K. Sathuru Sankaravelan vs The Government of Tamilnadu and Others

M. Jaichandren, J.—Heard the learned Counsel appearing for the petitioner and the learned Additional Government Pleader appearing for

the respondents.

The petitioner has stated that he was selected for appointment to the post of Art Master, on 10.9.81, in the Government Higher Secondary

School, Ayakkaranpulam, and from the date of the said appointment, he has been carrying on his duties, without any blemish. While so, the

petitioner had applied for alteration of his date of birth from 5.3.54 to 5.3.55, as his date of birth was wrongly entered in his school and service

records, on the basis of the declaration made by his father. The petitioner had forwarded an application for the alteration of his date of birth, in the

prescribed format, along with the necessary documents to support his claim. In the birth extract obtained from the records maintained by the Sub

Registrar, Vedaraniam, it is clear that the date of birth of the petitioner is 5.3.55. As the birth certificate is a public document, which is

unimpeachable, the petitioner had forwarded a succession certificate, dated 28.9.84, issued by the Revenue Divisional Officer, Vedaraniam, to

prove that the date of birth of the petitioner is 5.3.55 and not 5.3.54, as shown in the school records. As soon as the petitioner came to know

about the actual date of birth, he had submitted an application, along with the necessary documents, in support of his claim. In reply to the

application, dated 31.1.94, forwarded by the petitioner, the fourth respondent has passed the impugned order in his proceedings, A.Ti.Mu. No.

1508/A4/94, dated 21.4.94, even without conducting an enquiry or directing the revenue authorities to conduct an enquiry to find out the facts,

with regard to the merits of the case. The fourth respondent has given an independent finding that the application has not been made within five

years, as per the relevant rules applicable to the case. The fourth respondent ought to have gathered the reasons for the delay by giving an

opportunity to the petitioner. However, without doing so, he has passed the impugned order, which is arbitrary, ultravires and illegal.

In the reply affidavit filed on behalf of the respondents, the allegations made by the petitioner have been denied. It has been stated that the

application of the petitioner, dated 31.1.94, seeking alteration of the date of birth in his service register, as 5.3.55, instead of 5.3.54, was received

by the Headmaster, on 4.2.94, and it was forwarded to the Chief Educational Officer, who is the appointing authority, for taking necessary action.

At the time of his entry into service, the petitioner''s date of birth has been recorded as 5.3.54, based on the entry made in the S.S.L.C. book. As

per Rule 49(C) of the Tamil Nadu State and Subordinate Service Rules, any application received after five years from the date of a person''s entry

into service shall be summarily rejected. Since the petitioner had submitted his application for alteration of his date of birth beyond the period of

limitation, as stated in the said rule, his application was rejected. In fact, the petitioner had submitted his application after 13 years from the date of

entry into service. Therefore, the claims made by the petitioner are devoid of merits.

In U.P. Madhyamik Shiksha Parishad and Ors. v. Raj Kumar Agnihotri 2006 2 L.W. 182, the Supreme Court relying on its earlier decisions in

State of U.P. and Others Vs. Smt. Gulaichi, , State of Uttaranchal and Ors. v. Pitamber Dutt Semwal (2002) 1 UPLBEC 441 SC, State of T.N.

Vs. T.V. Venugopalan, , Executive Engineer, Bhadrak (R&B) Division, Orissa and Ors. v. Rangadhar Mallik 1993 Supp (1) SCC 763 ,

Government of Andhra Pradesh and Another Vs. M. Hayagreev Sarma, , Union of India Vs. Harnam Singh, , Burn Standard Co. Ltd. and Others

Vs. Dinabandhu Majumdar and Another, and Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, , had come to the

conclusion that the correction in entries made in the Government records, on the basis of which the Government servant got the service, cannot be

allowed to be changed just a few years before retirement or at the fag end of his service.

