High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 17.2.2009C O R A M :THE HONOURABLE MR.JUSTICE P.K.MISRAandTHE HONOURABLE MR.JUSTICE K. CHANDRUW.P.No.24880 of 2006M.Rajasekar ... Petitioner -vs-1.The State of Tamil Nadu, rep.by Secretary to Government,Co-operation, Food & ConsumerProtection Department,Fort St.George, Chennai-600 009.2.The Registrar,Tamil Nadu State AdministrativeTribunal, Chennai-600 104... Respondents PRAYER : Petition filed under Article 226 of the Constitution of Indiapraying for the issuance of a writ of certiorarified mandamus callingfor the records comprised in O.A.No.6975 of 1996 on the file of theTamil Nadu State Administrative Tribunal/2nd respondent by its orderdated 27.4.2004 and G.O.Ms.(D) No.657, Co-operation, Food and ConsumerProtection Department, dated 29.11.1993 and G.O.Ms.No.(D).330, Co-operation, Food and Consumer Protection department, dated 09.5.1995 onthe file of the first respondent and quash the same and consequentlydirect the first respondent to change the date of birth of thepetitioner from 05.4.1959 to 31.3.1961 in all the service records ofthe petitioner. For petitioner: Mr.R.KarthikeyanFor respondents : Mr.Raja Kalifulla, GP ***** https://hcservices.ecourts.gov.in/hcservices/ O R D E RK. CHANDRU, J. This writ petition is filed challenging the order of the TamilNadu State Administrative Tribunal made in O.A.No.6975 of 1996 dated27.4.2004 as well as the order of the first respondent dated29.11.1993 and 09.5.1995 and after setting aside the same to directthe first respondent to alter his date of birth from 05.4.1959 to31.3.1961. 2. The petitioner at the relevant time was working as a SpecialOfficer in the rank of Joint Registrar in the Pudukottai DistrictCentral Co-operative Bank Limited. He filed O.A.No.6975 of 1996seeking to challenge the order of the Government in refusing to granthis request for alteration of his date of birth from 05.4.1959 to31.3.1961. 3. The petitioner originally was working in Canara Bank from 1984to 1990 as a Clerk-cum-Cashier. Subsequently he joined the Governmentservice on 15.3.1990. After joining the government, he sent arepresentation dated 27.9.1991 seeking for alteration of his date ofbirth. His case was that his father Muthiah had two wives and he wasborn to the second wife and his mother's name was Jayalakshmi. Thoughhe was actually born on 31.3.1961, his date of birth was wronglyrecorded as 05.4.1959 by his grand father who was staying in someother village, namely, Vadakarai. The petitioner studied in thatVadakarai Panchayat School. Thereafter he came to Thirumangalam, whereboth his parents were staying. He wrote his SSLC examination in March1997 and his date of birth was declared by his father as 05.4.1959. 4. Since the date of birth was wrongly declared, he filed a suitbefore the District Munsif Court, Thirumangalam, Madurai Districtbeing O.S.NO.401 of 1980 to declare his date of birth as 31.3.1961 andnot as 05.4.1959. In that suit, the Director of School Education wasalso made a party. The suit was decreed by a judgment and decree dated20.12.1980 and it became final. But after joining the service in hisrepresentation he had enclosed the judgment and decree of the CivilCourt as a proof for altering his date of birth.5. The petitioner's request was referred to an enquiry by theRevenue Divisional Officer, Madurai. He conducted a detailed enquiryand sent a report recommending for alteration. It was forwarded to theCommissioner for Revenue Administration who also sent his ownrecommendations. However, the Government by G.O.Ms.(D)No.657 Co-operation, Food and Consumer Protection Department, dated 29.11.1993rejected the case of the petitioner. In that order, the StateGovernment had stated that the petitioner's father was a VillageMunsif and as he himself was responsible for recording birth and death https://hcservices.ecourts.gov.in/hcservices/ since he was a designated Registrar under the Birth and DeathRegistration Act, there was no possibility of his committing anymistake of entering the date of birth. The petitioner's mother wasalso working as a school teacher. It was also stated that in the SSLCbook, the date of birth declaration was given by his father and he hadalso signed in English. Therefore, there was no possibility of theirrecording any wrong date. In fact the petitioner's mother had given astatement that such a wrong date was given for the purpose offacilitating his early entry into the school. Because of that thepetitioner was able to complete his school education and they tookadvantage of such an alleged wrong entry. He cannot have a secondbenefit by altering the said date. It was also stated that the datesof birth of the children of the first wife were not furnished as wellas their service records in Government service were also not produced.Therefore, the Government refused to accede to the request of thepetitioner. 6. The petitioner sent a reconsideration petition dated13.1.1995. The Government after considering the same passed aGovernment Order being G.O.