{"id":67836,"date":"2010-03-18T00:00:00","date_gmt":"2010-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/yashwant-g-tambe-vs-union-of-india-on-18-march-2010"},"modified":"2015-07-12T09:56:36","modified_gmt":"2015-07-12T04:26:36","slug":"yashwant-g-tambe-vs-union-of-india-on-18-march-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/yashwant-g-tambe-vs-union-of-india-on-18-march-2010","title":{"rendered":"Yashwant G. Tambe vs Union Of India on 18 March, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Yashwant G. Tambe vs Union Of India on 18 March, 2010<\/div>\n
Bench: J.N. Patel, A.P. Bhangale<\/div>\n
                                        1\n\nMMJ\n                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                             ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                                    \n                                WRIT PETITION NO.1401 OF 2009\n\n\n\n\n                                                            \n      Yashwant G. Tambe                                 )\n      Old Chikhal Wadi, Raju Manaji Chawl               )\n      Room No.20, Chawl No.46-E                         )\n      Grant Road, Mumbai 400 007                        )..Petitioner\n\n\n\n\n                                                           \n            Versus\n\n      1. Union of India                                 )\n\n\n\n\n                                            \n      Through General Manager\/ Government               )\n      of India Mint, Shahid Bhagat Singh Road,\n                            ig                          )\n      Mumbai 400 023                                    )\n\n      2. Government of India Mint                       )\n                          \n      Shahid Bhagat Singh Road, Mumbai-23               )..Respondents\n\n\n      Mr. S. N. Deshpande for the Petitioner\n        \n\n\n      Mr. V. S. Masurkar with Ms. N. V. Masurkar and Mr. N. R. Prajapati for the \n     \n\n\n\n      Respondents\n\n                                             CORAM : J. N. PATEL &\n                                                            A.P. BHANGALE,  JJ.\n<\/pre>\n
                                         DATE   :  18th MARCH, 2010.\n<\/p>\n
      ORAL JUDGMENT (Per Shri A.P. Bhangale, J)  :\n<\/p>\n
         1. Heard.     Rule.     Learned   Counsel   appearing   on   behalf   of   the <\/p>\n
            respondents   waives   notice.   By   consent,   rule   is   made   returnable <\/p>\n
            forthwith.\n<\/p>\n
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\n                                      2<\/span><\/p>\n
     2. The petitioner seeks to invoke   the writ jurisdiction  of this Court <\/p>\n
        under Article 226 of the Constitution of India on the ground that he <\/p>\n
        was prematurely retired with effect from 31st March, 2007, claiming <\/p>\n
        that his real date of birth is 1st June 1950 and not 18th March, 1947.\n<\/p>\n
     3. The case of the petitioner, briefly stated, is that he had joined the <\/p>\n
        services of the respondents on 29th March 1971 as a labourer.  The <\/p>\n
        petitioner   had   produced   a   School   Leaving   Certificate   dated   22nd <\/p>\n
        December, 1970 of Jeevan Shikshan Shala, Nate and on that basis <\/p>\n
        his date of birth was recorded as 1st June 1950 which the petitioner <\/p>\n
        had   confirmed   as   correct.   The   Petitioner   was   issued   retirement <\/p>\n
        memo dated 25th  September, 2006,   retiring him from the services <\/p>\n
        w.e.f. 31st March, 2007.\n<\/p>\n
     4. The   Petitioner,   in   response,   had   called   upon   the   respondents   to <\/p>\n
        withdraw   the   retirement   memo.     The   authorities   asked   the <\/p>\n
        petitioner to produce the original School Leaving Certificate dated <\/p>\n
        22nd December, 1970 and asked him to bring a fresh School Leaving <\/p>\n
        Certificate   from   the   school.     According   to   petitioner,   he   had <\/p>\n
        produced the fresh School Leaving Certificate from the school and in <\/p>\n
        December,   2006   the   authorities   concerned   had   confirmed <\/p>\n
        genuineness thereof  but told  the Petitioner that he was free to go <\/p>\n
        to Court instead of asking for  withdrawing the retirement memo.\n<\/p>\n
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\n                                     3<\/span><\/p>\n
     5. The   Petitioner   had   moved   the   Central   Administrative   Tribunal   by <\/p>\n