In The Secretary & Commissioner v. R. Kirubakaran (1994) Supp (1) SCC 155, the Supreme Court has held as follows:

The Tamil Nadu Service Manual contains Rules 49 and 49-A, which are the provisions in respect of alteration and correction of the date of

birth. Whenever any application is filed by persons governed by those service rules, procedures prescribed therein have to be strictly followed,

including the time-limit prescribed for making such an application. Clause (b) of the aforesaid Rule 49 provides that after a person has entered in

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 in service...."" It need not be pointed out that if an application is made for correction of the date of birth mentioned in the

service records at an early date or within the time prescribed, the authorities are in a much better position to verify the same. Normally, in most of

the services, the date of birth is recorded in the service records on the eve of the appointment with reference to the date of birth mentioned in the

Matriculation Certificate, Higher Secondary Education Board Certificate or any other certificate of similar nature produced by the applicant

concerned at the time of making application for his appointment. As such whenever an application for alteration of the date of birth is made on the

eve of superannuation or near about that time, the Court or the tribunal concerned should be more cautious because of the growing tendency

amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and

circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal.

5.1. In State of T.N. Vs. T.V. Venugopalan, , the Supreme Court has held as follows:

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. It is seen that the respondent

entered into the service on 12.1.1952, and only when he was due for superannuation at the age of 58 years on 31.8.1991, he made the application

exactly one year before his superannuation. The Government rejected his claim before he attained the age of superannuation on 30.8.1991. When

questioned, the Tribunal, for incorrect reasons, set aside the order and remitted the matter for reconsideration. The Government considered

various facts and circumstances in the GOMs No. 271 and rejected the claim on 31.3.1993. The evidence is not unimpeachable or irrefutable. The

Tribunal in its judicial review is not justified in trenching into the field of appreciation of evidence and circumstances in its evaluation to reach a

conclusion on merits as it is not a court of appeal. This Court has, repeatedly, been holding that the inordinate delay in making the application is

itself a ground for rejecting the correction of date of birth. The government servant having declared his date of birth as entered in the service

register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the

service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time

to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public

employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the

authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This

case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even

trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given

all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be

countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs. 3000.

5.2. In State of U.P. and Others Vs. Smt. Gulaichi, , the Supreme Court has held as follows:

Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also

fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice

prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records.

But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking

the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals

concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not.

Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public

servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such

rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth,

the application for that purpose can be entertained, the sole object of such rules being that any such claim regarding correction of the date of birth

should not be made or entertained after decades, especially on the eve of superannuation of such public servant....

5.3. In State of Punjab Vs. Mohinder Singh, , the Supreme Court has held as follows:

Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was

made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope

to be treated as evidence in terms of Section 32 Clause (5) must be proved to have been made by a person having special means of knowledge as

regards authenticity of a date, time etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age. (see

Ramnarain Kallia v. Monee Bibee, Biro v. Atma Ram and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak.)

On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the

school authorities by the father, guardian or a close relative is more authentic evidence u/s 32 Clause (5) unless it is established by unimpeachable

contrary material to show that it is inherently improbable. The time of one''s birth relates to the commencement of one''s relationship by blood and

a statement therefore of one''s age made by a person having special means of knowledge, relates to the existence of such relationship as that

referred to in Section 32 Clause (5).

As observed by this Court in Umesh Chandra v. State of Rajasthan ordinarily oral evidence can hardly be useful to determine the correct age

of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility

if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a

particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal

requirement that the public or other official book should be kept only by a public officer and all that is required u/s 35 of the Evidence Act is that it

should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam.

At the stage of the hearing of the writ petition, an unreported decision of this Court, dated 27.6.2008, in A. Rajagopalan v. The Registrar,

University of Madras, Chepauk, Chennai W.P. No. 13000 of 2008 had also been placed before this Court for consideration. Referring to the

various decisions of the Supreme Court reported in State of Orissa and Others Vs. Brahamarbar Senapathi, , Union of India (UOI) Vs. Ram Suia

Sharma, , G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others, , State of Punjab and Others Vs. S.C. Chadha, ,

State of U.P. and Another Vs. Shiv Narain Upadhyaya, , U.P. Madhyamik Shiksha Parishad and Others Vs. Raj Kumar Agnihotri, , State of

Uttaranchal v. Pitamber Dutt Semwal (2005) 11 SCC 477, Coal India Ltd. v. Ardhendu Bikas Bhattacharjee (2005) 12 SCC 201, State of

Gujarat and Others Vs. Vali Mohmed Dosabhai Sindhi, , the learned Single Judge of this Court had dismissed the writ petition filed by the

petitioner, requesting for alteration of his date of birth, holding that the petitioner is not entitled to the reliefs prayed for in the writ petition as he

could not show that his request was in accordance with the relevant rules applicable to the case.

