Madras High Court
T.Thiruchuli vs The District Collector on 30 July, 2013
Author: S.Manikumar
Bench: S.Manikumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30/07/2013
CORAM
THE HONOURABLE MR.JUSTICE S.MANIKUMAR
W.P(MD)No.12616 of 2013
T.Thiruchuli .. Petitioner
Vs
1.The District Collector,
Virudhunagar,
Virudhunagar District.
2.The Block Development officer (V.P.),
Rajapalayam.
3.The Sub - Registrar,
Srivilliputhur.
4.The Tahsildar,
Srivilliputhur,
Virudhunagar District. .. Respondents
PRAYER
Writ Petition filed under Article 226 of the Constitution of India,
praying to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned proceedings of the first respondent, dated
03.07.2013, in Na.Ka.Q2/26768/2013 and quash the same and consequently direct
the first respondent to make necessary mutation on service register in respect
of the date of birth of the petitioner as 10.11.956 instead of 19.12.1955.
!For petitioner ... Mr.G.Pandi
^For respondents ... Ms.S.Bharathi,
1, 3 & 4 Government Advocate
For 2nd respondent ... Mr.G.Muthukkannan
Government Advocate
:ORDER
By the impugned order, dated 03.07.2013, the District Collector, Virudhunagar District, has rejected the request of the petitioner for alteration of date of birth and further stated that for the reasons contained in the said order, dated 03.07.2013, the application cannot be forwarded to the Government.
2. According to the petitioner, he was born on 10.11.1956 and that the same was registered with the Sub Registrar, Srivilliputhur, on 13.11.1956 and that the same was also certified by the concerned Village Administrative Officer and the Tahsildhar, Srivilliputhur, Virudhunagar District, vide proceedings, dated 01.07.2013. When he joined in the school, the date of birth has been wrongly mentioned as 19.12.1955, instead of 10.11.1956. The petitioner has joined in the Government Service on 07.09.1978 and the date of birth mentioned in the Transfer Certificate was carried forward in the service register. On 31.10.1982, he was promoted as Van Driver, vide Proceedings in Roc.No.J5/107365/82. When the petitioner's employer informed him that he was due to attain the age of superannuation on 31.12.2013, only then he came to know that the date of birth has been wrongly entered in the service register. In the abovesaid circumstances, he made a representation to the District Collector, Virudhunagar District, through the Block Development Officer (Village Panchayat), Rajapalayam, to correct the date of birth in the service register. Pursuant to the above, the Block Development Officer (Village Panchayat), Rajapalayam, has also sent a proposal in Roc.No.A1/1409/2013, dated 14.06.2013, to the District Collector (Panchayat Development), Virudhunagar, requesting appropriate orders to be obtained from the Government, as a special case. However, after considering the said proposal, the District Collector (Village Panchayats), Virudhunagar District, has rejected the request of the petitioner on the ground that any application for alteration of date of birth ought to have been submitted within five years from the date of entry in the service, along with school records and also the statements of two persons from the village, in which the applicant was born and that the said application should also be enclosed with a certificate that no other child was born on the date claimed by the applicant. So saying, the District Collector (Panchayat Development), Virudhunagar, has refused to forward the application to the Government.
3. Assailing the correctness of the order, learned counsel for the petitioner submitted that due to ignorance, the petitioner did not submit the application for alteration of date of birth within five years from the date of entry into the service and that the same need not be put against him, when the petitioner has produced the evidence to substantiate his original date of birth as 10.11.1956. Violation of principles of natural justice is also raised as one of the grounds of challenge.
4. Heard the learned counsel for the petitioner and perused the materials available on record.
5. Admittedly, the petitioner has entered service on 07.09.1978. The date of birth entered in the transfer certificate is 19.12.1955. The petitioner was due to retire on attaining the age of superannuation on 31.12.2013. After nearly 35 years, the petitioner has made an application, dated 20.05.2013, to the Tashildar, to issue a Birth Certificate with the date of birth as 10.11.1956 and on the same day, the Village Administrative Officer, Malli Village, seemed to have submitted a report stating that in Malli Village Panchayat Birth Register, the name of the petitioner has not been mentioned and to include the name of the petitioner as against the date stated supra. Accordingly, the Tahsildar, Srivilliputhur, has issued a proceedings in Mu.Mu.P2/3647/2013, dated 27.05.2013, directing registration of the name of the petitioner, Thiruchuli, in the Birth Register. Consequently, the Sub Registrar, Srivilliputhur, has issued a Birth Certificate on 29.05.2013, mentioning the date of birth of the petitioner as 10.11.1956. Thereafter, he has made an application, dated 14.06.2013, to the District Collector, Virudhunagar District, through the Block Development Officer (Village Panchayat), Rajapalayam, to make necessary alteration of date of birth of the petitioner as 10.11.1956, instead of 19.12.1955, in the service register and to obtain suitable orders from the Government.