        filing   Original   Application     No.49   of   2007,   which   directed   the <\/p>\n
        respondents to produce the original service record of the petitioner.\n<\/p>\n
        According to petitioner, the original service record was not produced <\/p>\n
        by respondents on the ground that it was missing but an attested <\/p>\n
        form was produced in which the petitioner’s date of birth was shown <\/p>\n
        as   1st  June   1950.   The   Tribunal   was   of   the   opinion   that   the <\/p>\n
        respondents should first consider the representation of the Petitioner <\/p>\n
        and upon decision on such representation by the respondents, the <\/p>\n
        Petitioner, if aggrieved by the decision of the Competent Authority, <\/p>\n
        can   approach   Central   Administrative   Tribunal.   Hence   Original <\/p>\n
        Application No. 49 of 2007 was disposed of.   Thus, the petitioner <\/p>\n
        approached   the   respondents   on   16th  April,   2007   with   his <\/p>\n
        representation.   The   General   Manager   who   acted   as   competent <\/p>\n
        authority on behalf of the respondents, rejected the representation, <\/p>\n
        without   allowing   the   petitioner   to   be   represented   by   Union’s <\/p>\n
        representative   at   the   time   of   personal   hearing.   The   petitioner, <\/p>\n
        aggrieved by order dated 12th May, 2007  filed Original Application <\/p>\n
        No.327 of 2007 before the Central Administrative  Tribunal which <\/p>\n
        was  rejected on  31st  December, 2007. The  Petitioner  filed Review <\/p>\n
        Application   No.4   of   2008   which   was   allowed   and   Original <\/p>\n
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\n                                      4<\/span><\/p>\n
        Application No.327 of 2007 was restored on 18th March 2008.\n<\/p>\n
     6. The   Central   Administrative   Tribunal,   after   hearing   the   parties, <\/p>\n
        dismissed Original Application No.327 of 2007 by order dated 31st <\/p>\n
        March, 2009 which is under challenge.\n<\/p>\n
     7. Learned Counsel for the petitioner submitted that the petitioner had <\/p>\n
        challenged his retirement on the ground that it was not based on the <\/p>\n
        correct date of birth. The respondents came up with false defence <\/p>\n
        that   the   original   service   record   was   missing   and   overlooked   the <\/p>\n
        attestation   form   filled-up   at   the   time   of   the   appointment   which <\/p>\n
        shows   the   petitioner’s   correct   date   of   birth   as   1st  June   1950.\n<\/p>\n
        Learned Counsel submitted that the duplicate service book sought to <\/p>\n
        be relied upon by the respondents, showing the date of birth of the <\/p>\n
        petitioner   as   18th  March   1947,   was   not   prepared   after   giving   an <\/p>\n
        opportunity of hearing to the petitioner and hence is not binding on <\/p>\n
        the petitioner.\n<\/p>\n
     8. Learned Counsel made reference to  Swamy’s Fundamental Rules as <\/p>\n
        to   retirement   of   Government   Servants   that   a   workman   governed <\/p>\n
        under the Rules shall retire from service in the afternoon of the last <\/p>\n
        day of the month in which he attains the age of sixty years.  Note  6 <\/p>\n
        to FR 56 of the Swamy’s Fundamental Rules mentions that the date <\/p>\n
        of   birth   of   the   Government   servant   shall   be   determined   with <\/p>\n
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\n                                      5<\/span><\/p>\n
        reference to the date of birth declared by the Government servant at <\/p>\n
        the time of appointment and accepted by the appropriate authority <\/p>\n
        on   production,   as   far   as   possible,   of   confirmatory   documentary <\/p>\n
        evidence, such as High School or Higher Secondary or Secondary <\/p>\n
        School Certificate or extracts from the Birth Register.  Such date of <\/p>\n
        birth shall not be subject of alteration except when:\n<\/p>\n
        (a) a request in this regard is made by Government servant within 5 <\/p>\n
        years of his entry in Government service.\n<\/p>\n
        (b)   It   is   clearly   established   that   a   genuine   bona   fide   mistake <\/p>\n
        occurred.\n<\/p>\n
        (c) the date of birth so altered would not make him ineligible to <\/p>\n
        appear   in   any   School   or   University   or   Union   Public   Service <\/p>\n
