Bombay High Court
Mohan S/O Bhauraoji Yeole vs The Principal, Shri Ayurved ... on 1 March, 2024
Author: Avinash G. Gharote
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:2551-DB
1 WP7571.23-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 7571 OF 2023
PETITIONER: : Dr. Mohan S/o Bhauraoji Yeole,
Aged 58, Occupation : Service,
R/o 422, New Nandanwan Lay Out,
Near Gurukul School, Nagpur
Vs.
RESPONDENTS : 1 The Principal, Shri Ayurved
Mahavidyalaya, Dhanwantari Marg,
Hanuman Nagar, Nagpur - 24
2 The Director, Ayush Govt. Dental
College & Hospital Building, 4th Floor,
St. George Hospital Compound, P
Demelo Road, Fort, Mumbai : 400 001
3 The State of Maharashtra,
through Principal Secretary, Medical
Education and Drugs Department,
Mantralaya, Mumbai - 32
4 Bharatiya Vaidyak Samanvaya Samiti, A
trust registered under Bombay Public
Trusts Act, Bearing Registration No. F-
85(N), Hanuman Nagar, Nagpur
through its Secretary Dhanwantari
Marg, Hanuman Nagar, Nagpur - 24
-----------------------------------------------------------------
Mr. N.S. Khubalkar, Advocate for petitioner.
Mr. P. D. Sharma, Advocate for Respondent Nos.1 & 4.
Mr. S.M. Ghodeswar, AGP for Respondent Nos.2 and 3.
Mr. Rohan Deo, Advocate to assist the Court.
-----------------------------------------------------------------
2 WP7571.23-J.odt
CORAM: AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATED : 1st MARCH, 2024
ORAL JUDGMENT (Per : AVINASH G. GHAROTE, J.)
1. Heard. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.
2. Heard Mr. Khubalkar, learned counsel for the petitioner, Mr. Sharma, learned counsel for the respondent Nos.1 and 4, Mr. S. M. Ghodeswar, learned Assistant Government Pleader for respondent Nos. 2 and 3 and Mr. Rohan Deo, learned counsel, who was asked to assist the Court.
3. The petition questions the communication dated 01/09/2023 (page 56) issued by the respondent No.1, intimating to the petitioner that he would be completing 60 years of age on 29/02/2024 and therefore, would be superannuating from the post of Professor and Head of Department held by him in Shri Ayurved Mahavidyalalya, Hanuman Nagar, Nagpur run by the respondent No.4.
3 WP7571.23-J.odt
4. The contentions of Mr. Khubalkar, learned counsel for the petitioner, are as under:
4.1. That the actual date of birth of the petitioner is 02/02/1966 and not 02/02/1964 as was recorded in the service record earlier.
4.2. Since the father of the petitioner was illiterate the birth of the petitioner was never reported to the authority under the Registration of Birth and Deaths Act, 1969 (hereinafter referred to as "RBD Act") and therefore, there was no birth certificate issued under the RBD Act to the petitioner.
4.3. It is only on 14/02/2019, the petitioner came to know about his exact date of birth, which he claimed to be 02/02/1966 that an application under Section 13(3) of the RBD Act, came to be filed by him before the Judicial Magistrate First Class, Umrer, which came to be registered as Misc. Criminal Application No.43/2019 in which on 08/03/2019, by a judgment, a direction was issued to the Gram Sachiv, Grampanchayat, Sirsi, who was the non-
applicant therein, to issue a birth certificate certifying that the date of birth of the petitioner was 02/02/1966 (page 39).
4 WP7571.23-J.odt 4.4. This declaration by the Magistrate under Section 13(3) of the RBD Act, was upon recording the evidence and, therefore, was in a judicial enquiry and was binding on all. 4.5. On the basis of the judgment by the learned Magistrate and according certificate, came to be issued to the petitioner under the RBD Act on 20/03/2019, certifying the date of birth of the petitioner as 02/02/1966 (Page 40). 4.6. Thereafter, an entry regarding the date of birth of the petitioner was taken in the school register of Loksewa Primary School, Sirsi (page 41), who thereupon issued a school leaving certificate on 23/03/2019 indicating that the date of birth of the petitioner was 02/02/1966. 4.7. On the basis of this school leaving certificate, recording the date of birth as 02/02/1966 an entry in the service book came to be recorded (page 82). 4.8. Though the date on which such correction is made in the service book (page 82) is not clear, it is by the management, which is indicated by a communication by the Secretary of the respondent No.4 dated 27/06/2022 indicating that such an entry has been taken (page 43).
