COL K MALAIPPAN Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THE request of the petitioner to change the date of birth from 15. 07. 44 to 22. 06. 46 and his consequential claim to continue his service upto 30. 06. 1999 was rejected by the first respondent in his proceedings dated 30. 07. 1996. Hence, the petitioner has chosen to file the present writ petition seeking to call for the records of the respondents culminated in Order no. 7 (6)/91/d (MS) dated 30th July 1996 of the first respondent and quash the said order No. 7 (6)/91/d (MS) dated 30th July 1996 and direct the respondents to incorporate 22. 06. 1946 as the date of birth of the petitioner in the service records and accord all service benefits like promotions and other monetary benefits that will lawfully accrued to the petitioner in the service upto 30. 6. 1999.

(2.) 1. In brief, the petitioner joined service in the Army on 20. 12. 1970 declaring his date of birth as 15. 7. 1944 and the same has been duly entered into his service register. The Government of India in the Official memorandum dated 21. 04. 1964 concededly prescribed that no request for change of date of birth would be entertained after the lapse of two years from the date of i) grant of first commission in the case of commissioned officers and (ii)enrolment in case of JCOs/other ranks and equivalent in the other two services. The above time of two years to request for change of date of birth expires on 19. 12. 1972 in the case of the petitioner. 2. 2. However, the petitioner had chosen to make a representation to the second respondent only on 23. 2. 1977, requesting the second respondent to change the date of birth of the petitioner from 15. 07. 1944 to 22. 6. 1946. The only explanation according to the petitioner was that, he was in the Field Area from 24. 3. 1972 to 17. 11. 1979 and therefore the limitation prescribed under the said Official Memorandum is not applicable in view of the provisions of the Indian Soldiers (Litigation) Act 1925 (hereinafter referred to as'the Act ). Since the respondent by their letter dated 25. 10. 1977 informed the petitioner that his request could be considered only if he could get the date of birth corrected in his University records and in the S. S. L. C, the petitioner had chosen to move the Civil Court to declare his correct date of birth as 22. 06. 1946, which culminated into a decree dated 06. 03. 1984 made in s. A. No. 615 of 1979 declaring his correct date of birth as 22. 06. 1946. 2. 3 Concededly, even though the Director of School education, Madras and District Collector, Madurai were impleaded as parties to the suit proceedings, the respondents were not impleaded as party at all. Of course, the Government in G. O. M. S. No. 48 Education Department dated 12. 01. 1987, as a special case, directed the Director of School Education if satisfied himself, based on the decree in S. A. No. 615 of 1977 dated 06. 03. 1984, to correct the date of birth of the petitioner in his school records, namely, s. S. L. C. Based on the above documents, the petitioner requested the first respondent to correct his date of birth in his service register and other consequential attendant benefits. The first respondent after careful consideration however rejected the request of the petitioner, by the proceedings dated 30. 07. 1996, which is impugned in the above writ petition.

(3.) 1 Issue No. 1: Whether the Indian Soldiers (Litigation)Act 1925 is applicable to the facts and circumstances of the case" 7. 2. As per the statement of objects and reasons for enacting the Indian Soldiers (Litigation) Act 1925, the Act is intended to consolidate and amend the law to provide special protection in respect of the civil and revenue litigation of Indian Soldiers serving under war condition. The Act applies to Indian Soldiers serving under War conditions and provides inter-alia for the postponement in certain circumstances of civil and revenue proceedings in which an unrepresented Indian Soldier is a party and for the deduction from periods of limitation in suits appeals or applications by Indian soldiers of the periods during which they have been serving under war conditions. 7. 3. Even though there is no bar neither under the Indian soldiers (Litigation) Act 1925 nor under any Government Memorandum for the petitioner to make representation within two years, the petitioner had not chosen to make any representation within the said time. It would be a different issue if the petitioner had made such representation on or before 19. 12. 1972 and the respondent required the petitioner to file a suit getting his University and school records corrected and in which event certainly the provisions of the Act would have been made applicable, and the period of limitation would thus have been protected. Therefore, in my considered opinion, the petitioner is not entitled to say that the period of limitation prescribed under the Government order that he should have made request within two years on or before 19. 12. 1972 is protected under the Act cannot be sustainable. Hence, the issue No. 1 is answered accordingly.