        Commission Examination in which he had appeared or for entry in <\/p>\n
        to Government service on the date on which he first appeared at <\/p>\n
        such examination or on the date on which he entered Government <\/p>\n
        service.\n<\/p>\n
     9. Learned Counsel for the Petitioner urged that even an administrative <\/p>\n
        order which entails civil consequences must be made  consistently <\/p>\n
        with the rules of natural justice i.e., after giving an opportunity of <\/p>\n
        hearing.  Reference is made to rulings in:\n<\/p>\n
            (1)   State   of   Orissa   Vs.   Dr.   (Miss)   Binapani   Dei   and   others <\/p>\n
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\n                                        6<\/span><\/p>\n
            1967(II) LLJ 266(SC)  <\/p>\n
            (2)  Sarjoo Prasad Vs. General Manager & Anr. 1981(43) FLR <\/p>\n<\/blockquote>\n
            408.<\/p>\n
            (3)  NTC  (W.B.A. B.R.)  Ltd.  Vs.  Sudhanya  Biswas  1996  (72) <\/p>\n
            FLR 81 (86) (Calcutta)<\/p>\n
            (4) Mohd. Isa Vs. State of Bihar 1998 (79) FLR 104 (Patna)<\/p>\n
            (5) 2006 (2) LLN 23 (SC)<\/p>\n<\/blockquote>\n
     10.On the other hand, Learned Counsel for respondents submitted that <\/p>\n
        the petitioner had availed of opportunity of hearing and to produce <\/p>\n
        documents   in   support   of   his   contentions   and   the   Central <\/p>\n
        Administrative Tribunal by its well reasoned Judgment and Order <\/p>\n
        dated 31st  March, 2009, dismissed Original Application No.327 of <\/p>\n
        2009.   According   to   Learned   Counsel   for   the   respondents,   the <\/p>\n
        petitioner since had joined the services in 1971, his name figured in <\/p>\n
        the seniority list pertaining to the years 1978, 1984, 1992, 2000 and <\/p>\n
        2006   and   he   also   came   to   be   promoted   as   an   Assistant   Class-III <\/p>\n
        (Security   Edging),   Assistant   Class-II   (Security   Edging),   Assistant <\/p>\n
        Class-I   (Security   Edging),   Mistry   (Security   Edging)   but   he   never <\/p>\n
        disputed his date of birth as 18th March, 1947 but chose to challenge <\/p>\n
        it   at   the   fag   end   of   his   career   when   he   was   issued   a   retirement <\/p>\n
        memorandum   dated   25th  September,   2006.   He   never   raised   any <\/p>\n
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\n                                        7<\/span><\/p>\n
        grievance despite repeated seniority lists.  In view of note 6 to FR 56 <\/p>\n
        of Swamy’s Fundamental Rules the petitioner ought to have raised <\/p>\n
        such grievance within five years of his joining the service or in any <\/p>\n
        eventuality after the seniority list was issued on the basis of his date <\/p>\n
        of birth as 18th  March, 1947.   During the hearing pursuant to his <\/p>\n
        representation,   the   petitioner   also   did   not   produce   documentary <\/p>\n
        evidence such as Mint Identity Card, Election  Identity Card, original <\/p>\n
        LIP, CGHS  Card issued  by  Mint, Driving  License\/Passport,  date  of <\/p>\n
        birth   of   wife   and   children   to   establish   his   genuine   date   of   birth.\n<\/p>\n
        Learned Counsel for the respondents argued that in the ruling in the <\/p>\n
        case of  NTC  (supra), the Calcutta High Court  observed that a writ <\/p>\n
        court can not pronounce the age of retirement or date of birth when <\/p>\n
        facts   are   disputed.   According   to   the   learned   counsel   for   the <\/p>\n
        respondents,   the   rulings   cited   by   the   Learned   Counsel   for   the <\/p>\n
        Petitioner   are   not   of   any   assistance   to   the   petitioner   as   the <\/p>\n
        opportunity   of   personal   hearing   and   to   produce   documents   in <\/p>\n
        support of his claim, is already availed of by the Petitioner.\n<\/p>\n
     11.Learned Counsel for the respondents contended that the Petitioner <\/p>\n
        had   raised   dispute   conveniently   at   the   fag   end   of   his   service <\/p>\n
        regarding   the   correct   date   of   birth   which   suffers   from   delay   and <\/p>\n
        laches   and   cannot   be   entertained   at   a   belated   stage,   after   the <\/p>\n
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\n                                     8<\/span><\/p>\n
       petitioner   had   enjoyed   benefits   of   promotions   based   on   seniority <\/p>\n