6. Rule 49 of the Tamil Nadu State and Subordinate Service Rules, states as follows;
Rule 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 appointment 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 rant 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 bona fide 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.
Explanation - For the purpose of this sub-rule "authoritative records" are the secondary school leaving certificate or University, College, or School records or Discharge Certificate of Army.
(f) The decision of the Tamil Nadu Public Service Commission, the appointing authority or the Government, as the case may be, shall be final."
7. As per the abovesaid rule, 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.
8. When the statutory rules prescribed the period of limitation for submission of an application for alteration of date of birth, whether it is obligatory on the part of the appointing authority to entertain any such application submitted beyond the period of limitation. Reference can be made to the following decisions;
(a) In Union of India v. Harnam Singh, reported in (1993) 2 SCC 162, the Supreme Court held as follows:
"It is a too simplistic way of looking at the issue, ignoring the ground realities and the intention of the rule-making authority to discourage stale claims and non-suit such Government servants who seek the alteration of their recorded date of birth belatedly and mostly on the eve of their superannuation. To say that the respondent, even though he signed the service-book at a number of places at different times and saw the seniority lists, may not have still come to know as to what his recorded date of birth was, is to ignore the normal human conduct and put premium on negligence. The observations of CAT quoted above are neither logical nor sound. Of course, Note 5 to FR 56(m) was incorporated only in 1979 and it provides for request to be made for correction of date of birth within five years from the date of entry into service but what is necessary to be examined is the intention of the rule-making authority in providing the period of limitation for seeking the correction of the date of birth of the Government servant viz. to discourage stale claims and belated applications for alteration of date of birth recorded in the service-book at the time of initial entry. It is the duty of the courts and tribunals to promote that intention by an intelligible and harmonious interpretation of the rule rather than choke its operation. The interpretation has to be the one which advances the intention and not the one which frustrates it. It could not be the intention of the rule-making authority to give unlimited time to seek correction of date of birth, after 1979, to those Government servants who had joined the service prior to 1979 but restrict it to the five year period for those who enter service after 1979. Indeed, if a Government servant, already in service for a long time, had applied for correction of date of birth before 1979, it would not be permissible to non-suit him on the ground that he had not applied for correction within five years of his entry into service, but the case of Government servant who applied for correction of date of birth only after 1979 stands on a different footing. It would be appropriate and in tune with harmonious construction of the provision to hold that in the case of those Government servants who were already in service before 1979, for a period of more than five years, and who intended to have their date of birth corrected after 1979, may seek the correction of date of birth within a reasonable time after 1979 but in any event not later than five years after the coming into force of the amendment in 1979. This view would be in consonance with the intention of the rule-making authority.
The application for correction of date of birth, entered in the service- book in 1956 for the first time made in September 1991, was hopelessly belated. It had not been made even within the period of five years from the date of coming into force of Note 5 to FR 56(m) in 1979. His inaction for all this period of about thirty-five years from the date of joining service, therefore, precludes him from showing that the entry of his date of birth in service record was not correct. The Tribunal, therefore, fell in error in issuing the direction to correct his date of birth."
(b) In Union of India v. Kantilal Hematram Pandya, reported in (1995) 3 SCC 17, a railway servant, who entered the service in 1955, mentioned in various documents in 1960 and 1980, the same date of birth, as recorded in his service book. An opportunity was given in 1972 by the Railway Board for correction of date of birth by 31.07.1973. He made representations for the same, in the years 1985 and 1987, without adducing any reliable evidence and without explaining inordinate delay on his part. According to him, his correct date of birth was 04.09.1934 and not 06.09.1930. He filed a Original Application before the Central Administrative Tribunal, Ahmadhabad. It was decided in his favour. The matter was challenged before the Apex Court. Upon perusal of the documents, the Supreme Court at paragraph 9 held as follows:-
9. A bare or cursory look at the above document shows that the certificate was issued on 19-9-1988, just a few days prior to the date of superannuation of the respondent on the basis of his recorded date of birth and appeared to be a document brought into existence for the benefit of the pending proceedings. The CPO, therefore, rightly did not place reliance on the said certificate. The copy of the certificate, as already noticed had been issued in 1988. The Tribunal, as a matter of indulgence, directed the respondent on 15-2-1993 to obtain an affidavit from the Headmaster of the school disclosing the date on which the original certificate was issued as also why the copy was issued in 1988, but no such affidavit was produced for reasons best known to the respondent. In spite of this lacuna, the Tribunal erroneously relied upon the said certificate, the correctness and genuineness of which was not free from doubt to grant relief to the respondent. The material on the record established that after filing the option forms declaring his date of birth as 6-9-1930, in 1960, and after the filing of the Provident Fund withdrawal form on 20-2-1980, the respondent made his representation for correction of date of birth in 1985 and 1987 but failed to substantiate his claim through any reliable and trustworthy documentary evidence. He allowed the matter to rest till he neared the age of superannuation. The respondent slept over his rights to get the date of birth altered for more than thirty years and woke up from his deep slumber on the eve of his retirement only. The law laid down by this Court in Harnam Singh case, reported in 1993 (2) SCC 162 was, thus, fully applicable to the facts and circumstances of the case of the respondent and the Tribunal failed to follow the same without even pointing out any distinguishing features on facts. Stale claims and belated applications for alteration of the date of birth recorded in the service-book at the time of initial entry, made after unexplained and inordinate delay, on the eve of retirement, need to be scrutinised carefully and interference made sparingly and with circumspection. The approach has to be cautious and not casual. On facts, the respondent was not entitled to the relief which the Tribunal granted to him. The order of the Tribunal is erroneous and the directions issued by it cannot be sustained. We, accordingly, set aside the order of the Tribunal and allow this appeal. No costs.
