extended service and deprivation of opportunity of promotion to immediate junior of such employees. We are satisfied that ample opportunity was available to the petitioner to produce conclusive and unimpeachable evidence regarding the correct date of birth, but he failed to produce sufficient conclusive materials to the satisfaction of the Central Administrative Tribunal. His conduct is also blameworthy and he kept silent while enjoying the benefits of the promotions on the 11 basis of seniority lists issued from time to time during his service tenure and raised the dispute only when he was on the verge of his retirement. By his conduct the petitioner had accepted the particular date of birth, throughout his career enjoying benefits of promotion on the basis of the seniority lists published from time to time. Hence, the impugned order cannot be assailed on the ground that the principles of natural justice were not followed or that personal hearing was not given to him. Even otherwise, disputed questions of fact cannot be gone into while exercising power under writ jurisdiction, as unlike Civil Court, Writ Court cannot record findings on fact which have to be arrived at on the basis of oral and documentary evidence led before the competent Civil Court. 14.For the reasons stated above, we do not find any exceptional or substantive ground having been made out to warrant interference in the impugned Judgment and Order. 15.In the result, the petition is dismissed. Rule is discharged. No order as to costs. ( J. N. Patel, J) (A.P. BHANGALE, J)