Narendra Kumar Saini vs Delhi Development Authority Through Its Chairman Vikas Sadan, INA Colony, New Delhi & Ors

Dr. Chhabilendra Roul, Member (A)

The present Original Application is filed by the applicant against the order dated 19.5.2015 vide which the respeodents have stated that the date of retirement of the applicant was 31.7.2015 and also letter dated 16.6.2015 vide which the respondents directed the applicant to submit his pension papers.

Brief facts of the case are that the present applicant was appointed as Mate in DDA on 3.01.1985. Vide E.O No.193 dated 06.02.2013, the post of Mate was abolished and the applicant was re-designated as Office Clerk (Mate) . Vide E.O. 194 dated 06.02.2013, the applicant was transferred from the office of Chief engineer, Dwarka to the office of Chief Engineer, South. As per the claim of the applicant, he came to learn in 2014 that the respondents were going to retire him with effect from 31.7.2015. The applicant claims that he was sure that his date of birth was 10.7.1957 and hence, his due date of retirement was 31.7.2017. From 2014 onwards, the applicant started representing the respondents to rectify his date of birth in the service record. He also made a couple of RTI applications seeking relevant entries in his service book. He got the reply to his RTI application that as per his service book, his date of birth is 10.7.1955 and as per that his date of retirement would be 31.7.2015(Annexure -A1). After the applicant made further appeals and representations, the respondent office vide order dated 19.5.2015 informed that the applicant was due to retire on 31.7.2015 (Annexure-A1). Vide letter dated 26.5.2015, the respondents‟ office directed him to submit the pension papers. Being aggrieved that the applicant‟s date of birth was not corrected and the respondents had determined to retires him w.e.f. 31.7.2015, the applicant filed the present OA. The applicant has sought for the following relief(s):-

(i) Quash and set aside the office order dated 19.05.2015 and the letter dated 17.06.2015; and

(ii) Direct the Respondents to rectify the error and recording the date of birth of the applicant and accordingly amend the same to read as 10.07.1957, and

(iii) Direct the respondents to allow the applicant to continue in service till the date of superannuation based on the original Date of Birth i.e up till 31.7.2017 and

(iv) To pass appropriate and other orders which this Tribunal may deem fit in the interest of justice.

On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.

The applicant in his OA as well as through the arguments by his counsel has taken the following grounds for seeking the aforementioned relief:-

(i) That the State Higher Secondary School Certificate (Annexure-A3) as well as the CBSE Higher Secondary Examination Certificate (Annexure-A4) show his date of birth as 10.7.1957.

(ii) Various identification particulars of the applicant namely, Aadhar Card, Driver‟s Licence, Voter ID Card , PAN Card etc(Annexure-A5) show applicant‟s date of birth as 10.7.1957.

(iii) The Respondent No.2 issued Identity Card to the applicant (Annexure-A6) bearing his date of birth as 10.7.1957 indirectly because the validity of the card was 31.7.2017.

(iv) The service book of the applicant was always in custody with the Respondents and hence, any alteration regarding applicant‟s date of birth was their handiwork. A genuine bonafide mistake has occurred or clerical mistake has occurred in recording his date of birth as 10.7.1957. The reasons are unknown as how the respondents have made an erroneous entry in respect of his date of birth in the Service Book of the applicant.

The counsel for the applicant averred that the applicant submitted his Higher Secondary Certificates from two authorities when he learnt that the respondents had indicated that the applicant would be retired with effect from 31.7.2015 instead of 31.7.2017. It was duty of the respondents to rectify the error that crept into his service book regarding his date of birth.

The Counsel for the applicant stated that the Hon‟ble supreme Court in Ishwarlal Mohanlal Thakkar Vs Paschim Gujarat Vij Company ltd (2014) 6 SCC 434 held that certificates issued by public authorities are admissible as evidence under the Indian Evidence Act and hence are also acceptable for proving the date of birth of employees. Specifically it was held:

“19. Therefore, in view of the above judgments we have to hold that the High Court has committed a grave error by setting aside the findings the findings recorded on the points of dispute in the award of the Labour Court. A grave miscarriage of justice has been committed against the appellant as the respondent should have accepted the birth certificate as a conclusive proof of age, the same being an entry in the public record as per Section 35 of the Evidence Act, 1872 and the birth certificate mentioned the appellant's date of birth as 27-6-1940, which is the documentary evidence. Therefore, there was no reason to deny him the benefit or the same, instead the respondent Board prematurely terminated the services or the appellant by taking his date of birth as 27-6-1937 which is contrary to the facts and evidence on record. This date of birth is highly improbable as well as impossible as the appellant's elder brother was born on 27-1-1957 as per the school leaving certificate and there cannot be a mere 5 month‟s alterence between the birth of his elder brother and himself. Therefore, it is apparent that the school leaving certificate cannot be relied upon by the respondent Board and instead, the birth certificate issued by BMC which is the documentary evidence should have been relied upon by the respondent. Further, the date of birth is mentioned as 27.6.1940 in the LIC insurance policy on the basis of which the premium was paid by the respondent to the Life Insurance Corporation on behalf of the appellant. Therefore, it is only just and proper that the respondent should have relied on the birth certificate issued by BMC on the face of all these discrepancies as the same was issued on the order of JMFC.”