5 WP7571.23-J.odt 4.9. The respondent No.4 had also thereafter by its communication dated 06/07/2022 intimated the change of date to the Director of Ayurvedic Medicine (page 44). 4.10. It is in this background that the impugned communication dated 01/09/2023 indicating the superannuation of the petitioner on 29/02/2024, is being questioned.
4.11. Mr. Khubalkar, learned counsel for the petitioner by relying upon Sudarshan V. Biradar Vs. State of Karnataka, AIR 2023 Karnataka 274 (Para-12), B.G. Gangadharappa Vs. Tahsildar Soraba Taluk Soraba 1995 CRI.L.J. 2820 (para 12), Dr. Bhatindra Nath Mukhopadhyay Vs. Kolkata Municipal Corporation AIR 2007 Calcutta 116 (paras 8 & 9) and Md. Liyakat Vs. The State of Jharkhand & Ors., 2006 SCC OnLine Jhar 1142 (paras 9 and 10) contends, that the power of the Magistrate under Section 13(3) of the RBD Act is a judicial power and therefore, the judgment of the Magistrate would be binding on all and the respondents therefore, would equally be bound by the same and will have to abide by the same.
6 WP7571.23-J.odt 4.12. He further contends, that the situation does not rest at that, but has been carried forward by entries being made in the service book of the petitioner of which respondent No.4 was not only equally aware but in fact had intimated this change of date of birth to the various authorities by its communications.
4.13. He therefore submits that, there cannot be any escape from the fact that the date of birth of the petitioner was 02/02/1966 and not 02/02/1964 and therefore the petitioner has two more years to attain the age of superannuating and thus would be entitled to continue to occupy the post on which he is presently working, till 02/02/2026.
5. Mr. Sharma, learned counsel for the respondent Nos.1 and 4, submits as under :
5.1. Though the petitioner came to be appointed on 20/08/1992, he continued with the position that his date of birth was 02/02/1964 and at the fag end of his career, as he was to superannuate on 29/02/2024, has applied for change of date of birth, on the premise that he came to know about 7 WP7571.23-J.odt the actual date of birth in the year 2019, which was an impossibility, apart from being impermissible.
5.2. It is further contended that the provisions of Section 13(3) of the RBD Act, do not confer any judicial power upon the Magistrate, apart from which, the language of Section 13(3) of the RBD Act, does not contemplate a judicial enquiry at all and therefore, the order dated 08/03/2019 by the learned Magistrate, would bind only the authorities under the RBD Act and none else.
5.3. It is further contended that the order dated 08/03/2019, was merely a proceeding under Section 13(3) of the RBD Act to verify the date of birth which would also not contemplate any judicial enquiry on account of which, the said judgment is not binding.
5.4. In support of this proposition, he places reliance upon P. Duraisamy v. State represented by Secretary to Government Department of Home (Prison), (2017) 04 MAD CK 0149 in which while considering the provisions of Section 13(3) of the RBD Act, it has been held that the order passed under Section 13(3) of the RBD Act 8 WP7571.23-J.odt binds only the Registrar and nobody else (Para-30). Reliance is also placed upon Nisar Fatema Vs. State of Maharashtra, in Criminal Writ Petition No.844/2018 dated 03/08/2018 of Hon'ble Bombay High Court, which follows P. Durasami (supra); Rameshchandra v.
Secretary, Village Panchayat, (2020) 3 ALL MR 35, which holds that the provisions of section 13(3) of the RBD Act is not meant for getting adjudication of disputed date of birth of the aggrieved party and the appropriate remedy is to get a declaration from the Civil Court.
