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P.S.Loganathan vs The Tamil Nadu Electricity Board on 27 March, 2003

Madras High Court
P.S.Loganathan vs The Tamil Nadu Electricity Board on 27 March, 2003
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27/03/2003

CORAM

THE HONOURABLE MR. JUSTICE P.D.DINAKARAN

W.P.No.4260 of 1998

P.S.Loganathan                 ...  Petitioner

-Vs-

1. The Tamil Nadu Electricity Board,
   rep. by its Chairman,
   800, Anna Salai, Chennai-2.

2. The Chief Engineer (Personnel)
   Tamil Nadu Electricity Board,
   8th Floor, N.P.K.R.R. Maaligai,
   800, Anna Salai, Chennai-2.

3. The Superintending Engineer,
   Udumalpet Electricity
   Distribution Circle, Udumalpet.              ...  Respondents.

                Petition under Article 226 of The Constitution  of  India  for
the issue of a Writ of Certiorarified Mandamus as stated therein.

For petitioner :  Mr.  S.Elamurugan

For respondents:  Mr.  V.Radhakrishnan

:O R D E R

The grievance of the petitioner is that he was born on
02.05.1949, but when he joined as Junior Assistant in the respondent-Board in
the year 1973, his date of birth was entered as 05.05.1947, based on the entry
in his S.S.L.C. Book. Concededly, the petitioner did not make any
application for alteration of date of birth within five years from the date of
entry into the service. But, when he made an application on 16.02.1994
seeking alteration of date of birth as 02.05.1949, the Executive Engineer of
the respondent-Board, by letter dated 11.05 .1994, returned the application of
the petitioner for want of necessary correction in his S.S.L.C. Book and
required him to apply afresh. Thereafter, the petitioner filed a civil suit
in O.S.No.89 of 1995 on the file of District Munsif, Udumalpet, which was
decreed on 12.06.1996 to the effect that the date of birth of the petitioner
is 02.05.1949. Based on the decree dated 12.06.1996 made in O.S.No.89 of 1995
on the file of District Munsif, Udumalpet, correction was made in the S.S.L.C.
Book of the petitioner that his date of birth is 02.05.194 9. Supported by
the decree dated 12.06.1996 made in O.S.No.89 of 199 5 and the consequential
correction made in his S.S.L.C. Book, the petitioner, again, on 14.11.1996,
applied for alteration of date of birth in his service records. But, the
Chief Engineer of the respondent-Board, by proceedings dated 31.12.1997, which
is impugned in the above writ petition, quoting Regulation 110(b)(ii) and (vi)
of the Tamil Nadu Electricity Board Service Regulations, as well as the
decision of a Division Bench of the Apex Court in UNION OF INDIA V. HARNAM
SINGH
reported in AIR 1993 SC 1367=1993 (2) SCC 162, rejected the application
of the petitioner for alteration of date of birth, summarily. Hence, the
above writ petition.

2. Mr. S.Elamurugan, learned counsel for the petitioner,
assails the impugned order dated 31.12.1997 passed by the Chief Engineer,
Tamil Nadu Electricity Board, purely on the ground of jurisdiction, contending
that the Chief Engineer is not a competent authority to pass the impugned
order on the application made by the petitioner for alteration of date of
birth, as the Board alone is empowered to take appropriate decision in the
matter, which shall be final, as per Regulation 110(b)(i) of the Tamil Nadu
Electricity Board Service Regulations.

3. Per contra, Mr. V.Radhakrishnan, learned Standing counsel
appearing for the respondent-Tamil Nadu Electricity Board, invited my
attention to Regulation 110(b)(i) and (ii) of the Tamil Nadu Electricity Board
Service Regulations, which deal with the change and alteration of date of
birth. Regulations 110(b)(i) and (ii) of the Tamil Nadu Electricity Board
Service Regulations read as follows:

"       Regulation 110(b):  Alteration of date of birth:

(i)     If,  at  the  time of appointment, a candidate claims that his date of

birth is different from that entered in the records mentioned in clause (a)(i)
above, he shall make an application in the prescribed form to the appointing
authority stating the evidence on which he relies and explaining how the
mistake occurred. The appointing authority shall cause an enquiry to be made
by an Executive Engineer, Operation and Maintenance having jurisdiction over
the place of birth of the Board employee concerned. If the employee himself
happens to be an Executive Engineer/Operation and Maintenance whose place of
birth falls within his own jurisdiction, some other Executive Engineer
nominated by the Chief Engineer/Personnel shall be asked to conduct an
enquiry. If the employee is a Superintending Engineer/ Operation and
Maintenance or Chief Engineer/Distribution having jurisdiction over his place
of birth, some other Executive Engineer nominated by the Chief
Engineer/Personnel who is not directly under the control of the applicant
shall be asked to conduct an enquiry. On receipt of the report of the
enquiry, the case shall be submitted to the Board for decision. The decision
of the Board shall be final.

