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2016 Supreme(Gau) 685
GAUHATI HIGH COURT
Hrishikesh Roy, L.S. Jamir, JJ.
Union of India & Ors. - Appellant
Versus
Mukul Chandra Bhattacharyya S/o. Late Jankinath Bhattacharyya - Respondent
Writ Petition (C) No. 2962/2015
Decided On : 28-07-2016
For the Respondent:Mr. I. Hussain & Mr. NH Barbhuiya, Advocates.
Headnote:
Employment and Service - Correction of date of birth - Service in Railways - Respondent joined service in Railways initially as a casual lineman on but after he qualified in trade test he was absorbed as a Lineman Gr.III, through order dated - Issue here relates to date of birth of the respondent and he contends that his correct date of birth is but in Service Book, maintained by Railways birth date was wrongly recorded - Correction of date of birth was made by respondent on but this was rejected on ground that such belated application for alteration of date of birth can’t be considered - Two years later, just on eve of superannuatio respondent re-applied on for correction of his birth date but this representation too was rejected by Railways on by reiteration of earlier decision - Eventually through final judgment rendered on direction was issued to the employer to correct birth date of applicant on basis of HSLC certificate and to allow him to continue in service as per corrected date – Held, HSLC certificate can be an acceptable document for rectification of the date of birth for an employee representation for rectification can’t be considered on eve of retirement - It is well settled that application for correction of date of birth can’t be entertained at fag end of service career - When respondent knew in itself of the entry in service book as can be gathered from signature of respondent appended on belated approach for age correction many years thereafter is indeed uncondonable - Therefore direction for rectification of date of birth ordered by learned CAT in view of ratio of Apex Court’s decisions referred to above is found to be erroneous - Date of superannuation of respondent should be on basis of date of birth recorded in his service book - Hence steps should be taken for early release of his retirement dues with as his retirement date - But for extra service rendered until recovery should not be made as this will cause hardship to retired person - Writ petition stands allowed
2. The respondent joined service in the Railways initially as a casual lineman on 16.6.1982 but after he qualified in the trade test, he was absorbed as a Lineman Gr.III, through the order dated 12.12.1988 (page 27). The issue here relates to the date of birth of the respondent and he contends that his correct date of birth is 19.2.1956 but in the Service Book, maintained by the Railways, the birth date was wrongly recorded as 21.2.1955.
3. The first representation for correction of the date of birth was made by the respondent on 5.12.2012 but this was rejected on 12.12.2012, on the ground that such belated application for alteration of date of birth can’t be considered. Two years later, just on the eve of superannuation, the respondent re-applied on 26.2.2014 for correction of his birth date but this representation too was rejected by the Railways on 10.4.2014 by reiteration of the earlier decision.
4. On the basis of the date of birth recorded in the service book, the respondent was scheduled to superannuate on 28.2.2015 but a few months earlier, the employee approached the CAT, Guwahati praying for correction of his date of birth as 19.2.1956 from 21.2.1955. The learned Tribunal through the interim order dated 25.8.2014, stayed the retirement of the applicant. Eventually through the final judgment rendered on 27.2.2015 (Annexure-p/14), direction was issued to the employer to correct the birth date of the applicant on the basis of the HSLC certificate and to allow him to continue in service as per the corrected date.
5. Assailing the legality of the impugned judgment of the Tribunal, Mr. HK Das, learned counsel submits that in the service book of the respondent, his date of birth was recorded as 21.2.1955 and when the employee signed the service book on 12.11.1986, he never protested that it was an incorrect entry. The Railway lawyer refers to the provisional seniority list(s) circulated on 1.1.2006 and on 1.4.2012 respectively to project that 21.2.1955 was also reflected as the date of birth in the circulated lists but neither in 2006 or in 2012, the respondent objected to that entry, recorded in the seniority lists.
6. The writ petitioners reads the Railways’ circular dated 19.11.1990, to refer to the prescribed procedure for alteration of the date of birth and Mr. Das submits that application for correction can’t be entertained after completion of probation or three years of service - whichever is earlier. The respondent was absorbed as a regular Lineman Gr.III on 12.12.1988 and accordingly it is submitted that when the incumbent remained silent for about 24 years, the correction of his date of birth on a much belated representation of 5.12.2012, should not have been ordered by the learned Tribunal.
7. Mr. I. Hussain, the learned counsel for the respondent however submits that when the entries in the service book was tendered to the employee for verification and endorsement, the respondent failed to notice the incorrect entry and it is submitted that the respondent innocently appended his signature to the service book on 12.11.1986, being oblivious of the wrong date of birth.
8. The respondent further submits that HSLC is an essential qualification for being appointed as Lineman Gr.III and it is clearly reflected in the service book itself that the HSLC certificate was available with the employer and therefore it is argued that the correction sought by the respondent is clearly based on the age specified in the HSLC certificate and normally the age details should be recorded as per the HSLC certificate of the employee.
9. The Railways counsel had resisted the application before the CAT by projecting that the respondent failed to apply for rectification in due time and approached the Tribunal just on the eve of retir