Drawing parallel to the present case, the counsel for the applicant stated that the Senior Secondary Examination Certificate issued by the CBSE should have been accepted by the respondents for correction the date of birth of the applicant. Similarly, the counsel for the applicant cited the judgment of the Apex court in Bharat Cooking Gas Limited and ors vs Chhota Birsa Uranw in (2014) 12 SCC 570 wherein it was held :

“We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R. Kirubakaran Case (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Instruction. It is the appellant‟s omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth, litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large.”

As per this judgment, a wronged employee should not be denied his rights for correction in his date of birth due to omission or commission of the public employing authorities. He cited the judgment of the Apex court in Shankar Lal vs Hindustan copper Ltd and ors (2022) 6 SCC 211 wherein it was held that that it was impermissible to correct the date of birth of the employee towards fag end of his career without giving him an opportunity of being heard. No such opportunity has been afforded to the applicant while altering his date of birth from 10.07.1957 to 10.07.1955.

The counsel for the respondents vehemently opposed the contention of the applicant and his counsel. He drew attention of the Tribunal to state that as per the CCS Service Rules belated claims for alteration of date of birth need to be rejected. As per Note 5 below FR 56 the DOP&T has clarified the issue regarding correction of Date of Birth for an employee in the following manner:-

“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 had 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.

[Note 5 below FR 56 as amended by G.I., D.P. & A.R., Notification No. 19017/7/79-Ests.(A), dated the 30th November. 1979: published as SO 3997 in the Gazette of India, dated the 15th December, 1979 and takes effect from that date.]”

Government policy regarding rejection of belated claim for alternation in date of birth is upheld by the Apex Court in several judgments. It will not be appropriate to consider any request for alternation in date of birth if the conditions stipulated as above are not strictly fulfilled.

The counsel for the respondents argued that the applicant moved the authorities only in 2014, nearly 29 years after his first appointment. The applicant had submitted his Duplicate CBSE certificate issued in 1985, where as he had passed Senior Secondary School Examination in the examination held in March/April 1975. This creates doubt as to why the corresponding original certificate was not produced at the time seeking appointment. As per the educational certificate produced at that time, his date of birth was shown 10.7.1955. The subsequent alterations /cuttings in the service book has not been authenticated by any competent authority. As per the copy of service book (AnnexureA-2) appended to the counter affidavit, the original date of birth has been shown as 10.7.1955 both in words and figures and this bio data has been signed by the applicant himself. In view of the Rule position quoted above and the fact that the applicant has moved the authorities after 29 years from the date of initial appointment, the applicant‟s claim cannot be entertained.

I have gone through the records of the case thoroughly and heard the arguments carefully.

In the instant case it is admitted by the applicant‟s counsel and the respondents that there was alternation in the date of birth of the applicant in the service book of the applicant. There are two sets of date of birth based on two certificates. The respondents have relied upon the certificate submitted at the time of first appointment wherein as per the educational qualification certificate the date of birth of applicant 10.7.1955. This has also been counter signed by the applicant in the bio data form. The respondents have assailed the duplicate subsequently procured by the applicant from the Central Board of Secondary Education (CBSE). The duplicate certificate pertains to the year 1985 whereas the applicant has passed the Senior Secondary Examination in the year March-April 1975. On the other hand, the applicant has relied upon this certificate issued by the Public Authority i.e.,CBSE and also the school leave certificate issued by the Boys/Girls, Govt. Senior Secondary School No.2, R.K. Puram, New Delhi on 22.4.1974. The judgment cited by the counsel for the applicant has not discussed the rule position mentioned in the CCS (Service) Rules regarding alternation of date of birth. The Govt. of India, DOP&T has categorically stated that any alteration in date of birth can be made only within five years by the employee from date of entry into the government services and any claim for alternation in the date of birth at any belated stage to be rejected. The organizations involved in all these three judgments cited by the learned counsel for the applicant relates to Public Sector Undertaking of the Central / State Government where they have their own service rules. However, the employees of DDA are broadly governed by service rules applicable to the employees of Government of India, i.e., CCS (Service) Rules. The original service book of the applicant was not produced either by the respondents or by the applicant. The Tribunal cannot act as an investigating agency to find out under what circumstances the alterations or corrections took place in the service book of the applicant as alleged by the applicant. Moreover, any alteration regarding the date of birth of the employee cannot be entertained at this belated stage, after 29 years of first entry into the service.

In view of this the OA lacks merit and hence it is dismissed. There shall be no order as to costs.

All pending MAs are also disposed of accordingly.