IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13/09/2004
CORAM
THE HONOURABLE Mr JUSTICE P.D.DINAKARAN
W.P.No.1387 of 1997
Col.K.Malaippan .... Petitioner
-Vs-
1. The Government of India,
rep. by Secretary to Government,
Ministry of Defence, South Block,
D.H.G. Post, New Delhi 110 011.
2. Military Secretary,
Army Head Quarters,
D.H.G. Post, New Delhi - 110 011. .... Respondents
Writ petition filed under Article 226 of The Constitution of India
praying for the issuance of writ of certiorarified mandamus as stated therein.
For Petitioner : Mr. N.S.Sivam
For Respondents: Mr. V.T.Gopalan, Addl. Solicitor General
Assisted by Mr.V.Balasubramanian,
ACGSC
:O R D E R
The request of the petitioner to change the date of birth from
15.0 7.44 to 22.06.46 and his consequential claim to continue his service upto
30.06.1999 was rejected by the first respondent in his proceedings dated
30.07.1996. Hence, the petitioner has chosen to file the present writ
petition seeking to call for the records of the respondents culminated in
Order No.7(6)/91/D(MS) dated 30th July 1996 of the first respondent and quash
the said order No.7(6)/91/D (MS) dated 30th July 1996 and direct the
respondents to incorporate 22.06.1946 as the date of birth of the petitioner
in the service records and accord all service benefits like promotions and
other monetary benefits that will lawfully accrued to the petitioner in the
service upto 30.6.1999 .
2.1. In brief, the petitioner joined service in the Army on
20.12.1970 declaring his date of birth as 15.7.1944 and the same has been duly
entered into his service register. The Government of India in the Official
Memorandum dated 21.04.1964 concededly prescribed that no request for change
of date of birth would be entertained after the lapse of two years from the
date of i) grant of first commission in the case of commissioned officers and
(ii) enrolment in case of JCOs/ Other ranks and equivalent in the other two
services. The above time of two years to request for change of date of birth
expires on 19.12.19 72 in the case of the petitioner.
2.2. However, the petitioner had chosen to make a
representation to the second respondent only on 23.2.1977, requesting the
second respondent to change the date of birth of the petitioner from
15.07.1944 to 22.6.1946. The only explanation according to the petitioner was
that, he was in the Field Area from 24.3.1972 to 17.11.1979 and therefore the
limitation prescribed under the said Official Memorandum is not applicable in
view of the provisions of the Indian Soldiers ( Litigation) Act 1925
(hereinafter referred to as ‘The Act). Since the respondent by their letter
dated 25.10.1977 informed the petitioner that his request could be considered
only if he could get the date of birth corrected in his University records and
in the S.S.L.C, the petitioner had chosen to move the Civil Court to declare
his correct date of birth as 22.06.1946, which culminated into a decree dated
06.03.19 84 made in S.A.No.615 of 1979 declaring his correct date of birth as
22.06.1946.
2.3 Concededly, even though the Director of School Education, Madras
and District Collector, Madurai were impleaded as parties to the suit
proceedings, the respondents were not impleaded as party at all. Of course,
the Government in G.O.M.S.No.48 Education Department dated 12.01.1987, as a
special case, directed the Director of School Education if satisfied himself,
based on the decree in S.A.No.615 of 1977 dated 06.03.1984, to correct the
date of birth of the petitioner in his school records, namely, S.S.L.C. Based
on the above documents, the petitioner requested the first respondent to
correct his date of birth in his service register and other consequential
attendant benefits. The first respondent after careful consideration however
rejected the request of the petitioner, by the proceedings dated 30.07.1996,
which is impugned in the above writ petition.
