IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.2.2009 C O R A M : The Honourable Mr.Justice P.K.MISRA and THE HONOURABLE MR.JUSTICE K. CHANDRU W.P.No.24880 of 2006 M.Rajasekar ... Petitioner -vs- 1.The State of Tamil Nadu, rep. by Secretary to Government, Co-operation, Food & Consumer Protection Department, Fort St.George, Chennai-600 009. 2.The Registrar, Tamil Nadu State Administrative Tribunal, Chennai-600 104. .. Respondents PRAYER : Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus calling for the records comprised in O.A.No.6975 of 1996 on the file of the Tamil Nadu State Administrative Tribunal/2nd respondent by its order dated 27.4.2004 and G.O.Ms.(D) No.657, Co-operation, Food and Consumer Protection Department, dated 29.11.1993 and G.O.Ms.No.(D).330, Co-operation, Food and Consumer Protection department, dated 09.5.1995 on the file of the first respondent and quash the same and consequently direct the first respondent to change the date of birth of the petitioner from 05.4.1959 to 31.3.1961 in all the service records of the petitioner. For petitioner : Mr.R.Karthikeyan For respondents : Mr.Raja Kalifulla, GP ***** O R D E R
K. CHANDRU, J.
This writ petition is filed challenging the order of the Tamil Nadu State Administrative Tribunal made in O.A.No.6975 of 1996 dated 27.4.2004 as well as the order of the first respondent dated 29.11.1993 and 09.5.1995 and after setting aside the same to direct the first respondent to alter his date of birth from 05.4.1959 to 31.3.1961.
2. The petitioner at the relevant time was working as a Special Officer in the rank of Joint Registrar in the Pudukottai District Central Co-operative Bank Limited. He filed O.A.No.6975 of 1996 seeking to challenge the order of the Government in refusing to grant his request for alteration of his date of birth from 05.4.1959 to 31.3.1961.
3. The petitioner originally was working in Canara Bank from 1984 to 1990 as a Clerk-cum-Cashier. Subsequently he joined the Government service on 15.3.1990. After joining the government, he sent a representation dated 27.9.1991 seeking for alteration of his date of birth. His case was that his father Muthiah had two wives and he was born to the second wife and his mother’s name was Jayalakshmi. Though he was actually born on 31.3.1961, his date of birth was wrongly recorded as 05.4.1959 by his grand father who was staying in some other village, namely, Vadakarai. The petitioner studied in that Vadakarai Panchayat School. Thereafter he came to Thirumangalam, where both his parents were staying. He wrote his SSLC examination in March 1997 and his date of birth was declared by his father as 05.4.1959.
4. Since the date of birth was wrongly declared, he filed a suit before the District Munsif Court, Thirumangalam, Madurai District being O.S.NO.401 of 1980 to declare his date of birth as 31.3.1961 and not as 05.4.1959. In that suit, the Director of School Education was also made a party. The suit was decreed by a judgment and decree dated 20.12.1980 and it became final. But after joining the service in his representation he had enclosed the judgment and decree of the Civil Court as a proof for altering his date of birth.
5. The petitioner’s request was referred to an enquiry by the Revenue Divisional Officer, Madurai. He conducted a detailed enquiry and sent a report recommending for alteration. It was forwarded to the Commissioner for Revenue Administration who also sent his own recommendations. However, the Government by G.O.Ms.(D)No.657 Co-operation, Food and Consumer Protection Department, dated 29.11.1993 rejected the case of the petitioner. In that order, the State Government had stated that the petitioner’s father was a Village Munsif and as he himself was responsible for recording birth and death since he was a designated Registrar under the Birth and Death Registration Act, there was no possibility of his committing any mistake of entering the date of birth. The petitioner’s mother was also working as a school teacher. It was also stated that in the SSLC book, the date of birth declaration was given by his father and he had also signed in English. Therefore, there was no possibility of their recording any wrong date. In fact the petitioner’s mother had given a statement that such a wrong date was given for the purpose of facilitating his early entry into the school. Because of that the petitioner was able to complete his school education and they took advantage of such an alleged wrong entry. He cannot have a second benefit by altering the said date. It was also stated that the dates of birth of the children of the first wife were not furnished as well as their service records in Government service were also not produced. Therefore, the Government refused to accede to the request of the petitioner.
6. The petitioner sent a reconsideration petition dated 13.1.1995. The Government after considering the same passed a Government Order being G.O.(D)No.330, Co-operation, Food and Consumer Protection Department, dated 09.5.1995 rejecting the case of the petitioner. It is these two orders which were challenged by the petitioner before the Tribunal.
7. The Tribunal after notice to the parties dismissed the Original Application filed by the petitioner. The Tribunal after accepting the stand of the Government also held that if the application of the petitioner was accepted then he would have got admission to the first standard in school at the age of three. The Tribunal also held that his father was a Village Munsif and he would have corrected the age, in case it was wrongly recorded at the time when he made the declaration, which was found in the first page of SSLC book. Though the counsel for the petitioner sought to give an explanation that it was possible for a candidate to have studied in young age in the school by grant of double promotions so as to complete SSLC even before the normal age, we do not find such an explanation reflected in the records produced before the Tribunal. Even though under Rule 49(b) of the Tamil Nadu State and Subordinate Service Rules, there is a provision for alteration of date of birth and the petitioner’s application was received within the limitation prescribed therein, it is not as if that in every such case where there was an application made on time there was an obligation for the State Government to alter the age of an employee as per his request.
8. In the present case, the Government had called for a report from the Revenue Divisional Officer concerned. But that again is only a material by which the Government was not bound to act. If the Government considered that they were not satisfied with the explanation offered by the petitioner, there is no question of the Tribunal disagreeing with such an order unless there are compelling circumstances to do so. In the present case, the Tribunal had agreed with the stand taken by the Government. Challenging such orders of the Tribunal by way of writ proceedings is only an enabling provision created by the Supreme Court. This Court sitting under Article 226 of the Constitution cannot interfere with such finding of fact recorded by the Tribunal and come to different conclusion in the absence of any credible material produced by the petitioner.
9. The petitioner’s contention that there was a declaratory decree passed by the District Munsif Court, Tirumangalam cannot have any bearing on the present case even though the Director of School Education might have been made a party to the suit. The decree obtained by the petitioner from the Civil Court was before entering into Government service. Even his school records were not corrected either when he was in Canara Bank or before entering into Government service.
10. In this context, it is necessary to refer to a decision of the Supreme Court in State of Gujarat -vs- Vali Mohmed Dosabhai Sindhi reported in (2006) 6 SCC 537. The following passage found in para 12 which succinctly bring out the limitation placed on Tribunals and Courts in this regard may be usefully extracted below:-
Para 12. An application for correction of the date of birth should not be dealt with by the courts, the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose 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. ….”
11. Therefore, we have no hesitation to dismiss the writ petition which is misconceived and devoid of merits. Hence, the writ petition stands dismissed. There will be no order as to costs.
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To
1. The Secretary to Government,
Co-operation, Food & Consumer
Protection Department,
Fort St.George, Chennai-600 009.
2.The Registrar,
Tamil Nadu State Administrative
Tribunal,
Chennai 600 104