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Appeal No. 1718 of 1984.
From the Order dated 17.11.83 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED (SB) (T) 338/78 D (Order No. 698/83 D).
A.K. Ganguli, B. Sen, A.K. Chitale, B.R.L. Iyengar J. Ramamurti, Mrs. Radha Rangaswami, P. Parmeswaran, C.V. Subba Rao, C. Ramesh, Virender Kaushal, Praveen Kumar, Vivek Gambhir, S.K. Gambhir, P.H. Parekh, B.N. Agarwal, A.V. Phadnis, Kh.
Nobin Singh, M. Veerappa, Ashok Sagar, Ravinder Narain, D.N. Misra (For JBD & Co.,) E.C. Vidyasagar for L.R. Singh, R. Vaigai and R.K. Maheshwari for the appearing parties.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J.
With a view to induce the Sugar Factories in the country to produce more and also to commence their operations early in the year, the Government of India have been issuing notifications, from time to time, providing for rebate in the Excise Duty in certain circumstances.
These notifications were issued by the Central Government 763 in exercise of the power conferred by Sub Rule (1) of Rule 8 of the Central Excise Rules, 1944.
We are concerned in these appeals with four such notifications namely (1) the Notification dated 28.9.72 (applicable to the Sugar Year 1972 73), (2) Notification dated 4.10.73 (applicable to the Sugar Year 1973 74), (3) Notification dated 12.10.74 (applicable to the Sugar Year 1974 75) and (4) the Notification dated 30.9.76 (applicable to the Sugar Year 1976 77). 'Sugar year ' means the year commencing on and with 1st October and ending with the 30th of September of the following year.
The interpretation of these notifications is involved in this batch of appeals.
In so far as it is material, the notification dated 28.9.72 and the notification dated 4.10.73 are similar.
So are the notifications dated 12.10.74 and 30.9.76.
It would be appropriate if we set out the notification dated 28.9.72 in its entirety "Notification No. 203172 dated 28.9.1972 In exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts sugar, described in column(2) of the Table below and failing under sub item (1) of Item No.1 of the First Schedule to the (1 of 1944), from so much of the duty of excise leviable thereon as is specified in the corresponding entry in column (3) of the said Table.
TABLE section No. Description of Sugar Duty of Excise (1) (2) (3) 1.
Sugar produced in a factory during the Rupees period commencing from the 1st day of forty per October, 1972 and ending with the 30th quintal day of November, 1972 which is in excess of the quantity of sugar produced during the corresponding period in 1971.
764 2.Sugar produced in a factory during the period commencing from the 1st day of December, 1972 and ending with the 30th day of April, 1973 Rupees which is in excess of 115% of the quantity twenty of suggar produced during the period commencing per from the 1st day of Decmber, 1971 and ending with quintal the 30th day of April, 1972.
3.Sugar produced in a factory during the period commencing from the 1st day of May, 1973 and Rupees ending with 30th day of June, 1973 which is in twenty excess of the quantity of sugar produced per during the corresponding period in 1972.
quintal 4.Sugar produced in factory during the period commencing from the 1st day of July 1973 and ending with the 30th day of September, 1973 Rupees which is in excess of the quantity of sugar twenty produced during the corresponding period in 1972.
per quintal Provided that the exemption under this notification shall not be admissible to a factory (a) which did not work during the base period, or (b) which had only a trial run in the base period, or (c) which commences production for the first time on or after the 1st day of October, 1972 : Provided further that in computing the production of sugar during the periods mentioned in column (2) of the said Table, (a) the data, as furnished in Form R.G. 1 prescribed in Appendix I to the Central Excise Rules, 1944, or in such other record as the Collector may prescribed under rule 53 or rule 173G of the said rules, shall be adopted : 765 (b) any sugar obtained from reprocessing of sugarhouse products left over in process at that end of the base period or earlier shall b e taken into account ; and (c) any sugar obtained by refining gur or Khandasari sugar, or any sugar obtained by reprocessing of defective or damaged sugar or brown sugar, if the same has already been included in the quantity of sugar produced, shall not be taken into account.
Explanation I A factory shall be deemed to have had a trial run during the base period only if, on first going into production, the period during which actual crushing was done during the base period was less than 40 per cent of the average duration of the season in the State in which the factory is situated.
Explanation 11 In this notification, the expression, 'base period ', means the period commencing from the 1st day of October, 1971 and ending with the 30th day of September, 1972.
" Though the Sugar Year extends over a period of twelve months commencing from 1st of October, the period commencing with 1st December and ending with 30th April is said to be the peak production period.
Most of the sugar factories were commencing their operations only in the month of December.
Either with a view to induce these sugar factories to produce more or with a view to induce them to commence their operation early in the sugar year, the rebate provided for producing sugar in the months of October and November in excess of the corresponding period in the previous sugar year was kept relatively high.
The scheme of the notification dated 28.9.72 appears to be this (1) If during the months of October and November 1972 (in the Sugar Year 1972 73), a factory produced sugar in excess of the quantity of sugar produced by it during the months of October November 1971, such factory was granted rebate in the Excise Duty at the rate of rupees forty per quintal in so far as the excess production is concerned.
(2) Rebate for the period 1st December 1972 to 30th April, 1973 was 766 available at the rate of rupees twenty per quintal provided the production of sugar during the said period was in excess of 115% of the quantity of sugar produced by the said factory during the corresponding period in the previous Sugar Year, in so far as the excess production is concerned.
(3) For the months of May and June 1973 rebate at the rate of rupees twenty per quintal was available provided the factory produced more sugar than it produced during the corresponding months in the previous Sugar Year.
The said rebate was available again only with respect to the excess production.
(4) For the period commencing from 1st July, 1973 and ending with 30th of September, 1973, rebate was available at the rate of rupees twenty per quintal provided the factory produced sugar in excess of the quantity produced during the corresponding period in the previous Sugar Year.
This rebate too was confined to the excess production.
However, the benefit of the rebate mentioned in any of the clauses aforesaid was not available to a factory which inter alia did not work during the 'base period '.
The expression 'base period ' was defined in Explanation 11.
It meant the period commencing from the 1st day of october 1971 and ending with the 30th day of September, 1972 (Previous Sugar Year).
The sugar factories (concerned with the sugar year 1972 73) did not produce any sugar in one or the other of the four blocks (mentioned in the table contained in the Notification) in the base year (previous sugar year).
During the current sugar year, however, they produced certain quantity of sugar during that block period.
To be more precise, take factory A.
It produced 1000 quintals of sugar in the months of October November, 1972 (Block period (1) but had not produced any sugar whatsoever in the corresponding period (October November, ' 1971) in the base year.