On a perusal of the records available before this Court, it is seen that in the Government order G.O.Ms.No.103, Public (Services), dated

24.1.1961, instructions had been issued prescribing the procedure to be followed in dealing with the applications for alteration of date of birth from

persons in service and from candidates applying for appointment to the services under the state. In the Government Order G.O.Ms. No. 1166,

Public (Services-A), dated 7.7.1961, rules had been framed to give statutory effect to the instructions. Pursuant to the Government Order

G.O.Ms. No. 1166, Public (Services-A), dated 7.7.1961, an amendment had been made to the general rules of the Madras State and

Subordinate Services Rules, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, by adding Rule 49,

regarding alteration of date of birth, which reads as follows:

Amendment

In the said rules, after Rule 48, the following rule shall be added, namely:

Alteration of date of birth: (a) If, at the time of appointment, a candidate claims that his date of birth is different from that entered in his

S.S.L.C. or Matriculation Register or school records, he shall make an application to the Madras Public Service Commission in cases where the

appointment is made in consultation with the Commission and in other cases to the appointing authority stating the evidence on which he relied and

explaining how the mistake occurred. The application shall be forwarded to the Board of Revenue for report after investigation by an officer not

below the rank of a Deputy Collector and on receipt of the report, the Madras Public Service Commission or the appointing authority, as the case

may be, shall decide whether the alteration of date of birth may be permitted or the application may be rejected.

(b) After a person has entered service, an application to correct the date of his birth as entered in the official records shall normally 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 shall be summarily rejected unless the applicant gives adequate explanation for

making such belated application to the authority competent to deal with it. If the application is entertained, the authority concerned shall, after

following the procedure as to enquiry laid down in Sub-rule (a) submit the case to the Government with its recommendation and the Government

shall, after consulting the Madras Public Service Commission, pass orders thereon.

(d) In considering the question of permitting an alteration in the date of birth as entered in the official records even when such entry is proved to

have been due to a bona fide mistake the Government or the appointing authority shall take into consideration the circumstance whether the

applicant would normally be eligible for appointment to the post at the time of entry into service had his age been correctly stated and what would

have been its effect on his service and the service conditions of other officers in the service and may permit the alteration subject to such conditions

as they or it may deem fit to impose.

(e) The procedure laid down in Sub-rules (a) to (d) shall be followed also in cases where alteration of date of birth is proposed suo motu by the

Head of office on the basis of medical opinion, in the absence of any other authoritative records.

(f) The decision of the Madras Public Service Commission, the appointing authority or the Government as the case may be, shall be final.

The said amendment was deemed to have come into force on 24.1.1961, which is the date when the Government Order G.O.Ms. No. 103,

Public (Services), dated 24.1.1961, had come into force.

It has also been pointed out that in a case relating to a claim for alteration of date of birth made by a Government servant, who was in service

prior to 24.1.1961, and when such a claim had been made after the lapse of five years from the date of his entry into service, the Tamil Nadu

administrative tribunal had ordered that a specific provision should have been made under Rule 49, regulating the procedure for those in service on

the date of introduction of the rule. As no such intention has been indicated at the time of its introduction, Rule 49, as it stood, will not debar the

applicant from making an application for alteration of his date of birth. Accordingly, the Government of Tamil Nadu, in letter Ms.No.380,

Personnel and Administrative Reforms (Per.S) Department, dated 22.8.1990, had issued a clarification stating that in future the applications to be

received for the alteration of date of birth from members who were appointed prior to the introduction of the rule, i.e. prior to 22.6.1961, may be

entertained and examined on merits following the procedure laid down in General Rule 49.

Since a large number of requests were being received from the Government servants for alteration of their date of birth, the Government of

Tamil Nadu had issued a Government Order in G.O.Ms. No. 395, Personnel and Administrative Reforms (Personnel-S), Department, dated

15.12.1992, stating that the Government, after careful examination, had decided to prescribe a time limit for submitting such applications.

