Madras High Court
The Thiruverkadu Municipality vs K.Obaiah on 21 September, 2021
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram
W.A.Nos.642 and 643 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.09.2021
Pronounced on : 21.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
AND
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.Nos.642 and 643 of 2020
and
C.M.P.Nos.9063 and 9065 of 2020
The Thiruverkadu Municipality
Rep. by its Commissioner,
Thiruverkadu Municipality,
Thiruverkadu – 600 077. .. Appellant in the both WAs
Vs.
K.Obaiah
.. Respondents in W.A.No.642 of 2020
M.Malakondaiya
.. Respondents in W.A.No.643 of 2020
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W.A.Nos.642 and 643 of 2020
COMMON PRAYER: Writ Appeals are filed under Clause 15 of Letters Patent,
to set aside the common order passed in W.P.Nos.3870 and 3871 of 2014 dated
12.06.2019.
In both appeals:
For Appellant : Mr.R.Mohandoss
For Respondents : Mr.K.Elango
COMMON JUDGMENT
(Judgment of the Court was made by K.KALYANASUNDARAM, J) Challenge in these writ appeals is to the common order passed in W.P.Nos.3870 and 3871 of 2014 dated 12.06.2019, whereby the writ Court permitted the writ petitioners to alter their date of birth in their Service Register.
The appellant was the sole respondent in the writ petitions.
2.The respondents were appointed in the appellant municipality as 'Sanitary Workers' on 01.07.1980 and 02.08.1980 respectively. They produced Fitness Certificates issued by the Medical Officer dated 08.07.1980 and 06.08.1980. The age of the respondents were entered in the service book as 15.07.1954 and 2/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 01.07.1954 and as per the date of birth, they attained superannuation in the month of July and June 2014. While so, they submitted representations dated 17.05.2013 seeking modification of the date of retirement. It is their case that they did not have birth certificate and they produced Fitness Certificate, in which, their ages were mentioned as 23. Hence, they are entitled to be in the service till 30.06.2017 and 30.06.2018. The representations came to be rejected by the appellant on the ground that the date of birth cannot be altered in view of Rule 39(b) of the Tamil Nadu Municipal Service Rules, 1970 (hereinafter referred as Rules). The rejection orders came to be challenged in the writ petitions. The learned Single Judge held that the respondents are entitled for alteration of the date of birth. Questioning the same, the present appeals have been filed.
3.It is the submission of the learned counsel for the appellant Mr.R.Mohandoss that as per the Rule 39(b) of the Rules, alteration of date of birth can be claimed within a period of five years, however, the respondents herein sought to change of alteration of date of birth at the verge of their retirement.
Hence, the appellant rightly rejected their representations and their age cannot be 3/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 modified on the basis of the Fitness Certificate, since their age were not determined after undergoing physical test, radiology test. It is the contention of the learned counsel for the appellant that the age of the respondents were mentioned as per the statement and hence, the respondents are not entitled to seek alteration of the date of birth based on the fitness certificates issued by the Medical Officer.
4.Per contra, the learned counsel appearing for the respondents Mr.K.Elango would argue that the respondents herein are illiterates and they were not aware of the dates of birth which were entered into the service register and they became aware of the date of birth when they were asked to retire from the service. He would further add that when the appellant altered the date of birth, the procedure contemplated in Rule 39(e) was not followed. He made submissions in support of the order of the writ Court.
5.This Court has given anxious consideration to the rival submissions and perused the available materials on record.
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6.It is an admitted fact that the respondents have joined in the service of the appellant Municipality as Sanitary Workers vide appointment orders dated 01.07.1980 and 02.07.1980. Their service registers were opened on 24.07.1980 and 25.08.1980 mentioning the date of birth as 15.07.1950 and 01.07.1954.
They have also affixed their thumb impressions in the service register. From the perusal of the fitness certificates, it is seen that their ages have been mentioned as 23 and 22 based on their statement and appearance. There is no material to show that their ages were determined by conducting physical test, dental test and radiology test. In the affidavits filed in support of the writ petitions, they have stated that they did not have birth certificate and their approximate age was assessed and the same was mentioned in the medical certificate.
7.The Rule 39(a) deals with entry of date of birth in the Service Register.
According to the Rule, the date of birth of a member of service shall be the date found on record in the S.S.L.C or Matriculation Register or any school certificate and if a member of a service claims subsequently that his date of birth is different from the records produced, he shall make an application to the appointing 5/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 authority, explaining as to how the mistake had occurred. Rule 39(b) states that if the application is made after 5 years of the employee entered into service, the application for alteration of date of birth shall not normally be accepted by the appointing authority unless the applicant furnishes adequate reasons for not making his application earlier.
8.In the matter on hand, the respondents seek alteration of date of birth after lapse of 30 years on the basis of the fitness certificate issued by the medical officer. As rightly pointed out by the learned counsel for the appellant, the respondents' ages in the fitness certificate was not made on the basis of test to determine the age and it was recorded as per their own statement. So, they are not entitled to seek alteration of date of birth at the fag end of their service.
Furthermore, it is not the case of the writ petitioners that the employer suo motu altered their date of birth. So, Rule 39(e) will have no application to the case on hand.
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9.In this regard, it will be useful to refer the decision reported in (2020)3 SCC 411 [Bharat Coking Coal Ltd and others vs. Shyam Kishore Singh], wherein, the Hon'ble Apex Court has held as follows:-
9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in State of Maharashtra v. Gorakhnath Sitaram Kamble [State of Maharashtra v. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423 : (2011) 2 SCC (L&S) 582] wherein a series of the earlier decisions of this Court were taken note and was held as hereunder : (SCC pp. 428-29, paras 16-17 & 19) “16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465 : 2006 SCC (L&S) 96] . In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.
