Koya Kunnamgalam v. Administrator, Union Territory of Lakshadweep, and Superintending Engineer, Lakshadweep Public Works Department

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY ,THE 01ST DAY OF FEBRUARY 2019 / 12TH MAGHA, 1940** ## **OP (CAT).No. 31 of 2019** **OA 257/2018 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 13-04-2018** ## **PETITIONER/APPLICANT:** **KOYA KUNNAMGALAM AGED 60 YEARS S/O.ATTAKOYA POKKAYODA, KUNNAMGALAM, KILTAN ISLAND, W.C.BELDAR, PWD SUB DIVISION, KILTAN ISLAND.** **BY ADV. SRI.P.V.MOHANAN** ## **RESPONDENTS/RESPONDENTS:** - **1 THE ADMINISTRATOR, UNION TERRITORY OF LAKSHADWEEP,KAVARATTI - 682 555.** - **2 SUPERINTENDING ENGINEER, LAKSHADWEEP PUBLIC WORKS DEPARTMENT, LAKSHADWEEP ADMINISTRATION, KAVARATTI- 682 555.** **BY ADV. SRI.MANU.S, CGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 01.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** OP (CAT).No. 31 of 2019 -2- ## **JUDGMENT** ## **C.T.RAVIKUMAR, J.** This original petition is directed against the order dated 13.4.2018 passed by the Central Administrative Tribunal, Ernakulam Bench in O.A.No.257 of 2018. The unsuccessful applicant filed the said original application challenging Annexure A8 order, which carried a prayer for correction of his date of birth. The Tribunal relying on the decisions of the Honourable Apex Court in **Home Department v. R.Kirubakaran [(1994) SCC (L&S) 449]** and in **Union of India v. Harman Singh [(1993) SCC (L&C) 375]** , declined to accept the contentions and ultimately dismissed the original application. It is in the said circumstances that the aforecaptioned original petition has been filed. 2. Heard the learned counsel for the petitioner and OP (CAT).No. 31 of 2019 -3- also the learned Standing Counsel appearing for the respondent. 3. The petitioner entered into the service of Lakshadweep Public Works Department as a Mazdoor on 25.6.1981. While continuing so, he was appointed as W.C.Beldar in June, 2009. Admittedly, he is a person with 80% multiple disability and he is also a member of Scheduled Tribe. At the time of his entry in service, his age was recorded in the service book as 1.7.1958 by the Controlling Officer. It was later, corrected as 28.4.1958. He was due to retire from service on 30.04.2018 going by the recorded date of Birth. At the fag end of his career, he thought about getting corrected his date of birth and in that regard, he approached the authorities by filing Annexure A7 representation dated 26.9.2017. The request for correction of the date of birth was rejected by the authorities after OP (CAT).No. 31 of 2019 **==> picture [16 x 8] intentionally omitted <==** considering the same, as per Annexure A8. It is in the said circumstances that the original application was filed challenging Annexure A8. 4. As noticed hereinbefore at the time of his entry in service, he was appointed as W.C.Belder and his date of birth was recorded in the service book as 1.7.1958 by the Controlling Officer and thereafter, it was corrected to 28.4.1958. In the light of the request of the petitioner for correction of date of birth, it is only relevant to refer to the relevant provisions on the subject of the correction of date of birth. It is regulated by Note-6 of FR-56. Going by the same, the date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the Appropriate Authority on OP (CAT).No. 31 of 2019 -5- production, as far as possible, of confirmatory documentary evidence. In this context, as noticed hereinbefore, though originally his date of birth was recorded as 1.7.1958, it was scored off and re-written as 28.4.1958. Annexure A8 would indicate the reason for correcting his date of birth as 28.4.1958. After his entry in service, he produced a medical certificate and going by the entry therein, his date of birth is 28.4.1958. Evidently, the correction was made from 1.7.1958 to 28.4.1958 based on the said certificate. He thought of getting the date of birth corrected thereafter only at the fag end of his service. In the year 1979, an amendment was brought into Note-6 of FR 56. The amendment was brought in, to incorporate a time limit for seeking such correction of date of birth, as per notification No.1901/7/79/Estt(A) dated 30.11.1979. As per the said notification, the request for correction of the date of birth OP (CAT).No. 31 of 2019 -6- should be made within five years of his entry into Government service. The 1979 notification was followed by O.M.No.19017/2/92-Esst.(A) dated 19.5.1993 dated 19.5.1993 by the DoP&T, Government of India, which reads thus:- "Subsequent alteration of Date of birth- An alteration of date of birth can be made with the sanction of a Ministry/Department or the C & A.G. in case of AAD or an Administrator of a Union Territory, if- (a) an employee makes a request within five years of his entry into Government service; (b)it is clearly established that a genuine bona fide mistake had occurred and c) the date of birth so altered would not make him ineligible to appear in any school or University or UPSC examination in which he had appeared, or for entry into Government service on the date on which he entered Government service." Virtually, the time limit was reiterated in the aforesaid memorandum, as well. The said office memorandum was followed by another O.M.No.F.N.19017/1/2014-Estt (A-IV) dated 16.12.2014. Virtually, the instructions were reiterated OP (CAT).No. 31 of 2019 -7- in the said office memorandum, too. Going by the same, a request for correction of date of birth should be made within five years of the entry of the employee concerned into Government service. Thus, it is evident that the relevant provisions permits the Government servant concerned to seek for correction of date of birth within five years of entry in Government service. The impugned order Annexure A8 itself would reveal that virtually the petitioner had availed the said benefit. At the time of his entry in service, his date of birth was originally entered as 1.7.1958 and he got it corrected after producing a medical certificate and on the strength of the same, the date of birth was corrected to 28.4.1958. 