The question arose whether in such a situation, Factory A was entitled to the benefit of rebate provided in Clause (1) of the Table contained in the aforesaid notification with respect to the said 1,000 quintals ? The contention of the factory was that it was so entitled, whereas according to the Revenue, it was not.
It is brought to our notice that even before the controversy actually arose between the parties, the Committee of the Sugar Mill Owners ' Association addressed a letter to the Ministry of Finance, Government of 767 India seeking a clarification as to the meaning and purport of the aforesaid notification.
The letter written by the Committee read as follows "I am to refer to the Notification No. G.S.R. dated 28th September, 1972, issued by the Union Ministry of Finance (Department of Revenue & Insurance), New Delhi, on the above subject (copy enclosed for ready reference).
In this connection, the Government had issued a similar Notification on 13th Oct. 1971, on the same subject.
On this Notification, in response to an enquiry made by the Committee of the Association, the Board had clarified as per their letter No. F. No.14/33 71/CX. 1 dated 26th November, 1971, that a factory which had worked during the base period i.e. during the period commencing from 1st day of October, 1970 and ending with 30th day of September, 1971, though it had not worked during the period from 1st October, 1970 to 30th November, 1970, and the production during this period was nil, would be entitled to the excise rebate at the notified rate on its entire production achieved during the month of October and November, 1971.
As th e Notification issued this year is also on similar lines, the Committee presume that the clarification given by the Board last year will apply to the Notification issued this year also, i.e., where a factory has worked in the base period (1st October, 1971 to 30th September, 1972) it will be entitled to the full rebate on its entire production during the various periods mentioned in the Notification, although during the corresponding periods in the last season, the production may be nil.
The Committee shall be glad if you kindly confirm whether their above presumption is correct.
Thanking you for a line in reply '.
In this letter dated 1st November, 1972 the Ministry of Finance intimated the Committee that the presumption made by the Committee is confirmed in respect of the established factories only.
Later on, however, the Government of India revised their opinion which has led to the present controversy.
768 It is brought to our notice that the sugar factories are governed by and follow the procedure prescribed by Rule 173 G of the Central Excise Rules, which rule occurs in Chapter VII A 'Removal of Excisable Goods on Determination of Duty by producers, Manufacturers or Private WareHouse Licencees.
" Rule 173 G requires every assessee to keep an accountcurrent with the Collector separately for each excisable goods, in the suc form and manner, as the Collector may require.
The rule requires the assessee to make credit periodically in such account current, by cash payment into the treasury, so as to keep the balance in such account cumrent sufrent to cover the duties due on the goods intended to be removed at any time.
Every such assessee has to pay the duty determined for each consignment by debit to such account current before removal of goods.
The Rules further require every assessee to furnish a monthly return in the prescribed form, on the basis of which, assessment is completed by the appropriate officer.
Coming back to the facts of these appeals, the claim for rebate made by these factories was allowed in the first instance but later proceedings were initiated to recover back, or re adjust, as the case may be, the benefit already allowed.
This was the phenomenon all over the country.
These disputes were carried to High Courts.
The main dispute was the same as indicated hereinabove.
The factory has produced a certain quantity of sugar in block period (i) (or, for, that matter, any other block period) in the sugar year 1972 73, but had not produced any sugar whatsoever in the corresponding period in the base year (previous sugar year) but has produced some quantity of sugar during the base year as such; whether such factory is entitled to the rebate prescribed in clause (i) (or such other clause, as may be applicable) of the said Notification ? Since the Notifications for 1972 73 and 1973 74 are more or less similar, disputes raised before High Courts pertained to both these years.
(Indeed, the said issue is common to the other two notifications concerned herein as well, with some difference, as we shall indicate at the proper stage).
It appears that almost all the High Courts except Karnataka have held in favour of the factories.
In Patna High Court, there appears to be a conflict of opinion.
Karnataka High Court has, however, held in favour of the Union of India.
The first of the reported decisions is of the Andhra Pradesh High Court (Chinnappa Reddy, J., as he then was) in Etikoppaka Co operative 769 Agricultural Society vs Union of Inida, The reasoning in the said Judgment has been followed by most of the other High Courts.
See ; 1982 (59) E.L.T. 409 (AHahabad) ; & Haryana); and Shri Ganguli, learned counsel for the Union of India contends as follows : Language of the Notifications (pertaining to the year 1972 73 and 1973 74) is quite clear and unambiguous.
The benefit of rebate is available only where the "sugar produced in a factory during the period commencing from the 1st day of October, 1972 and ending with the 30th day of November, 1972 which is in excess of the quantity of sugar produced during the corresponding period in 1971" to take clause (i) of the Notification relating to 1972 73.
The clause contemplates and is based on the premise that sugar is produced during October November, 1972 as well as October November, 1971.
If no sugar was produced during the corresponding period in the previous sugar year (October November, 1971), the very clause is inapplicable.
The contention of the factory owners, which has no doubt been accepted by a majority of High Court, does voilence to the plain language of the clause.
The interpretation placed by the factoryowners leads to certain absurd consequences.
Learned counsel gave more than one illustration to emphasise his submission.
Take a. case where a factory has produced one thousand quintals of sugars in October November 1971 and has also produced one thousand quintals in October November 1972.
In such a situation the factory would not get any rebate in terms of the notification dated 28.9.72, whereas another factory which may not have produced any sugar whatsoever in October November 1971 but has produced one thousand quintals of sugar in October November 1972, gets the rebate at the rate of rupees forty per quintal.
This would really amount to, says the counsel, punishing the first factory more efficient factory for producing the sugar in the previous year And to rewarding the second one the indolent factory which did not produce any sugar during OctoberNovember, 1971.
Another illustration given by the learned counsel is this; a factory had produced five thousand quintals of sugar during the period 1st December, 1971 to 30th April, 1972; it produces the very some quantity again during the period 1st December 1972 to 30th April, 1973; such a factory would not be entitled to any rebate under clause (2) of the said notification; but another factory which had produced, say, just 1000 quintals during the period December 1, 1971 to April 30, 1972 but produces 770 five thousand quintals during the period December 1, 1972 to April 30, 1973 would get the benefit of rebate on 4000 quintals.
This again amounts to, says the counsel, rewarding the inefficient and indolent and punishing the efficient.
The learned counsel seeks to reinforce his argument by referring to clause (2).
It relates to the period 1st December 1972 to 30th April 1973.
Rebate in the sugar produced during this period is available only if it is in excess of 115 per cent of the quantity of sugar produced during the period December 1, 1971 to April 30, 1972.
