Madras High Court
Amaladoss vs The Director Of School Education on 5 June, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 05.06.2015 CORAM THE HON'BLE MR.JUSTICE S.VAIDYANATHAN W.P.(MD) No.17847 of 2014 and WP(MD) No.2064 of 2015 Amaladoss ... Petitioner in both petitions -vs- 1. The Director of School Education, Directorate of School Education, Chennai. 2. The Deputy Director of School Education, Directorate of School Education, Chennai. 3. The District Collector, Pudukottai. 4. The Chief Educational Officer, Pudukottai. ... Respondents in W.P.(MD) No.17847 of 2014 1. The Commissioner, Revenue Administration, Chepauk, Chennai. 2. The Director of School Education, Directorate of School Education, Chennai. 3. The Joint Director of School Education, Directorate of School Education, Chennai. 4. The Deputy Director of School Education, Directorate of School Education, Chennai. 5. The District Collector, Pudukottai. 6. The Chief Educational Officer, Pudukottai. ... Respondents in W.P.(MD) No.2064 of 2015 Prayer in W.P.(MD) No.17847 of 2014: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus, directing the respondents to permit the petitioner to serve till 31.10.2016 in the light of the decree of the competent Civil Court in A.S.No.57 of 1998. Prayer in W.P.(MD) No.2064 of 2015: Writ Petition is filed under Article 226 of the Constitution of India praying for the issuance of a writ of Certiorarified Mandamus, calling for the records of the 1st respondent in Ka.No.VNi.3(3)/34793/2014 dated 15.10.2014, quash the same as illegal and arbitrary and consequently direct the respondents to permit the petitioner to continue his service till 30.09.2016 in the light of the judgment and decree passed by the learned Additional District Judge and Chief Judicial Magistrate, Pudukottai in A.S.No.57 of 1998 dated 13.01.1999. !For Petitioner : Mr.P.Ganapathi Subramanian ^For Respondents: Mr.V.R.Shanmuganathan Spl. Govt. Pleader :COMMON ORDER
In W.P.(MD) No.2064 of 2015, the petitioner has challenged the order of the 1st respondent passed in Ka.No.VNi.3(3)/34793/2014 dated 15.10.2014 in and by which, his request for alteration of his date of birth was rejected, with a consequential prayer to direct the respondents to permit him to continue his service till 30.09.2016 in the light of the judgment and decree passed by the learned Additional District Judge and Chief Judicial Magistrate, Pudukottai in A.S.No.57 of 1998 dated 13.01.1999.
2. After filing of the writ petition in W.P.(MD) No.17847 of 2014, a subsequent order dated 15.10.2014 has been passed by the Commissioner, Revenue Administration, Chepauk, Chennai, which is impugned in W.P.(MD) No.2064 of 2015, nothing survives for consideration in W.P.(MD) No.17847 of 2014. For the sake of brevity, the facts are being taken from W.P.(MD) No.2064 of 2015 for the purpose of deciding the issue on hand, which read as follows:
i) The petitioner joined as Secondary Grade Teacher in Government Higher Secondary School, Avudayarkovil on 23.10.1989 and his date of birth is 23.09.1958, which has been erroneously entered in the school records as 26.10.1956. He has submitted that he belongs to Christian religion and at the time of getting the Babtism certificate from Parthakudi Church for performing his marriage as per the religious custom, he came to know that his original date of birth has been registered as 23.09.1958 and that entry in the school records as 26.10.1956 is incorrect.
ii) The petitioner has further submitted that he issued a lawyer's notice to the respondents 3 to 4 on 28.06.1994 and the 6th respondent vide reply dated 22.07.1994 informed that his date of birth was entered in the Service Register on the basis of school records and he had to take appropriate legal action for making necessary changes in the school records. Therefore, he filed a suit in O.S.No.398 of 1994 before the learned District Munsif Court, Aranthangi for alteration of his date of birth and also for a direction to the respondents to effect the same in the service register. Learned Trial Court in its judgment dated 16.07.1997, held that though the Baptism certificate produced by the petitioner is true and genuine, the relief sought by the petitioner was declined on the ground that the suit is barred by limitation. Against the said judgment, the petitioner preferred an appeal before the learned Additional District Judge and Chief Judicial Magistrate, Pudukottai in A.S.No.57 of 1998 and the appellate Court allowed the appeal by a Judgement and Decree dated 13.01.1999 and directed the 6th respondent to make necessary changes in his service register. The said Judgment and Decree attained finality, as the respondents did not prefer any appeal against the same.