17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [State of Uttaranchal v. Pitamber Dutt Semwal, (2005) 11 SCC 7/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 477 : 2006 SCC (L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment [Pitamber Dutt Semwal v. State of U.P., 1999 SCC OnLine All 1610 :
2000 All LJ 2341] of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.
***
19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the Court. The relevant portion of the judgment in Home Deptt. v. R. Kirubakaran [Home Deptt. v. R. Kirubakaran, 1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449] reads as under :
(SCC pp. 158-59, para 7) ‘7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. 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 forever. … According to us, this is an important aspect, which cannot be lost 8/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 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 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. … the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book.’
10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. v. Premlal Shrivas [State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664 : (2011) 2 SCC (L&S) 574] it is held as hereunder : (SCC pp. 667 & 669, paras 8 & 12) “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 9/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 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 [Union of India v. Harnam Singh, (1993) 2 SCC 162 : 1993 SCC (L&S) 375] ).
***
12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain 10/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book.”
11. The learned Additional Solicitor General has also relied upon the decision of this Court in Kirloskar Bros.
Ltd. v. Laxman [Kirloskar Bros. Ltd. v. Laxman, (2020) 3 SCC 419] dated 25-4-2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in Eastern Coalfields Ltd. v. Ram Samugh Yadav [Eastern Coalfields Ltd. v. Ram Samugh Yadav, (2020) 3 SCC 421] dated 27-5-2019 wherein this Court has held as hereunder : (SCC p. 422, paras 6-7) “6. Nothing is on record that in the year 1987 when the opportunity was given to Respondent 1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent 1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge [Ram Samujh Jadav v. Coal India Ltd., WP No. 215 of 2006, order dated 28-8- 2007 (Cal)] as well as the employer was justified in refusing to accept such an issue.
7. The Division Bench of the High Court [Ram Samujh Yadav v. Coal India Ltd. APO No. 334 of 2009, order dated 6-10-2010 (Cal)] has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent 1 in the 11/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 service record after number of years and that too when the issue was raised only one year prior to his superannuation and as observed hereinabove no dispute was raised earlier.”
12. The learned counsel for the respondent, on the other hand, has relied upon the decision of this Court relating the very same employer, namely, the appellants herein in Bharat Coking Coal Ltd. v. Chhota Birsa Uranw [Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, (2014) 12 SCC 570 : (2014) 3 SCC (L&S) 725] wherein this Court with reference to the earlier decisions of this Court has upheld the order [Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, 2010 SCC OnLine Jhar 1228] of the High Court wherein a direction had been issued to effect the change in the date of birth. Having perused the same we are of the opinion that the said decision cannot render assistance to the respondent herein. This is for the reason that in the said case it was taken note that in 1987 on implementation of the National Coal Wage Agreement III was put into operation for stabilising the service records of the employees and all its employees were provided a chance to identify and rectify the discrepancies in the service records by providing them a nomination form containing details of their service records. In the cited case the respondent (employee) therein had noticed the inconsistencies in the records regarding his date of birth, date of appointment, father's name and permanent address and availed the opportunity to seek correction. Though he had sought for the correction of the errors, the other discrepancies were set right but the date of birth and the date of appointment had however remained unchanged and it is in that view the employee had again raised a dispute regarding the same and the judicial remedy was sought wherein the benefit was extended to him.
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13. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the nomination form and rectify the defect if any, he had indicated the date of birth as 4-3-1950 and had further reiterated the same when Provident Fund nomination form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31-3-2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified.
14. Hence, the order dated 13-10-2017 passed by the learned Single Judge in Shyam Kishore Singh v. Bharat Coking Coal Ltd. [Shyam Kishore Singh v. Bharat Coking Coal Ltd., 2017 SCC OnLine Jhar 3061] and the order dated 19-2-2019 passed by the Division Bench in Bharat Coking Coal Ltd. v. Shyam Kishore Singh [Bharat Coking Coal Ltd. v. Shyam Kishore Singh, 2019 SCC OnLine Jhar 2412] are not sustainable.
15. In the result, the impugned order [Bharat Coking Coal Ltd. v. Shyam Kishore Singh, 2019 SCC OnLine Jhar 2412] is set aside and the appeal is allowed with no order as to costs. Pending applications if any, shall also stand disposed of.
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10. Further, by following the above said decision, the Hon'ble Apex Court in the case of Karnataka Rural Infrastructure Development Limited vs. T.P.Nataraja and others (Civil Appeal Nos.5720 and 5720 of 2021), has held as follows:-
“10.Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized 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 latches 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.
11.Therefore, applying the law laid down by this Court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and latches also therefore, as such respondent employee was not entitled to the decree of declaration and therefore, the impugned judgment and order passed by the High Court is 14/16 http://www.judis.nic.in W.A.Nos.642 and 643 of 2020 unsustainable and not tenable at law.”
11.In our considered view, the ratio laid down in the above decisions would squarely apply to the instant case. Hence, the common order impugned in these writ appeals is not sustainable and accordingly, it is set aside.
12.In the result, these Writ Appeals are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
[M.K.K.S.,J.] [V.S.G.,J.]
21.09.2021
Index : Yes / No
Internet : Yes / No
skn
K.KALYANASUNDARAM, J.
15/16
http://www.judis.nic.in
W.A.Nos.642 and 643 of 2020
and
V.SIVAGNANAM, J.
skn
COMMON JUDGMENT
MADE IN
W.A.Nos.642 and 643 of 2020
and
C.M.P.Nos.9063 and 9065 of 2020
21.09.2021
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