C.Elangovan v. The Director of School Education

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.7.2008CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.18749 of 2006 (T)O.A.No.6068 of 1994C.Elangovan .. Petitioner(Applicant) vs. The Director of School EducationCollege Road, Madras-600 006 .. Respondent/RespondentThis writ petition is filed under Article 226 of theConstitution of India praying for the issuance of a Writ ofCertiorarified Mandamus to call for the records relating to theorder of the respondent, dated 3.5.1994, issued inRef.No.O.Mu.No.37812/C5/94, and quash the same and further directthe respondent to forward the representation of the applicant tothe Commissioner of Revenue Administration for enquiry. For petitioner : Mr.R.Muthukannu for Ms.Dhanalakshmi For Respondents : Mr.T.Seenivasan Additional Government PleaderO R D E RHeard the learned counsel appearing for the petitioner andthe learned Additional Government Advocate appearing for therespondents.2. The petitioner has stated that he was appointed in theEducation Department, in the year 1964, pursuant to the selectionmade by the Tamil Nadu Public Service Commission. In the serviceregister of the petitioner, his date of birth has been entered as1.6.1940, though the correct date of birth of the petitioner is4.8.1941. Therefore, the petitioner had submitted a representationto alter his date of birth from 1.6.1940 to 4.8.1941, based on thebirth extract issued by the Sub Registrar, Natham. However, therequest had been rejected, summarily, by an order, dated 3.5.1994,issued by the respondent. https://hcservices.ecourts.gov.in/hcservices/

3. In the reply affidavit filed on behalf of the respondent,it has been stated that the petitioner is working as aSuperintendent in the office of the District Educational Officer,Madurai North, at Melur. He was originally appointed as a JuniorAssistant, on 17.1.1964. The petitioner had made a representationto the Director of School Education, Chennai, on 7.2.1994, statingthat his actual date of birth is 4.8.1941 and that it has beenwrongly entered as 1.6.1940 in the S.S.L.C. and other connectedrecords. Therefore, the petitioner had requested for alteration ofhis date of birth as 4.8.1941. His request was rejected in theDirector's proceedings L.Dis.No.37812/C5/94, dated 3.5.1994, as itwas not feasible of compliance, as per General Rule 49 of theTamil Nadu State and Subordinate service Rules. 4. It has been further stated that General Rule 49(c) of theTamil Nadu State and Subordinate service Rules, inter alia,provides that any application received from a Government servant,after five years after entering into the Government service, shallbe summarily rejected. Hence, the contention of the petitionerthat his representation for alteration of his date of birth, basedon the Sub-Register's records, cannot be rejected, summarily, evenif it has been submitted after the lapse of five years from thedate of his joining in service, cannot be accepted. 5. It has also been submitted that the Government had issueda clarification in their letter No.380, Personnel andAdministrative Reforms (Per.3) Department, dated 12.8.1990,stating that the applications for alteration of date of birth,received from the Government servants, who were appointed prior tothe introduction of the above rule i.e., prior to 24.1.1961, maybe entertained and examined on merits, following the procedurelaid down in General Rule 49. Since the petitioner had enteredinto Government service after 24.1.1961, he had not made anyrequest within five years from the date of entry into Governmentservice. Hence, the request of the petitioner, to change his dateof birth from 1.6.1940 to 4.8.1941, has to be rejected. 6. In U.P.MADHYAMIK SHIKSHA PARISHAD AND OTHERS Vs. RAJ KUMARAGNIHOTRI (2006-2-L.W.182), the Supreme Court relying on itsearlier decisions in STATE OF U.P. AND OTHERS Vs. GULAICHI (SMT),((2003) 6 SCC 483), STATE OF UTTARANCHAL AND OTHERS Vs. PITAMBERDUTT SEMWAL (2002) 1 UPLBEC 441 SC, STATE OF T.N. Vs.T.V.VENUGOPALAN (1994) 6 SCC 302=1994 WRIT L.R.831=1995-1-L.W.13S.N., EXECUTIVE ENGINEER, BHADRAK (R&B) DIVISION, ORISSA ANDOTHERS Vs. RANGADHAR MALLIK, 1993 SUPP (1) SCC 763, GOVERNMENT OFANDHRA PRADESH AND ANOTHER Vs. M.HAYAGREEV SARMA ((1990) 2 SCC682), UNION OF INDIA Vs. HARNAM SINGH, ((1993) 2 SCC 162), BURN https://hcservices.ecourts.gov.in/hcservices/ STANDARD CO. LTD. AND OTHERS Vs. DINABANDHU MAJUMDAR AND ANOTHER(AIR 1995 SC 1499) and THE SECRETARY & COMMISSIONER HOMEDEPARTMENT & ORS Vs. R.KIRUBAKARAN, (JT 1993 (5) SC 404), had cometo the conclusion that the correction in entries made in theGovernment records, on the basis of which the Government servantgot the service, cannot be allowed to be changed just a few yearsbefore retirement or at the fag end of his service.7. 