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MUNSHI RAM V/S UNION OF INDIA, decided on Friday, January 14, 1994.
[ In the High Court of Delhi, Letters Patent Appeal No. 11 of 1978. ] 14/01/1994
Judge(s) : ARUN B. SAHARYA & C.M. NAYAR
Advocate(s) : Madan Lokur, Ranjan Mukherjee.
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  "1994 (53) DLT 330"  ==   "1994 (28) DRJ 345"  ==   "1994 (1) SLR 769"  







    Constitution of India 1950 - Article 14 -Appeal dismissed     A.B. SAHARYA J.( 1 ) THE appellant has filed this Letters Patent Appeal against judgment. dated 17th of October 1977 of the learned Single Judge dismissing his Civil Writ Petition No. 284/77 seeking a writ for quashing a Memorandum dated 1st of May 1975 (Annexure X)communicating decision of the respondent refusing to change his date of birth recorded as 18th of June 1919 in the Service Book and a Notice dated 28th of June 1976 (Annexure XII) declaring his retirement on attaining the age of 58 years with effect from 30th of June 1977. According to the appellant the Government ought to have accepted 29th of September 1924 or in the( 2 ) THE appellant was recruited to the Army as Hav. Clerk on 18th of June 1942 during the 2nd World War. At that time he was studying in class X in Govt. High School Mehrauli Delhi. His age was entered as 23 years in the enrolment form which was duly signed by him. He was discharged from the Army after the war was over. The discharge certificate dated 14th of October 1946 (Annexure I) recorded his age as 27 years 5 months and 26days. Soon thereafter he joined a civilian post as a temporary Lower Division Clerk in the Army Headquarters under the Ministry of Defence. On the basis of his original Army Enrolment Form and the Discharge Certificate his date of birth was entered in the service record as 18th of June 1919. ( 3 ) THE Government issued a circular on 12th of September 1956 informing nonmatric clerks that they should pass the matriculation examination during the academic years 1956-57 and 1957-58 otherwise they were to be retrenched on 15th of June 1958. In pursuance of this requirement the appellant passed the matriculation examination and submitted the matriculation certificate where his date of birth was stated as 8th of March 1922. On the basis of this certificate his appointment as Lower Division Clerk was confirmed and he was promoted in officiating capacity as Upper Division Clerk in April 1958. A combined roll of temporary/officiating Upper Division Clerks was issued in the year 1959-60 (Annexure II ). In the said roll against the name of the appellant his date of birth was mentioned as 8th of March 1922. ( 4 ) THEREAFTER the Department formally prepared the appellants Service Book wherein his date of birth was again recorded as 18th of June 1919. The Service Book was signed by the appellant. He was promoted as officiating Assistant on 9th of December 1965. A Seniority Roll of Temporary Assistants was circulated and the various branches were asked vide office order dated 25th of July 1973 (Annexure V) to point out discrepancies/ oinmissions if any. In the Seniority Roll name of the appellant appeared at serial No. 119 and his date of birth was shown as 18th of June 1919. ( 5 ) AT this stage the appellant made a representation dated 7th of August 1973 (Annexure VI) complaining that his date of birth was not correctly recorded. He took up the stand that his date of birth shown in the matriculation certificate was also not correct as the same was not based on the documentary evidence at the time of admission in School. Instead he placed reliance upon a Birth Certificate stated to have been issued by the Municipal Corporation of Delhi and requested: ?my date of birth viz. 29th September 1924 may please be treated as my correct date of birth for all official purposes. The Ministry of Defence informed the appellant vide communication dated 10th of August 1973 (Annexure VII) that 18th of June 1919 was entered as his date ofbirth in the service record on the basis of his age recorded in the sheet roll of enrolment in the Army that the same had already been accepted as correct and that his representation was rejected. ( 6 ) THE appellant submitted another representation dated 3rd of November 1973 (Annexure VIII ). This time he tried to set up a different case. He pleaded on the basis of Army Order No-410/58 that his date of birth shown in the matriculation certificate and in the School Certificates should be given preference over the dale mentioned in the Municipal Birth Certificate. The appellant forwarded to the department a copy of the matriculation certificate a certificate of Class X issued by the Mehrauli School and a certificate described as vernacular Final Examination Certificate from M. C. G. V. (Model) School New Delhi-30 of year 1938 and on the basis of these three certificates he requested that for all official purposes his dale of birth should be accepted as 8th of March 1922. ( 7 ) BY a Memo dated 19th of November 1973 (Annexure R-VI) the Department called upon the appellant to furnish information in the following terms :- (a) indicate the circumstances under which he did not represent in regard to his incorrect date of birth/age at the time of his enrolment in the Army 18. 6. 42 or at the time of his discharge from the Army w. e. f. 14. 12. 46 AN. while he was well-educated to do so. (b) indicate the circumstances under which he did not get his date of birth recorded in his service Sheet/service Book at the time of his joining service as LDC in APHQ w. e. f. 23. 10. 1946 till 3. 11. 1973 after a lapse of so many years. (c)indicate the basis on which he declared his date of birth as 8. 3. 