K.Sathuru Sankaravelan v. The Government of Tamilnadurepresented by the Secretary to Government, P & AR (Personnel S) Department

T. AananthiFor Respondents : Mr.T.Seenivasan Additional Government PleaderO R D E RHeard the learned counsel appearing for the petitioner and thelearned Additional Government Pleader appearing for the respondents.2. The petitioner has stated that he was selected forappointment to the post of Art Master, on 10.9.81, in the GovernmentHigher Secondary School, Ayakkaranpulam, and from the date of thesaid appointment, he has been carrying on his duties, without anyblemish. While so, the petitioner had applied for alteration of hisdate of birth from 5.3.54 to 5.3.55, as his date of birth waswrongly entered in his school and service records, on the basis ofthe declaration made by his father. The petitioner had forwarded anapplication for the alteration of his date of birth, in theprescribed format, along with the necessary documents to support hisclaim. In the birth extract obtained from the records maintained bythe Sub Registrar, Vedaraniam, it is clear that the date of birth ofthe petitioner is 5.3.55.

As the birth certificate is a publicdocument, which is unimpeachable, the petitioner had forwarded asuccession certificate, dated 28.9.84, issued by the RevenueDivisional Officer, Vedaraniam, to prove that the date of birth ofthe petitioner is 5.3.55 and not 5.3.54, as shown in the schoolrecords. As soon as the petitioner came to know about the actualdate of birth, he had submitted an application, along with thenecessary documents, in support of his claim. In reply to theapplication, dated 31.1.94, forwarded by the petitioner, the fourthrespondent has passed the impugned order in his proceedings,A.Ti.Mu.No.1508/A4/94, dated 21.4.94, even without conducting anenquiry or directing the revenue authorities to conduct an enquiryto find out the facts, with regard to the merits of the case. Thefourth respondent has given an independent finding that theapplication has not been made within five years, as per the relevantrules applicable to the case.

The fourth respondent ought to havegathered the reasons for the delay by giving an opportunity to thepetitioner. However, without doing so, he has passed the impugnedorder, which is arbitrary, ultravires and illegal. 3. In the reply affidavit filed on behalf of the respondents, the allegations made by the petitioner have been denied. It has beenstated that the application of the petitioner, dated 31.1.94,seeking alteration of the date of birth in his service register, as5.3.55, instead of 5.3.54, was received by the Headmaster, on4.2.94, and it was forwarded to the Chief Educational Officer, whois the appointing authority, for taking necessary action. At thetime of his entry into service, the petitioner's date of birth hasbeen recorded as 5.3.54, based on the entry made in the S.S.L.C.book. As per Rule 49(C) of the Tamil Nadu State and SubordinateService Rules, any application received after five years from the https://hcservices.ecourts.gov.in/hcservices/ date of a person's entry into service shall be summarily rejected.

Since the petitioner had submitted his application for alteration ofhis date of birth beyond the period of limitation, as stated in thesaid rule, his application was rejected. In fact, the petitioner hadsubmitted his application after 13 years from the date of entry intoservice. Therefore, the claims made by the petitioner are devoid ofmerits. 4. In U.P.MADHYAMIK SHIKSHA PARISHAD AND OTHERS Vs. RAJ KUMARAGNIHOTRI (2006-2-L.W.182), the Supreme Court relying on its earlierdecisions in STATE OF U.P. AND OTHERS Vs. GULAICHI (SMT), ((2003) 6SCC 483), STATE OF UTTARANCHAL AND OTHERS Vs. PITAMBER DUTT SEMWAL(2002) 1 UPLBEC 441 SC, STATE OF T.N. Vs. T.V.VENUGOPALAN (1994) 6SCC 302=1994 WRIT L.R.831=1995-1-L.W.13 S.N., EXECUTIVE ENGINEER,BHADRAK (R&B) DIVISION, ORISSA AND OTHERS Vs. RANGADHAR MALLIK, 1993SUPP (1) SCC 763, GOVERNMENT OF ANDHRA PRADESH AND ANOTHER Vs.M.HAYAGREEV SARMA ((1990) 2 SCC 682), UNION OF INDIA Vs.

HARNAMSINGH, ((1993) 2 SCC 162), BURN STANDARD CO. LTD. AND OTHERS Vs.DINABANDHU MAJUMDAR AND ANOTHER (AIR 1995 SC 1499) and THE SECRETARY& COMMISSIONER HOME DEPARTMENT & ORS Vs. R.KIRUBAKARAN, (JT 1993 (5)SC 404), had come to the conclusion that the correction in entriesmade in the Government records, on the basis of which the Governmentservant got the service, cannot be allowed to be changed just a fewyears before retirement or at the fag end of his service.5. In THE SECRETARY & COMMISSIONER Vs. R.KIRUBAKARAN, (1994)Supp (1) SCC 155), the Supreme Court has held as follows: "9. The Tamil Nadu Service Manual containsRules 49 and 49-A, which are the provisions inrespect of alteration and correction of the dateof birth. Whenever any application is filed bypersons governed by those service rules, procedures prescribed therein have to be strictlyfollowed, including the time-limit prescribed formaking such an application.