If the production is nil during the corresponding period in the previous sugar year, asks the counsel, how is one to work out 115% of it.
What is 115% of zero ? asks he.
For all these reasons counsel says, nil production cannot be equated to "the quantity of sugar produced. . in clause (1).
Counsel also says that Clause (1) of the first Proviso in the said notification should be harmonised with the several clauses mentioned in the Table and that no interpretation should be adopted which renders any part of the said notification superfluous.
We find ourselves unable to agree with the learned counsel for the Union of India.
While we agree that the several clauses in the Notification must be read together, harmonised and reasonably understood, we cannot also ignore the underlying object and purpose of the notification.
We Also agree that an interpretation which leads to absurd consequences should be avoided.
Even so, we are afraid, we cannot agree with the learned counsel.
The object behind the notification was evidently not only to induce the factories to produce more sugar but also to induce them to start their production early in the sugar year.
The object appears to be also to induce the factories to keep on producing the sugar all the year round, which they may perhaps not have done otherwise.
Running the factories during the off season (we are told, off season means October November period and then again the period from May June to September), may have its own problems which may increase the cost of production.
Be that as it may, the main issue is whether the words " the quantity of sugar produced during the corresponding period. . do not take in the case of a factory which has not produced any sugar whatsoever during the relevant corresponding period ? On a consideration of the rival points of view, we are of the opinion that it does take in.
Holding otherwise would have this absurd consequence : a factory which has produced, say, just one quintal of sugar during the relevant corresponding period and has produced 1000 quintals during October November, 1972 would qualify for the rebate on 999 quin 771 tals while another factory which has not produced any sugar nil production but has produced 1000 quintals during October November, 1972, would not qualify.
How does this interpretation advance the purpose of the notification, is difficult to appreciate.
Coming to the second illustration given by the learned counsel, we must say that the idea behind the said notification is to induce the manufacturers to produce more in the current sugar year than what they have produced in the previous sugar year or during the previous corresponding period in the previous sugar year, as the case may be.
If this is the object there is nothing absurd in saying that a factory which has produced five thousand tons during December 1, 1971 to April 30, 1972 and produces the.
very same quantity during the period December 1, 1972 to April 30, 1973, does not qualify for rebate under clause (2).
There is no reason or occasion for granting him any rebate.
But where a factory has not produced any sugar or has produced a particular quantity of sugar during the said period in the previous sugar year but produces a larger quantity during the said period in the current sugar year, it must be rewarded.
It may be remembered that no manufacturer produces sugar merely for the sake of rebate.
Rebate is an inducement, an additional attraction.
It is not as if without rebate provided by these notifications, no one would have produced sugar.
We are also unable to see any difficulty in operating clause (2) of the said notification.
There is no arithmetical difficulty in working out 115% of zero; it is zero.
What applies to clause (1) applies equally to clauses (2), (3) and (4).
Our understanding is reinforced and supported by clause (a) of the first proviso.
It says that the benefit of the said rebate would not be available to a factory 'which did not work during the base period.
" Why does it say so? What is its meaning and implication? It is only that the factory need not necessarily have worked during each of the corresponding periods in the base year; it is enough if it has worked in the base year.
We may point out that a majority of the High Courts in the country have adopted the very same interpretation as has been placed by us.
It is then argued by the learned counsel for the appellant that exemption notifications should be strictly concluded.
There is no quarrel with the proposition but there is another equally valid principle that such notifications should be given their due effect, keeping in view the purpose 772 underlying.
We must reiterate that no factory owner would keep his factory idle during a particular period only with a view to produce sugar during the same period in the next sugar year and earn rebate in the next year.
More particularly, it can not reasonably be expected that a factory owner would deliberately keep his factory idle during the peak production period (December to April) only with a view to produce sugar during that period next year and earn rebate in such next year.
It would be unrealistic to say so.
Actually these notifications were being issued every year confined to that year.
They were being issued just on the eve of the sugar year or a few days after the commencement of the sugar year and there were variations in the relevant clauses from year to year.
Construed realistically, we see no room for any absurdity resulting from our interpretation ' The case of October November appears to be rather an exception.
Normally, it appears, no factory owner commenced the production of sugar in these months because of several unfavorable factors.
Indeed, these unfavorable factors appear to be present to a large extent even during the months June to September.
These notifications were evidently meant to compensate the factory owners for producing during these months as well.
As stated already, one must proceed on the assumption that every industrialist and businessman would, ordinarily, like to produce as much more as possible, since, normally speaking, more production means more profits.
For the above reasons, we are of the opinion that the interpretation placed upon the said notifications by the majority of the High Courts is the correct one.
We do not agree with the view taken by the Karnataka High Court in its Judgment under appeal in Civil Appeal Nos. 3831 32 of 1988.
For the same reason, we do not also agree with the view taken by the Patna High Court in Civil Writ Jurisdiction Case No. 865 of 1966.
Now coming to the Notifications for the years 1974 75 and 1976 77, the concept of base year is not to be found here; otherwise they are similar to those relating to 1972 73 and 1973 74.
In the notification dated 12.10.74 (relating to the sugar year 1974 75) the sugar year is divided into two blocks/periods.
The first block comprises October and November 1974 whereas the second block takes in December 1974 to September 1975.
Here too, the question is identical to that arising in the years 1972 73 and 1973 74.
The answer too will naturally be the same.
773 In view of the aforesaid conclusion, it is not necessary for us to go into the other questions raised by the factory owners except the following: There is a minor controversy with respect to the working of Clause (2) in Notification No. 146/74 dated 12.10.74 relating to the sugar year 1974 75.
Clause (2) the table contained in the notification reads as follows: TABLE No. Description of Sugar Duty of excise 1 2 Free Sale Levy of Sugar Sugar 3 4 1. . . . . 2.
Sugar produced in a factory during the period commencing on the 1st day of December, 1974, and ending with the 30th day of September, 1975 which is in excess of the average production of the corresponding period of the preceding five sugar years, that is, (a) on excess production upto Rs. 20/ per Rs. 5/ per 7.5% quintal quintal (b) on excess production on the Rs. 40/ per Rs. 10/ per next 10% quintal quintal (c) on excess production on the Rs.501 per Rs. 14/ per next 10% quintal quintal (d) on excess production on the Rs.60/ per Rs. 18/ per next 10% quintal quintal (e) on excess production beyond Rs. 82/ per Rs. 22/ per 37.5% quintal quintal ============================================================ Mr. Ganguli, learned counsel for the Union of India says that some of the Courts have applied the percentages mentioned in sub clauses (a) to (e) to the excess production and not to the average production of the preceding five sugar years.
