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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 Road, Mumbai 400 007 )..Petitioner
Versus
1. Union of India )
Through General Manager/ Government )
of India Mint, Shahid Bhagat Singh Road,
ig )
Mumbai 400 023 )
2. Government of India Mint )
Shahid Bhagat Singh Road, Mumbai-23 )..Respondents
Mr. S. N. Deshpande for the Petitioner
Mr. V. S. Masurkar with Ms. N. V. Masurkar and Mr. N. R. Prajapati for the
Respondents
CORAM : J. N. PATEL &
A.P. BHANGALE, JJ.
DATE : 18th MARCH, 2010.
ORAL JUDGMENT (Per Shri A.P. Bhangale, J) :
1. Heard. Rule. Learned Counsel appearing on behalf of the
respondents waives notice. By consent, rule is made returnable
forthwith.
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2. The petitioner seeks to invoke the writ jurisdiction of this Court
under Article 226 of the Constitution of India on the ground that he
was prematurely retired with effect from 31st March, 2007, claiming
that his real date of birth is 1st June 1950 and not 18th March, 1947.
3. The case of the petitioner, briefly stated, is that he had joined the
services of the respondents on 29th March 1971 as a labourer. The
petitioner had produced a School Leaving Certificate dated 22nd
December, 1970 of Jeevan Shikshan Shala, Nate and on that basis
his date of birth was recorded as 1st June 1950 which the petitioner
had confirmed as correct. The Petitioner was issued retirement
memo dated 25th September, 2006, retiring him from the services
w.e.f. 31st March, 2007.
4. The Petitioner, in response, had called upon the respondents to
withdraw the retirement memo. The authorities asked the
petitioner to produce the original School Leaving Certificate dated
22nd December, 1970 and asked him to bring a fresh School Leaving
Certificate from the school. According to petitioner, he had
produced the fresh School Leaving Certificate from the school and in
December, 2006 the authorities concerned had confirmed
genuineness thereof but told the Petitioner that he was free to go
to Court instead of asking for withdrawing the retirement memo.
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5. The Petitioner had moved the Central Administrative Tribunal by
filing Original Application No.49 of 2007, which directed the
respondents to produce the original service record of the petitioner.
According to petitioner, the original service record was not produced
by respondents on the ground that it was missing but an attested
form was produced in which the petitioner’s date of birth was shown
as 1st June 1950. The Tribunal was of the opinion that the
respondents should first consider the representation of the Petitioner
and upon decision on such representation by the respondents, the
Petitioner, if aggrieved by the decision of the Competent Authority,
can approach Central Administrative Tribunal. Hence Original
Application No. 49 of 2007 was disposed of. Thus, the petitioner
approached the respondents on 16th April, 2007 with his
representation. The General Manager who acted as competent
authority on behalf of the respondents, rejected the representation,
without allowing the petitioner to be represented by Union’s
representative at the time of personal hearing. The petitioner,
aggrieved by order dated 12th May, 2007 filed Original Application
No.327 of 2007 before the Central Administrative Tribunal which
was rejected on 31st December, 2007. The Petitioner filed Review
Application No.4 of 2008 which was allowed and Original
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Application No.327 of 2007 was restored on 18th March 2008.
6. The Central Administrative Tribunal, after hearing the parties,
dismissed Original Application No.327 of 2007 by order dated 31st
March, 2009 which is under challenge.
7. Learned Counsel for the petitioner submitted that the petitioner had
challenged his retirement on the ground that it was not based on the
correct date of birth. The respondents came up with false defence
that the original service record was missing and overlooked the
attestation form filled-up at the time of the appointment which
shows the petitioner’s correct date of birth as 1st June 1950.
Learned Counsel submitted that the duplicate service book sought to
be relied upon by the respondents, showing the date of birth of the
petitioner as 18th March 1947, was not prepared after giving an
opportunity of hearing to the petitioner and hence is not binding on
the petitioner.