5.5. State of Maharashtra Vs. Gorakhnath Sitaram Kamble, (2010) 14 SCC 623, is also relied upon, which holds, that the correction in the date of birth at the fag end must be discouraged by the Court as that would be at the cost of large number of employees; to the same effect are Karnataka Rural Infrastructure Development Limited Vs. T.P. Natraja (2021) 12 SCC 27 (para 10); State of Maharashtra Vs. Sudhir Bhagwat Kalekar 2023 SCC OnLine Bom 1296 [para 16-DB];
5.6. In so far as the entry in the service record of the 9 WP7571.23-J.odt petitioner is concerned he submits that such an entry has to be made not only by a person who is duly authorized to do so, but also needs to be certified and though there are no specific rules in this regard, the principles laid down in Rule 38(2) of the Maharashtra Civil Services (General Conditions of Service) Rules 1981, would be applicable. The entry (pg.82) according to him, does not disclose, as to who has made it, when, nor has it been certified by anyone and it is alleged that the same was made by the petitioner himself, surreptitiously, in order to enable continuance, in employment.
5.7. He also submits that the communications of the respondent no.4, which are being relied upon, were under a misconception that the Court had ordered the entry to be taken in respect of which affidavits have been placed on record and thus those communications cannot be relied upon.
6. Mr. Ghodeswar, learned AGP for the respondent Nos.2 and 3, submits that there cannot be any change in the entry regarding the date of birth at the fag end of the career 10 WP7571.23-J.odt and relies upon T.P. Nataraja and Sudhir Kalekar, (supra).
7. Mr. Rohan Deo learned Counsel called upon to assist the Court, submits that :
(a) The enquiry under section 13(3) of the RBD Act is not a judicial enquiry, for it only empowers the Magistrate to verify the correctness of the entry sought to be made, on account of the delay in reporting the occurrence of birth or death, beyond a period of one year.
(b) The nature of the verification which is required to be made can be indicated from, what is expected to be done, in respect of an occurrence reported late, but before one year, from its date, as provided in sec.13(1) & (2) of the RBD Act.
(c) He also places reliance upon Kashmi K. Alex Vs. Local Registrar of Births and Deaths, 2015 SCC OnLine Ker 21632, Shanti Das v. State of Meghalaya, (2013) 2 Gauhati Law Reports 238 (Shilong Bench), Km.Para v. Director, Central Board of Secondary 11 WP7571.23-J.odt Education, 2004 (74) DRJ 609 and H.Subba Rao v.
The Life Insurance Corporation of India, Bangalore- 2, 1976 SCC OnLine Kar 17.
8. In so far as the proposition that a change in the entry in the service record ought not to be permitted at the fag end of the career is concerned, the same is already enunciated by the Hon'ble Apex Court in T.N. v. T.V. Venugopalan, (1994) 6 SCC 302; Union of India v. Harnam Singh, (1993) 2 SCC 162, wherein it has been held that such a change in the entry regarding the date of birth cannot be permitted to be made at the fag end of the career. Though these judgments were in light of the rules which provided that a change in the date of birth entry would not be permitted after five years of employment, there is no reason why the same principles cannot be made applicable to the present case too, as it is submitted at the bar that there are no rules governing this aspect, extant, in the instant matter. Same position is reiterated in and State of Mah. V. Gorakhnath Sitaram Kamble (supra).
12 WP7571.23-J.odt 8.1. In M.P. v. Premlal Shrivas, (2011) 9 SCC 664 which was a case in which in support of the application for change of date of birth, the employee had submitted his Class IV marksheet, transfer certificate of Class VIII and a certificate from a local MLA, it was held as under :
8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he 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. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v.
Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 :
(1993) 24 ATC 92] ).
This position has been reiterated in LIC v. R. Basavaraju, (2016) 15 SCC 781.