(D)No.330, Co-operation, Food and ConsumerProtection Department, dated 09.5.1995 rejecting the case of thepetitioner. It is these two orders which were challenged by thepetitioner before the Tribunal.7. The Tribunal after notice to the parties dismissed theOriginal Application filed by the petitioner. The Tribunal afteraccepting the stand of the Government also held that if theapplication of the petitioner was accepted then he would have gotadmission to the first standard in school at the age of three. TheTribunal also held that his father was a Village Munsif and he wouldhave corrected the age, in case it was wrongly recorded at the timewhen he made the declaration, which was found in the first page ofSSLC book. Though the counsel for the petitioner sought to give anexplanation that it was possible for a candidate to have studied inyoung age in the school by grant of double promotions so as tocomplete SSLC even before the normal age, we do not find such anexplanation reflected in the records produced before the Tribunal.Even though under Rule 49(b) of the Tamil Nadu State and SubordinateService Rules, there is a provision for alteration of date of birthand the petitioner's application was received within the limitationprescribed therein, it is not as if that in every such case wherethere was an application made on time there was an obligation for theState Government to alter the age of an employee as per his request. 8. In the present case, the Government had called for a reportfrom the Revenue Divisional Officer concerned. But that again is onlya material by which the Government was not bound to act. If theGovernment considered that they were not satisfied with theexplanation offered by the petitioner, there is no question of the https://hcservices.ecourts.gov.in/hcservices/ Tribunal disagreeing with such an order unless there are compellingcircumstances to do so. In the present case, the Tribunal had agreedwith the stand taken by the Government. Challenging such orders of theTribunal by way of writ proceedings is only an enabling provisioncreated by the Supreme Court. This Court sitting under Article 226 ofthe Constitution cannot interfere with such finding of fact recordedby the Tribunal and come to different conclusion in the absence of anycredible material produced by the petitioner.9. The petitioner's contention that there was a declaratorydecree passed by the District Munsif Court, Tirumangalam cannot haveany bearing on the present case even though the Director of SchoolEducation might have been made a party to the suit. The decreeobtained by the petitioner from the Civil Court was before enteringinto Government service. Even his school records were not correctedeither when he was in Canara Bank or before entering into Governmentservice. 10. In this context, it is necessary to refer to a decision ofthe Supreme Court in State of Gujarat -vs- Vali Mohmed Dosabhai Sindhireported in (2006) 6 SCC 537. The following passage found in para 12which succinctly bring out the limitation placed on Tribunals andCourts in this regard may be usefully extracted below:-Para 12. An application for correction of the date of birthshould not be dealt with by the courts, the Tribunalor the High Court keeping in view only the publicservant concerned. It need not be pointed out thatany such direction for correction of the date ofbirth of the public servant concerned has a chainreaction, inasmuch as others waiting for years, belowhim for their respective promotions are affected inthis process. Some are likely to suffer irreparableinjury, inasmuch as, because of the correction of thedate of birth, the officer concerned, continues inoffice, in some cases for years, within which timemany officers who are below him in seniority waitingfor their promotion, may lose the promotion for ever.Cases are not unknown when a person acceptsappointment keeping in view the date of retirement ofhis immediate senior. This is certainly an importantand relevant aspect, which cannot be lost sight of bythe court or the tribunal while examining thegrievance of a public servant in respect ofcorrection of his date of birth. As such, unless aclear case on the basis of materials which can beheld to be conclusive in nature, is made out by therespondent and that too within a reasonable time asprovided in the rules governing the service, the https://hcservices.ecourts.gov.in/hcservices/ court or the tribunal should not issue a direction ormake a declaration on the basis of materials whichmake such claim only plausible. Before any suchdirection is issued or declaration made, the court orthe tribunal must be fully satisfied that there hasbeen real injustice to the person concerned and hisclaim for correction of date of birth has been madein accordance with the procedure prescribed, andwithin the time fixed by any rule or order. If norule or order has been framed or made, prescribingthe period within which such application has to befiled, then such application must be within at leasta reasonable time. The applicant has to produce theevidence in support of such claim, which may amountto irrefutable proof relating to his date of birth.Whenever any such question arises, the onus is on theapplicant to prove about the wrong recording of hisdate of birth in his service book. ...." 11. Therefore, we have no hesitation to dismiss the writ petitionwhich is misconceived and devoid of merits. Hence, the writ petitionstands dismissed. There will be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrarjs To1. The Secretary to Government of Tamil Nadu,Co-operation, Food & ConsumerProtection Department,Fort St.George, Chennai-600 009.2.The Registrar,Tamil Nadu State Administrative Tribunal, Chennai-600 104. +1cc to Mr.R.Karthikeyan, Advocate Sr 6827+1cc to Govt. Pleader Sr 6728BV(CO)km/4.3. W.P.No.24880 of 2006