Back
2011 Supreme(Del) 194
IN THE HIGH COURT OF DELHI AT NEW DELHI
HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MS.JUSTICE VEENA BIRBAL
Union of India -Petitioner
Versus
Mr.D.R.Dhingra & Anr. -Respondents
W.P(C) No.11694/2009
W.P.(C) No.11685/2009
Decided on : 23.02.2011
Mr.S.K.Dubey and Mr.Tongesh, Advocates.
Mr.Mukul Rohtagi, Sr.Advocate with Mr.A.K.Behera & Mr.Ramesh Gopinathan, Advocates for respondent no.1. Mr.Manjit Singh, Advocate for respondent. No.2.
Headnote:A) All India Services (Death-cum-Retirement Benefits) Rules, 1958, Rule 16A, Rule 3 of All India Services (Conditions of service-Residuary Matters) Rule, 1960:- Respondent seeking change of the date of birth approached the Administrative Tribunal - Date of birth as per record was shown to be prior to the date of the marriage of his parents and also to the recorded date of birth of his elder sister - On the ground there was error in the school record Punjab University changing the date of birth in its academic records - State Government of Haryana to which cadre the respondent originally belong accepting the case of the respondent and recommending the change to Centtral Government- Tribunal coming to the conclusion that it is a rarest of rare kind and for the purpose of superannuation under Rule16A of All India Services (Death cum Retirement) Rules by invoking its power under Rule 4 of All India Services (Conditions of service-Residuary Matters) Rules - Having recorded the finding that Rule 16A does not acknowledge any change in the date of birth accepted by the Central Government except in case of clerical mistake direction was found to be uncalled for - It was also held that Rule 3 cannot be invoked for superannuation matters - It was held that the policy of the Government to reject any request for change in the date of birth is well founded as otherwise it would affect service conditions of the juniors and cause dislocation in service conditions of many other officers.- Appeal of the Union against the order of the Tribunal allowed
ANIL KUMAR, J.
1. These writ petitions are against the orders dated 4th August, 2009 passed by the Principal Bench, Central Administrative Tribunal in O.A No.1267/2008 titled „D.R. Dhingra v. Union of India and Anr? holding that the date of birth of Sh.D.R.Dhingra (hereinafter referred to as applicant) is 6th May, 1952 and not 6th May, 1948. The Tribunal has held that though there is no bonafide clerical mistake as contemplated under Rule 16A of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, however, the tribunal deemed the case of the applicant as a rarest of rare case, and thus directed the Central Government to consider the applicability of Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 and to take a decision whether or not, the applicant is entitled for dispensation or relaxation of the requirement of rules or regulations on account of undue hardship to him. The Tribunal, however, left it to the discretion of the Union of India to continue or not to continue the applicant in service and during the three weeks granted by it directed the Government to decide the applicability of Rule 3 and if the Government is of the view that in the facts and circumstances, the case does entail a change in date of birth, then the period of three weeks be not treated as an interruption in the service of the applicant. The Tribunal further directed that in case the applicant succeeds then he be also given leave of the kind due, as may be permissible under the rules.
2. The Union of India has challenged the impugned order dated 4th August, 2009 of the Tribunal in Civil Writ Petition No.11685/2009 challenging the date of birth of the applicant as 6th May, 1952 and the direction of the Tribunal to consider the case of the applicant under Rule 3 of the All India Services (Conditions of Service-Residuary Matters) Rules, 1960 whereas the applicant has also challenged the order of the Tribunal in his writ petition being W.P(C) No.11694/2009 seeking direction to Union of India to continue the applicant in service in accordance with his date of birth as 6th May, 1952 and to give all the consequential benefits and direction to the UOI to issue and order after getting extension of time for implementation of the order dated 4th August, 2009, advising the Chief Secretary, State of Haryana not to discontinue the services of the petitioner.
3. The facts in brief relevant for decision of writ petitions are as follows. On 14th May, 1993 after the name of the applicant was approved for selection from State Civil Services to Indian Administrative Service, a representation dated 22nd May, 1993 was filed before the Chief Secretary, Government of Haryana regarding alteration of his date of birth contending inter-alia that the mother-in-law of his elder sister Smt.Sheela Taneja had expired in April, 1993 and on the kriya ceremony it transpired that his elder sister was born in the year 1951 being the first child out of the wedlock of his parents who got married in the year 1949. He asserted that his elder sister Sheela was born on 21st July, 1951 as per the certificate issued by District Registrar (Birth and Death) Civil Surgeon, Rohtak. According to the applicant the birth certificate also indicates that Sheela was the eldest child born to her parents at Village Anwal, Police Station Kalanaur, Tehsil and District Rohtak. His sister was admitted in the year 1960 in the first class in the Government Girls Primary School at Village Anwal and her school certificate and middle standard examination certificate indicated her date of birth as 3rd March, 1951. The applicant contended that he is the second child and as per the certificate of the Government Primary School, Anwal he was born on 6th May, 1952 which is also the date of birth in the certificate issued by the Headmaster, Government High School, Lahli, which is also the date of birth reflected by the certificate issued by the District Education O