(c) In Chief Medical Officer vs. Khadeer Khadri, reported in 1995 (2) SCC 82, the respondent therein joined the service on 15.11.1951. He had given his date of birth as 14.01.1933. In 1991, he made a representation to the corporation for alteration of date of birth as 15.07.1934. His request was turned down. He filed Original Application before the Andhra Pradesh Administrative Tribunal, Hyderabad. The Tribunal allowed the petition and directed to make correction. An appeal was filed to the Supreme Court. Referring to sub rule 5 of rule 2 of the Andhra Pradesh Public Employees (Recording and Alteration of Date of Birth) Rules, 1984, which provides power for correction of the bona fide mistake in recording the date of birth, the Supreme Court observed as follows:-
"This is only a ruse to get over the bar of limitation to have the date of birth entered in the service record corrected. The rules prescribe the procedure for laying the application within three years from the date of entering into service. In 1976, executive instructions were issued for correction of date of birth which were replaced by statutory rules issued in 1984. The latter also prescribes the procedure. He did not avail of the opportunity when, twice, it was available to him to have it corrected. It would clearly show that subsequent belated attempt is not a bona fide one but to have the correction made to his advantage after the bar of limitation created by the rules. The Tribunal has not properly considered the matter in this perspective. The appeal is allowed."
(d) In Burn Standard Co. Ltd. v. Dinabandhu Majumdar, reported in (1995) 4 SCC 172, the Supreme Court at paragraph 10, held as follows:-
"10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of their juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly-found material. The fact that an employee of Government or its instrumentality who has been in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his "Service and Leave Record" could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of their discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement."
(e) In Commissioner of Police, Bombay, vs. Bhagwan v.Lahane, reported in 1997 (2) LLN 974, Their Lordships have explained the importance of entries in the SSLC Book. In that case the applicant therein, got the entry in the birth register corrected, then obtained a copy of it and produced the same before the authority. He has not corrected the entry in the SSLC Book, and Their Lordships at paragraph 6, held as follows:-
"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 respondent and the entry in the service book was made on the basis of the date of birth mentioned therein. As he failed 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, the Tribunal ought not to have directed the appellant to correct the same.
(f) In Government of Tamil Nadu vs. Thirupathy, reported in 1997 (3) L.W. 688, the plaintiff therein who was recruited as a Police Constable in 1941 and after becoming a Sub Inspector of Police, prayed for a declaration that the alteration made by the District Police Office in the date of birth of the plaintiff in the Service Register from 01.04.1925 to 01.04.1921 was without notice to him. He sought for a permanent prohibitory injunction, restraining the defendants therein, from retiring the plaintiff from service on the basis of alteration of date of birth. According to him, the date of birth issued by the School Headmaster was 01.04.1925 and that the same was also entered into Service Register. He filed a suit in the year 1962. It was contended by the defendants namely, the Government and others, that on the date, when he was recruited as a Police Constable, he had given a solemn declaration that his date of birth was 01.06.1921 and that the same binds him. The Village Karnam has issued a certificate that the date of birth was 01.06.1921. It was also contended that if the date of birth was 1925 as claimed, the plaintiff would not have been enlisted as a constable and that he would have been rejected for enlistment as under-aged. The defendants also contended that the suit was hopelessly barred.