8.2. In Bharat Coking Coal Ltd. v. Shyam 13 WP7571.23-J.odt Kishore Singh, (2020) 3 SCC 411 while considering a plea for change in the date of birth entry on the basis of a verification which was made from the Bihar School Examination Board and even though it was confirmed that the date of birth of the employee was 20-1-1955, later than what was stated in the service record, it has been held that such change at the late stage was not permissible. 8.3. In Karnataka Rural Infrastructure Development Ltd. v. T.P. Nataraja, (supra) the following principles have been laid down by the Hon'ble Apex Court :
11. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarised as under:
(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;
(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;
(iii) application can be rejected on the ground of delay and laches also more particularly when it is made at the fag-end of service and/or when the employee is about to retire on attaining the age of superannuation.
Same position is reiterated by the learned Division Bench of this Court in Sudhir Bhagwat Kalekar (supra), and Gajanan B. Rabde v. The Chief Administrative Officer, MJP (Writ Petition (Stamp) No. 9744 of 2023, 14 WP7571.23-J.odt decided on 30/05/2023).
Thus, the consistent view of the Hon'ble Apex Court as well as by various High Courts, is that an application for correction of the entry in respect of the date of birth, cannot be made at the fag end of the career. 8.4. In this regard though it is contended by Mr. Khubalkar, learned Counsel for the petitioner that since the petitioner was to superannuate on 29/2/2024, and as an application under sec.13(3) of the RBD Act was filed on 14/2/2019 and was decided on 8/3/2019, it cannot be said that the attempt to change the entry in the date of birth was made at the fag end of the career, however, the expression 'fag end of the career', has to be construed in light of the length of service being put in by an employee. It is an admitted position on record that the petitioner entered in employment on 20/08/1992 and considering his date of birth which was originally entered in the record as 02/02/1964, was to superannuate on 29/02/2024. The change in the date of birth was sought in the year 2019, which was just five years from the date of superannuation, 15 WP7571.23-J.odt the petitioner having already put in 27 years of service and therefore can be said to be falling within the expression 'at the fag end of the career', as the expression cannot be said to mean immediately preceding superannuation, only. 8.5. What is also necessary, is to note the reason for filing an application under sec.13(3) of the RBD Act, which according to the petitioner, was on account of his father being illiterate, not having reported the occurrence of his birth to the Registrar under the RBD Act and the petitioner having come to know in 2019 itself that his date of birth was 02/02/1966 and not 02/02/1964, as was stated by him while joining employment and had continued throughout. The plea appears to be implausible, in as much as, it is not disputed that at the time of his appointment which was on 20/08/1992, it was at his behest that the date of 02/02/1964, was inserted in his service record, which continued throughout, for a period of 27 years, till 2019, when the petitioner claims to have gained knowledge that it was 02/02/1966. A perusal of the judgment dated 08/03/2019, by the Magistrate, indicates that nothing has been said there as to how, in 2019 and on what basis, the 16 WP7571.23-J.odt petitioner came to know that his date of birth was 02/02/1966 and not 02/02/1964. There is no whisper of any document or for that matter anything else, regarding this divination by the petitioner, after 27 years of his service. It is trite that any change in the date of birth, has great consequence not only for the petitioner, but also for those employed with him, in the establishment, as on account of the change in the date of birth, their prospects are likely to be adversely affected. The change in the date of birth, thus cannot be done, merely for the sake of asking, but will have to be done, on the basis of an adversarial litigation, in which the employer has to be made a party, so that there could be an opportunity for an effective defense and the contest is on merits. This therefore cannot be done, under sec.13(3) of the RBD Act, which merely empowers the Magistrate to verify the correctness of an entry, but has to be done, before the Civil Court, so that the employer would be not only be aware, but also bound by the decision which may be rendered therein.
8.6. In LIC v. R. Basavaraju, (2016) 15 SCC 781 while considering the position that the employee for claiming 17 WP7571.23-J.odt change in the date of birth had a decree of the Civil Court in his favour, it has been held as under :
"9. As noticed above, the respondent filed a suit for declaration with regard to his date of birth without impleading the appellant, who is the employer, and has obtained the decree against the persons, who have no concern with the date of birth of the respondent. It goes without saying that the said decree obtained by the respondent is not binding on the appellant being not a party to the suit."