       lists circulated from time to time.\n<\/p>\n
     12.We have considered the submissions made across the bar and also <\/p>\n
       perused   the   record   brought   to   our   notice.     The   duplicate   service <\/p>\n
       book   of   the   petitioner   brought   to   our   notice,   which   according   to <\/p>\n
       respondents   was   reconstructed   on   the   basis   of   office   records, <\/p>\n
       indicates the date of the petitioner’s birth as 18th March, 1947 with <\/p>\n
       his   educational   qualification   as   VIIIth   standard   passed   when   he <\/p>\n
       joined   the   services   of   the   respondents   on   19th  March,   1971   as   a <\/p>\n
       labourer.  In State of Gujarat and others Vs. Vali Mohd. Dosabhai <\/p>\n
       Sindhi, reported in (2006) 6 SCC 537, the Supreme Court has held <\/p>\n
       that when an employee remained silent for long years and when on <\/p>\n
       the verge of his retirement raised dispute about the correctness of <\/p>\n
       the date of birth, the service record of whom was made on the basis <\/p>\n
       of his own statement,  the High Court should not have granted relief <\/p>\n
       under   suspicious   circumstances   merely   on   the   basis   of   so   called <\/p>\n
       School Leaving Certificate.     In para 12 of the said decision, it has <\/p>\n
       been held thus:\n<\/p>\n
              “12. An application for correction of the date of birth
\n              should not be dealt with by the courts, the Tribunal or
\n              the High Court keeping in view only the public servant
\n              concerned.  It  need  not be  pointed out  that any such
\n              direction for correction of the date of birth of the public <\/p>\n
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\n                             9<\/span><\/p>\n
      servant   concerned   has   a   chain   reaction,   inasmuch   as
\n      others waiting for years, below him for their respective
\n      promotions are affected in this process. Some are likely <\/p>\n
      to suffer irreparable injury, inasmuch as, because of the
\n      correction of the date of birth, the officer concerned,
\n      continues   in   office,   in   some   cases   for   years,   within <\/p>\n
      which   time   many   officers   who   are   below   him   in
\n      seniority   waiting   for   their   promotion,   may   lose   the
\n      promotion   for   ever.   Cases   are   not   unknown   when   a
\n      person accepts appointment keeping in view the date of <\/p>\n
      retirement of his immediate senior. This is certainly an
\n      important   and   relevant   aspect,   which   cannot   be   lost
\n      sight of by the court or the tribunal while examining
\n      the   grievance   of   a   public   servant   in   respect   of <\/p>\n
      correction of his date of birth. As such, unless a clear
\n      case on the basis of materials which can be held to  be <\/p>\n
      conclusive   in   nature,   is   made   out   by   the   respondent
\n      and that too within a reasonable time as provided in
\n      the   rules   governing   the   service,   the   court   or   the <\/p>\n
      tribunal   should   not   issue   a   direction   or   make   a
\n      declaration on the basis of materials which make such
\n      claim only plausible. Before any such direction is issued
\n      or declaration made, the court or the tribunal must be <\/p>\n
      fully satisfied that there has been real injustice to the
\n      person concerned and his claim for correction of date <\/p>\n
      of   birth   has   been   made   in   accordance   with   the
\n      procedure prescribed, and within the time fixed by any
\n      rule or order. If no rule or order has been framed or
\n      made,   prescribing   the   period   within   which   such <\/p>\n
      application has to be filed, then such application must
\n      be within at least a reasonable time. The applicant has
\n      to   produce   the   evidence   in   support   of   such   claim,
\n      which may amount to irrefutable proof relating to his
\n      date of birth. Whenever any such question arises, the <\/p>\n
      onus   is   on   the   applicant   to   prove   about   the   wrong
\n      recording  of  his  date   of   birth   in   his  service   book.  In
\n      many cases it is a part of the strategy on the part of
\n      such   public   servants   to   approach   the   court   or   the
\n      tribunal on the eve of their retirement questioning the