The trial court dismissed the suit. The substantial question of law raised by the High Court was "whether the suit for declaration for alteration of date of birth is barred by limitation, when the plaintiff has not filed the suit within five years from the date of entry into service as per G.O.Ms.No.1288, Public (Services) dated 21.04.1975". Another substantial questions of law framed is not relevant for the present case. After considering the plea and evidence, a learned Judge of this Court, at paragraph 10 held as follows:-
"10. As per G.O.Ms.No.1288 Public (Services) dated 21-4-1975, any correction to the date of birth must be made within five years from the date of entry. On the basis of that Rule, it can be said that atleast plaintiff will be getting five years from the date of the Rule and the suit must have been filed before the expiry of the period, therefore, a reasonable interpretation will have to be given for the Rule. Those persons who are due to retire on that date, cannot wait for another period of five years to get the date corrected. The intention of the Rule is that if at all any correction is to be made in the Service Register, that must be done within a reasonable time after they entered the service."
(g) In K.V.Kaliappan vs University of Madras, reported in 2000 (4) LLN 635, the petitioner was a Supervisor of the abovesaid University. His date of birth entered in the Service Register was 23.07.1940, on the basis of the entry in the SSLC Book. He obtained an extract of birth register from the Sub Registrar, Dharapuram, on 09.02.1977. According to him, his correct date of birth was 29.10.1942 and his parents had furnished his date of birth, as 23.07.1940 by mistake. The entry in the birth register was that a male child born to his parents on 29.10.1942. The name of the child was not given. Hence, he filed a suit in O.S.No.660 of 1980 on the file of the learned District Munsif, Dharapuram, praying for a declaration that he is the only son of his parents and to correct his date of birth as 29.10.1942. The District Munsif granted a declaratory decree on 07.09.1981. Thereafter, he approached the University in 1993, seeking for correction of his date of birth, in the Service Book. There was no provision in the service rules of the University, about the procedure to be followed, in correcting the date of birth of a teacher till 1995. Since his application for correction of date of birth was pending with the University, he sent a letter dated 13.11.1995, requesting the University to correct his date of birth, in accordance with the rule adopted by the University. The University directed him to approach the Director of School Education, Chennai, to correct his SSLC book. Contending inter alia that, as the procedure for correction of date of birth, has been provided under the Statutes and Ordinances issued by the University, the writ petitioner, has filed a Writ of Mandamus. Though the University adopted rules 49 and 49A of the Tamil Nadu State and Subordinate Service Rules, only in the year 1995, since he had entered the service of the University, even in the year 1974 and even after obtaining a decree in the year 1981, he did not care to effect correction in the service book, it was contended on behalf of the University that the writ petitioner himself had admitted that the Director of School Education, Chennai, has rejected the request for correction of date of birth, in his SSLC book and in such circumstances, the petitioner is not entitled to get his date of birth altered in the service book. A contention has been made by the learned Senior Counsel for the writ petitioner that, it is open to the petitioner to get his date of birth corrected, within five years from the date of coming into force of the rules. Reliance has also been placed on a decision in Burn Standard Company vs. Dinabandhu Majumdar, reported in 1996 (1) LLN 96, Commissioner of Police, Bombay, vs. Bhagwan v.Lahane, reported in 1997 (2) LLN 974, Director of Technical Education vs. Smt.K.Sitadevi, reported in 1991 (1) LLN 578, Secretary and Commissioner, Home Department vs. R.Kirubakaran, reported in 1994 (2) LLN 1007 and State of Tamil Nadu vs. T.V.Venugopalan, reported in 1994 (6) SCC 302. While adverting to the said contentions, Hon'ble Mr.Justice P.Sathasivam, at paragraph 15 held as follows:-
In the light of the catena of decisions of the Hon'ble Supreme Court and in view of the admitted factual position that the petitioner entered the service of the University in the year 1974 and obtained declaratory decree in the year 1981 and in the absence of any valid reason for delay in making petition for correction of date of birth in the service register till 1993, the request of the petitioner cannot be complied with.
(h) In Government of Tamil Nadu vs. J.Ramasamy, reported in 2002 (2) CTC 577, the respondent therein, joined the Government Service on 06.05.1965. He had given his date of birth as 19.04.1942. After 34 years, he sought for correction of his date of birth, stating that, his correct date of birth was 18.03.1944 and he relied on the extract from the Birth Register of the Municipality. The application was summarily rejected by the state, on the ground that it was filed beyond the time permissible under rule 49(b) of the rules. Being aggrieved by the same, the Government Servant approached the Tribunal. After referring to the provisions, the Tribunal held that Rule 49(c) of the Tamil Nadu State and Subordinate Service Rules is an exception to rule 49(b) of the rules and that applications for correction of date of birth filed after a period of five years, are permissible and the Tribunal concluded the issue by directing alteration of date of birth of the applicant. The correctness of the said direction was tested before the High Court. After considering the decision in State of Tamil Nadu vs. T.V.Venugopalan, reported in 1994 (6) SCC 302, a Division Bench at paragraphs 7 to 9, held as follows:-
7. In this case, the facts stare one in the eye. The official gave his date of birth as 19.4.1942 when he joined service and when he was to retire after his date of superannuation was computed with reference to the birth date given by him, he sought change in the birth date itself. He was certainly a person who had failed to make an application within five years after his entering service with regard to any correction that may have been warranted in his date of birth. He was clearly disentitled from making such application after the end of the five year period.