Therefore, it was decided that the Government servants, who had entered into Government service prior to 24.1.1961 and who wish to apply for

alteration of the date of their birth, should do so atleast one year before the date of their retirement. Therefore, an amendment had been made in

Sub-rule (c) in Rule 49 of the General Rules for the Tamil Nadu state and Subordinate Services, by adding a proviso thereto, which reads as

follows:

Amendment

In the said Rules, in Rule 49, in Sub-rule (c) the following proviso shall be added, namely:

Provided that the application for alteration of date of birth of a person who entered into service prior to the 24th January, 1961 shall be submitted

atleast one year before the date of his retirement reckoned with reference to the official records.

It was decided that the said amendment shall come into force on 15.12.1992. While so, in a case relating to the claim of alteration of date of

birth, the Supreme Court of India in C.A. No. 5422 of 1994, had observed that Rule 49 of the General Rules for the Tamil Nadu state and

Subordinate Services, introduced in the year 1961, is to be harmoniously interpreted. Accordingly, applications 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. If no application is made after the

expiry of five years, the Government employee looses his right to make an application for the correction of date of birth. Based on the decision of

the Supreme Court, the Government of Tamil Nadu had issued a Letter Ms.No.154, Personnel and Administrative Reforms (S) Department,

dated 24.5.1995. It was proposed to omit the proviso of Sub-rule (c) in Rule 49 of the General Rules for Tamil Nadu state and Subordinate

Services, retrospectively, with effect from 3.8.1994, which is the date of the order of the Supreme Court. Thereafter, a Government order had

been issued in G.O.Ms. No. 380, Personnel and Administrative Reforms (S) Department, dated 27.12.1995, amending Rule 49 of the General

Rules, by omitting the proviso to Sub-rule (c) of Rule 49.

In G.O.Ms. No. 2052, Public (C) Department, dated 12.8.1972, an amendment had been issued to the General Rule 49(C) to the effect that

Any application received after five years after entry into service shall be summarily rejected"". The said provision had come into effect on and from

19.8.1970. Since the said date has been erroneously stated in the first paragraph of G.O.Ms. No. 395, Personnel and Administrative Reforms

(Personnel-S) Department, dated 15.12.1992, though the said amendment had come into force with effect from 24.1.1961, the Government of

Tamil Nadu had issued G.O.Ms. No. 66, Personnel and Administrative Reforms (S) Department, dated 2.2.1996, making the necessary

amendment by showing the correct date.

In view of the submissions made by the learned counsels appearing for the parties concerned and in view of the decisions cited above, it is

clear that the petitioner ought to have made his request for alteration of his date of birth, within a period of five years from the date of his joining in

service or atleast within five years from the date of the coming into force of the Rule in the year 1961, if the employee concerned was in service at

that time. Since the petitioner had not made his request within the time limit prescribed, his request had been rejected by the impugned order, dated

21.4.94, passed by the third respondent. According to General Rule 49(c) of the Tamil Nadu State and Subordinate Service Rules, any request

made for alteration of date of birth would be summarily rejected, if it has been made beyond five years from the date of the person''s initial

appointment. The said rule has been enacted to discourage persons from making representations for alteration of their date of birth at the fag end

of their career. If such requests are entertained, it would cause great hardship for those persons whose seniority had already been fixed and in

some cases certain rights would have accrued in their favour. Such seniority or rights cannot be disturbed based on the representations made by

certain persons at the fag end of their career, close to the date of their retirement. The various decisions of the Courts of law, as noted above,

make it clear that the alteration or change of date of birth could be done only within five years from the date of joining in service, in accordance

with General Rule 49 of the Tamil Nadu State Subordinate Service Rules. Since the petitioner had not made his request within the prescribed time

limit, it has been summarily rejected by the impugned proceedings of the respondent, in accordance with the established rules applicable to the

case.

In such circumstances, the petitioner has not shown sufficient cause or reason for granting the reliefs prayed for by him. Accordingly, the writ

petition stands dismissed. No costs.