Clause (b) of theaforesaid Rule 49 provides that after a personhas entered in service, an application to alterthe date of his birth as entered in the officialrecords "shall be entertained only if such anapplication is made within five years of suchentry in service...." It need not be pointed outthat if an application is made for correction ofthe date of birth mentioned in the servicerecords at an early date or within the timeprescribed, the authorities are in a much betterposition to verify the same. Normally, in most ofthe services, the date of birth is recorded inthe service records on the eve of the appointmentwith reference to the date of birth mentioned inthe Matriculation Certificate, Higher SecondaryEducation Board Certificate or any othercertificate of similar nature produced by theapplicant concerned at the time of makingapplication for his appointment. As such whenever https://hcservices.ecourts.gov.in/hcservices/ an application for alteration of the date ofbirth is made on the eve of superannuation ornear about that time, the Court or the tribunalconcerned should be more cautious because of thegrowing tendency amongst a section of publicservants, to raise such a dispute, withoutexplaining as to why this question was not raisedearlier. In the facts and circumstances of thecase, it is not possible to uphold the findingrecorded by the Tribunal. " 5.1. In STATE OF T.N. Vs. T.V.VENUGOPALAN (1994) 6 SCC 302, the Supreme Court has held as follows:

Theevidence is not unimpeachable or irrefutable. TheTribunal in its judicial review is not justifiedin trenching into the field of appreciation ofevidence and circumstances in its evaluation toreach a conclusion on merits as it is not a courtof appeal. This Court has, repeatedly, beenholding that the inordinate delay in making theapplication is itself a ground for rejecting thecorrection of date of birth. The governmentservant having declared his date of birth asentered in the service register to be correct, would not be permitted at the fag end of hisservice career to raise a dispute as regards thecorrectness of the entries in the serviceregister. It is common phenomenon that justbefore superannuation, an application would bemade to the Tribunal or court just to gain timeto continue in service and the Tribunal or courtsare unfortunately unduly liberal in entertainingand allowing the government employees or public https://hcservices.ecourts.gov.in/hcservices/ employees to remain in office, which is adding animpetus to resort to the fabrication of therecord and place reliance thereon and seek theauthority to correct it.

When rejected, ongrounds of technicalities, question them andremain in office till the period claimed for, gets expired. This case is one such starkinstance. Accordingly, in our view, the Tribunalhas grossly erred in showing overindulgence ingranting the reliefs even trenching beyond itspowers of allowing him to remain in office fortwo years after his date of superannuation evenas per his own case and given all conceivabledirections beneficial to the employee. It is, therefore, a case of the grossest error of lawcommitted by the Tribunal which cannot becountenanced and cannot be sustained on anyground. The appeal is accordingly allowed withcosts quantified as Rs.3000."5.2. In STATE OF U.P. AND OTHERS Vs. GULAICHI (SMT), ((2003) 6SCC 483), the Supreme Court has held as follows:

"6. At the stage of the hearing of the writ petition, anunreported decision of this Court, dated 27.6.2008, in A.RAJAGOPALANVs. THE REGISTRAR, UNIVERSITY OF MADRAS, CHEPAUK, CHENNAI,(W.P.No.13000 of 2008) had also been placed before this Court forconsideration. Referring to the various decisions of the SupremeCourt reported in STATE OF ORISSA Vs. BRAHAMARBAR SENAPATHI (1994) 2SCC 491, UNION OF INDIA Vs. RAM SUIA SHARMA ((1996) 7 SCC 421),G.M.BHARAT COKING COAL LTD., Vs. SHIB KUMAR DUSHAD ((2000) 8 SCC696), STATE OF PUNJAB Vs. S.C.CHADHA ((2004) 3 SCC 394), STATE OFU.P. Vs. SHIV NARAIN UPADHAYA ((2005) 6 SCC 49), U.P.MADHYAMIKSHIKSHA PARISHAD Vs. RAJ KUMAR AGNIHOTRI (2005-11-SCC.465), STATE OFUTTARANCHAL Vs. PITAMBER DUTT SEMWAL ((2005) 11 SCC 477), COAL INDIALTD. Vs. ARDHENDU BIKAS BHATTACHARJEE ((2005) 12 SCC 201), STATE OFGUJARAT Vs. VALI MOHD. DOSABHAI SINDHI ((2006) 6 SCC 537), thelearned Single Judge of this Court had dismissed the writ petitionfiled by the petitioner, requesting for alteration of his date ofbirth, holding that the petitioner is not entitled to the reliefsprayed for in the writ petition as he could not show that hisrequest was in accordance with the relevant rules applicable to thecase.