We may take an illustration to explain what the learned counsel says.
Take a case.
where the average production of a factory during the corresponding period (December 1 to September 30) of 774 the preceding five sugar years is 1000 quintals.
That factory produces 2,500 quintals during the period December 1, 1974 to September 30, 1975.
In such a case, the ascending percentages mentioned in sub clauses (a) to (e) of clause (2) have to be applied for working out the rebate.
According to us, it must be done in the following manner, keeping in mind that the basis for these percentages in the average production of the previous five years and not the excess production.
Out of 2,500 quintals produced during the said period in the current sugar year (December 1, 1974 to September 30, 1975), the average of the five previous sugar years i.e., 1000 quintals should be deducted first, which means the excess production during the current year is 1500 quintals.
7.5% of 1000 quintals is 75 quintals.
On this quantity of 75 quintals, the rate of rebate as per sub clause (a) will be Rs. 20 per quintal in the case of free sale sugar and Rs. 5 per quintal in the case of levy sugar.
Next 10% of excess production means 100 quintals which would be eligible for rebate under sub clause (b) at the rate of Rs. 40 per quintal in the case of free sale sugar and Rs. 10 per quintal in the case of levy sugar.
The next 100 quintals would be eligible for rebate under sub clause (c) at the rate of Rs.50 per quintal in the case of free sale sugar and Rs. 14 per quintal in the case of levy sugar.
Then again the next 100 quintals would be eligible for rebate under sub clause (d) at the rate of Rs. 60 per quintal in the case of free sale sugar and Rs. 18 per quintal in the case of levy sugar.
The balance of 1125 quintals would qualify for rebate under sub clause (e) at the rate of Rs. 82 per quintal in the case of free sale sugar and Rs. 22 per quintal in the case of levy sugar.
This is the interpretation and understanding contended for by Shri Ganguli and we must say that none of the counsel for the factory owners ' disputed the same.
It is accordingly directed that the above method shall be followed in working out clause (2) of the notification dated 12.10.74.
Accordingly all the civil appeals except Civil Appeal Nos.
3831 32 of 1988, fail and are dismissed.
Civil Appeals No. 3831 32 of 1988 are allowed.
The authorities will take action in accordance with this judgment.
There will be no order as to costs.
V.P.R. CA Nos. 3831 32/88 allowed.
Rest of the appeals dismissed.

Output:
In a Notification dated 28.9.1972, with a view to induce the sugar factories (respondents) to produce more and also to commence their operations early in the sugar year (the year commencing on and with 1st October and ending with the 30th of September of the following year) a rebate was provided.
The scheme of the Notification was (1)If during the months of October and November 1972 (in the Sugar Year 1972 73), a factory produced sugar in excess of the quantity of sugar produced by it during the months of October November 1971, suchfactory was granted rebate in the Excise Duty at the rate of rupees forty per quintal in so far as the excess production is concerned.
(2)Rebate for the period 1st December 1972 to 30th April, 1973 was available at the rate of rupees twenty per quintal provided the production of sugar during the said period was in excess of 115% of the quantity of sugar produced by the said factory during the corresponding period in the previous Sugar Year, in so far as the excess production is concerned.
(3)For the months of May and June 1973 rebate at the rate of rupees twenty per quintal was available provided the factory produced more sugar than it produced during the corresponding months in the previous Sugar Year.
The said rebate was available again only with respect to the excess production.
759 (4)For the period commencing from 1st July, 1973 and ending with 30th of September, 1973, rebate was available at the rate of rupees twently per quintal provided the factory produced sugar in excess of the quantity produced during the corresponding period in the previous Sugar Year.
This rebate too was confined to the excess production.
However, the benefit of the rebate mentioned in any of the clauses aforesaid was not available to a factory which inter alia did not work during the 'base pariod '.
The other three Notifications dated 4.10.73, 12.10.74 and 30.9.76 were similar.
All the four Notifications were applicable to the Sugar years 1972 73, 1973 74, 1974 75 and 1976 77, respectively.
The respondents sugar factories did not produce any sugar in one or the other of the four blocks (mentioned in the Table contained in the Notification) in the base year (previous sugar year).
During the current sugar year, they produced certain quantity of sugar during that block period.
The respondents contended that they were entitled to the benefit of rebate provided in clause (1) of the Table contained in the Notification, whereas the Revenue submitted that they were not entitled to the benefit of rebate.
The claim for rebate made by the respondnets was allowed in the first instance, but later proceedings were initiated to recover back, or re adjust, the benefit already allowed.
These disputes were carried to the High Courts.
Almost all the High Courts except Karnataka held in favour of the respondents.
In Patna High Court, there was a conflict of opinion.
Hence this batch of appeals by the Revenue contending that the benefit of rebate was available only where the "sugar produced in a factory during the period commencing from the 1st day of October, 1972 and ending with the 30th day of November, 1972 which is in excess of the quantity of sugarproduced during the corresponding "period in 1971"; that nil production could not be equated to "the quantity of sugarproduced" in clause (1); that clause (1) of the first proviso in the 1972 Notification has 760 to be harmonised with the several clauses in the table; and that no interpretation should be adopted which rendered any part of the Notification superfluous.
Dismissing all.
the civil appeals, except Civil Appeal Nos. 3831 32 of 1988, this Court, HELD : 1.01.
The several clauses in the Notification must be read together, harmonised and reasonably understood without ignoring the underlying object and purpose of the notification.
An interpretation which leads to absurd consequences should be avoided.
[770 E] 1.02.The object behind the notification was evidently not only to induce the factories to produce more sugar but also to induce them to start their production early in the sugar year.
The object appears to be also to induce the factories to keep on producing the sugar all the year round, which they may perhaps not have done otherwise.
Running the factories during the off season (off season means October November period and then again the period from May June to September), may have its own problems which may increase the cost of production.
main issue is whether the words "the quantity of sugar produced during the corresponding period. " do not take in the case of a factory which has not produced any sugar whatsoever during the relevant corresponding period? It does take in.
Holding otherwise would have this absurd consequence: a factory which has produced, say, just one quintal of sugar during the relevant corresponding period and has produced 1000 quintals during October November, 1972 would qualify for the rebate on 999 quintals while another factory which has not produced any sugar nil production but has produced 1000 quintals during October November, 1972, would not qualify.
[770 G H] 1.04.The Idea behind the notification is to induce the manufacturers to produce more in the current sugar year than what they have produced in the previous sugar year or during the previous corresponding period in the previous sugar year, as the case may be.