5. The learned counsel appearing for the petitioner contended that there is no inviolable position that the date of birth could not be corrected even thereafter. In support of OP (CAT).No. 31 of 2019 -8- his contention, he relied on the decisions of the Honourable Apex Court in **G.M.Bharat Coking Coal Ltd, West Bengal v. Shib Kumar Dushad and others [(2000) 8 SCC 696]** and in **Bharat Coking Coal Limited v. Chhota Birsa Uranw** . **[(2014) 12 SCC 570]** 6. We have gone through the decisions relied on by the learned counsel for the petitioner. In Chhota Birsa Uranw's case, the dispute arose as two dates of birth were recorded in the service book of the employee concerned. His date of birth was recorded as 15.2.1947 in Form B, while in certificate issued on passing Mining Sardarship, his date of birth was recorded as 6.2.1950, corresponding to the date recorded in the school leaving certificate. Thus, it is evident that in the service record of the employee concerned, two dates of birth were recorded. It is the said dispute that was considered by the Apex Court. The Honourable Apex Court, OP (CAT).No. 31 of 2019 -9- took note of the fact that the dual entry as regards the date of birth of the employee concerned had occurred due to the employer's omission and not on account of any action/ inaction on the part of the employee. It is also to be noted that, in fact, it was not a belated claim at all. This is evident from paragraph 15 of the said judgment. The employee concerned sought for rectification of his date of birth in his service records much prior to his date of retirement as is obvious from paragraph 15. 7. In Shib Kumar Dushad's case, the respondent therein was an employee in a private colliery, viz, (Chirkunda Coal Company). He was absorbed into the service of the appellant therein, on nationalisation of the colliery, under the Nationalisation Act. The Bharat Coking Coal, followed a procedure for determination of the dates of birth/age of its employees as provided under OP (CAT).No. 31 of 2019 -10- “Implementation Instruction No.76”, the authenticity of which was not disputed by the parties. The question posed for consideration in that case, as is evident from paragraph 13, was as follows :- “The first question that arises for consideration in the case is whether the High Court, in the facts and circumstances of the case, was right in interfering with the date of birth recorded in the service records maintained by the employer, in the proceeding under Article 226 of the Constitution.” After the elaborate discussion, the Apex Court held that the employer concerned had followed the prescribed procedure under the Service Rules or general instructions and it was not the case of the employee that there occurred any arithmetical mistake or typographical error patent on the face of the record. Taking into account such aspects, the Apex Court held that, the High Court, in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India, should not have interfered with the OP (CAT).No. 31 of 2019 -11- decision of the employer. The Apex Court held that when the date of birth as entered in service record was questioned before court by an employee shortly before his retirement burden lies heavily on him to establish his stand by producing acceptable evidence of clinching nature. 8. Therefore, the question is what is the acceptable evidence of clinching nature available in this case. Even going by the case of the petitioner, he only seeks for sending him for medical examination. In this context, it is to be noted that the date of birth originally recorded at the time of his entry in service was corrected based on a medical certificate. This fact is not at all disputed by the petitioner. Thus, a scanning of the materials on record would reveal that there is absolute absence of acceptable evidence of clinching nature so as to entertain a belated claim made by the petitioner. In this context, it is also to be noted that he OP (CAT).No. 31 of 2019 -12- made Annexure A7 representation only on 26.9.2017, when he was due to retire from service on 30.4.2018. 9. Taking into account all such aspects and also the decisions of the Apex Court, the Tribunal declined to interfere with Annexure A8. In the light of the authorities on the said subject, considered by the Tribunal and referred by us hereinbefore, we do not find any illegality or perversity in the impugned order, passed by the Tribunal. In such circumstances, this original petition is liable to fail and accordingly, it is dismissed. **Sd/-** **C.T.RAVIKUMAR JUDGE** **Sd/V.G.ARUN JUDGE** Scl.4.2.19 OP (CAT).No. 31 of 2019 -13- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORDER IN OA NO/181/00257/2018 DATED 13.4.2018. EXHIBIT P2 TRUE COPY OF THE OA NO.181/00257/2018 WITH ANNEXURES.**