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 thedate of birth. Whenever any application isfiled by persons governed by those servicerules, procedures prescribed therein have to bestrictly followed, including the time-limitprescribed for making such an application.Clause (b) of the aforesaid Rule 49 providesthat after a person has entered in service, anapplication to alter the date of his birth asentered in the official records "shall beentertained only if such an application is madewithin five years of such entry in service...."It need not be pointed out that if anapplication is made for correction of the dateof birth mentioned in the service records at anearly date or within the time prescribed, theauthorities are in a much better position toverify the same. Normally, in most of theservices, the date of birth is recorded in theservice records on the eve of the appointmentwith reference to the date of birth mentionedin the Matriculation Certificate, HigherSecondary Education Board Certificate or anyother certificate of similar nature produced bythe applicant concerned at the time of makingapplication for his appointment. As suchwhenever an application for alteration of thedate of birth is made on the eve ofsuperannuation or near about that time, theCourt or the tribunal concerned should be morecautious because of the growing tendencyamongst a section of public servants, to raisesuch a dispute, without explaining as to whythis question was not raised earlier. In thefacts and circumstances of the case, it is not https://hcservices.ecourts.gov.in/hcservices/ possible to uphold the finding recorded by theTribunal." 7.1. In STATE OF T.N. Vs. T.V.VENUGOPALAN (1994) 6 SCC 302,the Supreme Court has held as follows:7. As held by this Court in Harnam case,Rule 49 is to be harmoniously interpreted. Theapplication for correction of the date of birthof an in-service employee should be made withinfive years from the date when the Rules hadcome into force, i.e., 1961. If no applicationis made, after expiry of five years, thegovernment employee loses his right to make anapplication for correction of his date ofbirth. It is seen that the respondent enteredinto the service on 12.1.1952, and only when hewas due for superannuation at the age of 58years on 31.8.1991, he made the applicationexactly one year before his superannuation. TheGovernment rejected his claim before heattained the age of superannuation on30.8.1991. When questioned, the Tribunal, forincorrect reasons, set aside the order andremitted the matter for reconsideration. TheGovernment considered various facts andcircumstances in the GOMs No.271 and rejectedthe claim on 31.3.1993. The evidence is notunimpeachable or irrefutable. The Tribunal inits judicial review is not justified intrenching into the field of appreciation ofevidence and circumstances in its evaluation toreach a conclusion on merits as it is not acourt of appeal. This Court has, repeatedly,been holding that the inordinate delay inmaking the application is itself a ground forrejecting the correction of date of birth. Thegovernment servant having declared his date ofbirth as entered in the service register to becorrect, would not be permitted at the fag endof his service career to raise a dispute asregards the correctness of the entries in theservice register. It is common phenomenon thatjust before superannuation, an applicationwould be made to the Tribunal or court just togain time to continue in service and theTribunal or courts are unfortunately undulyliberal in entertaining and allowing thegovernment employees or public employees to https://hcservices.ecourts.gov.in/hcservices/ remain in office, which is adding an impetus toresort to the fabrication of the record andplace reliance thereon and seek the authorityto correct it. When rejected, on grounds oftechnicalities, question them and remain inoffice till the period claimed for, getsexpired. This case is one such stark instance.Accordingly, in our view, the Tribunal hasgrossly 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."7.2. In STATE OF U.P. AND OTHERS Vs. GULAICHI (SMT), ((2003)6 SCC 483), the Supreme Court has held as follows:8. Normally, in public service, withentering into the service, even the date ofexit, which is said as the date ofsuperannuation or retirement, is also fixed.That is why the date of birth is recorded inthe relevant register or service-book, relatingto the individual concerned. This is thepractice prevalent in all services, becauseevery service has fixed the age of retirement,it is necessary to maintain the date of birthin the service records. But, of late a trendcan be noticed, that