BRIGADIER ASHOK KUMAR SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) In this petition under Article 226 of the Constitution of India the petitioner claims to have raised a substantial question of law of general public importance that once a change is effected in the Higher Secondary Certificate in relation to date of birth, the defence authorities are duty bound to alter their records accordingly and give advantage for further years of service to the claimant.

(2.) Brigadier Ashok Kumar Singh was commissioned as an officer in the Indian Army and inducted in the core of infantry. At the time of his commission the date of birth in the service documents and the Higher Secondary Examination Certificate was reflected as 16.8.51. The date of birth as indicated above remained unchanged or not objected to for all these years. The petitioner was permitted to appear in the 42nd National Defence Academy Entrance Examination as provisional candidate. The petitioner qualified the said examination and he even received instructions to join in July, 1969. However, his candidature was cancelled by the U.P.SC for non-submission of corrected date of birth. According to the petitioner his correct date of birth was 16.8.53. On 5.11.03 he made a representation before the West Bengal Board of Secondary Education for correction of the date of birth in view of judgment passed by the Calcutta High Court. On 21.8.04 the petitioner moved an application for correction of his date of birth before the competent authority in the Ministry of Defence. Vide letter dated 28.8.04 the competent authority replied to the petitioner that he may re-submit the application with the authenticated birth proof as corrected by the West Bengal Board of Secondary Education. In furtherance to his representation dated 5.11.03, the petitioner received a letter dated 23.12.04 from the West Bengal Board of Secondary Education requiring him to deposit the requisite fee of Rs.600/- along with admit card and certificate for necessary action. The petitioner filed the requisite documents. It is further the case of the petitioner that after due enquiry the West Bengal Board of Secondary Education on 24.1.05 corrected the date of birth of the petitioner as 16.8.53 in place of 16.8.51. After correction of the date of birth in the school certificate the petitioner made representation to the Army Headquarter on 21.2.05 which was rejected by the competent authority as per its order dated 24.2.05 primarily on the ground that such application could not be entertained after lapse of two years from granting of the commission to the officer. The petitioner has challenged the validity of the order dated 24.2.05 in the present writ petition.

(3.) According to the petitioner, once the correction has been carried out by the School Secondary Board of West Bengal then it is obligatory upon the authorities to make the consequential changes in the service record of the petitioner in regard to his date of birth. Thus, the respondents have no jurisdiction to reject the said application. It is further contended that the alleged bar of two years is not attributed in the facts and circumstances of the case as the action of the petitioner in moving the authorities does not suffer from delay as he had approached the authorities immediately after the correction was made by the Board of Higher Secondary Education. While invoking the principles of Article 14 of the Constitution of India, it is also contended that the date of birth of Wing Commander M. Murgesan was also corrected by the respondent after two years of the commission. The respondents have filed a counter affidavit. It is stated that after thirty years the petitioner has no right in law and fact to get his date of birth corrected in his service records and in fact even the present writ petition is not maintainable. The petitioner is an officer of a very senior rank and has maintained and acted upon for all these years on the basis that his date of birth is 16.8.51 and no attempt was made by him for correcting the date of birth, if the same was wrong during this long period. The U.P.S.C application for Indian Military Academy Examination and other documents with the respondent authorities including the verification form filled in by the petitioner himself in his handwriting shows the date of birth as 16.8.51 and there are no circumstances much less any compelling circumstances which would make it obligatory upon the authorities to accept the alterations in the date of birth of the petitioner. In terms of the memorandum issued by the Govt. dated 21.4.64 which was in force even at the time when the petitioner joined the service, it was stated that application for change of date of birth cannot be entertained after the lapse of two years from the grant of first commission to the officer. Thus, the application itself was barred and has rightly been rejected. The averments made by the petitioner in regard to 42nd National Defence Academy Entrance Examination in the year 1968 and request of his father for correcting the date of birth are denied on the ground that no such records are available with the respondents. In regard to plea of discrimination, it is stated that facts of that case were different and the petitioner has not been treated differently as the facts in the case of the petitioner are entirely different. 4. As already noticed, the main thrust of the respondents for rejecting the application of the petitioner is on the circular issued by the Ministry of Defence, Government of India on 21.4.64. The said office memorandum reads as under: