T.A. Gami vs State of Gujarat and Another

Abhilasha Kumari, J.—By filing the present petition, under Article 226 of the Constitution of India, the Petitioner has prayed that the

impugned order dated 08.05.2008 passed by Respondent No. 1, rejecting the representation of the Petitioner for change of date of birth, be

quashed and set aside and the Respondents be directed to correct the date of birth of the Petitioner to 06.02.1954 instead of 31.10.1951, as

entered in the service book.

Briefly stated, the relevant facts of the case are that the Petitioner joined the service of the Respondent-State, as a direct recruit Mamlatdar, in

the year 1978. The Petitioner was promoted to the post of Deputy Collector in the year 1983 and is, at present, working on the post of Additional

Collector. The case of the Petitioner is that soon after he joined service, it came to his notice that there was a discrepancy in the service record

with regard to his date of birth. According to the Petitioner, his correct date of birth is 06.02.1954, but in the service record, the date of birth has

been wrongly recorded as 31.10.1951. As the date of birth of the Petitioner was not registered in the Register of Births and Deaths, the Petitioner

approached the learned Judicial Magistrate First Class, who is the competent authority in this regard. By certificate dated 12.09.1980, the Judicial

Magistrate First Class, after verifying the available record, certified that the correct date of birth of the Petitioner is 06.02.1954. Thereafter, on

11.12.1980, the Petitioner made an application to the Respondents, requesting that the error in recording his date of birth in the service record be

corrected. The above-mentioned application of the Petitioner was rejected by the Respondents, vide order dated 05.02.1982, communicated to

the Petitioner by letter dated 06.03.1982. The Petitioner, thereafter, made several representations to the Respondents authorities, requesting them

to reconsider the issue regarding correction of his date of birth, but no further decision was communicated to the Petitioner in this regard. Under

these circumstances, the Petitioner filed a Civil Suit being, Civil Suit No. 127 of 1996 in the Court of learned Civil Judge(Senior Division), Jam

agar. The said suit was decreed by judgment and decree dated 24.03.2003, whereby it was declared that the date of birth of the Petitioner is

06.02.1954. The Respondent authorities were directed to consider the correct date of birth of the Petitioner as being 06.02.1954 and to make

necessary corrections in the service book of the Petitioner. The Respondent-State carried the said judgment of the learned Civil Judge in Appeal,

being Regular Civil Appeal No. 44 of 2005, which came to be allowed on technical grounds of limitation and territorial jurisdiction.

The Petitioner then approached this Court by filing a petition, being Special Civil Application No. 27816 of 2007, wherein, vide order dated

29.10.2007, the Respondents were directed to considerthe representation of the Petitioner, in accordancewith law. Pursuant thereto, the Petitioner

made a detailed representation to the Respondents, which has been rejected by the impugned order dated 08.05.2008. Hence this petition.

Mr. Paresh Upadhyay, learned advocate for Mr. Vaibhav A. Vyas, learned advocate for the Petitioner has submitted that the grounds on which

the representation has been rejected by the impugned order, are absolutely illegal, arbitrary and baseless. That the first ground taken by the

Respondents is that the order of the learned Judicial Magistrate First Class is not admissible. It is submitted that this stand of the Respondents is

not only in contravention of the Registration of Births and Deaths Act, 1969, but the same is also in contravention of the settled legal position, that

incases where the date of birth is not registered with the competent authority, it is the Judicial Magistrate First Class, who is empowered to issue

necessary orders regarding the date of birth of a person. In the present case, as the date of birth of the Petitioner is not recorded in the Register of