8. The Tribunal has chosen to regard Sub Clause (c) of Rule 49 as an exception to Rule 49(b). That view of the Tribunal is patently incorrect. Sub Clause (c) refers to applications received five years after entry into service.
All such applications are to be summarily rejected. It also refers to applications which are not supported by S.S.L.C., School, College or University records, birth extract from records of local bodies or military discharge certificates. All such applications are also to be summarily rejected. Sub Clause (c), therefore, deals with the applications which are to be summarily rejected. It does not deal with extending the period of limitation. Application which is filed within the period of limitation should be supported by anyone of the documents mentioned in Sub Clause (c). Failure to furnish such documents in support of the application would result in the summary rejection of such application. Applications filed after the period of five years from the date of entry into the service are to be rejected on the sole ground that they have been filed beyond a period of five years. No other reason need be given.
9. The misreading of the Rule by the Tribunal has prompted it to treat the application filed thirty four years after the official had entered into service as a valid application. Surprisingly, it has gone further and has chosen to hold an enquiry into that application and has made an order altering the date of birth. This was clearly an impermissible exercise which the Tribunal should not have indulged in. Counsel for the official submitted that the Tribunal has powers to call for the records. That power is not meant to be used in a case where it's use was not appropriate. Claims such as the one made before the Tribunal which should not have been entertained at all, cannot be given life by summoning documents from the custody of other Government Departments, then hold that contents of those documents justify the claim, and thereafter proceed to alter the date of birth, even when the very application seeking such alteration had been lawfully rejected by the Government in exercise of statutory power properly vested in it. Even if the State had erred in rejecting the application, the Tribunal could only have directed it to entertain the application and hold an enquiry, and no more.
(i) In Commissioner and Director of Survey and Settlement v. C.V. Varadharajan, reported in (2004) 1 LW 279, the petitioner therein, who joined the Government Service on 23.07.1969, with his date of birth entered as 01.04.1942, sought for a change in the year 1997 and filed a suit against the Director of School Education, Chennai, for a declaration that his date of birth was 20.04.1944. The suit was dismissed. He filed an appeal. Instead of waiting for the final verdict in the civil court, the Commissioner and Director, Chennai, informed the petitioner, by a communication, dated 13.03.2000 that his superannuation would be on 31.03.2000. The Government Servant moved the Tamil Nadu Administrative Tribunal. The Tribunal took the view that the Certificate issued by Vellore Municipality, and the document evidencing the betrothal ceremony on 17.06.1942, would clearly show that the Government Servant was born on 20.04.1944 and interpreting rule 49 of the Tamil Nadu State and Subordinate Service Rules, the Tribunal took the view that an application for alteration of date of birth can be filed even beyond five years and also only when the application has been filed without necessary documents, it has to be summarily rejected. Being aggrieved by the order of the Tribunal, the Commissioner and the Director of Survey and settlement, Chennai, filed a writ petition before the High Court. After examining Rules 49(b) and Rule 49(c) of the Tamil Nadu State and Subordinate Service Rules, this Court, at paragraphs 9 and 10, held as follows:-
9. First of all, it has to be remembered that Rule 49(b) and Rule 49(c) have to be read as a whole and the different provisions have to be harmonised {vide (2001) 1 SCC 284 ). If the contention of the learned counsel for the respondent is to be accepted, then the Rule making authority could have omitted the words 'or, any application' and in which event, the wordings of the rule will be 'any application received after five years after entering into service which is not supported '. This submission cannot be accepted for the following reasons, (a) in Rule 49(b) the word 'only' finds a place, and (b) the courts cannot ignore or omit certain words found in the Act/Rule on the ground that they are inapposite surplusage or otiose or superfluous. The Court always presumes that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the Statute should have effect. The legislature is deemed not to waste its words or to say anything in vain {vide:-
AIR 1976 Madras 55=88 L.W. 641 - Bright Brothers (P) Ltd. v. J.K. Sayani and (2003) 3 SCC 309 ( Mithilesh Singh v. Union of India ) On consideration of entire matter, we are of the view that the word 'or' occurring in Rule 49(c) has to be read as 'and'. Further, the word 'any application' employed after the word 'or' in Rule 49(c) would only refer to the application mentioned in Rule 49(b).