3. In this connection, it is apt to refer the relevant portion of the
impugned order dated 30.07.1996, which reads as follows:
“… Government of India vide MOD officer Memorandum
No.35(1)/A/63/D(Coord) dt. 21 April 1964 prescribed that no request for
change of date of birth will be entertained after the lapse of two years from
the date of (i) grant of first commission, in case of commissioned officers
and ; (ii) enrolment in case of JCOs/ORs and equivalents in other two
services. It was informed during discussions on this case that these
instructions have been uniformally followed by the Government in all cases of
officers past except in cases where change of the date of birth was ordered by
the Courts, even when the application was made after two years. It will,
therefore, be unjust to the officers whose applications were rejected on this
basis if any relaxation is allowed in the present case.
I also find that in the case of Union of India Vs. Harnam Singh (199
3(2); SSC page 162), decided by the Honourable Supreme Court of India in 1993,
the Honourable Court ruled that a Government Servant must apply for correction
of date of birth without any unreasonable delay and that the Government was
competent to fix a reasonable time limit after which no application for
correction of date of birth can be entertained.
I am of the opinion that 2 years time limit prescribed by the
Government, as mentioned above, is quite reasonable. The officer in his
petition before the Honourable Delhi High Court has tried to take advantage
under the order 663 of 73. The officer’s averment that the limitation period
was not applicable in his case in view of Army Order 66 3/73, is untenable.
This order is applicable only to the officers belonging to the Corps other
than Engineers, Medical, Signals & EME who were initially granted Short
Service Regular Commission and to those commissioned from JCSO/ORs fulfilling
certain conditions. The officer does not fall under any of these categories
and hence cannot claim any advantage under this order.
I am, therefore of the view that the officer had reasonable time
available to him to make application for change of date of birth, within the
time limit prescribed by the Government, but he failed to do so. There is no
case to allow any relaxation of this limitation to him. Hence, the
application of 9th May 1987 filed by Maj (now Col) K. Maliappan of Corps of
Signals is hereby rejected.”
4. Assailing the said order dated 30.07.1996, Mr.N.S.Sivam, learned
counsel appearing for the petitioner submits that two years period of
limitation is not applicable for the reasons that he was in the Field Area
between 24.3.1972 and 17.11.1979, and in any event, he is entitled for the
benefits of the decree dated 06.03.1984 made in S.A.No.615 of 1977 and
G.O.Ms.48, Education Department dated 12.01.1987.
5. Per contra, Mr.V.T.Gopalan, Additional Solicitor General appearing
for the respondents contends that the provisions of the Indian Soliders
(Litigation) Act would not be applicable to the petitioner as it is applicable
only for defending the suits or appeals filed against the soldiers. It is
further contended that the decree dated 06.03.1 984 made in S.A.No.615 of 1977
and consequential Government order G. O.Ms.No.48 Education Department dated
12.01.1987 are not binding on the respondents as the respondents are not
parties to the proceedings.
6. From the above contentions, the following issues arise for my
consideration:
i) Whether the Indian Soldiers (Litigation) Act 1925 is applicable to
the facts and circumstances of the case?
ii) Whether the decree dated 06.03.1984 made in S.A.No.615 of 1977 is
binding on the respondents or not ? and
iii) To what relief the petitioner is entitled to?
7.1 Issue No.1: Whether the Indian Soldiers (Litigation) Act 1925 is
applicable to the facts and circumstances of the case?
7.2. As per the statement of objects and reasons for enacting the
Indian Soldiers (Litigation) Act 1925, the Act is intended to consolidate and
amend the law to provide special protection in respect of the civil and
revenue litigation of Indian Soldiers serving under war condition. The Act
applies to Indian Soldiers serving under War conditions and provides
inter-alia for the postponement in certain circumstances of civil and revenue
proceedings in which an unrepresented Indian Soldier is a party and for the
deduction from periods of limitation in suits appeals or applications by
Indian Soldiers of the periods during which they have been serving under war
conditions.
