Ayub Mohmad Jam vs Union Of India

R.M.Chhaya, J

Heard Mr. B.Y.Mankad, learned counsel for the petitioner, Mr.Kshitij Amin, learned Central Government Counsel for respondent No.1 â€" Union

of India and Mr. Yogi K. Gadhia, learned counsel for respondent Nos.2 and 3.

By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs:

“(a) That this Hon'ble Court be pleased to issue a writ of mandamus or any other appropriate writ, order or direction and be pleased to direct the

respondents to correct petitioner's date of birth as 16.06.1963 in his service record and further be pleased to direct the respondent authorities to

change the date of retirement of the petitioner from 30.06.2019 to 30.06.2023;

(b) That this Hon'ble Court be pleased to direct the respondent authorities to produce the entire service record of the petitioner along with the

documents provided by the petitioner at the time of his appointment;

(c) That pending hearing and final disposal of this petition, the respondent authorities may please be directed to continue the service of the petitioner in

the Deendayal Port Trust.â€​

The following noteworthy facts emerge from the record of the petition:

3.1 That the petitioner was appointed in Kandla Port Trust, now known as “Dindayal Port Trust†on 24.03.1983 in Harbour Master's Branch and

at present, he is working as MasterÂ1st Class. It is also averred by the petitioner that, on 06.08.2018, the petitioner received a list of employees, who

are due to retire on superannuation in the year 2019, which includes the name of the petitioner as prepared by the port authority on 03.08.2019;

3.2 That, the date of birth of the petitioner is wrongly shown in the said list, which would result into retirement of the petitioner;

3.3 That, the correct birth date of the petitioner is 16.06.1963 and not 16.06.1959 and because of the said mistake, the petitioner is compelled to retire

4 years in advance and according to the petitioner, he would attain the age of superannuation on 30.06.2023.

3.4 The petitioner has relied upon the school leaving certificate issued by Bharati Vidhya Mandir School dated 18.09.1975, which indicates that date of

birth of the petitioner is 16.06.1963, and not 16.06.1959. Record further indicates that, the petitioner approached the port authority with representation

dated 26.10.2018, which culminated into the order of rejection of such representation dated 09/11.01.2019 and being aggrieved by the same, present

petition is filed under Article 226 of the Constitution of India.

Learned counsel for the petitioner has taken this Court through the factual matrix arising out of this petition and has contended that, the correct date

of birth of the petitioner is 16.06.1963. That, the port authorities have wrongly refused to make change in the date of birth, which would compel the

petitioner to retire 4 years in advance. It was also contended that, the port authority has wrongly discarded the school leaving certificate issued by

Bharati Vidhya Mandir School. It was also contended that, when he joined in the service, he had submitted a school leaving certificate and attested the

form at the time of his appointment, however, because of mistake on part of the clerk, wrong date of birth is recorded in the service record. He

further contended that the service book is not provided to the petitioner till date and therefore, the mistake which has occurred in service record, has

remained as it is and the petitioner could not get the same corrected in advance. It was also contended that the decision taken by the port authority is

bad and illegal and violative of Article 14 of the Constitution of India.

On the above mentioned contentions, learned counsel for the petitioner has submitted that present petition deserves to be allowed, as prayed for and

the petitioner should be continued in service till 30.06.2023.

Per contra, Mr. Yogi Gadhia, learned counsel for respondent Nos.2 and 3 contended that present petition itself is not maintainable. The petitioner

has worked for more than 35 years and during his entire service tenure, he has never raised an issue to change his birth date. He further contended

that the identity card was issued by the port authority when the petitioner joined the services, bears the date of birth as 16.06.1959. He relied upon the

form which was submitted by the petitioner when he joined the services, wherein the said form is signed by the petitioner and the declaration therein

mentions the date of birth of the petitioner as 16.06.1959. He also contended that for the first time on 26.10.2018, the petitioner approached the port

authority for change of birth date, which is on the eve of his retirement and such change cannot be permitted. It was further contended that if the

contention raised by the petitioner is believed after a span of 35 years of services, it would mean that the petitioner joined the services of the

respondent â€" port authority when he was 14 years old and having got benefit of the same, the petitioner is now making an attempt by

misrepresentation and by suppressing the material facts from the port authority. He also contended that record indicates that from 31.03.1971 till

31.09.1981, the petitioner has worked as Marine Khalasi, therefore, it shows that the case now attempted to be made by the petitioner is without any

basis.

In view of the above contentions, Mr. Gadhia, submitted that present petition being meritless, deserves to be dismissed.

Mr.Khsitij Amin, learned Central Government Counsel for the Union of India has adopted the arguments made by Mr. Gadhia and has submitted

that present petition be dismissed.

No other or further submissions have been made by learned counsel for the parties.