It is settled law that to have a harmonious construction of provisions of the Act, or to achieve the purpose and object of the Act, if the word 'or' has to be read and understood as 'and' then necessarily it has to be read and understood so and vice-versa (Refer: AIR 1968 SC 1450 ( Ishwar Singh v. State of U.P. ; AIR 1980 SC 360 ( Delhi Municipality v. TEK Chand ); AIR 1991 SC 433 ( Gopinder Singh v. Forest Department of Himachal Pradesh ); 2001 Writ Law Reporter 791 ( P.P. Senniappa Chettiar and Sons v. Regional Provident Fund Commissioner, Royapettah & another ).
10. Hence, the legal position is to the following effect:-
(a) Any application for altering the date of birth shall be entertained only if filed within five years of entry into service And if such application is supported by document/documents referred in Rule 49(c).
(b) Any application filed within five years and not supported by document/documents referred in Rule 49(c) so also any application filed after five years after entry into service shall be summarily rejected.
It is also worthwhile to extract relevant paragraphs from the abovesaid judgment:-
6. Keeping the above in mind, let us proceed to examine as to what has been stipulated under the Rule 49(b) and 49(c). Before that, reference to some of the rulings would be of considerable use.
(a) In (1993) 2 SCC 162 (Union of India v. Harnam Singh) the Supreme Court ruled as under, "A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands dec ided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for corr ection of date of birth beyond the time, so fixed, therefore, 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. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. "
(b) In AIR 1993 SC 2647 ( Secretary & Commissioner, Home Department and others v. R. Kirubakaran) the Supreme Court considered and rejected a belated application for alteration of date of birth. In the course of discussion, the Court pointed out thus, "The Tamil Nadu Service Manual contains Rules 49 and 49A, which are the provisions in respect of alteration and correction of the date of birth.
Whenever any application is filed, by person governed by those service rules, procedures prescribed therein have to be strictly followed, including the time limit prescribed for making such an application. Clause (b) of the aforesaid Rule 49 provides that after a person has entered in 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 in service". It need not be pointed out that if an application is made for correction of the date of birth mentioned in the service records at an early date or within the time prescribed, the authorities are in much better position to verify the same. " (emphasis supplied)
(c) In (1994) 6 SCC 302= 1994 Writ L.R. 831 (State of T.N. v. T.V. Venugopalan ), the Court was considering a case where while the Government rejected an application for correcting date of birth, the Administrative Tribunal re-appreciated the evidence to reach a different conclusion. The discussion in the said case in our opinion will be of much use to us. We extract hereunder the relevant portions.
"4. Rule 49 and 49-A of the Rules provide the procedure and limitation for seeking correction of the date of birth by the government employees. Rule 49(b) provides that after a person has entered in service, an application to alter his date of birth, as entered in the official records, "shall be entertained only if such an application is made within five years after entering in service ". The object of the rule or statutory instructions issued under proviso to Article 309 or orders issued by the Government under Article 162, for the correction of the date of birth entered in the service record, is that the Government employee, if he has any grievance in respect of any error of entry of date of birth, will have an opportunity, at the earliest, to have it corrected. Its object also is that correction of the date of birth beyond a reasonable time should not be encouraged. Permission to reopen accepted date of birth of an employee, especially on the eve or shortly before the superannuation of the government employee, would be an impetus to produce fabricated record.
At paragraph 11, this Court considered a decision in State of Orissa & others v. Brahamarbar Senapathi, reported in (1994) 2 SCC 491, which is reproduced hereunder:-
11. In (1994) 2 SCC 491 ( State of Orissa & others v. Brahamarbar Senapathi ), the case related to a person who was promoted as Disinfector and Senior Helper. The Orissa General Financial Rules provided for a period of five years for getting the date of birth corrected on their entering into Government service. While interpreting the Rule, their Lordships said thus:-
" Long delay in making such an application is fatal.."
In that case, the person concerned, as per the service. Records, was to retire on 31.5.1989. A few days before his retirement, i.e. , on 24.4.1989, he filed an application for correction of his date of birth. The administrative Tribunal passed an order in favour of the Officer and prohibited the Government from retiring the Officer concerned. The matter was taken to the Supreme Court. After extracting the relevant Rule, their lordships further held thus:-
".From what has been stated in paragraph 7 of the order of the Tribunal, it would appear that the respondent became aware of the entry in the service register in the year 1970. Admittedly, no action has been taken within five years thereafter. Under those circumstances, Rule 65 as referred to above is clear that his claim for alteration shall be summarily rejected without any further inquiry.."
From the above it is clear that the date of knowledge is also relevant consideration and even after knowing that the date of birth has been wrongly entered, if the officer concerned did not take any effective legal steps, the claim should not be entertained by Court.