1922 at the time of his appearing in the Punjab University Matriculation Examination 1957. (d) to reconcile the difference in the date of his Birth recorded in the extract from the Birth Register of the Municipal Corporation of Delhi i. e. 29. 9. 1924 and the Matric Certificate i. e. 8. 3. 1922 produced by him. (e) to explain as to why the age in the Discharge Certificate has been changed to 23 years instead of 27 years which was originally recorded therein( 8 ) IN his reply dated 31st of December 1973 (Annexure IX) the appellant stated that he was enrolled in the Army at a time when troops were being rushed to Burma and Assam fronts to meet the Japanese aggression and there was no time for verification of date of birth of the recruits on the basis of any documentary evidence and that the Military Medical Officer used to write on the enrolment document/sheet roll in respect of each candidate his apparent age on an estimated basis which cannot he treated as the correct date of birth for official purposes. He claimed that the various certificates forwarded by him earlier should form the basis for verification and determination of his date of birth. With reference to the Mehrauli School Certificate he stated that someone had recorded his date of birth at the lime of his admission as 8th of March 1922 instead of 29th of October 1924 entered in the Municipal Birth Register and this is how the same date of birth was recorded in the Matriculation Certificate With regard to the discrepancy between the School Certificate and the Matriculation Certificate on one hand and the Birth Certificate on the other he stated as follows :-the date of birth recorded in my Municipal Birth Certificate i. e. 29 0ct 1924 is supported by the record of village Chokidar who make entry in the village birth register at the time of birth of a child. The same date of birth was sent to Municipal Corporation alongwith a village birth register at that time. This register indicating my date of birth as 29 0ct 1924 was recorded in these documents during 1924 and is my correct date of birth as I am only the son of my father who died after my birth. The date of birth given in School record/matriculation certificate is based according to the entry made in Primary Class (1st class) which was indicated in this school documents by some-one who arranged my admission in school when I was a child. Being uneducated villager they did not care to get my dale of birth certificate from Municipal Corporation Mehrauli in support of my correct date of birth. In view of the circumstances two different dates of birth recorded in these above documents. The appellant concluded his reply with a request in the following terms:-in view of this you are requested to accept my date of birth from my Matriculation Certificate or Municipal Birth Certificate which you consider correct according to orders in force at present. ( 9 ) THE request of the appellant for change of dale of his birth was finally rejected vide Ministry of Defence Memorandum dated 1st of May 1975 (Annexure X ). The reasons recorded in the said Memorandum for rejecting the appellants representation are set out below :- (a) His date of birth as recorded in the Municipal Birth Certificate is 29-9-1924 whereas in his Matric Certificate it is 8-3-1922. These date further differ from his dale of birth i. e. 18-6-1919 as obtained from his Army Discharge Certificate. (h) In his application dated 7-8-1973 he has stated that his date of birth as in his Matric Certificate is 15-4-1922. This is also not correct as in his Matric Certificate his dale of birth is shown as 8-3-1922. (c) It has been stated in his application dated 7-8-1973 and 31-12-1973 (paras b to d) that his dale of birth is 29-9-1924 as recorded in the Municipal Birth Certificate. This is also not correct as Municipal Birth Certificate shows different date of birth. (d) In the Army Discharge Certificate his age on the date of discharge on 14-12-1946 has been shown as 27 years 5 months and 26 days. This works out to 18-6-1919 which is also reflected in his Service Book. (e) He acquired the Matriculation qualifications only on 30-5-1957 i. e. long after be joined the service. This certificate obtained subsequently cannot therefore be considered as adequate reason for altering the entry relating to his date of birth in his service book which was filed long before he acquired the certificate. (f) In the Service Book opened on 3-6-1960 the date of birth is shown as 18-6-1919 page of this Service Book. containing the entry of date of birth has been signed by him. (g) There are specific instructions that the representations for change in date of birth should not be entertained from an individual who is nearing the age of superannuation. Consequently Ministry of Defence announced retirement of the appellant from service w. e. f. 30th of June 1977 (Annexure XII) by the impugned notice dated 27th of June 1976. ( 10 ) THE learned Single Judge held that the controversy raised in the writ petition could more appropriately be decided by way of a suit because the documents relied upon by the appellant cannot easily establish his correct dale of birth. The benefit sought to be derived from Army Order No. 410/58 on the basis of the Matriculation Certificate was disallowed because the appellant had appeared in the matriculation examination only after entering Government service and the date of birth mentioned therein was apparently taken from the Mehrauli School Certificate which was itself doubtful. Even on the basis of the Vernacular Examination Certificate although a case on that pedestal was not set up in the pleadings the learned Single Judge found that the matter could not be satisfactorily concluded because the Vernacular Final Examination of 1938 was held by the Punjab