R. Soundararajan v. The District Educational officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 18.7.2008CORAMTHE HON'BLE MR.JUSTICE M.JAICHANDREN W.P.No.18837 of 2006 (T)O.A.No.5848 of 1994R.Soundararajan .. Petitioner vs. 1. The District Educational officer Usilampatti, Madurai District2. The Director of School Education College Road, Madras-600 006 .. RespondentsThis 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 second respondent dated 3.5.1994 issued in thereference No.x/K/vz;/154940/rp5/93, quash the same and direct therespondent to forward the same to the Board of Revenue as per Rule. 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 and thelearned Additional Government Pleader appearing for therespondents. 2. It is stated by the petitioner that he had joined as aclerk in the erstwhile District Board school, with effect from22.3.1957. In the year 1992, the petitioner had submitted arepresentation, dated 8.4.1992, to alter his date of birth from20.1.1937 to 8.2.1939. It was returned by the second respondent https://hcservices.ecourts.gov.in/hcservices/ raising certain queries by an order, dated 10.6.1992. Aftercomplying with the requirements, the petitioner had resubmitted hisrepresentation, on 21.7.1992. However, by an order of therespondent, dated 3.5.1994, the request of the petitioner had beenrejected. 3. In the reply affidavit filed on behalf of the respondents,it has been stated that the petitioner was working as a PersonalAssistant to the District Educational Officer, Usilampatti inMadurai District. He had retired from Government service onattaining the age of superannuation, on 31.1.1995. The petitionerwas belonging to the staff of the former District Board High School('B' Wing). The staff of 'B' wing was absorbed into Governmentservice, with effect from 1.4.1970, as per G.O.Ms.No.761,Education, dated 16.5.1970. Hence, as per General Rule 49(b) of theTamil Nadu State and Subordinate services, the petitioner shouldhave applied for alteration of his date of birth before 31.3.1975.As per General Rule 49(c) of the Tamil Nadu State and Subordinateservice, an application received after five years after enteringinto the Government service shall be summarily rejected. Therefore,the request of the petitioner for alteration of his date of birthcannot be complied with. 4. 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 AND OTHERSVs. RANGADHAR MALLIK, 1993 SUPP (1) SCC 763, GOVERNMENT OF ANDHRAPRADESH AND ANOTHER Vs. M.HAYAGREEV SARMA ((1990) 2 SCC 682), UNIONOF INDIA Vs. HARNAM SINGH, ((1993) 2 SCC 162), BURN STANDARD CO.LTD. AND OTHERS Vs. DINABANDHU MAJUMDAR AND ANOTHER (AIR 1995 SC1499) and THE SECRETARY & COMMISSIONER HOME DEPARTMENT & ORS Vs.R.KIRUBAKARAN, (JT 1993 (5) SC 404), had come to the conclusionthat the correction in entries made in the Government records, onthe basis of which the Government servant got the service, cannotbe allowed to be changed just a few years before retirement or atthe 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 by https://hcservices.ecourts.gov.in/hcservices/ persons governed by those service rules,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 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 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 tendency amongsta section of public servants, to raise such adispute, without explaining as to why thisquestion was not raised earlier. In the factsand circumstances of the case, it is notpossible to uphold the finding recorded by theTribunal." 5.1. 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 had comeinto force, i.e., 1961. If no application ismade, after expiry of five years, the governmentemployee loses his right to make an applicationfor correction of his date of birth. It is seenthat the respondent entered into the service on https://hcservices.ecourts.gov.in/hcservices/

12.1.1952, and only when he was due forsuperannuation at the age of 58 years on31.8.1991, he made the application exactly oneyear before his superannuation. The Governmentrejected his claim before he attained the age ofsuperannuation on 30.8.1991. When questioned,the Tribunal, for incorrect reasons, set asidethe order and remitted the matter forreconsideration. The Government consideredvarious facts and circumstances in the GOMsNo.271 and rejected the claim on 31.3.1993. Theevidence is not unimpeachable or irrefutable.The Tribunal in its judicial review is notjustified in trenching into the field ofappreciation of evidence and circumstances inits evaluation to reach a conclusion on meritsas it is not a court of appeal. This Court has,repeatedly, been holding that the inordinatedelay in making the application is itself aground for rejecting the correction of date ofbirth. The government servant having declaredhis date of birth as entered in the serviceregister to be correct, would not be permittedat the fag end of his service career to raise adispute as regards the correctness of theentries in the service register. It is commonphenomenon that just before superannuation, anapplication would be made to the Tribunal orcourt just to gain time to continue in serviceand the Tribunal or courts are unfortunatelyunduly liberal in entertaining and allowing thegovernment employees or public employees toremain in office, which is adding an impetus toresort to the fabrication of the record andplace reliance thereon and seek the authority tocorrect 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 any https://hcservices.ecourts.gov.in/hcservices/ ground. 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: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 servicerecord 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..."5.3. In STATE OF PUNJAB Vs. MOHINDER SINGH (2005) 3 SCC 702,the Supreme Court has held as follows: https://hcservices.ecourts.gov.in/hcservices/

