1. Service matter—Correction of date of birth—Representation by employee—Rejection before retirement. (Para 2 )
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2002 Supreme(SC) 2108
SUPREME COURT OF INDIA
B.N. Kirpal, CJI., K.G. Balakrishnan, Arijit Pasayat, JJ.
Gendalal - Appellant
Versus
Union of India and Ors. - Respondents
Civil Appeals Nos. 4236-37 of 2002 in SLPs (C) Nos. 865-66 of 2002
Decided On : 22-07-2002
An employee cannot be denied correction of their date of birth on grounds of delay if they have diligently pursued departmental representations and complied with employer requests for documentation, especially when the supporting school certificate remains undisputed.
Headnote:(A) Service Law - Correction of date of birth - Delay and Laches - Request for correction of recorded date of birth based on school certificate - Representation made within six years of appointment and further documentation supplied upon request by the employer - Rejection of request just prior to retirement on grounds of delay - An employee cannot be regarded as lacking diligence if they have consistently pursued departmental remedies and complied with the employer's requests for documents - Pursuit of departmental relief instead of litigation does not constitute a lack of diligence (Para 4).
(B) Documentary Evidence - School Certificate - When the date of birth mentioned in the school certificate is not disputed on merits, the records should be corrected accordingly to prevent hardship to the employee who has been driven to litigation through no fault of their own (Para 4).
Facts of the case:
An employee appointed in 1964 sought correction of his recorded date of birth to match his school certificate. Initial representations were made within six years of joining and continued for several years. After a significant interval, the employer requested further documents, which were provided. However, the request was subsequently rejected shortly before retirement, citing a long delay since the initial appointment. The administrative tribunal dismissed the application on similar grounds of delay, noting the last representation was made years prior.
Findings of Court:
The court found that the employee had acted with diligence by making early representations and complying with subsequent requests for documents issued by the employer. The rejection of the application based on delay was unjustified, particularly since the correctness of the date of birth as per the school certificate was not disputed on merits.
Issues: Whether the employee was barred by delay and laches from seeking correction of his date of birth, and whether the pursuit of departmental remedies instead of initiating litigation justifies the time elapsed.
Ratio Decidendi: An employee who has persistently pursued departmental representations and complied with the employer's requests for information cannot be deemed to have lacked diligence. Such an employee should not be non-suited on the ground of delay when the evidence for the correct date of birth is undisputed.
Result: Appeal allowed with costs.
Legal Category Hierarchy
Table of Contents
2. Appellant claimed delay in approaching tribunal; Respondent argued representation was pending and acted diligently. (Para 3 , 4 )
3. Employee not lacking diligence—representation pending for years due to respondent's requests—rejection after 31 years unjust. (Para 4 )
4. Delay cannot be attributed to employee when employer keeps representation pending and fails to decide promptly. (Para 4 )
5. Appeal allowed—order rejecting correction set aside—employee entitled to reinstatement with consequential benefits and costs. (Para 5 )
6. Can delay in approaching tribunal be attributed to an employee whose representation for correction of date of birth remained pending due to employer's inaction?
No, delay cannot be attributed to the employee when the employer kept the representation pending and asked for documents before belatedly rejecting it. (Para 4 )
7. Is an employee entitled to correction of date of birth when the employer does not dispute the supporting documentary evidence?
Yes, if the employer does not dispute the evidence (e.g., school certificate) and the error is obvious, the date should be corrected. (Para 4 )
8. Is a rejection of a date-of-birth correction request valid if made long after the initial representation due to the employee's lack of litigation?
No, an employee who seeks departmental relief and does not litigate cannot be penalized for delay when the application was not rejected for many years. (Para 4 )
ORDER :
B.N. Kirpal, CJI.
Special leave granted.
2. In the present case, the appellant was appointed as a gangman on 22-4-1964 and the date of birth which was recorded was 14-6-1941. As per the school certificate his actual date of birth was 4-6-1945 and he made representation for correction of the date of birth. This first representation was made on 5-12-1970. He continued to make representations and supply documents as required by the respondents till 22-4-1974. After a gap of nearly 21 years the respondents wrote a letter to the appellant on 6-3-1995 asking for some more documents which as per the order of the Central Administrative Tribunal was complied with. Ultimately, nothing was heard and on 5-1-2001 a cryptic order was passed in which it was observed as follows :
"With reference to your letter quoted above, it is advised that the request for change in date of birth 32 years after appointment and 6 months prior to retirement is not tenable and hence rejected."
3. The application of the appellant for relief before the Central Administrative Tribunal was unsuccessful because the Tribunal was of the view that the last representation was in 1974 and he has come to the Tribunal at the fag end of his retirement.
4. Having heard the counsel for the parties, we are at a loss to understand as to how the appellant could have been non-suited on the ground of delay. He first represented against his wrong recording of the date of birth within six years of his joining service. Two years after his representation the Railway Board issued an office order dated 4-8-1972 inviting representations for correction of date of birth, this representation was filed. When no action was taken reminders were sent, the last reminder being of 22-4-1974. As we have already noticed 21 years thereafter the representation was not rejected but vide a letter dated 6-3-1995 certain more documents were asked for from the appellant. These documents were supplied. There was no lack of diligence on the part of the appellant. For the Tribunal to state that his last representation was in 1974 is not correct because pursuant to the respondents letter of 6-3-1995 the documents were supplied. Merely because the appellant did not want to litigate and sought relief from the respondents departmentally and as his application had not been rejected till the year 2001, 31 years after he had first made the representation the appellant cannot be regarded as not having acted diligently. On merits, the respondents have not stated that the date of birth of the appellant was not 4-6-1945 as per the school certificate. There is obviously an error committed by the respondents and the date of birth should have been corrected. On the other hand, the appellant has been driven to years of litigation for no fault of his.
5. For the aforesaid reasons, these appeals are allowed. The order dated 5-1-2001 is set aside. The appellant will be treated as being in service as per his date of birth being 4-6-1945. The appellant will be entitled to reinstatement and all consequential benefits including arrears of salary after deducting the terminal benefits if received by the appellant. This order shall be complied with within eight weeks from today.
The appellant will be entitled to costs.
Appeal allowed with costs.