In the instant matter too, in the proceedings under sec.13(3) of the RBD Act, the employer has not been made a party. The petitioner, was very well aware that the only person, who would be interested in contesting the claim for change of date of birth, would have been his employer, from whom, the benefit of the change of date of birth was to be obtained. Well knowing this position, the petitioner, had impleaded the Gram Sachiv, Gram Panchayat Sirsi, Tah:
Umred, alone as the non-applicant, on the plea that a direction was to be issued against it, for the issuance of the birth certificate, well knowing that the said non-applicant, would not be having any interest in defending the claim made by the petitioner, which is actually what happened, as is apparent from the judgment dated 08/03/2019, in Misc.
Cri Application No.43/2019, as in spite of service of notice
18 WP7571.23-J.odt the non-applicant did not appear at all, resulting in a default judgment being passed in favour of the petitioner. It will therefore have to be held that the judgment dated 08/03/2019, will not be binding upon the employer, on account of it not being a party to it.
8.7. What is also material to note is that in Misc. Cri. Application No.43/2019, all that the petitioner had filed is a letter by the Gram Panchayat Sirsi, Ex.9, dated 13/02/2019, stating that there was no entry in their records regarding the birth of the petitioner; Ex.10 a school leaving certificate and Ex.11 Aadhar Card. However a perusal of the judgment dated 08/03/2019, would indicate that there is no discussion therein, regarding the documents at Ex.10 & 11, of whatsoever nature as would be apparent from a perusal of paras 6 & 7 and therefore, it appears that the direction has been granted merely for the asking, without any verification whatsoever. It would be material to note that the provisions of Section 13(3) of the RBD Act, mandate that an order thereunder can only be passed after there has been a verification of the correctness of the birth or death.
19 WP7571.23-J.odt 8.8. The word 'verify', as per the Advanced Law Lexicon by P.Ramnatha Aiyar, means 'to assent or approve to be true; to ascertain, confirm or test the truth or accuracy of'; as per Websters Encyclopedic Unabridged Dictionary of the English language, it means 'to prove the truth of, as by evidence or testimony; confirm; substantiate, to ascertain the truth or correctness of, as by examination, research or comparison: to verify a spelling'. Even considering this meaning of the word 'verify', the judgment dated 8/3/2019, clearly indicates that the learned Magistrate has not acted in consonance and in terms of the meaning of the word 'verify', while holding that the date of birth of the petitioner as 2/2/1966, instead of 2/2/1964 and has merely granted it for the asking.
9. The contention that the Magistrate, acting under Section 13(3) of the RBD Act, acts judicially and not administratively, will have to be tested on the touchstone of the language of the provisions. For the sake of ready reference, sec.13 and 15, as they stood then which also has a relevance as would be discussed hereinafter, being material are quoted as under:
20 WP7571.23-J.odt "13. Delayed registration of births and deaths.--
(1) Any birth or death of which information is given to the Registrar after the expiry of the period specified therefor, but within thirty days of its occurrence, shall be registered on payment of such late fee as may be prescribed.
(2) Any birth or death of which delayed information is given to the Registrar after thirty days but within one year of its occurrence shall be registered only with the written permission of the prescribed authority and on payment of the prescribed fee and the production of an affidavit made before a notary public or any other officer authorised in this behalf by the State Government.
(3) Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.
(4) The provisions of this section shall be without prejudice to any action that may be taken against a person for failure on his part to register any birth or death within the time specified therefor and any such birth or death may be registered during the pendency of any such action.