8. Learned Counsel made reference to Swamy’s Fundamental Rules as
to retirement of Government Servants that a workman governed
under the Rules shall retire from service in the afternoon of the last
day of the month in which he attains the age of sixty years. Note 6
to FR 56 of the Swamy’s Fundamental Rules mentions that the date
of birth of the Government servant shall be determined with
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reference to the date of birth declared by the Government servant at
the time of appointment and accepted by the appropriate authority
on production, as far as possible, of confirmatory documentary
evidence, such as High School or Higher Secondary or Secondary
School Certificate or extracts from the Birth Register. Such date of
birth shall not be subject of alteration except when:
(a) a request in this regard is made by Government servant within 5
years of his entry in Government service.
(b) It is clearly established that a genuine bona fide mistake
occurred.
(c) the date of birth so altered would not make him ineligible to
appear in any School or University or Union Public Service
Commission Examination in which he had appeared or for entry in
to Government service on the date on which he first appeared at
such examination or on the date on which he entered Government
service.
9. Learned Counsel for the Petitioner urged that even an administrative
order which entails civil consequences must be made consistently
with the rules of natural justice i.e., after giving an opportunity of
hearing. Reference is made to rulings in:
(1) State of Orissa Vs. Dr. (Miss) Binapani Dei and others
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61967(II) LLJ 266(SC)
(2) Sarjoo Prasad Vs. General Manager & Anr. 1981(43) FLR
408.
(3) NTC (W.B.A. B.R.) Ltd. Vs. Sudhanya Biswas 1996 (72)
FLR 81 (86) (Calcutta)
(4) Mohd. Isa Vs. State of Bihar 1998 (79) FLR 104 (Patna)
(5) 2006 (2) LLN 23 (SC)
10.On the other hand, Learned Counsel for respondents submitted that
the petitioner had availed of opportunity of hearing and to produce
documents in support of his contentions and the Central
Administrative Tribunal by its well reasoned Judgment and Order
dated 31st March, 2009, dismissed Original Application No.327 of
2009. According to Learned Counsel for the respondents, the
petitioner since had joined the services in 1971, his name figured in
the seniority list pertaining to the years 1978, 1984, 1992, 2000 and
2006 and he also came to be promoted as an Assistant Class-III
(Security Edging), Assistant Class-II (Security Edging), Assistant
Class-I (Security Edging), Mistry (Security Edging) but he never
disputed his date of birth as 18th March, 1947 but chose to challenge
it at the fag end of his career when he was issued a retirement
memorandum dated 25th September, 2006. He never raised any
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grievance despite repeated seniority lists. In view of note 6 to FR 56
of Swamy’s Fundamental Rules the petitioner ought to have raised
such grievance within five years of his joining the service or in any
eventuality after the seniority list was issued on the basis of his date
of birth as 18th March, 1947. During the hearing pursuant to his
representation, the petitioner also did not produce documentary
evidence such as Mint Identity Card, Election Identity Card, original
LIP, CGHS Card issued by Mint, Driving License/Passport, date of
birth of wife and children to establish his genuine date of birth.
Learned Counsel for the respondents argued that in the ruling in the
case of NTC (supra), the Calcutta High Court observed that a writ
court can not pronounce the age of retirement or date of birth when
facts are disputed. According to the learned counsel for the
respondents, the rulings cited by the Learned Counsel for the
Petitioner are not of any assistance to the petitioner as the
opportunity of personal hearing and to produce documents in
support of his claim, is already availed of by the Petitioner.
11.Learned Counsel for the respondents contended that the Petitioner
had raised dispute conveniently at the fag end of his service
regarding the correct date of birth which suffers from delay and
laches and cannot be entertained at a belated stage, after the
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petitioner had enjoyed benefits of promotions based on seniority
lists circulated from time to time.