many public servants, onthe eve of their retirement raise a disputeabout their records, by either invoking thejurisdiction of the High Court under Article226 of the Constitution of India or by filingapplications before the AdministrativeTribunals concerned, or even filing suits foradjudication as to whether the dates of birthrecorded were correct or not.9. Most of the States have framedstatutory rules or in absence thereof issuedadministrative instructions as to how a claimmade by a public servant in respect ofcorrection of his date of birth in the service https://hcservices.ecourts.gov.in/hcservices/ record is to be dealt with and what procedureis to be followed. In many such rules a periodhas been prescribed within which if any publicservant makes any grievance in respect of errorin the recording of his date of birth, theapplication for that purpose can beentertained, the sole object of such rulesbeing that any such claim regarding correctionof the date of birth should not be made orentertained after decades, especially on theeve of superannuation of such publicservant..."7.3. In STATE OF PUNJAB Vs. MOHINDER SINGH (2005) 3 SCC 702,the Supreme Court has held as follows:11. Horoscope is a very weak piece ofmaterial to prove age of a person. In mostcases, the maker of it may not be available toprove that it was made immediately after thebirth. A heavy onus lies on the person whowants to press it into service to prove itsauthenticity. In fact, a horoscope to betreated as evidence in terms of Section 32clause (5) must be proved to have been made bya person having special means of knowledge asregards authenticity of a date, time etc.mentioned therein. In that context horoscopeshave been held to be inadmissible in proof ofage. (see Ramnarain Kallia v. Monee Bibee,Biro v. Atma Ram and Satish ChandraMukhopadhya v. Mohendra Lal Pathak.)12. On the contrary, the statementcontained in the admission register of theschool as to the age of an individual oninformation supplied to the school authoritiesby the father, guardian or a close relative ismore authentic evidence under Section 32clause (5) unless it is established byunimpeachable contrary material to show thatit is inherently improbable. The time of one'sbirth relates to the commencement of one'srelationship by blood and a statementtherefore of one's age made by a person havingspecial means of knowledge, relates to theexistence of such relationship as thatreferred to in Section 32 clause (5). https://hcservices.ecourts.gov.in/hcservices/

13. As observed by this Court in UmeshChandra v. State of Rajasthan ordinarily oralevidence can hardly be useful to determine thecorrect age of a person, and the question,therefore, would largely depend on thedocuments and the nature of theirauthenticity. Oral evidence may have utilityif no documentary evidence is forthcoming.Even the horoscope cannot be reliable becauseit can be prepared at any time to suit theneeds of a particular situation. Entries inthe school register and admission formregarding date of birth constitute good proofof age. There is no legal requirement that thepublic or other official book should be keptonly by a public officer and all that isrequired under Section 35 of the Evidence Actis that it should be regularly kept indischarge of official duty. In the instantcase the entries in the school register weremade ante litem motam."8. At the stage of the hearing of the writ petition, anunreported decision of this Court, dated 27.6.2008, inA.RAJAGOPALAN Vs. THE REGISTRAR, UNIVERSITY OF MADRAS, CHEPAUK,CHENNAI, (W.P.No.13000 of 2008) had also been placed before thisCourt for consideration. Referring to the various decisions of theSupreme Court reported in STATE OF ORISSA Vs. BRAHAMARBARSENAPATHI (1994) 2 SCC 491, UNION OF INDIA Vs. RAM SUIA SHARMA((1996) 7 SCC 421), G.M.BHARAT COKING COAL LTD., Vs. SHIB KUMARDUSHAD ((2000) 8 SCC 696), STATE OF PUNJAB Vs. S.C.CHADHA ((2004)3 SCC 394), STATE OF U.P. Vs. SHIV NARAIN UPADHAYA ((2005) 6 SCC49), U.P.MADHYAMIK SHIKSHA PARISHAD Vs. RAJ KUMAR AGNIHOTRI (2005-11-SCC.465), STATE OF UTTARANCHAL Vs. PITAMBER DUTT SEMWAL ((2005)11 SCC 477), COAL INDIA LTD. Vs. ARDHENDU BIKAS BHATTACHARJEE((2005) 12 SCC 201), STATE OF GUJARAT Vs. VALI MOHD. DOSABHAISINDHI ((2006) 6 SCC 537), the learned Single Judge of this Courthad dismissed the writ petition filed by the petitioner,requesting for alteration of his date of birth, holding that thepetitioner is not entitled to the reliefs prayed for in the writpetition as he could not show that his request was in accordancewith the relevant rules applicable to the case. 9. On a perusal of the records available before this Court,it is 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 