Where a factor; has not produced any sugar or has produced a particular quantity of sugar during the said period in the previous sugar year but produces a larger quantity during the said period in the current sugar year, it must be rewarded.
[771 B D] 761 1.05.The case of October November appears to be rather an exception.
Normally, it appears, no factory owner commenced the production of sugar in these months because of several unfavorable factors.
Indeed, these unfavorable factors appear to be present to a large extent even during the 'months June to September.
The notifications were evidently meant to compensate the factory owners for producing during these months as well.
1772 C D] 1.06.One must proceed on the assumption that every industrialist and businessman would, ordinarily, like to produce as much more as possible, since, normally speaking, more production means more profits.
[772 E] 1.07.No manufacturer produces sugar merely for the sake of rebate.
Rebate is an inducement, an additional attraction.
It is not as if without rebate provided by these notifications, no one would have produced sugar.
[771 D] 1.08.There is no arithmetical difficulty in working out 115% of zero; it is zero.
What applies to clause(1) applies equally to clauses (2), (3) and (4).
It is only that the factory need not necessarily have worked during each of the corresponding periods in the base year; it is enough if it has worked in the base year.
[771 E F] 1.09.The interpretation placed upon the said notifications by the majority of the High Courts is the correct one.
The view taken by the Karnataka High Court in its Judgment under appeal in Civil Appeal Nos. 3831 32 of 1988 and the view taken by the Patna High Court in ill Civil Writ Jurisdiction Case No. 865 of 1966 are not correct.
basis for the percentages prescribed in the Notification dated 12th October.
1974 the average production of the previous five years and not the excess production.
By way of illustrates, take a factory which produces 2500 tons during the period Dec.1, 1974 to Sept. 30, 1975 as against the average production of 1000 tons during the corresponding periods in the five previous sugar years.
Out of 2,500 quintals produced during the said period in the current sugar year (December 1, 1974 to September 30, 1975), the average of the corresponding periods of the five previous sugar years ie., 1000 quintals should be deducted first, which means the excess production during the said period during the current year is 1500 quintals.
7.5% of 1000 quintals is 75 quintals.
On this quantity 762 of 75 quintals, the rate of rebate as per sub clause (a) will be Rs. per quintal in the case of free sale sugar and Rs. 5 per quintal in the case of levy Sugar.
Next 10% of excess production means 100 quintals which would be eligible for rebate under sub clause (b) at the rate of Rs. 40 per quintal In the case of free sale sugar and Rs. 10 per quintal in the case of levy sugar.
The next 100 quintals would be eligible for rebate under sub clause (c) at the rate of Rs. 50 per quintal in the case of free sale sugar and Rs. 14 per quintal in the case of levy sugar.
Then again the next 100 quintals would be eligible for rebate under sub clause (d) at the rate of Rs. 60 per quintall in the case of free sale sugar and Rs. 18 per quintal in the case of levy sugr.
The balance of 1125 quintals would qualify for rebate under sub clause (e) at the rate of Rs. 82 per quintal in the case of free sale sugar and Rs. 22 per quintal in the case of levy sugar.
[774 B E] Etikoppaka Co operative Agricultural Society vs Union of India, ; ; 1982 (59) E.L.T. 409 (Allahabad); & Haryana); and 1987 (30) E.L.T. 260 (Orissa), approved.
[768 H, 769 A]


Input:
Appeal No. 502 of 1993.
From the Judgment and Order dated 29.5.92 of the Central Ad ministrative Tribunal, Principal Bench, New Delhi in O.A. No. 1252 of 1992.
V.C. Mahajan, C.V.S. Rao and V.B. Misra for the Appellant.
S.K. Mehta, Dhruv Mehta, Aman Vachhar and Arvind Verma for the Respondent.
ANAND, J. Aggrieved by an order passed by the Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1252/1992 on 29th of May, 1992, allowing an application filed by the respondent and directing the petitioner herein to correct the date of birth of the respondent in the service record and not to retire him before 30th of April, 1996, the petitioner Union of India has filed this special leave petition.
Leave granted.
The respondent joined Government service in the Ministry of Finance (Defence) in class IV post as a peon on 22nd of February, 1956.
At the time of entry into the Government service, his service book was prepared and the date of birth was recorded as 20th of May, 1934 and since he failed in the matriculation examination, against the column of educational qualification 'matric failed ' was recorded.
It appears that the respondent later on again appeared in the matriculation examination of the Punjab University under Roll No. 21653 and passed the said examination in May, 1956.
On passing the matriculation examination, the respondent was appointed as LDC in the Ministry of Home Affairs on 9.5.1957.
In the service book of the respondent, an entry was, accordingly, made showing his educational qualification as matric (Punjab University, Roll No. 21653, year 1956).
This entry was made underneath the earlier entry "matric failed" and the changed entry was signed by the SO of the Ministry of Home Affairs on 7.9.1957.
Though, the date of birth of the respondent, as 867 recorded in the matriculation certificate is 7.4.1938 but while amending the entry about his educational qualification, the entry relating to his date of birth was not altered to correspond to the date given in the matriculation certificate and it continued to be recorded as 20th of May, 1934.
In 1963, .the respondent was transferred to the Ministry of Human Resources Development, Department of Education.
On being notified about his date of superannuation as 31.5.1992, the respondent realised that he was being retired on the basis of his date of birth as originally recorded in the service record as 20.5.1934, ignoring the date of birth as reflected in the matriculation certificate.
He made a representation in September 1991 for the alteration of his date of birth but the same was rejected on 4.12.1991.
He submitted yet another representation of 3.1.1992, wherein a request was made, the consider his case for the correction of date of birth afresh on the basis of the date of birth as recorded in the matriculation certificate.
The request of the respondent was turned down vide O.M. dated 29.1.1992.
The respondent submitted yet another representation on 26.3.1992, wherein he asserted that he had submitted the matriculation certificate on 4.9.1957, when the entry about his educational qualification was altered and that thereafter since he did not hear anything to the contrary, he presumed that the appellants had also corrected his date of birth in the service book.
While making that representation, the respondent had also drawn attention of the Department to an order of the Central Administrative Tribunal in the case of one Darshan Singh, wherein the Department had been directed by the Principal Bench of CAT to correct the date of birth of Darshan Singh on the basis of the date of birth given in the matriculation certificate and it was submitted that his date of birth should also be corrected on the basis of the matriculation certificate.
That representation was rejected on 22.4.1992 by an order which reads thus: Subject:Request for alteration in the Date of Birth of Sh.
Harnam Singh, Asstt.
in the Service Book.
With reference to his representation dated 26th March, 1992 regarding alteration in his date of birth, Sh.