7. On a perusal of the records available before this Court, itis seen that in the Government order G.O.Ms.No.103, Public(Services), dated 24.1.1961, instructions had been issuedprescribing the procedure to be followed in dealing with theapplications for alteration of date of birth from persons in serviceand from candidates applying for appointment to the services underthe state. In the Government Order G.O.Ms.No.1166, Public (Services-A), dated 7.7.1961, rules had been framed to give statutory effectto the instructions. Pursuant to the Government OrderG.O.Ms.No.1166, Public (Services-A), dated 7.7.1961, an amendmenthad been made to the general rules of the Madras state andsubordinate services rules, in exercise of the powers conferred bythe proviso to Article 309 of the Constitution of India, by addingRule 49, regarding alteration of date of birth, which reads asfollows: "AMENDMENTIn the said rules, after rule 48, thefollowing rule shall be added, namely:-"49.

Alteration of date of birth:- (a) If,at the time of appointment, a candidate claimsthat his date of birth is different from thatentered in his S.S.L.C. or Matriculation Registeror school records, he shall make an applicationto the Madras Public Service Commission in caseswhere the appointment is made in consultationwith the Commission and in other cases to theappointing authority stating the evidence onwhich he relied and explaining how the mistakeoccurred. The application shall be forwarded to https://hcservices.ecourts.gov.in/hcservices/ the Board of Revenue for report afterinvestigation by an officer not below the rank ofa Deputy Collector and on receipt of the report, the Madras Public Service Commission or theappointing authority, as the case may be, shalldecide whether the alteration of date of birthmay be permitted or the application may berejected. (b) After a person has entered service, anapplication to correct the date of his birth asentered in the official records shall normally beentertained only if such an application is madewithin five years of such entry into service.

Such an application shall be made to theauthority competent to make an appointment to thepost held by the applicant at the time of hisapplication and shall be disposed of inaccordance with the procedure laid down in sub-rule (a).(c) Any application received after fiveyears after entry into service shall be summarilyrejected unless the applicant gives adequateexplanation for making such belated applicationto the authority competent to deal with it. Ifthe application is entertained, the authorityconcerned shall, after following the procedure asto enquiry laid down in sub-rule (a) submit thecase to the Government with its recommendationand the Government shall, after consulting the Madras Public Service Commission, pass ordersthereon. (d) In considering the question ofpermitting an alteration in the date of birth asentered in the official records even when suchentry is proved to have been due to a bona fidemistake the Government or the appointingauthority shall take into consideration thecircumstance whether the applicant would normallybe eligible for appointment to the post at thetime of entry into service had his age beencorrectly stated and what would have been itseffect on his service and the service conditionsof other officers in the service and may permitthe alteration subject to such conditions as theyor it may deem fit to impose.

(e) The procedure laid down in sub-rules (a)to (d) shall be followed also in cases wherealteration of date of birth is proposed suo motuby the Head of office on the basis of medicalopinion, in the absence of any otherauthoritative records. https://hcservices.ecourts.gov.in/hcservices/ (f) The decision of the Madras PublicService Commission, the appointing authority orthe Government as the case may be, shall befinal. "8. The said amendment was deemed to have come into force on24.1.1961, which is the date when the Government OrderG.O.Ms.No.103, Public (Services), dated 24.1.1961, had come intoforce. 9. It has also been pointed out that in a case relating to aclaim for alteration of date of birth made by a Government servant, who was in service prior to 24.1.1961, and when such a claim hadbeen made after the lapse of five years from the date of his entryinto service, the Tamil Nadu administrative tribunal had orderedthat a specific provision should have been made under Rule 49,regulating the procedure for those in service on the date ofintroduction of the rule.

As no such intention has been indicated atthe time of its introduction, Rule 49, as it stood, will not debarthe applicant from making an application for alteration of his dateof birth. Accordingly, the Government of Tamil Nadu, in letterMs.No.380, Personnel and Administrative Reforms (Per.S) Department, dated 22.8.1990, had issued a clarification stating that in futurethe applications to be received for the alteration of date of birthfrom members who were appointed prior to the introduction of therule, i.e. prior to 22.6.1961, may be entertained and examined onmerits following the procedure laid down in General Rule 49.10. Since a large number of requests were being received fromthe Government servants for alteration of their date of birth, the Government of Tamil Nadu had issued a Government Order inG.O.Ms.No.395, Personnel and Administrative Reforms (Personnel-S),Department, dated 15.12.1992, stating that the Government, aftercareful examination, had decided to prescribe a time limit forsubmitting such applications.

Therefore, it was decided that the Government servants, who had entered into Government service priorto 24.1.1961 and who wish to apply for alteration of the date oftheir birth, should do so atleast one year before the date of theirretirement. Therefore, an amendment had been made in sub Rule (c) in Rule 49 of the General Rules for the Tamil Nadu state and Subordinate Services, by adding a proviso thereto, which reads asfollows:AMENDMENTIn the said Rules, in rule 49, in sub-rule(c) the following proviso shall be added, namely: "Provided that the application foralteration of date of birth of a person whoentered into service prior to the 24th January,1961 shall be submitted atleast one year beforethe date of his retirement reckoned withreference to the official records". https://hcservices.ecourts.gov.in/hcservices/