\n      correctness  of  the   entires  in  respect  of  their   dates  of
\n      birth in the service books. By this process, it has come <\/p>\n
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\n                                      10<\/span><\/p>\n
               to the notice of this Court that in many cases, even if
\n               ultimately their applications are dismissed, by virtue of
\n               interim orders, they continue for months, after the date <\/p>\n
               of   superannuation.   The   court   or   the   tribunal   must,
\n               therefore,   be   slow   in   granting   an   interim   relief   or
\n               continuation in service, unless prima facie evidence of <\/p>\n
               unimpeachable   character   is   produced   because   if   the
\n               public   servant   succeeds,   he   can   always   be
\n               compensated,   but   if   he   fails,   he   would   have   enjoyed
\n               undeserved   benefit   of   extended   service   and   thereby <\/p>\n
               caused injustice to his immediate junior.”\n<\/p><\/blockquote>\n
     13.In many cases it is a part of strategy on the part of public servants to <\/p>\n
        approach   the   Court   or   Tribunal   on   the   eve   of   their   retirement <\/p>\n
        questioning the correctness of the entries in respect of their date of <\/p>\n
        birth in the service books. The tendency to obtain advantage\/benefit <\/p>\n
        on the basis of interim orders in such cases without production of <\/p>\n
        evidence of unimpeachable character was deprecated as it results in <\/p>\n
        undeserving   benefit   of   extended   service   and   deprivation   of <\/p>\n
        opportunity of promotion to immediate junior of such employees.\n<\/p>\n
        We   are   satisfied   that   ample   opportunity   was   available   to   the <\/p>\n
        petitioner   to   produce   conclusive   and   unimpeachable   evidence <\/p>\n
        regarding   the   correct   date   of   birth,   but   he   failed   to   produce <\/p>\n
        sufficient   conclusive   materials   to   the   satisfaction   of   the   Central <\/p>\n
        Administrative   Tribunal.   His   conduct   is   also   blameworthy   and   he <\/p>\n
        kept   silent   while   enjoying   the   benefits   of   the   promotions   on   the <\/p>\n
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\n                                          11<\/span><\/p>\n
           basis of seniority lists issued from time to time during his service <\/p>\n
           tenure and raised the dispute only when he was on the verge of his <\/p>\n
           retirement. By his conduct the petitioner had accepted the particular <\/p>\n
           date of birth, throughout  his career enjoying benefits of promotion <\/p>\n
           on   the   basis   of   the   seniority   lists   published   from   time   to   time.\n<\/p>\n
           Hence, the impugned order cannot be assailed on the ground that <\/p>\n
           the principles of natural justice were not followed or that personal <\/p>\n
           hearing was not given to him. Even otherwise, disputed questions of <\/p>\n
           fact   cannot   be   gone   into   while   exercising   power   under   writ <\/p>\n
           jurisdiction, as unlike Civil Court, Writ Court cannot record findings <\/p>\n
           on   fact   which   have   to   be   arrived   at   on   the   basis   of   oral   and <\/p>\n
           documentary evidence led before the competent Civil Court.\n<\/p>\n
        14.For   the   reasons   stated   above,   we   do   not   find   any   exceptional   or <\/p>\n
           substantive ground having been made out to warrant interference in <\/p>\n
           the impugned Judgment and Order.\n<\/p>\n
        15.In the result, the petition is dismissed. Rule is discharged. No order <\/p>\n
           as to costs.\n<\/p>\n
                                                         ( J. N. Patel, J)<\/p>\n
                                                         (A.P. BHANGALE, J)<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 15:43:54 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Yashwant G. Tambe vs Union Of India on 18 March, 2010 Bench: J.N. Patel, A.P. Bhangale 1 MMJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1401 OF 2009 Yashwant G. Tambe ) Old Chikhal Wadi, Raju Manaji Chawl ) Room No.20, Chawl No.46-E ) Grant […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-67836","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nYashwant G. 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