Harnam Singh, Asstt.
is informed that his representation has been considered once again and it has not been found possible to accede to his request for changing his date of birth from 20.5.1934 to 7.4.1938.
As regards his contention that he had submitted a copy of matriculation certificate 868 in 1956, Sh.
Harnam Singh, has already been informed vide OM dated 29.1.1992 about DOP & T 's ruling that furnishing a copy of matriculation certificate does not automatically imply change in date of birth unless the Govt.
servant specifically applies for it within the prescribed time limit and the appointing authority accepts his request.
In so far as CAT 's judgment in the case of Sh.
Darshan Singh, a copy of which has been enclosed by Sh.
Harnam Singh with his representation, it may be stated that in the said judgment the CAT 's order is based on the fact that Sh.
Darshan Singh had not been shown his service book even once during his entire service.
Harnam Singh had seen his service book several times latest being in 1976, and he has signed the Service Book in verification of the Correctness of the entries made therein and he had never pointed out the 'incorrectness ' in his date of birth.
The CAT 's Judgment enclosed by Sh.
Harnam Singh with his representation is thus distinguishable from the case of Sh.
Harnam Singh.
Apart from this Sh.
Harnarn Singh has not furnished any new grounds for reconsideration of his case.
Harnam Singh is also informed that no further representation on the subject will be considered.
unless he furnished any new facts/information.
" The respondent challenged the above order through OA No. 1252/92 dated 29.5.1992 before the CAT.
The application was contested by the appellant on various grounds including the plea of limitation.
It was urged by the appellant that the OA was barred under FR 56 (Note 5) and General Financial Rules 1979 and therefore, did not merit any consideration.
The appellant had further asserted that the respondent knew about the entry of his date of birth as 20.5.1934 in his service record since he had signed his service book on various occasions, ever since he joined the service, but his representation for correction of date of birth was made only in September 1991, much belatedly and even beyond a period of five years from the date of entry into Government service and as envisaged by SO 3997 dated 30th of November, 1979 the same could not therefore be 869 entertained.
The Tribunal, however, did not agree with the appellant and allowed the application filed by the respondent directing the appellant to correct his date of birth in the service record as per the date of birth recorded in the matriculation certificate.
Mr. V.C. Mahajan, the learned Senior Advocate appearing for the Union of India, has reiterated the arguments raised before the Tribunal and has further submitted that in view of the law laid down in Amulya Chandrakalita vs Union of India & Ors., the judgment in the present case rendered by only a single member of the Tribunal, is invalid and, therefore, the order deserves to be set aside and the case remanded to the Tribunal for its fresh disposal in accordance with law.
Learned counsel for the respondent has, on the other had argued for dismissal of the appeal and supported the impugned order of the Tribunal.
The fact that the date of birth was recorded on the first sheet of the service book when the respondent joined as a peon as well as in various seniority lists of UDC and LDC issued from time to time as 20.5.1934 is not in dispute.
It also is not disputed that the date of birth of the respon dent in the matriculation certificate issued by the Punjab University is 7.4.1938.
The fact that the matriculation certificate has been produced before the department by the respondent after he had passed the matriculation examination and an alteration of his educational qualification was made in the service book is also beyond controversy.
There is also no doubt that while submitting the matriculation certificate, the respondent had not requested for any alteration in the date of birth and that he had filed the representation for correction of his date of birth for the first time only in September, 1991, just a few months before his notified date of superannuation.
A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispersed with on other grounds contained in the relevant service rules after following the procedure prescribed therein.
The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that 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 870 request later on for correcting his age.
It is open to a civil servant to claim correction of his date of birth, if he is in possession of the 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.
In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of latches or stale claims, is generally applied to by the courts and tribunals.
It is nonetheless competent for the Government to fix a time limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained.
A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous.
The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire.
Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age.
Indeed, as held by this Court in State of Assam & Anr.
vs Daksha Prasad Deka & Ors., ; a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he can not claim to continue in service on the basis of the date of birth claimed by him.
This court said: "The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistent with the appropriate procedure.
A public servant may dispute the date of birth as entered in the service record, and may apply for correction of the record.
But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record.
" 871 Note (5) to Fundamental Rule 56 governing correction of date of birth in the service record, substituted by Government of India, Ministry of Home Affairs, Department of Personnel and Administrative Reforms Notification No. 19017/79/Estt A dated 30th November, 1979 published as SO 3997 in the Government of India Gazette dated 15th of December 1979 limits the exercise of the right by the government servant to seek alteration of his date of birth only within the specified period.
The provision reads as under: "Note 5 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 production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or extracts from Birth Register.
The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note.
An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government or the Comptroller and Auditor General in regard to persons serving in the Indian Audit and Accounts Department, or an administrator of a Union Territory under which the Government servant is serving if (a) a request in this regard is made within five years of his entry into Government service; (b) it is clearly established that a genuine bonafide mistake has occurred; and (c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered 872 Government service.
" According to the above amendment, it is obvious that the request for correction of date of birth is required to be made by the Government servant within five years of his entry into Government service and his date of birth may be corrected if it is established that, a genuine bona fide mistake had occurred while recording his date of birth at the time of his entry into Government service.
The CAT in the instant case was of the opinion that the bar of five years could only apply to such Government servants who joined service after 1979, when the amendment came into force and that the said period of limitation would not apply to Government servants who were in service for more than five years prior to 1979.
The Tribunal while allowing the application filed by the respondent and directing the appellant to correct his date of birth in the service record noticed the objection raised on behalf of the appellant to the effect that the mere filing of the matriculation certificate in 1956 did not imply that the date of birth already recorded in the service record stood altered by the appellants automatically even without the concerned Government servant making a prayer in that behalf or raising the issue at the relevant time after his posting as LDC.
CAT held that there was no period of limitation for the correction of date of birth and in so holding relied upon the judgment in the case of Darshan Singh vs Union of India, decided by the Principal Bench of CAT on 9.8.1990 and observed that only on the basis of coming very late for alteration of the date of birth, the State could not oust the claim of the respondent.
The Tribunal observed: "It is trite that at any time during the service, it is open to an employee to make a request for the alteration of the recorded date of birth and that if the request is supported by cogent evidence to establish that the recorded date is wrong, correction has to be made." The Tribunal also noticed the submission of the learned counsel for the appellant to the effect that the judgment in Darshan Singh 's case (supra) was not applicable because unlike in Darshan Singh 's case, who had no occasion to see his service book even once during his entire service career, the respondent herein had not only seen his service book several times but had also signed the same at various places in verification of the correctness of the entries made therein and had never objected to 873 the date of birth as contained in the first page of the service book or as given in various seniority lists prepared and published form time to time till September 1991.