15. Correction or cancellation of entry in the register of births and deaths. - If it is proved to the satisfaction of the Registrar that any entry of a birth or death in any register kept by him under this Act is erroneous in form or substance, or has been fraudulently or improperly made, he may, subject to such rules as may be made by the State Government with respect to the conditions on which and the circumstances in which such entries may be corrected or cancelled, correct the error or cancel the entry by suitable entry in the margin, without any alteration of the original entry, and shall sign the marginal entry and add thereto the date of the correction or cancellation." 9.1. What would be the attributes of a judicial enquiry, has been delineated in Shankarlal Aggarwala and others Vs. Shankarlal Potdar and others, AIR 1965 SC 507 in the following words :
21 WP7571.23-J.odt "13. It is perhaps not possible to formulate a definition which would satisfactorily distinguish, in this context, between an administrative and a judicial order. That the power is entrusted to or wielded by a person who functions as a Court is not decisive of the question whether the act or decision is administrative or judicial. But we conceive that an administrative order would be one which is directed to the regulation or supervision of matters as distinguished from an order which decides the rights of parties or confers or refuses to confer rights to property which are the subject of adjudication before the Court. One of the tests would be whether a matter which involves the exercise of discretion is left for the decision of the authority, particularly if that authority were a Court, and if the discretion has to be exercised on objective, as distinguished from a purely subjective, consideration, it would be a judicial decision. It has some times been said that the essence of a judicial proceeding or of a judicial order is that there should be two parties and a lis between them which is the subject of adjudication, as a result of that order or a decision on an issue between a proposal and an opposition. (Sic) No doubt, it would not be possible to describe an order passed deciding a lis before the; authority, that it is not a judicial order but it does not follow that the absence of a lis necessarily negatives the order being judicial. Even viewed from this narrow standpoint it is possible to hold that there was a lis before the Company Judge which he decided by passing the order. On the one hand were the claims of the highest bidder who put forward the contention that he had satisfied the requirements laid down for the' acceptance of the bid and was consequently entitled to have the sale in his favour confirmed; particularly so as he was supported in this behalf by the official liquidators. On the other hand there was the 1 st respondent and not to speak or him, the large body of unsecured creditors whose interests, even if they were not represented by the 1 st respondent, the Court was bound to protect. If the sale of which confirmation was sought was characterised by any deviation from the conditions subject to which the sale was directed to be held or even otherwise was for a gross under value in the sense that very much more could reasonably be expected to be obtained if the sale were properly held in view of the figure of Rs.3,33,000/- which had been bid by Nandlal Agarwalla, it would be the duty of the Court to refuse the confirmation in the interests of the general body of creditors and this was the submission made by the 1 st respondent.
There were thus two points of view presented to the Court by two contending parties or interest and the Court was called upon to decision between them. And the decision vitally affected the rights of the parties to property. In the view we are clearly of the opinion that the order of the Court was, in 22 WP7571.23-J.odt the circumstances, a judicial order and not an administrative one and was therefore not inherently incapable of being brought up in appeal."
9.2. In the instant case as pointed out above, the power of the Magistrate under section 13(3) of the RBD Act was restricted to verification of the entry sought to be made regarding the occurrence of the birth or death of the person. The nature of verification, required to be done by the Magistrate would therefore, be required to be considered. 9.3. Section 13 (1) of the RBD Act, requires information as to Birth or Death to be given to the Registrar, within 30 days of its occurrence, whereupon the same would be registered by the Registrar on payment of the prescribed fees.
Section 13(2) of the RBD Act, provides that when such information has been given to the Registrar after 30 days as provided in Section 13(1) but within one year of its occurrence, the same shall be registered only with the written permission of the prescribed authority and on production of an affidavit made before a notary public or any other officer authorized in this behalf by the State 23 WP7571.23-J.odt Government and on payment of prescribed fees.
Section 13(3) of the RBD Act, then, in case such registration is not done within a period of one year of the date of occurrence, mandates that the registration of the birth or death, would only be on an order made by the Magistrate of the First Class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee.
The scheme of Section 13 of the RBD Act, indicates the nature of the enquiry to be made for the delay and for verifying the birth or death. While Section 13(1) of the RBD Act, requires the registration of the occurrence, if information thereof is given after the prescribed period, which is 20 days from the date of occurrence as prescribed in Rule 5(3) of the Maharashtra Registration of Births and Deaths Rules 2000, but within 30 days of the occurrence, all that is required is for the prescribed fees to be paid, for the registration; under Section 13(2) of the RBD Act, the nature of verification, where the information is given within one year of the date of occurrence, production of an affidavit 24 WP7571.23-J.odt made before the notary public or any other authorized officer, with the prescribed fees and the written permission of the prescribed authority is required. A perusal of the RBD Act and the Rules framed thereunder do not indicate as to who is the prescribed authority. Be that as it may, that is not germane for the discussion of the issue in hand. In a progressive step Section 13(3) of the RBD Act, requires that verification, in case the information is supplied after one year of the date of occurrence, to be made by the Magistrate of the First Class or the Presidency Magistrate. This would only indicate that the nature and extent of the verification, where under Section 13(1) it is totally absent; under Section 13(2) is limited to the sworn affidavit and written permission of the prescribed authority; and finally under Section 13(3) is by the Magistrate, which indicates that the extent of the verification/scrutiny, of the information supplied regarding the occurrence of a birth or death, is made more stringent and by a higher authority, as the length of delay increases.
