Madras High Court
The Government Of Tamil Nadu, Rep. By Its ... vs J. Ramasamy And Anr. on 12 March, 2002
Equivalent citations: (2002)2MLJ397
Author: R. Jayasimha Babu
Bench: R. Jayasimha Babu, F.M. Ibrahim Kalifulla
ORDER R. Jayasimha Babu, J.
1. Rule 49 of the Tamil Nadu State and Subordinate Services Rules which deals with alteration of date of birth in Sub-clauses (b) and (c) thereof provide thus:
49(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 S.S.L.C., School, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily rejected."
2. The applicant before the Tribunal, who is the respondent before us, had given his date of birth when he joined Government service as 19.4.1942. He joined service on 6.5.1965. On 31.3.1999, about 34 years after he had joined service, he sought correction of his date of birth, and claimed that his correct date of birth is 18.3.1944. He had sought to rely on an extract from the Birth Register of the Municipality in support of his claim. That application was rejected by the State summarily on the ground that the application had been filed beyond the time permissible under Rule 49(b) of the Rules. Aggrieved by that order, he approached the Tribunal, which curiously summoned the Register of the Municipality, looked into it, thereafter held that Rule 49(c) 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 then concluded by directing the alteration of the date of birth of the applicant. The direction given was, "the date of birth of the applicant is altered as 18.3.1944 and he shall be continued in service, till he attains the age of superannuation, as per the said date."
3. We are indeed very surprised that the Tribunal should have given the direction that it did ignoring the law laid down by the Supreme Court in more than one case. This very Rule 49 had been considered by the Supreme Court in the case of State of Tamil Nadu v. T.V. Venugopalan, .
4. That the period of limitation for filing an application for correcting an entry with regard to the date of birth shall be made only within a period of five years after a person has entered service is stated not only in the Rule itself, but had been reiterated and the true effect of the Rule stated, in that judgment of the Apex Court which certainly binds the Tribunal.
5. The Tribunal has chosen to ignore the Rule, as also the binding judgment of the Apex Court. The Tribunal appears to have laboured under a misguided notion that as a Tribunal, it's powers are limitless and that in the name of discretion, it is free to make any order which may appeal to the Tribunal. That justice must be administered according to law is a dictum which every person who dispenses justice must at all times remember.
6. The object of Rule 49 was explained by the Apex Court in the case of Venugopalan, "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 to 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."
6A. The effect of Rule 49 was explained by the Court in mat judgment in the clearest possible terms at paragraph 7 of the judgment:
" As held by this Court in Harnam case, , Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force, i.e., 1961. If no application is made, after expiry of five years, the government employee loses his right to make an application for correction of his date of birth."
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.
10. The impugned order is wholly unsustainable, and is set aside. The writ petition is allowed.