https://hcservices.ecourts.gov.in/hcservices/ service and from candidates applying for appointment to theservices under the state. In the Government Order G.O.Ms.No.1166,Public (Services-A), dated 7.7.1961, rules had been framed to givestatutory effect to the instructions. Pursuant to the GovernmentOrder G.O.Ms.No.1166, Public (Services-A), dated 7.7.1961, anamendment had been made to the general rules of the Madras stateand subordinate services rules, in exercise of the powersconferred by the proviso to Article 309 of the Constitution ofIndia, by adding Rule 49, regarding alteration of date of birth,which reads as follows:"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 MatriculationRegister or school records, he shall make anapplication to the Madras Public ServiceCommission in cases where the appointment ismade in consultation with the Commission and inother cases to the appointing authority statingthe evidence on which he relied and explaininghow the mistake occurred. The application shallbe forwarded to the Board of Revenue for reportafter investigation by an officer not below therank of a Deputy Collector and on receipt ofthe report, the Madras Public ServiceCommission or the appointing authority, as thecase may be, shall decide whether thealteration of date of birth may be permitted orthe application may be rejected.(b) After a person has entered service, anapplication to correct the date of his birth asentered in the official records shall normallybe entertained only if such an application ismade within five years of such entry intoservice. Such an application shall be made tothe authority competent to make an appointmentto the post held by the applicant at the timeof his application and shall be disposed of inaccordance with the procedure laid down in sub-rule (a). https://hcservices.ecourts.gov.in/hcservices/ (c) Any application received after fiveyears after entry into service shall besummarily rejected unless the applicant givesadequate explanation for making such belatedapplication to the authority competent to dealwith it. If the application is entertained, theauthority concerned shall, after following theprocedure as to enquiry laid down in sub-rule(a) submit the case to the Government with itsrecommendation and the Government shall, afterconsulting the Madras Public ServiceCommission, pass orders thereon. (d) In considering the question ofpermitting an alteration in the date of birthas entered in the official records even whensuch entry is proved to have been due to a bonafide mistake the Government or the appointingauthority shall take into consideration thecircumstance whether the applicant wouldnormally be eligible for appointment to thepost at the time of entry into service had hisage been correctly stated and what would havebeen its effect on his service and the serviceconditions of other officers in the service andmay permit the alteration subject to suchconditions as they or it may deem fit toimpose.(e) The procedure laid down in sub-rules(a) to (d) shall be followed also in caseswhere alteration of date of birth is proposedsuo motu by the Head of office on the basis ofmedical opinion, in the absence of any otherauthoritative records.(f) The decision of the Madras PublicService Commission, the appointing authority orthe Government as the case may be, shall befinal."10. 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. https://hcservices.ecourts.gov.in/hcservices/

11. It has also been pointed out that in a case relating to aclaim for alteration of date of birth made by a Governmentservant, who was in service prior to 24.1.1961, and when such aclaim had been made after the lapse of five years from the date ofhis entry into service, the Tamil Nadu administrative tribunal hadordered that a specific provision should have been made under Rule49, regulating the procedure for those in service on the date ofintroduction of the rule. As no such intention has been indicatedat the time of its introduction, Rule 49, as it stood, will notdebar the applicant from making an application for alteration ofhis date of birth. Accordingly, the Government of Tamil Nadu, inletter Ms.No.380, Personnel and Administrative Reforms (Per.S)Department, dated 22.8.1990, had issued a clarification statingthat in future the applications to be received for the alterationof date of birth from members who were appointed prior to theintroduction of the rule, i.e. prior to 22.6.1961, may beentertained and examined on merits following the procedure laiddown in General Rule 49.12. Since a large number of requests were being received fromthe Government servants for alteration of their date of birth, theGovernment 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 theGovernment 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 oftheir retirement. Therefore, an amendment had been made in subRule (c) in Rule 49 of the General Rules for the Tamil Nadu stateand Subordinate Services, by adding a proviso thereto, which readsas follows: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 yearbefore the date of his retirement reckonedwith reference to the official records". https://hcservices.ecourts.gov.in/hcservices/

