Dr. B.S. Chauhan, J. - (1.) THIS writ petition has been filed challenging the judgment and order dated 10.02.2005 (Annex.5) passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad (hereinafter called the 'Tribunal') by which a direction has been issued by the learned Tribunal to change the date of birth of the applicant respondent No.1 (hereinafter called the applicant-respondent) from 01.03.1959 to 13.02.1962.
(2.) THE facts and circumstances giving rise to this case are that applicantrespondent filed an Original Application before the Tribunal seeking a direction to the respondent-petitioner to make the aforesaid correction in his date of birth on the ground that he was born in St. Stephen's Hospital, Tis Hazari, New Delhi on 13.02.1962, however, his date of birth had been recorded as 01.03.1959 in matriculation certificate in view of the entries made in the Scholar's register on the basis of information given by his grandfather at the time of his admission in the school. THE Central Board of Secondary Education (hereinafter called the 'CBSE') issued a certificate in 1975 showing the date of birth of the application-respondent as 01.03.1959. He appeared in the Civil Services (Mains) Examination- 1983 wherein he mentioned in his application form that his actual date of birth was 13.02.1962. He was selected and appointed to Indian Administrative Service (hereinafter called the 'IAS') in the year 1984 and allocated the State of Uttar Pradesh. After completion of probation period, he made a representation on 07.08.1987 for correction of his date of birth, followed by a reminder dated 24.12.1987. THE said representation was rejected by the Government of India vide order dated 22.04.1988 and the same was communicated to the applicantrespondent on 07.10.1989. THE applicantrespondent made another representation dated 26.09.1990 seeking correction of his date of birth. As the said representation was not dealt with, he filed the Original Application No.522 of 1991 before the Lucknow Bench of the Tribunal, which was later on transferred to the Allahabad Bench and registered as Original Application No. 54 of 1999. In the meanwhile, the applicant-respondent filed Civil Suit No. 870 of 1993 in the Court of Munsif, Azamgarh for declaration that his correct date of birth was 3.02.1962. THE sole defendant therein CBSE did not enter appearance. THE Civil Court passed an exparte judgment and decree dated 06.01.1994 declaring that his correct date of birth was 13.02.1962 and not 1st March, 1959. THE CBSE was directed to make necessary amendment/correction in the certificate. THE CBSE filed an application under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter called the 'CPC') for setting aside the exparte decree, however, the said application was rejected vide order dated 02.02.1996. Against the said order, a revision was preferred by the CBSE which was also dismissed by the VIIth Additional District Judge, Azamgarh vide order dated 06.12.1996 and, in pursuance thereof, appropriate corrections had been carried out by the CBSE. THErefore, applicant-respondent was entitled for the benefits of the said Civil Court's decree. The Union of India contested the application on various grounds, inter-alia, that the said judgment and decree of the Civil Court, Azamgarh was not binding on it as the Union of India was not a party to tho Suit; the said applicant-respondent had passed all the examinations, ie. Higher Secondary, MBBS in 1975 and 1980 respectively showing his date of birth as 1st March, 1959. The applicantrespondent appeared in the Combined Medical Services Examination - 1981 and was selected, however, he did not join the service. He was selected and appointed in Indian Police Service (hereinafter called the 'IPS') in 1983 on the basis of Civil Services Examination 1982 and thereafter, he was selected and appointed in Indian Administrative Service (hereinafter called the 'IAS') in 1984 on the basis of the Civil Services Examination - 1983. Had his correct date of birth been 13.02.1962, he could not have even applied what to talk of selection in the I.P.S. on the basis of Civil Services Examination ? 1982. The affidavit filed by the petitioner's father dated 27.08.1965 before the Appropriate Authority made it Clear that the applicantrespondent has three brothers and sisters. His sister Kapila was born on 05.03.1955, his brother Rakesh was born on 27.03.1957, the applicant-respondent was born on 01.03.1959 and his younger brother Sudhir was born on 14.02.1962. In case the judgement of the Civil Court is upheld, the petitioner would be only one day elder to his younger brother Sudhir. No satisfactory proof in respect of age of his younger brother Sudhir Prasad has bean adduced before this Court. The application filed by the him for correction of date of birth was rejected in view of the provisions contained in sub-rule (1) of Rule 16-A of the All Indian Services (Death-cum-Retirement Benefits) Rules, 1958 (herein after called the' Rules 1958'), which provides that the date of birth once accepted by the Central Government shall not be shall not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or sub-rule (3) thereof. Further reliance has been placed upon the notification issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms dated 17th December, 1983, according to which once a date of birth claimed by a candidate is entered in the record of the Commission for the purposes of admission to an examination, no change shall be allowed subsequently or at any other examination of the Commission. Therefore, it had been contended on behalf of the Union of India that once he had shown his date of birth in the Civil Services Examination - 1982 as 01.03.1959, in subsequent examinations, it could not have been altered or the applicant-respondent could not have been permitted to give any other date of birth or two dates of birth. The Tribunal allowed the Original Application issuing a mandamus to the Union of India to alter the date of birth of the applicant-respondent from 01.03.1959 to 13.02.1962. Hence the present writ petition.
(3.) WE have heard Shri K.C. Sinha, learned Assistant Solicitor General of India for the petitioner; Shri R.N. Singh, learned Senior Advocate, with Shri Arjun Singhal, and Shri G.S. Hajela for the respondents. The main thrust of the argument on behalf of the writ petitioner has been that the judgment and decree of the Civil Court was not binding on the Union of . India as it was not a party before the Civil Court. The territorial jurisdiction of the Civil Court at Azamgarh to correct the date of birth in the school certificate issued by the CSSE at New Delhi remained doubtful as the applicantrespondent was born in Delhi, got the education at the School in Delhi. No cause of action, partly or fully, had arisen within its jurisdiction and the same was not examined by the said Civil Court. In such a fact situation, the exparte judgment and decree could not be held to be a judgment in rem in view of the provisions of Sections 40 and 42 of the Evidence Act. The judgment and decree had been obtained on the basis of horoscope which itself is a document of very weak nature and any document procured subsequent to the date of birth entered in the service book is not worth reliable. The date of birth is to be corrected at the earliest, i.e. within a reasonable period from the date of entry in service. Once the Union of India has rejected the application for correction of date of birth in view of the provisions contained in sub rule (4) of Rule 16-A of the Rules 1958 vide order dated 22.04.1988, the question of entertaining the repeated representations could not arise as the order of rejection had been communicated to the applicantrespondent on 07.10.1989. The applicantrespondent did not challenge the order dated 22.04.1988 at any stage before any appropriate forum, which had attained finality and, therefore, the question of issuing any mandamus by any Court or Tribunal without setting side" the said order could not arise. During the pendency of the Original Application, there was no occasion for the applicantrespondent to file a Civil Suit and get an exparte judgment and decree in respect of the same subject matter and that too without impleading the Union of India as a party as it amounted to abuse of process of the Court. The Tribunal had erred in holding that the applicant-respondent did not take any benefit from the date of birth disclosed in the earlier forms and applications, as admittedly the applicantrespondent had been appointed to IPS and remained in active service till the date of his termination from IPS vide order dated 06.12.1984 for joining in IAS, therefore, the judgment and order impugned is liable to be set aside.;