9.4. What is also material to note is that under sec.13(3) of the RBD Act itself, the order has to be passed by the 25 WP7571.23-J.odt Magistrate, only after verifying the correctness of the birth or death. Sec.13(3) of the RBD Act, does not mandate that for the purpose of verifying, the Magistrate is empowered to conduct an enquiry of a judicial nature. Merely because the verification has to be done by a Magistrate of the First Class, who in terms of Section 3(4)(a) of the Cr.P.C. would be a Judicial Magistrate, that by itself would not mean that the process of verifying, is a judicial enquiry. It is also necessary to note that the Rules framed under the RBD Act viz. Maharashtra Registration of Births and Death Rules, 2000, do not indicate what could be the nature of procedure, which is required to be adopted by the Magistrate while considering an application under Section 13(3) of the RBD Act. 9.5. That the process of verification by the Magistrate under sec.13(3) of the RBD is not a judicial enquiry, but would be an administrative one, in fact is substantiated by what has been stated in sec.15 of the RBD Act, which empowers the Registrar to make any correction in or cancel an entry made in the register of birth and deaths. It would be necessary to bear in mind that consequent to the order by the Magistrate under sec.13(3) of the RBD, the birth or death 26 WP7571.23-J.odt is required to be registered, which would mean that the entry of the birth or death has to be then taken in the register maintained for that purpose. However, the very same entry is permissible to be corrected or canceled by the Registrar under Section 15 of the RDB Act. Thus had the power to be exercised by the Magistrate under sec.13(3) been a judicial one, the RBD Act, would not have empowered the Registrar, who is not a judicial officer but is appointed under sec.6 of the RBD Act, to correct or cancel the entry made as a consequence of the order under sec.13(3) of the RBD Act, by the Magistrate.
9.6. It is perhaps realizing this fallacy, that Sec.13(3) of the RBD Act, has been amended in 2023, by deleting the expression 'the Magistrate of the First Class or the Presidency Magistrate', and replacing it by 'District Magistrate or Sub-Divisional Magistrate or by an Executive Magistrate authorized by the District Magistrate, having jurisdiction over the area', as the person to verify the claim of occurrence of the birth or death. Though Mr. Khubalkar, learned Counsel for the petitioner would be correct in claiming that this amendment does not enure to the benefit 27 WP7571.23-J.odt of the respondents, the decision in respect of the petitioner having taken place, earlier to the amendment, however, the amendment, would be a pointer of the intention of the legislature regarding the nature of verification to be done under sec.13(3) of the RBD Act.
9.7. Though a certified copy of the extract of the entry in the register under the RBD Act, is admissible in evidence under sec.16(2) of the RBD Act, there is no presumption attached to it of conclusivity.
9.8. The direction, by the learned Magistrate, under section 13(3) of the RBD Act, to register the occurrence of the birth or death, upon its verification, in our considered opinion, certainly cannot be said to be a decision in rem, so as to bind one and all. Mr. Khubalkar, learned counsel for the petitioner, fairly concedes that this would be the position. 9.9. Kashmi K. Alex (supra) relied upon by learned counsel Mr. Deo, is a case in which, the verification which is required to be conducted by the Executive Magistrate First Class and notes that even for this purpose no procedure has 28 WP7571.23-J.odt been prescribed, even in the Rules. Shanti Das (supra) holds, that since the RBD Act is a beneficial piece of legislation, the procedure for issuing the certificate should be simple and the Magistrate would only be required to verify the correctness of the information regarding the birth or demise and the regular process of proving a document as in a suit or a trial is not required to be followed. H. Subba Rao (supra) holds, that an entry in the register of birth is not conclusive evidence of the disputed date of birth, which position would equally apply to an entry made therein pursuant to the direction of the Magistrate under Section 13(3) of the RBD Act. It has also been held that Section 13(3) of the RBD Act is not a provision whereby an aggrieved party could get an adjudication of his disputed date of birth and the order of the Magistrate binds only the Registrar and none else.