At paragraph 12, this Court extracted paragraph 7 of the judgment in Secretary and Commissioner, Home Department and others v. R. Kirubakaran, reported in 1994 Supp. (1) SCC-155:-
12. In 1994 Supp. (1) SCC-155 ( Secretary and Commissioner, Home Department and others v. R. Kirubakaran ), in paragraph 7 of the judgment, their Lordships considered about the tendency of the public servants coming forward with applications for change of date of birth, and what are the consequences that will follow if such suits are entertained. Paragraph 7 of the judgment reads thus:- "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, in as much as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, in as much as, because of the correction of the date of birth, the office 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 promotion 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 of 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 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."
It is worthwhile to extract paragraph 13 also:-
13. In (1995) 2 SCC 82 ( Chief Medical Officer v. Khadeer Khadri), their Lordships dismissed a similar claim on the ground that the application was made beyond three years.
Ultimately, this Court held that the suit was hopelessly barred.
(J) In State of Uttaranchal vs. Pitamber Dutt Semwal, reported in 2005 (11) SCC 477, the respondent therein was employed as a Class IV employee by the Collector, Uttar Kasi in 1964. The date of birth recorded in the service book was 10.04.1936. Notice dated 30.01.1996 was given to him to the effect that he would complete 60 years of age as on 30.04.1996 and that he would superannuate on that date. Thereafter, he made a representation to the effect that his date of birth has been wrongly mentioned in the service book and that as per the certificate issued by the school his date of birth was 06.07.1942. He was unsuccessful before the Collector, and hence filed a writ petition, which was dismissed. Appeal filed was allowed. The decision made in the appeal was tested before the Supreme Court. After considering rule 2 of the U.P. Recruitment to Services (Determination of the Date of Birth) Rules, 1974, the Supreme Court, at paragraph 6, held as follows:-
6. These Rules, the validity of which have not been challenged, clearly stipulate that no application or representation shall be entertained for correcting any date or age record and the entry made in the service-book shall be deemed to be the correct date of birth. Be that as it may, even dehors the said rule, we are of the opinion that the plea of the respondent that the date of birth was wrongly recorded was highly belated. He joined service in 1964, the service-book was prepared in 1965 and according to the appellant he has signed the said service-book at least on three occasions. In any case, the plea of the wrong recording of the age in the service-book has been taken nearly thirty years after the service-book was prepared. In our opinion, the Division Bench was in error in ignoring the provisions of the said Rule 2 and even otherwise, in the facts of this case, there was no occasion for the High Court to have interfered with the decision of the appellant.
(k) In State of Gujarat v. Vali Mohmed Dosabhai Sindhi, reported in (2007) 1 LW 121, the Supreme Court tested the correctness of a judgment of the Hon'ble Division Bench of Gujarat High Court, dismissing the appeal filed by the appellant. He was a Police Constable appointed on 03.10.1947. His date of birth, at the time of appointment was 1923. He was due to retire on attaining the age of 58 years on 01.11.1981. Accordingly, an order was passed on 16.02.1981 by the concerned authority, indicating that he would retire from service with effect from 01.11.1981. On receiving the order, he submitted an application for making change of his date of birth, in the service record. He contended that he was born in the year 1928 and not 1923. As the prayer was not accepted, he filed a writ petition and sought for an interim direction, which was not granted. However, the writ petition was allowed and that a direction was given for payment of arrears from 01.11.1981 to 01.11.1986, taking the date of his retirement as 1986, as per the revised date of birth. The Writ Court held that the School Leaving Certificate deserves acceptance. The Government preferred an appeal, which was dismissed. Before the Supreme Court, a contention was raised by the Government that as per Rule 17 of the Bombay Civil Services Rules, request made for alteration of date of birth should not be entertained, after the preparation of the service book of a Government Servant and in any event, not after the completion of the probation period or after five years of continuous service whichever is earlier. The rule also states that once an entry of age or date of birth has been made in the service book, no alteration of the entry afterwards should be allowed, unless it is shown that the entry was due to want of care on the part of some person other than individual in question or is an obvious clerical error. After considering various decisions, the Supreme Court, set aside the judgments of both the single and Division Bench of Gujarat High Court, and at paragraphs 9 and 10, has held as follows:-
9.Normally, in public service, with entering into the service, even the date of exit, which is said as date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the concerned Administrative Tribunals, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not.
10. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding correction, of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant.
In the case of State of Assam v. Daksha Prasad Deka (1970 (3) SCC 624 ), this Court said that the date of the compulsory retirement "must in our judgment, be determined on the basis of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure." In the case of Government of Andhra Pradesh v. M. Hayagreev Sarma (1990 (2) SCC 682) the A.P. Public Employment (Recording and alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births and deaths register ignoring the rules framed by the State Government referred to above. It was inter alia observed by this Court:
"The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will hot be entitled for alteration of his date of birth."
In Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors. v. Rangadhar Mallik (1993 Supp. (1) SCC 763), Rule 65 of the Orissa General Finance Rules, was examined which provides that representation made for correction of date of birth near about the time of superannuation shall not be entertained. The respondent in that case was appointed on November 16, 1968. On September 9, 1986, for the first time, he made a representation for changing his date of birth in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the Order of the Tribunal saying that the claim of the respondent that his date of birth was November 27, 1938 instead of November 27, 1928 should not have been accepted on basis of the documents produced in support of the said claim, because the date of birth was recorded as per document produced by the said respondent at the time of his appointment and he had also put his signature in the service roll accepting his date of birth as November 27, 1928. The said respondent did not take any step nor made any representation for correcting his date of birth till September 9, 1986. In case of Union of India v. Harnam Singh (1993 (2) SCC 162) the position in law was again reiterated and it was observed:
"A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay."
An application for correction of the date of birth should not be dealt with by the Courts, 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 loose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant 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 and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, 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 within at least a reasonable time. 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 about 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 date 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 or 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 thereby caused injustice to his immediate junior. Paragraphs 12 and 13 of the abovesaid judgment are also worth reproduction:-
12. As observed by this Court in State of Tamil Nadu v. T.V. Venugopalan (1994 (6) SCC 302 = 1995 1 L.W. 13 S.N.) and State of Orissa and Ors. v.
Ramanath Patnaik (1997 (5) SCC 181) when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. The view expressed in R. Kirubakaran's case (supra) was adopted.
13. The above position was also noticed in State of U.P. and Others v. Gulaichi (Smt.) (2003 (6) SCC 483).
(l) In Deoraj Sha vs. National Jute Manufacturers Corporation, reported in 2007 (3) SLR 249, the petitioner took up employment in the respondent corporation on 11.05.1973. On the basis of his declaration, the year of birth was recorded in the dossier and ESI records as 1947 and when he was to retire from service in June 2005, he sought for alteration of his date of birth, on the basis of the school final certificate, wherein, the date of birth was recorded as 02.02.1954, and that he took up examination in August 1970. However, the learned counsel for the corporation contended that Fundamental Rules 56 Note 6-
(a) would not permit any application for correction of date of birth after five years from the date of recording. Taking note of the rival submissions, the Calcutta High Court, at paragraphs 5 and 6, held as follows:-
"5.Counsel for the company is absolutely right in his submissions. Provisions in F.R.56 Note 6-(a) specifically mentioned that request for alteration of date of birth would be entertainable only if it was made within five years of entry into government service. In the present case, the petitioner entered into service in 1973, and he made request for correction for the first time in 1990 (if his claim is taken to be true). Hence, in view of provisions in F.R.56 Note 6 his request for alteration of the date of birth was not entertainable. Simply because the board concerned certified genuineness of the certificate, he did not become entitled to get the recorded date of birth altered.
6. There is no acceptable explanation why the certificate, apparently available at the time of entry into service, was not produced before the employer. At this distance of time the petitioner cannot be permitted to say (as is said by his counsel), that though he wanted to produce the certificate, the employer declined to accept it. According to the recorded date of birth he was to retire in June 2005. He did not approach the court of law or seriously agitate the issue before reaching the age of superannuation. It must be said that he actually agitated the matter at the fag end of his service career. This writ petition was taken out only on December 5th 2005, by them he had retired from service. In my opinion, the authority rightly rejected the request for correction of date of birth."
9. Ignorance of law is not an excuse for submitting an application beyond the statutory period. From the material on record, it could be deduced that though the petitioner has joined the service in 1978, he has submitted an application for alteration of date of birth, after, nearly 35 years from the date of joining the service. The application, dated 14.06.2013, is belated and the District Collector, Virudhunagar District, has rightly not entertained the same. Further it could be seen that under the Birth and Death Registration Act, if the date of birth or death has not been registered within one year from the abovesaid date, the applicant, who seeks for registration, ought to have approached the Court of competent jurisdiction, for a direction to register the date of birth. The insertion of name of the petitioner in the birth register maintained by Malli Panchayat, against the date of birth mentioned therein is in the opinion of this Court is not in accordance with the provisions of Birth and Death Registration Act and the Rules framed thereunder.
10. In the light of the decisions stated supra, the reasons assigned by the District Collector, Virudhunagar District, for not forwarding the proposal submitted by the Block Development Officer, (Village Panchayat), Rajapalayam, to the Government cannot be said to be contrary to the statutory provision. The impugned order does not warrant any interference of this Court. Hence, the Writ Petition is dismissed. No costs.
gcg To
1.The District Collector, Virudhunagar, Virudhunagar District.
2.The Block Development officer (V.P.), Rajapalayam.
3.The Sub - Registrar, Srivilliputhur.
4.The Tahsildar, Srivilliputhur, Virudhunagar District.