13. It was decided that the said amendment shall come intoforce on 15.12.1992. While so, in a case relating to the claim ofalteration of date of birth, the Supreme Court of India inC.A.No.5422 of 1994, had observed that Rule 49 of the GeneralRules for the Tamil Nadu state and Subordinate Services,introduced in the year 1961, is to be harmoniously interpreted.Accordingly, applications for correction of the date of birth ofan in-service employee should be made within five years from thedate when the rules had come into force. If no application is madeafter the expiry of five years, the Government employee looses hisright to make an application for the correction of date of birth.Based on the decision of the Supreme Court, the Government ofTamil Nadu had issued a Letter Ms.No.154, Personnel andAdministrative Reforms (S) Department, dated 24.5.1995. It wasproposed to omit the proviso of sub rule (c) in Rule 49 of theGeneral Rules for Tamil Nadu state and Subordinate Services,retrospectively, with effect from 3.8.1994, which is the date ofthe order of the Supreme Court. Thereafter, a Government order hadbeen issued in G.O.Ms.No.380, Personnel and Administrative Reforms(S) Department, dated 27.12.1995, amending Rule 49 of the GeneralRules, by omitting the proviso to sub Rule (c) of Rule 49. 14. In G.O.Ms.No.2052, Public (C) Department, dated12.8.1972, an amendment had been issued to the General Rule 49 (C)to the effect that "Any application received after five yearsafter entry into service shall be summarily rejected". The saidprovision had come into effect on and from 19.8.1970. Since thesaid date has been erroneously stated in the first paragraph ofG.O.Ms.No.395, Personnel and Administrative Reforms (Personnel-S)Department, dated 15.12.1992, though the said amendment had comeinto force with effect from 24.1.1961, the Government of TamilNadu had issued G.O.Ms.No.66, Personnel and Administrative Reforms(S) Department, dated 2.2.1996, making the necessary amendment byshowing the correct date.15. In view of the submissions made by the learned counselsappearing for the parties concerned and in view of the decisionscited above, it is clear that the petitioner ought to have madehis request for alteration of his date of birth, within a periodof five years from the date of his joining in service or atleastwithin five years from the date of the coming into force of theRule in the year 1961, if the employee concerned was in service atthat time. Since the petitioner had not made his request withinthe time limit prescribed, his request had been rejected by theimpugned order, dated 3.5.1994, passed by the respondent.According to General Rule 49(c) of the Tamil Nadu State andSubordinate service Rules, any request made for alteration of dateof birth would be summarily rejected, if it has been made beyond https://hcservices.ecourts.gov.in/hcservices/ five years from the date of the person's initial appointment. Thesaid rule has been enacted to discourage persons from makingrepresentations for alteration of their date of birth at the fagend of their career. If such requests are entertained, it wouldcause great hardship for those persons whose seniority had alreadybeen fixed and in some cases certain rights would have accrued intheir favour. Such seniority or rights cannot be disturbed basedon the representations made by certain persons at the fag end oftheir career, close to the date of their retirement. The variousdecisions of the Courts of law, as noted above, make it clear thatthe alteration or change of date of birth could be done onlywithin five years from the date of joining in service, inaccordance with General Rule 49 of the Tamil Nadu StateSubordinate Service Rules. Since the petitioner had not made hisrequest within the prescribed time limit, it has been summarilyrejected by the impugned proceedings of the respondent, inaccordance with the established rules applicable to the case. 16. In such circumstances, the petitioner has not shownsufficient cause or reason for granting the reliefs prayed for byhim. Accordingly, the writ petition stands dismissed. No costs.lan Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To:The Director of School EducationCollege Road, Madras-600 006sp (co)dv/28.8.W.P.No.18749 of 2006 (T)O.A.No.6068 of 1994