iii) The petitioner has also submitted that on 02.06.1999, he sent a representation to the 6th respondent through the Headmaster of Government Higher Secondary School, Avudaiyarkovil for alteration of his date of birth in the Service Register as per the Decree passed by the Civil Court and the 6th respondent forwarded the proposal to the 4th respondent in this regard. In pursuance of the same, the 4th respondent directed the petitioner to produce various documents. Even after submitting required documents, there is no response from the respondents, which forced the petitioner to file a writ petition in W.P.(MD) No.17847 of 2014, seeking a direction to the respondents to permit the petitioner to serve till 31.10.2016 in the light of the decree of the competent Civil Court in A.S.No.57 of 1998. However, only after filing counter in the said writ petition, he came to know that the 1st respondent rejected the claim of the petitioner vide order dated 15.10.2014 impugned in W.P.(MD) No.2064 of 2015 without giving any notice to him, on the ground that the petitioner applied for change of date of birth after a period of 9 years and 7 months, which is beyond the period of limitation. It is the submission of the petitioner that since his date of birth was not corrected, he was allowed to retire on 31.05.2015 taking into account the date of birth as 26.10.1956, after extending his period of service upto the end of academic year.
3. The 6th respondent in W.P.(MD) No.2064 of 2015 has filed a counter, wherein it has been stated as under:
i) The petitioner was appointed as Secondary Teacher in Government Higher Secondary School, Avudaiyarkoil and that he joined duty on 07.11.1989.
The said appointment was made on the basis of his employment seniority and date of birth, which is found mentioned in his SSLC mark statement, Transfer Certificate and other records like D.T.Ed. Certificate, B.A. and M.A. Convocation certificate and B.Ed certificate. It is stated in the counter that only on completion of 14 years of age, a candidate / student would be normally permitted to write his/her SSLC examinations as per the basic rule of School Education and if the date of birth of the petitioner is taken as 23.09.1958, the petitioner would not have been eligible for SSLC examinations.
ii) It is further stated in the counter that a Civil Suit in O.S.No.398 of 1994 has been filed after a lapse of five years to change the date of birth from 26.10.1956 to 23.09.1958 and the said suit was rejected on the ground that it was barred by limitation. However, the Appellate Court in A.S.No.57 of 1998 allowed the appeal by Judgment and Decree dated 30.01.1999 before filing counter. Pursuant to the same, the petitioner gave a representation dated 28.01.2014 to the 4th respondent, which was in turn forwarded to the Director of School Education, Chennai and yet another representation was sent to the Additional Chief Secretary, Revenue Administrative Commissioner, Chepauk, Chennai, who is the competent authority to alter the date of birth of the petitioner. In Paragraph No.8 of the counter, the 6th respondent has furnished the instructions issued by the Personnel and Administrative Reforms (Personnel.S) Department Secretaraite, Madras-9, with regard to alteration of the date of birth, which read as follows:
?According to Rule 49 of the General Rules for the Tamil Nadu State and Subordinate Services introduced in 1961, any application for alteration of date of birth received after 5 years, after entry into Government service shall be summarily rejected unless the applicant gives adequate explanation for making such belated application to the authority competent to deal with it. If the application is entertained, the authority concerned shall, after following the procedure as to enquiry, laid down in sub-rule (a) submit the case to the Government with its recommendation and the Government shall, after consulting the Tamil Nadu Public Service Commission pass orders thereon. Subsequently amendments were issued that any application received after 5 years after entry into Government service shall be summarily rejected.
The stipulation that the application for alteration of date of birth should be submitted within 5 years from the date of one's entry into Government service came into effect from 24.1.61. Since it was considered that the above time limit of 5 years would not effectively debar the Government servants who were recruited prior to 24.1.1961 for application for alteration of date of birth at any time before retirement, Government have issued orders introducing a proviso to Rule 49(c).
2. According to proviso to sub-rule (c) in rule 49 of the General Rules for Tamil Nadu State and Subordinate Services, the application for alteration of date of birth of a person who altered into service prior to the 24th January 1961 shall be submitted at least one year before the date of his retirement reckoned with reference to the official records.