The Tribunal disposed of the submission by observing: "A perusal of the service record does show that the pages which the applicant has signed is not the first page where the date of birth is recorded, but subsequent pages where other service particulars like pay fixation etc.
are mentioned.
As regards the entry of date of birth in the seniority list, that may be within the knowledge of the applicant, but seeing to the nature of the job on which the applicant is engaged, being ministerial, it is not expected that the seniority would have mattered much as the promotion is made only on the basis of seniority cum fitness in due course.
Moreover, there is no authenticity regarding the date of birth recorded in the seniority list and more emphasis is attached to the position of the person in the lis t vis a vis other similarly placed persons in the cadre.
" The approach of the Tribunal does not commend to us as it tends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of Government Servants between those who joined service before and after 1979.
It is a too simplistic way of looking at the issue, ignoring the ground realities and the intention of the rule making authority to discourage stale claims and non suit such government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation.
To say that the respondent, even though he signed the service book at a number of places at different times and saw the seniority lists, may not have still come to know as to what his recorded date of birth was, is to ignore human conduct and put premium on negligence.
The observations of CAT quoted above are neither logical nor sound.
Of course, Note 5 to FR 56 (m) was incorporated only in 1979 and it provides for request to be made for correction of date of birth within five years from the date of entry into Service but what is necessary to be examined is the intention of the rule making authority in providing the period of limitation for seeking the correction of the date of birth of the Government Servant viz. to discourage stale claims and belated applications for alteration of date of birth recorded in the service book at the time of initial entry.
It is the duty of the courts and tribunals to promote that 874 intention by an intelligible and harmonious interpretation of the rule rather than choke its operation.
The interpretation has to be the one which advances the intention and not the one which frustrates it.
It would not be the intention of the rule making authority to give unlimited time to seek correction of date of birth, after 1979, to those government servant who had joined the service prior to 1979 but restrict it to the five year period for those who enter service after 1979.
Indeed, if a government servant, already in service for a long time, had applied for correction of date of birth before 1979, it would not be permissible to non suit him on the ground that he had not applied for correction within five years into service, but the case of government servant who applied for correction of date of birth only after 1979 stands on a different footing.
It would be appropriate and in tune with harmonious construction of the provision to hold that in the case of those government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979.
This view would be in consonance with the intention of the rule making authority.
The interpretation which we have placed on the provision with regard to the cases of those government servants who were in service prior to 1979 but had not sought the alteration in the date of birth till after the amendment in 1979 is followed by the view which this court has taken earlier.
By way illustration we may refer to the case of New India Insurance Co. Ltd. vs Smt.
Shanti Misra, ; where the husband of the respondent in that case died in an accident in 1966.
A period of two years was available to the respondent for instituting a suit for recovery of damages.
In March, 1967 the Claims Tribunal under Section 110 of the was constituted, barring the jurisdiction of the civil court and prescribed 60 days as the period of limitation.
The respon dent filed the application in July 1967.
It was held that not having filed a suit before March, 1967 the only remedy of the respondent was by way of an application before the Tribunal.
So far the period of limitation was concerned, it was observed that a new law of limitation providing for a shorter period cannot certainly extinguish a vested right of action.
In view of the change of the law it was held that the application could be filed within a reasonable time after the constitution of the Tribunal; and, that the time of about four months taken by the respondent in approaching the 875 Tribunal after its constitution, could be held to be either reasonable time or the delay of about two months could be condoned under the proviso to Section 110 A(3).
Similarly in Vinod Gurudas Raikar vs National Insurance Co., ; the precise question which was considered by the Bench was: "The period of limitation for filing a claim petition both under the old Act and the new Act is six months from the date of the accident.
The difference in the two Acts, which is relevant in the present case, is in regard to the provisions relating to condonation of delay.
In view of the proviso to sub section (3) of Section 166 of the new Act, the maximum period of delay which can be condoned is six months, which expired on January 22, 1990.
If the new Act is held to be applicable, the appellant 's petition filed in March had to be dismissed.
The case of the appellant is that the accident having taken place before the new Act came into force, the proceeding is governed by the old Act, where there was no such restriction as in the new Act.
The question is as to which Act is applicable; the new Act or the old.
" The Bench opined: "If in a given case the accident had taken place more than a year before the new Act coming in force and the claimant had actually filed his petition while the old Act was in force but after a period of one year, the position could be different.
Having actually initiated the proceeding when the old Act covered the field a claimant could say that hi s right which has accrued on filing of the petition could not be taken away.
The present case is different.
The right or privilege to claim benefit of a provision for condonation of delay can be governed only the law in force at the time of delay.
Even the hope or expectation of getting the benefit of an enactment presupposes applicability of the enactment when the need arises to take its benefit.
In the present case the occasion to take the benefit of the provision for con donation of delay in filing the claim arose only after repeal of the old law.
Obviously the ground for condonation set 876 up as 'sufficient cause ' also relates to the time after the repeal.
The benefit of the repealed law could not, therefore, be available simply because the cause of action for the claim arose before repeal. 'Sufficient causes a ground of condonation of delay in filing the claim is distinct from ,cause of action ' for the claim itself The question of condonation of delay must, therefore, be governed by the new law.
We accordingly hold that the High Court was right in its view that the case was covered by the new Act, and delay for a longer period than six months could not be condoned.
" In the instant case, the date of birth recorded at the time of entry of the respondent into service as 20th May 1934 had continued to exist, unchallenged between 1956 and September 1991, for almost three and a half decades.
The respondent had the occasion to see his service book on numerous occasions.
He signed the service book at different places at different points of time.
Never did he object to the recorded entry.
The same date of birth was also reflected in the seniority lists of LDC and UDC, which the respondent had admittedly seen, as there is nothing on the record to show that he had no occasion to see the same.
He remained silent and did not seek the alteration of the date of birth till September 1991, just a few months prior to the date of his superannuation.
Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him.
Even if the respondent had sought correction of the date of birth within five years after 1979, the earlier delay would not have non suited him but he did not seek correction of the date of birth during the period of five years after the incorporation of note 5 to FR 56 in 1979 either.
His inaction for all this period of about thirty five years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in service record was not correct.
In the facts and circumstances of this case, we are not satisfied that the Tribunal was justified in issuing the direction in the manner in which it has been done.
The application for correction of date of birth, entered in the service book in 1956, for the first time made in September 1991, was hopelessly belated and did not merit any consideration.
As already noticed, it had not been made even within the period of five years from the date of coming into force of Note 5 to FR 56 (m) in 1979.