University or by the Punjab Government and the certificate produced by the appellant was not issued by either of these authorities. A plea raised on the basis of a Division Bench judgment dated 8th of September 1977 in L. P. A. 66/77 Indraj Singh vs. Union of India and others that the Department may lie directed to give an opportunity to the appellant to substantiate his case and to decide the question regarding change of the appellants date of birth afresh was also rejected because the Department had already given to the appellant an opportunity to explain his case. These various findings have been challenged in the Letters Patent Appeal. ( 11 ) IN Union of India vs. Harnam Singh JT 1993 (3) S. C. 711 the Supreme Court discussed the significance of the dale of birth entered in service records and the right of a Government servant to seek correction thereof and stated the essence in the following terms:-the date of birth entered in the service records of a civil servant is thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is of course not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth if be is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth the Government servant must do so without any unreasonable delay. ( 12 ) IN the present case the appellant is himself not sure about his correct date of birth. This is apparent from the two representations dated 7th of August 1973 (Annexure VI) and 3rd of November 1973 (Annexure VIII ). In the first representation he stated that 8th of March 1922 recorded in the School Certificate and in the Matriculation Certificate was not correct and that 29th of September 1924 recorded in the Birth Certificate should be treated as his date of birth for all official purposes. Just three months later in the second representation he changed his stand. With a view to take advantage of the Army Order No. 410/58 on the basis of the Matriculation Certificate he requested that 8th of March 1922 should be taken as his correct date of birth. ( 13 ) THE respondents have highlighted the confusion created by the appellant in his two representations. It has been stated in reply to the writ petition that the age of the appellant was assessed from his physical appearance and taken down in the Army enrolment form as 23 years because be did not produce any documentary evidence regarding his date of birth. The enrolment form was duly signed by the appellant. Further it has been asserted that every person enrolled in the Army is issued a Pay Book which is always kept in his personal custody. In this book along with other particulars his age/date of birth is also recorded. Moreover the Discharge Certificate indicated 18th of June 1919 as his date of birth. This was the date which was entered in his service record when he joined the civilian post as Lower Division Clerk in the Army Headquarters and the same date was recorded in his Service Book which was duly signed by the appellant. ( 14 ) IT is clear that the appellant sought alteration of his date of birth entered in the service record for the first time by the representation dated 7th of August 1973. He has given no explanation as to why he did not seek the change earlier. Apart from the unreasonable delay he has failed to produce irrefutable proof of his correct date of birth before the Department and even in Court. ( 15 ) THE Birth Certificate purporting to have been issued by the Municipal Corporation of Delhi (Annexure IV) can certainly not be taken as proof of 29th of February 1924 as the correct date of his birth. The extract does not give the appellants name. It only shows the birth of a son to Ram Sarup son of Chhelu. It does not disclose the name of the son. Moreover the Municipal Corporation was formed only in the year 1957. Obviously the said entry could not have been made in the Municipal Birth Register in the year 1924. The entry extracted in the said certificate must have been made in a register maintained by some other authority in October 1924. When the entry was made who made the entry and who maintained the original register at the relevant time? Nothing is known. Authenticity of the entry extracted in the said certificate is also doubtful. The date of birth claimed by the appellant is 29th of February 1924. That was the date initially typed out in figures in the second column of the extract; but the month February represented by the numeral 2 has been charged to September by overwriting the numeral 9 in hand. The entry made in the nineth column of the extract is also somewhat intriguing. The date given in that column implies that the entry was made on 20th of October 1924. If the date of birth was 22nd February 1924 then why did it take eight months for the entry to be recorded. If it was September 1924 which of course would be at variance with the case set up by the appellant the entry in the register would still be a month after the event. Such a document by itself without corroboration cannot be accepted or acted upon as sure proof of the correct date of birth. ( 16 ) NEXT we come to a scries of certificates namely the Mehrauli School Certificate the Vernacular Final Examination Certificate and the Matriculation Certificate recording 8th of March 1922 as the appellants date of birth. The appellant himself was not sure about the correctness of this date. This is clear from a bare reading of his representation dated 7th of August 1973 (Annexure VI) ;and reply dated 31st of December 1973 (Annexure IX) already discussed above. ( 17 ) THE appellant was unable to produce before us despite being called upon to do so the original Vernacular Final Examination Certificate What he relies upon purports to be a document issued by some school which is not the appropriate authority who