7.3. Even though there is no bar neither under the Indian Soldiers
(Litigation) Act 1925 nor under any Government Memorandum for the petitioner
to make representation within two years, the petitioner had not chosen to make
any representation within the said time. It would be a different issue if the
petitioner had made such representation on or before 19.12.1972 and the
respondent required the petitioner to file a suit getting his University and
school records corrected and in which event certainly the provisions of the
Act would have been made applicable, and the period of limitation would thus
have been protected. Therefore, in my considered opinion, the petitioner is
not entitled to say that the period of limitation prescribed under the
Government order that he should have made request within two years on or
before 19.12.1972 is protected under the Act cannot be sustainable. Hence,
the issue No.1 is answered accordingly.
8.1. Issue No.2: Whether the decree dated 06.03.1984 made in S.A.
No.615 of 1977 is binding on the respondents or not ?
8.2. The petitioner having joined in the service declaring his date
of birth as 15.07.1944 and while seeking correction of his date of birth,
ought to have been impleaded the employer in the Civil suit. Since the
petitioner had deliberately failed to implead the respondent as a party in the
suit, as rightly contended by the learned Additional Solicitor General, the
said decree in the Second Appeal No.615 of 1977 much less the consequential
Government order G.O.Ms.No.48 Education Department dated 12.01.1987 is not
binding on the respondents.
8.3. The Apex Court in Union of India v. C.Ramaswamy and others
reported in (1997) 4 SCC 647, whereunder one Mr.Ramaswamy has adopted a novel
method to pursue his desire to get his date of birth altered by filing a suit
before the District Munsif, Sholinghur impleading the Director of School
Education, Madras; District Educational Officer, Vellore and his eldest sister
Kamala as defendants without impleading his employers, namely, The Andra
Pradesh Government where he was recruited as I.P.S. Officer in the cadre
strength of Andrapradesh and the Apex Court depreciating such attempts held as
follows:
…para 25. ” In matters relating to appointment to service various
factors are taken into consideration before making a selection or an
appointment. One of the relevant circumstances is the age of the person who
is sought to be appointed. It may not be possible to conclusively prove that
an advantage had been gained by representing a date of birth which is
different than that which is later sought to be incorporated. But it will not
be unreasonable to persume that when a candidate, at the first instance,
communicates a particular date of birth there is obviously his intention that
his age calculated on the basis of that date of birth should be taken into
consideration by the appointing authority for adjudging his suitability for a
responsible office. … In such a situation, it would be against public
policy to permit such a change to enable longer benefit to the person
concerned. …..
para 26. ….. Once having a secured entry into the service,
possibly in preference to the other candidates, then the principle of estoppel
would clearly be applicable and relief of change of date of birth can be
legitimately denied. To that extent the decision in Manak chand case does not
lay down the correct law (Emphasis supplied)
8.4. Again in another recent decision, namely, in State of U.P. V.
Gulaichi reported in (2003) 6 SCC, the Apex Court following the earlier
decision of the Apex Court in the case of State of T.N. v. T.V. Venugopalan
and State of Orissa V. Ramanath Patnaik held that when the entry was made in
the service record and when the employee was in service he did not make any
attempt to have the service record corrected, any amount of evidence produced
subsequently is of no consequence. The same view was expressed in
R.Kirubakaran case vide 1994 Supp (1 ) SCC 155.
8.5. It cannot be disputed that the above ratio laid down by the Apex
Court is squarely applicable to the petitioner’s case. Therefore, the
petitioner is not entitled to take his claim against the respondents based on
the decree dated 06.03.1984 made in S.A.No.615 of 1977 and the Government
Memorandum G.O.M.S.No.48 Education Department 12.0 1.1987 without impleading
the respondents as party to the proceedings. Hence, the issue No.2 is
answered accordingly.
91. Issue No.3: To what relief the petitioner is entitled to?
9.2. In view of the findings of this Court in issue Nos.1 and 2, I do
not see any merit in the writ petition. The writ petition is devoid of merits
and the same is dismissed. No costs.
Index :Yes
Internet:Yes
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To
1. The Secretary to Government of India, Ministry of Defence,
South Block, D.H.G. Post, New Delhi 110 011.
2. Military Secretary, Army Head Quarters,
D.H.G. Post, New Delhi – 110 011.