9.10. We are therefore in agreement with what has been held by the learned Division Bench of the Karnataka High Court in P. Duraisami (supra), that the order under Section 13(3) of the RBD Act binds only the Registrar and nobody else.
29 WP7571.23-J.odt
10. Much reliance has been placed by Mr.Khubalkar, learned counsel for the petitioner on the fact, that the employer by the communication dated 27/06/2022 had accepted the change in the date of birth, for which the communications dated 27/06/2022 and 06/07/2022 are being relied upon, however, that action as is indicated from the communications was clearly based upon the perception regarding the order of the Magistrate under section 13(3) of the RBD Act, as is indicative from the language used therein that the entry is being taken on account of the order of the Court. In view of what we have held above, the respondent Nos.1 and 4 cannot be held bound by the said perception, which is contrary, to the purport and scope of section 13(3) of the RBD Act.
10.1. Though Mr. Khubalkar, learned Counsel for the petitioner has relied, upon Sudarshan B. Biradar Vs. State of Karnataka, AIR 2023 Karnataka 274 (Para-
12), that the power under sec.13(3) conferred upon the Magistrate is a judicial one, we are unable to subscribe to that view for the reason that it merely proceeds on a presumption 30 WP7571.23-J.odt in that regard, considering that the verification is to be done by the Magistrate and does not give the reasons therefor. B. G. Gangadharappa (supra), while holding the that the function to be exercised by the Magistrate under sec.13(3) of the RBD Act involves appreciation and sifting of evidence, does not take into consideration that Sec.13(3) of the RBD Act, permits a verification and not an enquiry to be made by the Magistrate. Dr. Bhatindra Nath Mukhopadhyay (supra) also does not delve into the language of sec.13(3) of the RBD Act, but merely proceeds upon a presumption that since the Magistrate had passed an order under sec.13(3) of the RBD Act, the same was required to be followed. Md. Liyakat (supra) is based upon the premise that it was the employer himself who had entertained the claim of the employee for change in the date of birth and had referred the employee for medical examination and therefore the requirement of 10 years as per the service rules, within which such claim was to be made stood relaxed. All these judgments, it is evident, do not take into consideration the language of section 13 of the RBD Act, or for that matter the effect and import of sec.15 thereof and therefore we are unable to agree with the views taken therein.
31 WP7571.23-J.odt
11. In the result, we are unable to accept, that the verification to be done by the Magistrate under Section 13(3) of the RBD Act can be termed as judicial enquiry, as the language of Section 13(3) of the RBD Act does not indicate so and all that is required to be done by the Magistrate is verification of the correctness of the claim regarding the occurrence of birth or death. The direction by the Magistrate under section 13(3) of the RBD Act, is one, which would bind the Registrar under the RBD Act alone and would not bind the respondent Nos.1 and 4. That apart, it can be said that the claim for change of the date of birth has been made at the fag end of the service, inasmuch as after having been made after rendering 27 years of service. The order by the Magistrate under Section 13(3) of the RBD Act, as is pointed above, is not based upon any verification at all, but is merely for the sake of asking. The petition is therefore without any merit and is accordingly dismissed. Rule stands discharged. No order as to costs.
12. We record our appreciation for the valuable assistance 32 WP7571.23-J.odt rendered by the learned counsel for the parties as well as learned counsel Mr.Rohan Deo, who was called upon by the Court to be rendered assistance.
(SMT. M.S.JAWALKAR, J.) (AVINASH G. GHAROTE, J.) KHUNTE Signed by: Mr. G.S. Khunte Designation: PS To Honourable Judge Date: 02/03/2024 16:53:01