3. In a case relating to the claim for alteration of date of birth the Supreme Court of India in Civil Appeal No.5422 of 1994 observed that the Rule 49 is to be harmoniously interpreted. The application for correction of date of birth of an in-service employees should be made within five years from the date when the rules had come into force I.e., 1961. If no application is made, after the expiry 5 years, the Government employee loses his right to make an application for correction of his date of birth. In view of the decision of the Supreme Court of India in O.A.No.6055/94 the Tamil Nadu Administrative Tribunal observed that the instructions of the Government permitting applications for correction of date of birth to be made on year in advance of the date of Superannuation, according to the recorded date would require review. The Rule 49 and 49A of the General Rules for the Tamil Nadu State and Subordinate Services will be applicable irrespective of the date of entry into Government service.
4. In view of the decision of the Supreme Court of India, it has been proposed to omit the proviso to sub-rule (c) in rule 49 of the General Rules for Tamil Nadu State and Subordinate Services retrospectively with effect from 3.8.1994, which is the date of the order of the Supreme Court. I am, therefore, directed that the following instructions are scrupulously followed and that the particulars called for therein are furnished early.
(i) Applications for alteration of date of birth should not be entertained under proviso to sub rule (c) in rule 49 of General Rules for Tamil Nadu State and Subordinate Services.
(ii) Applications for alteration of date of birth now under process under the said proviso should be disposed of according to the observation of the Supreme Court of India.
(iii) The particulars of persons so far allowed alteration of date of birth on or after 3.8.94 should be sent to the Government immediately.
5. Receipt of the letter should be acknowledged.?
iii) The stand of the respondent in the counter is that by duly following the aforesaid instructions and the Rule 49 of the Tamil Nadu State and Subordinate Services Rules (in short ?the Rules?), the request of the petitioner was rejected and that the petitioner was allowed to retire on 31.05.2015 after giving extension of service to him from 01.11.2014 to 31.05.2015 for the welfare of the students. Thus, the 6th respondent prayed for dismissal of the writ petition.
4. Heard the learned counsel on either side.
5. A providence of the fact would reveal that the petitioner was appointed as Secondary Grade Teacher in Government Higher Secondary School, Avudayarkovil vide proceedings of the Chief Educational Officer, Pudukkottai in Na.Ka.No.19275/A2/1989 dated 23.10.1989 on the basis of his employment seniority and date of birth. At the time of joining duty, his date of birth stood entered as 26.10.1956 in the Service Register on scrutinizing various records like, SSLC Mark Statement, Transfer Certificate and other valid documents, produced by the petitioner himself. The petitioner, while getting the Baptism certificate from the Parthakudi Church for his marriage as per the religious custom, came to know of his original date of birth as 23.09.1958, based on which, he made a representation on 02.06.1989 to the Chief Educational Officer, Pudukottai / 6th respondent in W.P.(MD) No.2064 of 2015 for correction of date of birth in the Service Register. However, the Chief Educational Officer, Pudukottai, while declining his request to carry out the same, advised him to approach the appropriate forum in this regard. Though the petitioner could not succeed in the original suit filed in O.S.No.398 of 1994 before the learned District Munsif Court, Aranthangi, subsequent appeal filed by the petitioner in A.S.No.57 of 1998 before the learned Additional District Judge and Chief Judicial Magistrate, Pudukottai ended in his favour.
6. At this juncture, the respondents contended that the Director of School Education, Chennai and the Commissioner of Revenue Administration, Chennai were not made as parties to the suit. In reply to the same, the petitioner has submitted that they are not competent authorities in terms of the provisions of 49 (b) of the Rules, as the petitioner was appointed by the Chief Educational Officer and not by TNPSC. According to the petitioner, the petitioner has succeeded in the Civil Court and that his date of birth will have to be corrected in the Service Records.
7. The respondents have stated that alteration in the official records of the employer was the prayer in the present writ petition and the judgment and decree does not deal with the situation to alter the date of birth in the SSLC records. Dehors the Civil Court judgment and decree, the petitioner should apply for alteration of his date of birth within the stipulated period of five years as prescribed under the provisions of 49 of the Rules, which he has not done. It is further stated that unless or until his date of birth is corrected in the SSLC book, alteration cannot be made in the Service Register. Moreover, in case the corrected date of birth is taken into account, the petitioner would not have definitely taken up his SSLC examination at the age of 12.