12.We have considered the submissions made across the bar and also
perused the record brought to our notice. The duplicate service
book of the petitioner brought to our notice, which according to
respondents was reconstructed on the basis of office records,
indicates the date of the petitioner’s birth as 18th March, 1947 with
his educational qualification as VIIIth standard passed when he
joined the services of the respondents on 19th March, 1971 as a
labourer. In State of Gujarat and others Vs. Vali Mohd. Dosabhai
Sindhi, reported in (2006) 6 SCC 537, the Supreme Court has held
that when an employee remained silent for long years and when on
the verge of his retirement raised dispute about the correctness of
the date of birth, the service record of whom was made on the basis
of his own statement, the High Court should not have granted relief
under suspicious circumstances merely on the basis of so called
School Leaving Certificate. In para 12 of the said decision, it has
been held thus:
“12. An application for correction of the date of birth
should not be dealt with by the courts, the Tribunal or
the High Court keeping in view only the public servant
concerned. It need not be pointed out that any such
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9servant concerned has a chain reaction, inasmuch as
others waiting for years, below him for their respective
promotions are affected in this process. Some are likelyto suffer irreparable injury, inasmuch as, because of the
correction of the date of birth, the officer concerned,
continues in office, in some cases for years, withinwhich time many officers who are below him in
seniority waiting for their promotion, may lose the
promotion for ever. Cases are not unknown when a
person accepts appointment keeping in view the date ofretirement of his immediate senior. This is certainly an
important and relevant aspect, which cannot be lost
sight of by the court or the tribunal while examining
the grievance of a public servant in respect ofcorrection of his date of birth. As such, unless a clear
case on the basis of materials which can be held to beconclusive in nature, is made out by the respondent
and that too within a reasonable time as provided in
the rules governing the service, the court or thetribunal should not issue a direction or make a
declaration on the basis of materials which make such
claim only plausible. Before any such direction is issued
or declaration made, the court or the tribunal must befully satisfied that there has been real injustice to the
person concerned and his claim for correction of dateof birth has been made in accordance with the
procedure prescribed, and within the time fixed by any
rule or order. If no rule or order has been framed or
made, prescribing the period within which suchapplication has to be filed, then such application must
be within at least a reasonable time. The applicant has
to produce the evidence in support of such claim,
which may amount to irrefutable proof relating to his
date of birth. Whenever any such question arises, theonus is on the applicant to prove about the wrong
recording of his date of birth in his service book. In
many cases it is a part of the strategy on the part of
such public servants to approach the court or the
tribunal on the eve of their retirement questioning the
correctness of the entires in respect of their dates of
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10to the notice of this Court that in many cases, even if
ultimately their applications are dismissed, by virtue of
interim orders, they continue for months, after the dateof superannuation. The court or the tribunal must,
therefore, be slow in granting an interim relief or
continuation in service, unless prima facie evidence ofunimpeachable character is produced because if the
public servant succeeds, he can always be
compensated, but if he fails, he would have enjoyed
undeserved benefit of extended service and therebycaused injustice to his immediate junior.”
13.In many cases it is a part of strategy on the part of public servants to
approach the Court or Tribunal on the eve of their retirement
questioning the correctness of the entries in respect of their date of
birth in the service books. The tendency to obtain advantage/benefit
on the basis of interim orders in such cases without production of
evidence of unimpeachable character was deprecated as it results in
undeserving benefit of extended service and deprivation of
opportunity of promotion to immediate junior of such employees.
We are satisfied that ample opportunity was available to the
petitioner to produce conclusive and unimpeachable evidence
regarding the correct date of birth, but he failed to produce
sufficient conclusive materials to the satisfaction of the Central
Administrative Tribunal. His conduct is also blameworthy and he
kept silent while enjoying the benefits of the promotions on the
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basis of seniority lists issued from time to time during his service
tenure and raised the dispute only when he was on the verge of his
retirement. By his conduct the petitioner had accepted the particular
date of birth, throughout his career enjoying benefits of promotion
on the basis of the seniority lists published from time to time.
Hence, the impugned order cannot be assailed on the ground that
the principles of natural justice were not followed or that personal
hearing was not given to him. Even otherwise, disputed questions of
fact cannot be gone into while exercising power under writ
jurisdiction, as unlike Civil Court, Writ Court cannot record findings
on fact which have to be arrived at on the basis of oral and
documentary evidence led before the competent Civil Court.
14.For the reasons stated above, we do not find any exceptional or
substantive ground having been made out to warrant interference in
the impugned Judgment and Order.
15.In the result, the petition is dismissed. Rule is discharged. No order
as to costs.
( J. N. Patel, J)
(A.P. BHANGALE, J)
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