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Judgment
This petition under Article 226 of the Constitution is directed against the order dated 20.6.2013 passed by the Central Administrative Tribunal,
Guwahati Bench, whereby it has allowed respondent''s OA No.333/2012 with all consequential service benefits.
Admitted facts in short are these. Respondent was appointed on 14.8.1970 as Mazdoor under Garrison Engineer, Silchar of the Military
Engineering Service. At that time, in the service book his date of birth was recorded as 12.8.1949. Later, in the year 1979, he produced High
School Leaving Examination Certificate before the authorities, wherein his date of birth is mentioned as 13.12.1950 and applied for correction of
its entry in the service book. The Garrison Engineer also after examining the Certificate vide order dated 26.7.2004 corrected the date of birth of
respondent as 13.12.1950 in the service book. From the corrected date of birth, respondent would have attained the age of superannuation and
retired from service on 31.12.2010. But, on an audit objection regarding alteration of date of birth in the service book, the petitioners vide order
dated 18.3.2010 suddenly placed him under superannuation with immediate effect. Aggrieved, the respondent rushed to the Tribunal by filing OA
No.333 of 2012 which has been allowed by the impugned order. The Tribunal has held that the date of birth in the service book of respondent
was rightly altered as 13.12.1950 in place of 12.8.1949 and therefore, petitioners must allow him to retire from service by treating his date of birth
as 13.12.1950 with all consequential service benefits. The Tribunal also relied upon the decision of the Supreme Court in Union of India vs.
Harnam Singh, (1993) 2 SCC 162 in allowing the Original Application of respondent.
It is argued on behalf of the petitioners that the impugned order passed by the Tribunal is illegal. On the other hand, the learned counsel for the
respondent has defended the order of the Tribunal.
After hearing the learned counsel for the parties, we are of the view that the petition has no merit and deserves to be dismissed. It is not in
dispute that the date of birth of respondent was corrected in the service book from 12.8.1949 to 13.12.1950 and the correction was made by the
Garrison Engineer on the basis of High School Leaving Examination Certificate produced by the respondent. The correction was also permissible
under Note 5 to Fundamental Rule 56(m) which was notified in the Government of India Gazette dated 15.12.1979. Note 5 reads as under:-
Note 5 - 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.
The Supreme Court in Union of India vs. Harnam Singh (supra), after interpreting the above quoted Note, has clearly held that those
government servants, who were already in service prior to 1979, for a period of more than 5 years, and who intended to have their date of birth
corrected after 1979, could seek correction of date of birth within 5 years from 1979. The respondent, admittedly, sought correction of his date of
birth in the year 1979 itself and the same was also corrected vide order dated 26.7.2004. The genuineness of respondent''s High School Leaving
Examination Certificate mentioning his date of birth as 13.12.1950 was never questioned by the petitioners. The petitioners, therefore, merely on
some audit objection in a knee-jerk reaction could not have superannuated the respondent with immediate effect and that too without giving him
any opportunity of hearing. The order of the Tribunal is well founded and unassailable. We, accordingly, direct the petitioners to treat the
respondent in service from 18.3.2010 upto 31.12.2010 and pay him his salary of this period. The petitioners shall also without any further delay
finalize and pay his pension and other benefits due to him.
The petition is dismissed with cost of Rs.3000/- payable to the respondent.