The Tribunal, therefore, 877 fell in error in issuing the direction to correct his date of birth and the impugned order of the Tribunal cannot be sustained.
Ordinarily, keeping in view of judgment of this Court in Amulya Chandra Kalita 's case (supra), we should have remanded the case to the Tribunal for a fresh disposal because of the fact that the order of the Tribunal was rendered by only one member or to have awaited the decision of some cases pending in this Court in which the validity of the order passed by single member of the tribunal is under consideration but since we have ourselves looked into all the facts and circumstances of the case and given an interpretation to Note 5 to FR 56 (m), we do not consider it.
expedient to adopt either of these course.
In view of the interpretation placed by us, the appeal succeeds and is allowed.
The impugned order of the Tribunal is set aside.
There shall however, be no order as to costs.
N.V.K. Appeal allowed.

Output:
The respondent in the appeal joined Government Service in the Ministry of Finance in a Class IV post as Peon on 22nd February, 1956.
At the time of entry his service book was prepared and the date of birth was recorded as 20th May, 1934 and since he failed in the matriculation examination against the column of educational qualification 'matric failed ' was recorded.
The respondent later on again appeared in the matriculation examination, passed the said examination in May, 1956, was appointed as LD.C. in the Ministry of Home Affairs on 9th May, 1957 and in his service book an entry was made showing his educational qualification as 'Matric ' underneath the earlier entry 'matric failed ' and this changed entry was signed by the Section Officer of the Ministry of Home Affairs on 7th September, 1957.
Though the date of birth of the respondent as recorded in the matriculation certificate was 7.4.1938, while amending the entry about his educational qualification, the entry relating to his date of birth was not altered to correspond to the date given in the matriculation certificate and continued to be recorded as 20th May, 1934.
The respondent was later transferred to the Ministry of Human Resources Development and on being notified about his date of superannuation as 31.5.1992, he realised that he was being retired on the basis of his date of birth as originally recorded in the service record as 20.5.1934 ignoring the date of birth as reflected in the matriculation certificate.
In view tot the aforesaid position the respondent made a representation in September, 1991 for alteration of his date of birth but the 863 same was rejected on 4.12.1991.
He submitted another representation on 3.1.1992 for correction on the basis of the date of birth as recorded in the matriculation certificate but this request was also turned down by the appellant in view of the Ministry of Home Affairs O.M. dated 29.1.1992.
Yet another representation dated 26th March, 1992 was submitted by the respondent wherein he had drawn the attention of the Department to the order of the Principal Bench of the Central Administrative Tribunal in the case of Darshan Singh vs Union of India, wherein the Tribunal had directed that the date of birth should be corrected on the basis of the matriculation certificate.
This representation was also rejected by the appellant on 22A.1992.
Being aggrieved the respondent challenged the aforesaid order by an application before the Central Administrative Tribunal and this was contested by the appellant on various grounds including the plea of limitation.
It was also urged that the application was barred by F.R. 56 (Note 5) and the General Financial Rules, 1979 and therefore did not merit and consideration.
It was submitted that the respondent knew about the entry of his date of birth as 20.5.1934 since he had signed his service book on various occasions, ever since he joined service, but his representation for correction of the date of birth was made only in September, 1991 much belatedly and even beyond the period of five years from the date of entry into Government Service as envisaged by S.O. 3997 dated 30th November, 1979.
The Tribunal did not agree with any of the aforesaid contentions of the appellant, allowed the application flied by the respondent and directed the appellant to correct the date of birth in the service record as per the date of birth recorded in the matriculation certificate.
In the appeal by the Union of India to this Court it was contented that in view of the law laid down in Amulya Chandrakalita vs Union of India & Ors., the judgment rendered by only a single member of the Tribunal is invalid and, therefore, the order deserves to be set aside and the case remanded to the Tribunal for fresh disposal.
The arguments raised before the Tribunal were also reiterated before this Court.
Allowing the appeal, this Court, HELD : 1.
A Government servant, after entry into service, acquires 864 the right to continue in service till the age of retirement, as fixed by the, State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein.
[869G] 2.
The date of birth entered in the service records of a civil servant is of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record.
[869H] 3.
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 he 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 un reasonable delay.
[869H 870B] 4.
A Government servant who makes an application for correction of date of birth beyond the time fixed by the Government, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous.
[870C] 5.
Unless altered date of birth as recorded would determine date of superannuation even if it amounts to abridging the right to continue in service on the basis of actual age.
[870D] State of Assam & Anr.
vs Daksha Prasad Deka & Ors., ; , referred to.
Note (5) to Fundamental Rule 56(m) governing correction of date of birth in the service record, as amended by Government of India, with effect from 30.11.1979 limits the exercise of the right by the Government servant to seek alteration of his date of birth only within the specified period viz. five years of entry into government service.
[871A B] In the instant case, the CAT was of the opinion that the bar of five years could only apply to such Government servants who joined service after 1979, when the amendment came into force and that the said period of limitation would not apply to Government servants who were in service 865 for more than five years prior to 1979.
The approach of the Tribunal tends to create an invidious discrimination, unsustainable in law, by creating two artificial classes of government servants between those who joined service before and after 1979.
It is too simplistic a way of looking at the issue ignoring the ground realities and the intention of the rule making authority to discourage stale claims and non suit such government servants who seek alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation.
[872C, 873E] 7.
It would be appropriate and in tune with the harmonious construction of the provision if in the case of those government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979.
This view would be in consonance with the intention of the rule making authority.
[874C D] New India Insurance Co. Ltd. vs Smt.
Shanti Misra, ; and Vinod Gurudas Raikar vs National Insurance Co., ; , referred to.
In the instant case, the date of birth recorded at the time of entry into service as 20th May, 1934 had continued to exist, unchallenged between 1956 and September, 1991, for almost three and a half decades.
The respondent had the occasion to see his service book at different places at different points of time.
Never did he object to the recorded entry.
The same date of birth was also reflected in the seniority lists of L.D.C. and U.D.C., which the respondent had admittedly seen.
He remained silent and did not seek alteration till September, 1991 just a few months prior to the date of his superannuation.
Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him.
Even if the respondent had sought correction of the date of birth within five years after 1979 when Note 5 to FR 56 was incorporated the earlier delay would not have non suited him.
His inaction for all this period of about thirty five years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in the service record was not correct.
The Tribunal, therefore fell in error in issuing the direction to correct his date 866 of birth.
[876C F, 876H, 877A] Darshan Singh vs Union of India, decided by Principal Bench of CAT on 9.8.1990, over ruled.