Om Prakash vs Central Administrative Tribunal and Others

We have heard learned counsel for the petitioner and learned counsel for the respondents.

The petitioner superannuated from employment in the Engineering Branch in Railways, in April, 2014, with his date of birth recorded in his service book as 22.4.1954. He had made a representation on 25.7.2012 about two years before his retirement to the Senior Divisional Personnel Officer, North West Railway, Jodhpur for recording his correct date of birth as 20.8.1956. He stated in the representation that in the seniority list, his date of birth is entered as 20.8.1956. In the seniority list dated 22.12.1986 prepared by the Assistant Engineer, Degana, his date of birth is correctly entered as 20.8.1956 at serial No. 390. He requested for correcting his date of birth in the computer slip for which he had made several oral requests. After sending reminder on 10.9.2013, a notice for demand of justice was sent by the petitioner and thereafter, Original Application No. 516/2013 was filed in Central Administrative Tribunal with the prayers to correct his date of birth as 20.8.1956 and further not to retire him prematurely treating his date of birth as 22.4.1954.

The Central Administrative Tribunal held that there was no clerical mistake in recording his date of birth as 22.4.1954 in his service book when he entered into the service. He had not only declared 22.4.1954, as his date of birth but had also signed the service sheet verifying the particulars. The Tribunal held that in view of the judgments of the Supreme Court in U.P. Madhyamik Shiksha Parishad and Others Vs. Raj Kumar Agnihotri, AIR 2005 SC 2491 : (2005) 3 ESC 323 : (2005) 105 FLR 969 : (2005) 4 JT 516 : (2005) 11 SCC 465 : (2006) SCC(L&S) 96 : (2005) 1 SCR 770 : (2005) 3 SLJ 176 : (2005) AIRSCW 2470 : (2005) 4 Supreme 316 and Executive Engineer, Bhadrak (RANDB) Division, Orissa and ors. v. Rangadhar Malik ( (1993 (1) Suppl. SCC 763) and judgment of CAT, Madras Bench in K. Durai Babu v. Union of India (OA No. 88/2012), an application for correction of date of birth cannot be entertained close to the date of retirement. A request for correction of date of birth cannot be made a few years before or at the fag end of the retirement.

Learned counsel for the petitioner submits that the Tribunal grossly erred in law as the petitioner had requested for recording his correct date of birth for which he had submitted overwhelming evidence including the seniority lists prepared in the department, PAN card and the certificate issued by the Sarpanch of the Gram Panchayat verifying his date of birth as 20.8.1956. It is submitted that the petitioner''s case is similar to that of the case of Jetha Ram, which was allowed by the Tribunal and against which, a writ petition was dismissed by the Division Bench of this Court. The SLP filed by the respondents against the decision of the High Court was dismissed by the Apex Court.

Learned counsel appearing for the respondents-Railways submits that under Rule 225 of the General Conditions of Service, every person, on entering railway service, shall declare his date of birth, which shall not differ from any declaration express or implied for any public purpose before entering railway service. In the case of literate staff, the date of birth shall be entered in the record of service in the railway servants own handwriting. In the case of the illiterate staff, the declared date of birth shall be recorded by a senior railway servant and witnessed by another railway servant. It is submitted that considering a large number of claims for changing the date of birth, a Circular was issued by the Railway Board amending the rule, by which no alteration was to be permitted, against the date of birth recorded in accordance with Rule 225 and that the request, if any, for change of date of birth on satisfactory explanation can be considered after the completion of the probation period or within three years service, whichever is earlier. Sub-rule (4) of Rule 225 as amended by the Railway Board is quoted below:--

"(4) The date of birth as recorded in accordance with these rules shall be held to be binding and no alteration of such date shall ordinarily be permitted subsequently. It shall however, be open to the President in the case of a Group A & B railway servant, and a General Manager in the case of a Group C & D railway servant to cause the date of birth to be altered.

(i) Whether in his opinion it had been falsely stated by the railway servant to obtain an advantage otherwise in admissible, provided that such alteration shall not result in the railway servant being retained in service longer than if the alteration had not been made, or

(ii) where, in the case of illiterate staff, the General Manager is satisfied that a clerical error has occurred, or

(iii) where a satisfactory explanation (which should not be entertained after completion of the probation period, or three years service, whichever is earlier) of the circumstances in which the wrong date came to be entered is furnished by the railway servant concerned, together with the statement of any previous attempts made to have the record amended."

In the judgment of the Division Bench of this Court in The Union of India & ors. v. Jetha Ram (D.B. Civil Writ Petition No. 9685/2013) decided on 13.9.2013, the request for change of date of birth was made at the earliest point of time along with the mark-sheets and transfer certificate issued by the School, panel including his name after screening him as a casual labour, identity card, driving license, order appointing him as a regular employee and declaration made by the respondent while obtaining a pass. In all these documents, the date of birth was different, as claimed by Jetha Ram. The Railway itself has made recommendation for change of his date of birth, on which, the Court as an exceptional case directed the date of birth to be changed with a caveat that the judgment should not be treated as a precedent.

In the present case, the date of birth of the petitioner was recorded in the service book as 22.4.1954. It is not his case that he was not aware about mention of that date of birth in the service record. He did not make any representation at the earlier point of time for correction of the date of birth. Two years before his superannuation, he made a representation on 20.7.2012 for correction of date of birth. The request for change of date of birth about two years before superannuation could not have been entertained. In view of the amendment made in Rule 225 (4) as well as the pronouncements of the Supreme Court in Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, AIR 1995 SC 1499 : (1995) 71 FLR 282 : (1995) 4 JT 23 : (1995) LabIC 1825 : (1995) 3 SCALE 37 : (1995) 4 SCC 172 : (1995) 3 SCR 712 , State of Maharashtra and Another Vs. Gorakhnath Sitaram Kamble and Others , State of Haryana Vs. Satish Kumar Mittal and Another, AIR 2010 SC 3312 : (2010) 9 JT 276 : (2010) 9 SCC 337 : (2010) 10 SCR 1009 : (2010) 6 SLR 513 : (2010) 2 SLR 407 and State of M.P. and Others Vs. Premlal Shrivas, AIR 2011 SC 3418 : (2011) 131 FLR 361 : (2011) 10 JT 519 : (2011) 10 SCALE 600 : (2011) 11 SCR 444 : (2012) 1 SLJ 31 : (2011) 6 UJ 3598 : (2011) AIRSCW 5398 , the request for correction of date of birth close to retirement could not be accepted.

The writ petition is dismissed.