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, Birov. Atma Ram and Satish Chandra Mukhopadhya 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 32 clause(5) unless it is established by unimpeachablecontrary material to show that it is inherentlyimprobable. The time of one's birth relates tothe commencement of one's relationship by bloodand a statement therefore of one's age made bya person having special means of knowledge,relates to the existence of such relationshipas that referred to in Section 32 clause (5).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 their authenticity.Oral evidence may have utility if nodocumentary evidence is forthcoming. Even thehoroscope cannot be reliable because it can beprepared at any time to suit the needs of aparticular situation. Entries in the schoolregister and admission form regarding date ofbirth constitute good proof of age. There is nolegal requirement that the public or otherofficial book should be kept only by a publicofficer and all that is required under Section https://hcservices.ecourts.gov.in/hcservices/ 35 of the Evidence Act is that it should beregularly kept in discharge of official duty.In the instant case the entries in the schoolregister were made ante litem motam."6. 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. BRAHAMARBAR SENAPATHI(1994) 2 SCC 491, UNION OF INDIA Vs. RAM SUIA SHARMA ((1996) 7 SCC421), G.M.BHARAT COKING COAL LTD., Vs. SHIB KUMAR DUSHAD ((2000) 8SCC 696), STATE OF PUNJAB Vs. S.C.CHADHA ((2004) 3 SCC 394), STATEOF U.P. Vs. SHIV NARAIN UPADHAYA ((2005) 6 SCC 49), U.P.MADHYAMIKSHIKSHA PARISHAD Vs. RAJ KUMAR AGNIHOTRI (2005-11-SCC.465), STATEOF UTTARANCHAL Vs. PITAMBER DUTT SEMWAL ((2005) 11 SCC 477), COALINDIA LTD. Vs. ARDHENDU BIKAS BHATTACHARJEE ((2005) 12 SCC 201),STATE OF GUJARAT Vs. VALI MOHD. DOSABHAI SINDHI ((2006) 6 SCC 537),the learned Single Judge of this Court had dismissed the writpetition filed by the petitioner, requesting for alteration of hisdate of birth, holding that the petitioner is not entitled to thereliefs prayed for in the writ petition as he could not show thathis request was in accordance with the relevant rules applicable tothe case. 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 inservice 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 powers conferredby the proviso to Article 309 of the Constitution of India, byadding Rule 49, regarding alteration of date of birth, which readsas follows:"AMENDMENTIn the said rules, after rule 48, thefollowing rule shall be added, namely:- https://hcservices.ecourts.gov.in/hcservices/ "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 of thereport, the Madras Public Service Commission orthe appointing authority, as the case may be,shall decide whether the alteration of date ofbirth may 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 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 time ofhis application 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 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 Service Commission,pass orders thereon. https://hcservices.ecourts.gov.in/hcservices/ (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 wouldnormally be eligible for appointment to the postat the time of entry into service had his agebeen correctly stated and what would have beenits 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 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.(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 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 alteration https://hcservices.ecourts.gov.in/hcservices/ of 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 49.10. 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 of theirretirement. Therefore, an amendment had been made in sub Rule (c)in Rule 49 of the General Rules for the Tamil Nadu state andSubordinate 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".11. 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 General Rulesfor the Tamil Nadu state and Subordinate Services, introduced inthe year 1961, is to be harmoniously interpreted. Accordingly,applications for correction of the date of birth of an in-serviceemployee should be made within five years from the date when therules had come into force. If no application is made after theexpiry of five years, the Government employee looses his right tomake an application for the correction of date of birth. Based onthe decision of the Supreme Court, the Government of Tamil Nadu hadissued a Letter Ms.No.154, Personnel and Administrative Reforms (S)Department, dated 24.5.1995. It was proposed to omit the proviso ofsub rule (c) in Rule 49 of the General Rules for Tamil Nadu state https://hcservices.ecourts.gov.in/hcservices/ and Subordinate Services, retrospectively, with effect from3.8.1994, which is the date of the order of the Supreme Court.Thereafter, a Government order had been issued in G.O.Ms.No.380,Personnel and Administrative Reforms (S) Department, dated27.12.1995, amending Rule 49 of the General Rules, by omitting theproviso to sub Rule (c) of Rule 49. 12. In G.O.Ms.No.2052, Public (C) Department, dated 12.8.1972,an amendment had been issued to the General Rule 49 (C) to theeffect that "Any application received after five years after entryinto service shall be summarily rejected". The said provision hadcome into effect on and from 19.8.1970. Since the said date hasbeen erroneously stated in the first paragraph of G.O.Ms.No.395,Personnel and Administrative Reforms (Personnel-S) Department,dated 15.12.1992, though the said amendment had come into forcewith effect from 24.1.1961, the Government of Tamil Nadu had issuedG.O.Ms.No.66, Personnel and Administrative Reforms (S) Department,dated 2.2.1996, making the necessary amendment by showing thecorrect date.13. 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 made hisrequest for alteration of his date of birth, within a period offive 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 within thetime limit prescribed, his request had been rejected by theimpugned order, dated 3.5.1994, passed by the respondent. Accordingto General Rule 49(c) of the Tamil Nadu State and Subordinateservice Rules, any request made for alteration of date of birthwould be summarily rejected, if it has been made beyond five yearsfrom the date of the person's initial appointment. The said rulehas been enacted to discourage persons from making representationsfor alteration of their date of birth at the fag end of theircareer. If such requests are entertained, it would cause greathardship for those persons whose seniority had already been fixedand in some cases certain rights would have accrued in theirfavour. Such seniority or rights cannot be disturbed based on therepresentations made by certain persons at the fag end of theircareer, 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 only withinfive years from the date of joining in service, in accordance withGeneral Rule 49 of the Tamil Nadu State Subordinate Service Rules.Since the petitioner had not made his request within the prescribed https://hcservices.ecourts.gov.in/hcservices/ time limit, it has been summarily rejected by the impugnedproceedings of the respondent, in accordance with the establishedrules applicable to the case. 14. 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:1. The District Educational officer Usilampatti, Madurai District2. The Director of School Education College Road, Madras-600 006sp (co)dv/28.8.W.P.No.18837 of 2006 (T)O.A.No.5848 of 1994