8. For the purpose of deciding the issue on hand, it is appropriate for this Court to extract Rule 49 of the Tamil Nadu State and Subordinate Services Rules as under:
?49. Alteration of date of birth --
(a) If, at the time of appointment, a candidate claims that his date of birth is different from that entered in his S.S.L.C. or Matriculation Register or School records, he shall make an application to the Tamil Nadu Public Service Commission in cases where the appointment is made in consultation with the Commission and in other cases to the appointing authority stating the evidence on which he relies and explaining how the mistake occurred. The application shall be forwarded to the Commissioner of Revenue Administration for report after investigation by an officer not below the rank of a Deputy Collector and, on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall decide whether the alteration of date of birth may be permitted or the application may be rejected:
Provided that in case of a candidate who was born outside the State of Tamil Nadu the investigation through the Commissioner of Revenue Administration shall be dispensed with and the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall examine and scrutinize the records that may be produced by the candidate and shall decide whether the alteration of date of birth may be permitted or the application may be rejected.
(b) After a person has entered service, an application to alter the date of his birth as entered in the official records shall be entertained only if such an application is made within five years of such entry into service.
Such an application shall be made to the authority competent to make an appointment to the post held by the applicant at the time of his application and shall be disposed of in accordance with the procedure laid down in sub- rule (a).
(c) Any application received after five years after entry into service or any application, which is not supported by entries in Secondary School Leaving Certificate, School, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily rejected.
(d) In considering the question of permitting an alteration on the date of birth as entered in the official records even when such entry is proved to have been due to a bonafide mistake, the Government or the appointing authority shall take into consideration the circumstance whether the applicant would normally be eligible for appointment to the post at the time of entry into service had his age been correctly stated and what would have been its effect on his service and the service conditions of other officers in the service and may permit the alteration subject to such condition as they or it may deem fit to impose:
Provided that the Tamil Nadu Public Service Commission shall be consulted in the case of an applicant who has been initially recruited through the Tamil Nadu Public Service Commission, if it is proposed to accept his request for alteration of date of birth.
(e) The Procedure laid down in sub-rule (a) shall be followed in all cases where alteration of date of birth is proposed suo motu by the Head of Office on the basis of medical opinion, in the absence of any other authoritative records.
(f) The decision of the Tamil Nadu Public Service Commission, the appointing authority or the Government, as the case may be, shall be final.
49.A.(1) Correction of date of birth
-- After a person has entered service, if it is found that his date of birth entered in his Service Register is different from that entered in the Secondary School Leaving Certificate or Military Discharge Certificate, which may be due to some clerical error or otherwise wrong entries, application for correction of such clerical error or wrong entries, shall be made to the appointing authority. Such corrections in the Service Register shall be made straightway by the appointing authority. If the date of birth in the Service Register was entered on the basis of the Secondary School Leaving Certificate, correction of clerical error or wrong entries shall be made only with reference to Secondary School Leaving Certificate and if the date of birth in the Service Register was entered on the basis of the Military Discharge Certificate, correction of clerical error or wrong entries shall be made only with reference to the Military Discharge Certificate. Where the Secondary School Leaving Certificate and the Military discharge certificate contain different dates of birth, the date of birth entered in the secondary School Leaving Certificate shall be accepted. But the date of birth entered in the Military Discharge Certificate shall be accepted in the absence of the Secondary School Leaving Certificate.
(2) Where the date of birth of a person, whose qualification is less than the minimum general educational qualification, is entered in the Service Register on the basis of the medical certificate or the transfer certificate obtained from the school in which he studied or an affidavit sworn before a Magistrate and if there is any error in the entry so made, the appointing authority may, on application, make necessary correction only with reference to the original record on the basis of which an entry relating to the date of birth is made in the Service Register.?
9. It is an admitted case that the petitioner has not altered his date of birth in the SSLC book. In terms of Rule 49 (supra), the petitioner ought to have made representation in respect of correction in the date of birth within a period of five years, which he has not admittedly done. Learned counsel for the petitioner, in support of his contention, has relied upon a judgment of this Court in the case of G.Balachandran vs. The State of Tamil Nadu and another, reported in 1993 MLJ 569. However, a close reading of the said judgment would reveal that the issue therein was with regard to the maintenance of civil suit and no decision has been rendered in respect of correction of the date of birth in the Service Register, which is contrary to Rules and the same is not permissible.