conducted the said examination at the relevant time. Finding of the learned Single Judge that the Vernacular Examination used to be held by the Punjab University or by the Punjab Government in the year 1938 has not even been challenged before us. ( 18 ) WITH regard to Army Order No-410/58 we agree with the opinion of the learned Single Judge and the stand taken by the Department that it is of no avail in the present case for the reason that the appellant had appeared in the Matriculation examination and obtained the Certificate for the specific purpose of seeking confirmation of his appointment after he had joined service. ( 19 ) WE summoned the original Service Book and we have inspected the same. It was shown to learned counsel for the appellant also. The date of birth of the appellant is written quite prominently in bold figures and numerals and figures on the same sheet on which the appellant had appended his signatures. It would be impossible in our opinion even at a mere glance at the relevant sheet for any one to miss out the date of birth entered in the Service Book. We have therefore not the least doubt that the appellant was throughout aware of the fact that 19th of June 1919 was being treated as the date of his birth for all official purposes. The plea taken in the writ petition that the appellant merely appended his signatures on the Service Book and that he did not notice the date of his birth recorded therein which of course is denied by the respondents is wholly misconceived. ( 20 ) LEARNED counsel for the appellant contended that once 8th of March 1922 had been shown as his date of birth in the Combined Roll of Temporary/officiating U. D. C. s in the year 1959-60 the respondents should not have unilaterally changed it without giving to the appellant prior opportunity to show cause. He has placed reliance upon judgment of the Supreme Court in State of Orissa vs. Dr. (Miss)Binapani Devi and others A. I. R. 1967 S. C. 1269 and a Division Bench judgment dated 2nd of September 1977 of this Court in L. P. A. No. 66/77 Indraj Singh vs. Union of India and Others. ( 21 ) THERE is no scope for doubt on the proposition laid down in the case of Dr. (Miss) Binapani Devi that even in administrative matters action involving civil consequences must be taken consistently with the rules of natural justice after informing the concerned person of the case of the State and after giving him an opportunity of explaining his case. ( 22 ) THE respondents have explained in reply that the date of birth of the appellant was shown in the Combined Roll of Upper Division Clerks for the year 1959-60 due to an administrative error which was corrected in the Seniority Roll circulated on 25th of July 1973. It is further stated that the final decision was taken after giving him full opportunity to explain his case and after considering his reply dated 31st of December 1973 for the reasons stated in Memorandum dated 1st of May 1975. ( 23 ) IN the Combined Roll of Temporary/officiating Upper Division Clerks tor 1959-60 8th of March 1992 appears to have been taken as the date of birth of the appellant from the Matriculation Certificate which was furnished by him for the specific purpose of seeking confirmation in service as Upper Division Clerk. The appellant did not even seek change of his date of birth at that stage. Soon thereafter in June 1960 when the Service Book was prepared his date of birth was again recorded as 18th of June 1919. This was duly acknowledged and signed by the appellant without any demur. It was only in the year 1973 when the Seniority Roll was circulated that the appellant made the representation dated 7th of august 1973 and sought correction of the entry regarding his date of birth. This was followed by another representation dated 3rd of November 1973. Since the stand taken by the appellant in these two representations was rather confusing the respondents called upon him to clarify his stand and gave him an opportunity to explain his case wi*h reference to points specifically raised for clarification vide communication dated 19th of November 1973. In response the appellant submitted a detailed explanation dated 3rd of December 1973. He failed however to give satisfactory explanation to the vital points particularly those set out in paragraphs (a) (b) and (d) of the Memorandum dated 19th of December 1973. As a result the representations made by the appellant seeking change of the date of his birth were finally rejected by the Ministry of Defence for the reasons slated in the Memorandum dated 1st of May 1975. On the facts and in the circumstances of the present case therefore we are satisfied that sufficient opportunity was given to the appellant to explain his case and that the requirements of the principles of natural justice were fulfilled before the Government rejected his request for change of the entry regarding his date of birth in the service records. ( 24 ) LASTLY learned counsel for the appellant contended on the basis of the case of Indraj Singh (supra) that the matter should be remanded to the department for fresh consideration and decision. In that case it was felt that the appellant had not been given a reasonable opportunity to substantiate his case. Here the position is different. The plea is therefore rejected. ( 25 ) AS a result of the above discussion we find that the documents produced by the appellant cannot be accepted as irrefutable proof of his correct date of birth; and that the decision not to change the date of his birth recorded in the Service Book and to retire him from service with effect from 30th of June 1977 cannot be said to be arbitrary unfair or unjust. ( 26 ) WE find no merit in the appeal. It is therefore dismissed. No costs.