Gujarat High Court
Harikrishna Ghanshyamdas Brahmbhatt vs Chief Officer & on 16 April, 2014
Author: K.J.Thaker
Bench: K.J.Thaker
C/LPA/413/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 413 of 2014
In
SPECIAL CIVIL APPLICATION NO. 5205 of 2009
with
CIVIL APPLICATION NO. 3168 of 2014
In
LETTERS PATENT APPEAL NO. 413 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
===============================================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================
HARIKRISHNA GHANSHYAMDAS BRAHMBHATT....Appellant(s)
Versus
CHIEF OFFICER & 1....Respondent(s)
================================================================
Appearance:
MR APURVA R KAPADIA, ADVOCATE for the Appellant(s) No. 1
Mr.N.J.Shah, Assistant Government Pleader for respondent No.2
================================================================
CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR
Page 1 of 12
C/LPA/413/2014 JUDGMENT
SAHAI
and
HONOURABLE MR.JUSTICE K.J.THAKER
Date : 16/04/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. The Appellant challenges the Oral Judgement of the learned Single Judge passed in Special Civil Application No. 5205 of 2009 dated 18.11.2013. In the said writ petition, the petitioner had challenged the inaction on the part of the respondent in not correcting the date of birth from 23rd May, 1951 to 15th August, 1958 and he was made to retire on the basis of birth date recorded in the service book.
2. Petitioner was in service of the respondent no. 1-Kambhat Municipality in its Octroi Department from 1st April 1977. His service book records his date of birth as 23rd May 1951 and accordingly his superannuation from service is w.e.f 23rd May 2009.
3. It is averred by the petitioner that in the year 2008, when he was informed by his colleague about Page 2 of 12 C/LPA/413/2014 JUDGMENT his date of retirement, it came to him as a shock and therefore, he communicated with the respondent. As per the birth date recorded in the service book being 23rd May 1951, fifty eight years was completed on 23rd May 2009 and as such his retirement was effected from 31st May 2009. The petitioner therefore approached the respondent no. 1 to correct his birth date vide communication dated 12th March 2009 and urged that his birth date in fact is 15th August 1958. It is also urged that for the reasons not known to the petitioner, the record had wrongly mentioned his birth date as 23rd May 1951. The respondent no. 1-Municipality did not pay any heed, and therefore, on 6th May 2009 and 18th May 2009, he once again communicated reiterating the said request. He also demanded documents on the basis of which date of birth of the petitioner was entered into the service book and insisted upon correction of the same. Page 3 of 12
C/LPA/413/2014 JUDGMENT 3.1 Respondent no. 1 replied on 19th May 2009
inter alia stating that no error has been committed in entering the birth date in the service record and vide further communication dated 25th May 2009, said reply was reiterated. An order was passed on 9th January 2009 and 6th May 2009 on the lines of replies of the respondent no. 1 communicating to him that his service would be over on 23rd May 2009.
3.2 Therefore, the present petition came to be filed seeking writ of certiorari and or mandamus on 28th May 2009. On 29th May 2009, the Court issued notice of rule without granting any interim relief to the petitioner.
3.3 Affidavit-in-reply was filed by the respondent no. 1 where the Chief Officer of the Khambhat Nagarpalika contended that the date of birth mentioned in the service book is specified at the behest of the petitioner, who has duly signed the Page 4 of 12 C/LPA/413/2014 JUDGMENT same, which is true and correct. The petitioner has approached to get his birth date changed at the fag end of his service, Rule 40 of the Gujarat Civil Services Rules, 2002 ["GCSR" for short] would preclude any such correction in the service record. As he has already completed five years of service and there is nothing to indicate that there was any error on the clerical side or error on the part of the respondent.
4. Learned advocate Shri Apurva Kapadia fervently urged that the petitioner has not been furnished with any documentary evidence by the respondent to say on what basis his birth date was recorded as 23rd May 1951. No record is available with the respondent to substantiate the fact of recording 23rd May 1951 as the birth date of the petitioner in his service record. Moreover, not only his school leaving certificate, but the Gujarat Secondary Board Examination certificate is also Page 5 of 12 C/LPA/413/2014 JUDGMENT indicative that his birth date is 15th August 1958 and not 23rd May 1951. He urged that he could not have taken Standard XII examination at the age of 24 years, going by his age of 1951. In 1975, his age would be 24 years, and therefore, it is unthinkable that he would have appeared in the Board examination at the age of 24 years. It is further submitted that there is no doubt with regard to the genuineness of the school leaving certificate which clearly mentions his date of birth as 15th August 1958. Further, it is submitted that there is nothing to indicate from the record of the respondents as to on what basis they had made entry of birth date of the petitioner in the service record, respondent- authority ought to have corrected the same at the instance of the petitioner and even if such a request from the petitioner had come on expiry of the period of five years, if the error was on the part of the respondent and was a genuine mistake, it Page 6 of 12 C/LPA/413/2014 JUDGMENT ought to have corrected the same. In support of his averments, learned advocate placed reliance on the following decisions :-
{a} Dahiben C. Patel v. State of Gujarat, reported in 2004 (0) GLHEL HC 202702;
{b} Bhaijibhai Karshanbhai Tadvi v. State of Gujarat & Ors., Special Civil Application No. 13991 of 2012 :: Decided on 13th June 2013.
5. Learned counsel for the appellant relied upon the decision of the Apex Court in case of Mohd.
Yunus Khan Vs. U.P.Power Corporation Limited and others reported in (2009) 1 SCC 80 and submitted that in the said decision, it was due to employers mistake due to which employee was shown as much older than of his actual age. There was evidence on record to show that mistake occurred because there were two persons with the same name. In that view of the matter, the Hon'ble Supreme Court held that mistake ought to Page 7 of 12 C/LPA/413/2014 JUDGMENT have been rectified. Therefore, just because the appellant-the original petitioner approached the authorities and Hon'ble Court belatedly raising his grievance, the petition should not have been dismissed on this ground by the learned Single Judge.
6. In Paragraph 6.5 of the Judgement, the learned Single Judge has considered this aspect also. The decision cited by the learned counsel for the appellant are dealt with appropriately by the learned Single Judge by giving cogent reasons. We are not persuaded to take different view than the view taken by the learned Single Judge. The decisions cited by the learned counsel for the appellant -original petitioner in the facts of this case will not be applicable in view of the Rule 40(2) (a)(g) of the Gujarat Civil Services Rules, 2002 ["GCSR" for short] which are para-materia of the Bombay Civil Services Rules ["BCSR" for short]. Page 8 of 12
C/LPA/413/2014 JUDGMENT Rule 40(2)(a)(g) of The GCSR is extracted below:-
40(2)(a)(g) :- Requests made for alteration of date of birth should not be entertained after the preparation of the service book of the Government employees concerned and in any event not after the completion of the probation period or five years' continuous service, whichever is earlier. In the case where there is no probation period, such request should not be entertained after the completion of five years' continuous service.
Rule 171 of The BCSR is extracted below:
171:- In the service book every step in a Government servant's official life, including temporary and officiating promotions of all kinds, increments and transfer and leave of absence taken, should be regularly and concurrently recorded, each entry being duly verified with reference to departmental orders, pay bills and leave statements, and attested by the head of the office. If the Government servant is himself the head of an office the attestation should be made by his immediate superior. Officiating and temporary service and leave taken prior to first substantive appointment to a permanent post should also be recorded in the service book and duly attested after verification. The date of birth should be Page 9 of 12 C/LPA/413/2014 JUDGMENT verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on. In the case of a Government servant, the year of whose birth is known but not the date, the 1st July should be treated as the date of birth. When both the year and the month of birth are known, but not the exact date, the 16th of the month should be treated as the date of birth. In the case of a Government servant who is only able to state his approximate age, and who appears to the attesting authority to be of that age, the date of birth should be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment. When the date month and year of birth of a Government are not known and he is unable to state his approximate age the age by appearance as stated in the medical certificate of fitness, in the form prescribed in Rule 11, should be taken as correct , he being assumed to have completed that age on the date the certificate is given, and his date of birth reduced accordingly. When once an entry of age or date of birth has been made in a service book, no alteration of the entry should afterwards be allowed, unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error. Requests made for alteration of date of birth should Page 10 of 12 C/LPA/413/2014 JUDGMENT not be entertained after the preparation of the Service Books of the Government servants concerned and in any event not after the completion of the probation period or five years' continuous service, whichever is earlier. In the case where there is no probation period such request should not be entertained after the completion of five years' continuous service. The date of birth may however be permitted to be altered at a later stage if the If the Government is satisfied that a bonafied clerical mistake has been committed and that it should be rectified. Officers of a rank not lower than the Principal District Officer in the Department concerned may correct errors in the service book which are obviously clerical. Cases in which the correctness of the original entry is questioned on other grounds should be referred to a competent authority. "
Finger prints of the Government servant [who is not literate enough to sign his name in English, Hindi, Marathi, (including signature in Modi script) or Gujarat] should be recorded in the column headed "Personal marks of identification"in the service book itself. The impressions should not be taken on separate slips of paper and pasted to the service book.
7. We are in complete agreement with the view taken by the learned Single Judge. This appeal is Page 11 of 12 C/LPA/413/2014 JUDGMENT devoid of any merits and is accordingly dismissed. Civil Application is also disposed of .
(V.M.SAHAI, J.) (K.J.THAKER, J) bina Page 12 of 12