10. Learned counsel for the petitioner also cited another judgment of the Apex Court in the case of Bharat Coking Coal Ltd and others vs. Chhota Birsa Uranw, reported in 2014-III-LLJ-1 (SC) to contend that the Hon'ble Supreme Court in that case confirmed the order of the High Court, which directed the employer to correct the date of birth. On a careful scrutiny of the said judgment, it would unravel that the employee therein had found the error well in advance and represented to the concerned officer within time to rectify the same as contemplated under the Rules. Moreover, the Hon'ble Supreme Court had rendered the judgment on a conspectus facts obtaining in that case, which cannot be taken as a precedent to all the cases, where the facts are totally different and contrary to the Rules. Therefore, the judgment quoted by the petitioner is not applicable to the facts of the present case in consonance with the principles laid down by the Hon'ble Supreme Court in the case of Padmasundara Rao (Dead) & others vs. State of Tamil Nadu and others, reported in (2002) 3 SCC 533, wherein it has been held as follows:
"Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington vs. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases."
11. Even though the petitioner had obtained a judgment and decree in his favour, admittedly, he had not completed his SSLC examination at the age of 12 as per the date of birth sought to be corrected, viz., 23.09.1958. It is conjectural to presume that his parents might have admitted him in the school at the early stage owing to either of his over engagement in mischief and shrewdness or studious hardworking character. The Apex Court in Kiran Singh v. Chaman Paswan, reported in AIR 1954 SC 340, has held as follows:
"It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is fought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
The Hon'ble Supreme Court in the case of Secretary and Commissioner vs R.Kirubakaran, reported in 1993 AIR 2647, had cautioned the Tribunal and High Court to be little careful, while dealing with the issue relating to the change of date of birth, by observing as under:
?7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is 3 1993 Supp (1) SCC 763 : 1993 SCC (L&S) 276: (1993) 23 ATC 4 (1993) 2 SCC 162: 1993 SCC (L&S) 375 :(1993) 24 ATC 92 issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.?
12. If this petition is allowed, then there is every possibility of similarly placed persons approaching this Court seeking the same relief by obtaining a judgment and decree in one way or the other. Even assuming for a moment that his parents have erroneously furnished his date of birth as 26.10.1956, the petitioner has all along continued his employment on being satisfied with the same and on one fine morning, he cannot wake up and expect the respondents to alter his date of birth according to his own whims and fancies in contrary to the Rules. Once it was found to be doubtful, the authorities were right in not correcting his birth date in the service-book. Admittedly, the School Leaving Certificate was produced by the petitioner and the entry in the service book was made on the basis of the date of birth mentioned therein. When there is a failure on the part of the petitioner to show that the said entry was made due to want of care on the part of some other person or that it was an obvious clerical error, this Court cannot interfere with the decision of the respondents.
13. Hence, finding no merit in W.P.(MD) No.2064 of 2015, this writ petition is dismissed as devoid of merit. In view of the subsequent order passed by the Commissioner, Revenue Administration, Chepauk, Chennai / 1st respondent in W.P.(MD) No.2064 of 2015 on 15.10.2014, the relief sought in the writ petition in W.P.(MD) No.17847 of 2014 has become infructuous and therefore, the same is dismissed as having been rendered as infructuous. Though it is a fit case to impose costs on the petitioner, this Court refrains itself from such imposition, in view of the fact that the petitioner happens to be a Teacher, as I always believe that among three noble professions, namely, medicine, advocacy and teaching, teaching profession plays a tapering part in shaping the career of every younger generation of our country by way of best education, which, if rightly imparted can facilitate the progress of the individual from a state of ordinary consciousness to a state of higher consciousness. No costs. Consequently, connected miscellaneous petitions are closed.
To:
1. The Commissioner, Revenue Administration, Chepauk, Chennai.
2. The Director of School Education, Directorate of School Education, Chennai.
3. The Joint Director of School Education, Directorate of School Education, Chennai.
4. The Deputy Director of School Education, Directorate of School Education, Chennai.
5. The District Collector, Pudukottai.
6. The Chief Educational Officer, Pudukottai.