Having heard learned counsel for the parties and considering the documents on record, it is a matter of fact that the date of birth of the petitioner as

recorded in the service record of the port authority is “16.06.1959â€. It also transpires from the record that the petitioner joined the services on

24.03.1983, which means the petitioner has worked for more than 35 years. The statement which is on record indicates that the petitioner also worked

as Marine Khalasi from 01.02.1977 till at least March, 1981. The port authority has also relied upon other documents, more particularly the medical

identity card of the petitioner which bears the date of birth of the petitioner as “16.06.1959â€. Record also indicates that the same was issued on

01.10.2011. Even before that, there is contemporaneous record, which is placed on record of this petition, which indicates that time and again the

petitioner himself has declared that his date of birth is 16.06.1959. Record also indicates that declaration of the details of family, which were given by

the petitioner himself on 01.09.2017 indicates that date of birth of the petitioner is 16.06.1959. The record produced before this Court also indicates

that throughout the service tenure of the petitioner i.e. almost more than 35 years, the petitioner has declared that his date of birth is 16.06.1959. It is

pertinent to note that the petitioner has never approached the authority and has never contended or pointed out that the clerk of the port authority has

committed mistake in making such entry qua his birth date. Even reliance put forward by the petitioner upon the school leaving certificate is a

duplicate school leaving certificate submitted by the petitioner to the port authority along with his representation for change of birth date, which creates

shade of doubt about its genuineness. The petitioner cannot be permitted now at the fag end of the service career of more than three decades and

more to make change on the eve of his retirement. The contention raised by the petitioner that the service book is not provided, does not take the case

of the petitioner any further.

As observed hereinabove, time and again, the petitioner himself has signed declaration and has filed requisition, which indicate that even according

to the petitioner, his date of birth is 16.06.1959. Hence, the petitioner cannot now be permitted to make change in his birth date from “16.06.1959â€

to “16.06.1963â€​ after a span of 35 years and more.

At this juncture, it would be appropriate to refer to the judgment of the Apex Court in the case of State of Madhya Pradesh & Anr. Vs. Premlal

Shrivas, [2011 (9) SCC 664], wherein it has observed thus:

“8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his

superannuation or at the fagÂend of his career, the Court or the Tribunal has to be circumspect, cautious and careful while issuing direction for

correction of date of birth, recorded in the service book at the time of entry into any government service. Unless, the Court or the Tribunal is fully

satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or

as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person

concerned, the Court or the Tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed

the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the

service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good

evidence to establish that the recorded date of birth is clearly erroneous. No Court or the Tribunal can come to the aid of those who sleep over their

rights (See: Union of India Vs. Harnam Singh2).

It would also be appropriate to refer to the judgment of the Aped Court in the case of Punjab & Haryana High Court at Chandigarh Vs. Megh Raj

Garg & Anr. [AIR 2010 (SC) 2295], wherein the Apex Court has observed thus :

“12. This Court has time and again cautioned civil courts and the High Courts against entertaining and accepting the claim made by the employees

long after entering into service for correction of the recorded date of birth. In Union of India v. Harnam Singh (AIR 1993 SC 1367 : 1993 AIR SCW

1241) (supra), this Court considered the question whether the employer was justified in declining the respondent's request for correction of date of

birth made after thirty five years of his induction into the service and whether the Central Administrative Tribunal was justified in allowing the original

application filed by him. While reversing the order of the Tribunal, this Court observed :

A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of

its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after

following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the

reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the

initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim

correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even

if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay.

In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims,

is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a timeÂlimit, in the service rules, after which no

application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction

of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence

to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and

the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date

of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual

age. Indeed, as held by this Court in State of Assam v. Daksha Prasad Deka (AIR 1971 SC 173) a public servant may dispute the date of birth as

entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date

of birth claimed by him. This Court said : (SCC pp. 625Â26, para 4) : (Para 4 of AffidavitÂinÂReply) ""... The date of compulsory retirement under

F.R. 56(a) 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. A public servant may dispute the date of birth as entered in the

service record and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the

guarantee under Article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of

birth entered in the service record.

In the case on hand also, except the bare contention of the petitioner i.e. mistake was committed by the clerk of the port authority while entering

the date of birth of the petitioner in the service record, is not only without any evidence, but is also baseless as the conduct of the petitioner itself

shows that he was well aware that his date of birth is 16.06.1959. As recorded in the service book and having accepted such position for a span of 35

years and more, the petitioner now cannot as a matter of right pray for change of birth date on the eve of his retirement.

Similar view is also reiterated by the Apex Court in the case of Life Insurance Corporation of India & Ors. Vs. R. Basavaraju Alias Basappa,

[2016 (15) SCC 781] and has observed thus:

“5. The law with regards to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is

entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court

has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement.â€​

Thus, the plea raised by the petitioner for change in the date of birth on the eve of his retirement, cannot be entertained by this Court in exercise of its

jurisdiction under Article 226 of the Constitution of India.

For the foregoing, present petition is liable to be dismissed and is hereby dismissed in limine. Notice is discharged. No order as to costs.