(ii) After a person has entered service under the Board, an application to
alter the date of birth as entered in the records of the Board shall be
entertained only if such application is made within five years of such entry
into service. Such an application shall be made in the prescribed form to the
authority competent to make an appointment to the post held by the applicant
at the time of his application. Such an application, 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. The appointing authority shall
cause an enquiry to be made by an Executive Engineer/Operation and Maintenance
having jurisdiction over the place of birth of the employee concerned. If the
employee himself happens to be an Executive Engineer/ Operation and
Maintenance whose place of birth falls with in his own jurisdiction, some
other Executive Engineer nominated by Chief Engineer/ Personnel shall be asked
to conduct the enquiry. If the applicant is a Superintending
Engineer/Operation and Maintenance or a Chief Engineer (Distribution) having
jurisdiction over his place of birth, some other Executive Engineer nominated
by the Chief Engineer/Personnel who is not directly under the control of the
applicant shall be asked to conduct the enquiry. Such enquiry reports in
respect of Superintending Engineers and above shall be submitted to the Board
through the Chief Engineer/ Personnel. The decision of the Board shall be
final. ”

4. Placing reliance on the decision in UNION OF INDIA V.
HARNAM SINGH
reported in AIR 1993 SC 1367=1993 (2) SCC 162, and SECRETARY &
COMMISSIONER, HOME DEPARTMENT V. R.KIRUBAKARAN
reported in AIR 1993 SC 2 647,
Mr.V.Radhakrishnan, learned counsel for the respondents contents that the
petitioner having made an application for correction of the date of birth
beyond the time fixed under the Regulations cannot claim, as a matter of
right, the correction of date of birth, even if he has got good evidence to
establish that the recorded date of birth is clearly erroneous.

5. I have given careful consideration to the submissions of
both sides.

6. The Apex Court in UNION OF INDIA V. HARNAM SINGH reported
in AIR 1993 SC 1367=1993 (2) SCC 162, held as follows:

“14. In the instant case, the date of birth recorded at the time of
entry of the respondent into service as 20th May, 1934 had continued to exist
unchallenged between 1056 and September, 1991, for almost three and a half
decades. The respondent had the occasion to see his service book on numerous
occasions. He signed the service book at different places at different points
of time. Never did he object to the recorded entry. The same date of birth
was also reflected in the seniority lists of LDC and UDC, which the respondent
had admittedly seen, as there is nothing on the record to show that he had no
occasion to see the same. He remained silent and did not seek the alteration
of the date of birth till September, 1991, just a few months prior to the date
of his superannuation. Inordinate and unexplained delay or laches on the part
of the respondent to seek the necessary correction would in any case have
justified the refusal of relief to him. Even if the respondent had sought
correction of the date of birth within five years after 1979, the earlier
delay would not have non-suited him but he did not seek correction of the date
of birth during the period of five years after the incorporation of note 5 to
FR 56 in 1979 either. 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.

15. In the facts and circumstances of this case, we are not
satisfied that the Tribunal was justified in issuing the direction in the
manner in which it has been done. 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 and did not merit any consideration.
As already noticed, 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. The
Tribunal, therefore, fell in error in issuing the direction to correct his
date of birth and the impugned order of the Tribunal cannot be sustained.”

7. Again, the Apex Court, in SECRETARY & COMMISSIONER, HOME
DEPARTMENT V. R.KIRUBAKARAN
reported in AIR 1993 SC 2647, has held as
follows:

” 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. 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 forever. Cases
are not unknown when a person accepts appointment keeping in view the date of
retirement of his immediate senior. This is an important 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 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 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
dates of birth in the service books. By this process, 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 for 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 merely caused
injustice to his immediate to his immediate junior. ”

8. Similar view was again taken by the Apex Court in STATE OF
TAMIL NADU V. T.V.VENUGOPALAN
reported in 1994 (6) SCC 302.

9. Following the above ratio of the Apex Court in STATE OF
TAMIL NADU V. T.V.VENUGOPALAN
reported in 1994 (6) SCC 302, this Court
rejected similar prayer in (i) THE GOVERNMENT OF TAMIL NADU V. J.RAMASAMY
reported in 2002 (2) CTC 577, and (ii) in order dated 07.03.2003 made in
W.P.No.10206 of 1998 (S.RADHAKRISHNAN V. COMMISSIONER, CORPORATION OF MADRAS
& ANOTHER).

10. Of course, Mr. Elamurugan, learned counsel for the
petitioner would contend that as per Regulation 110(b)(i) of the Tamil Nadu
Electricity Board Service Regulations, the Tamil Nadu Electricity Board is the
competent authority to take appropriate decision with respect to the
alteration of date of birth, but not the Chief Engineer, viz., the second
respondent herein, who has passed the impugned order dated 31.12.1997. I am
unable to appreciate the above contention because, as per Regulation 110(b)(i)
of the Tamil Nadu Electricity Board Service Regulations, the very application
for alteration of date of birth is barred by limitation, and therefore, such
application need not be considered by the respondent/Board, much less the
Chief Engineer.

11. That apart, the letter of rejection dated 11.05.1994 made
by the Executive Engineer, returning the application of the petitioner dated
16.02.1994, instructing him to obtain necessary correction in the S.S.L.C.
Book and to apply afresh, in my considered opinion, could not, in any way, be
construed as a relaxation of the Rules, referred to above, as the said
proceedings dated 11.05.1994 itself is contrary to Regulation 110(b)(vi) of
the Tamil Nadu Electricity Board Service Regulations. The petitioner,
therefore, is not entitled to derive any strength on the letter dated
11.05.1994 to claim that the Executive Engineer, Tamil Nadu Electricity Board,
had condoned the delay.

Hence, finding no merits, this writ petition is dismissed. No
costs.

Index:Yes
Internet: Yes

ksv/sasi

To

1. The Tamil Nadu Electricity Board,
rep. by its Chairman,
800, Anna Salai, Chennai-2.

2. The Chief Engineer (Personnel)
Tamil Nadu Electricity Board,
8th Floor, N.P.K.R.R. Maaligai,
800, Anna Salai, Chennai-2.

3. The Superintending Engineer,
Udumalpet Electricity
Distribution Circle, Udumalpet.

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