Births and Deaths, the certificate of the learned Judicial Magistrate First Class, being the competent authority, ought to have been taken into

consideration by the Respondents. That the learned Civil Judge, has decreed the suit in favour of the Petitioner by declaring that his correct date of

birth is 06.02.1954, and the order of learned Civil Judge has been set aside by the Appellate Court on the technical grounds of limitation and

jurisdiction, but not on merits. That the second ground for rejection of the application of the Petitioner, namely that of delay is also baseless and

arbitrary, as the Petitioner joined service in the year 1978 and has made the application for change of date of birth on 11.12.1980. The Petitioner

has completed his probation period on 10.11.1983, which fact is not disputed. The Petitioner has made the application on 11.12.1980, which is

before completion of the probation period and also within five years of service. Therefore, there is no question of the application being delayed, as

mentioned in the impugned order. By passing the impugned order on absolutely illegal and baseless considerations, the Petitioner is being greatly

prejudiced, as the said order has far reaching consequences upon the service prospects of the Petitioner, including his nomination to the I.A.S.

Cadre, therefore, the prayers made in the petition may be granted.

An affidavit-in-reply has been filed by the State Government, wherein no cogent ground has been raised regarding the aspect of delay, or any

plausible reason why the application of the Petitioner for change of date of birth has been rejected.

It is mentioned in paragraph 7 of the said affidavit that as per Government Resolution dated 08.05.1978, after the service book of the

concerned employee is prepared and before completion of the probation period or within five years continuous services of the temporary

employee, whichever is earlier, the request for change of date of birth can be considered, but not thereafter. However, it is not stated in the said

affidavit that the request of the Petitioner is belated, or it has not been made in accordance with the above-referred provisions of the said

Government Resolution.

Mr. Maulik G. Nanavati, learned Assistant Government Pleader, has supported the impugned order, but has not been able to satisfactorily

make good the aspect of delay or the reason why the certificate of the learned Judicial Magistrate First Class cannot betaken into consideration by

the Respondents. Nor has any plausible ground been made out for rejection of the request of the Petitioner for change of date of birth.

Having heard the learned advocate for the respective parties, and on perusal of the averments made in the petition, documents annexed thereto

and the affidavit-in-reply, it clearly emerges that the grounds for rejection of the representation of the Petitioner, as mentioned in the impugned

order, dated 08.05.2008 are not in consonance with the factual or legal position. It is not disputed that the date of birth of the Petitioner has not

been entered in the Register of Births and Deaths, therefore, as per provisions of the Registration of Births and Deaths Act, 1969, the learned

Judicial Magistrate First Class is empowered to issue a certificate regarding the date of birth. After verifying the available record, certificate dated

12.09.1980 has been issued by the learned Judicial Magistrate First Class, certifying that the correct date of birth of the Petitioner is 06.02.1954.

The Petitioner has made the application for change of date of birth on 11.12.1980, therefore, it cannot be said that it is barred by delay and

latches, as per Government Resolution dated 08.05.1978, quoted by the Respondents in the affidavit-in-reply. The Petitioner was appointed as a

direct recruit Mamlatdar in the year 1978 and was promoted to the post of Deputy Collector in the year 1983. The application for change of date

of birth has been made on 11.12.1980,which is before the period of five years from the date of joining service. This aspect is not denied by the

Respondents either in the impugned order or in their affidavit-in-reply, therefore, it is difficult to uphold the stand of the Respondents taken in the

impugned order. In fact, it is specifically stated therein that the Petitioner has made an application on 11.12.1980. On the face of it, the impugned

order has been passed without proper application of mind and in a arbitrary manner. It is, therefore, not sustainable in law and deserves to be

quashed and set aside.

For reasons stated hereinabove, the petition is partly-allowed. The impugned order dated 08.05.2008,rejecting the representation of the

Petitioner for change of date of birth in his service record to 06.02.1954 instead of 31.10.1951, is hereby quashed and set aside. The Respondent

authorities are directed to reconsider the case of the Petitioner for change of date of birth and take a decision, within a period of three months from

the date of receipt of the order of this Court.

In case of necessity, it is open to the Respondents to give an opportunity of personal hearing to the Petitioner.

Rule is made absolute, to the above extent. There shall be no orders as to costs.