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2011 DIGILAW 3134 (MAD)

S. R. Mohandoss v. Executive Engineer, Thanjavur

2011-07-01

M.M.SUNDRESH

body2011
JUDGMENT :- 1. This petitioner herein has filed the present writ petition challenging the order dated 27.4.2005 passed by the first respondent whereby the petitioner's request for alteration of date of birth was rejected. The petitioner has also sought a direction to respondents 1 to 3 to permit him to continue in service till 30.04.2006 with all consequential benefits such as increment, promotion and continuity of service etc. 2. The petitioner joined in the services of the respondent on 5.8.1971. The petitioner's school record indicated his date of birth as 12.02.1946. The petitioner made a representation on 07.12.1970 to the District Educational Officer, Thanjavur seeking alteration of date of birth as 27.4.1948. The request of the petitioner was rejected on the ground that after issuance of S.S.L.C book, the said request cannot be considered. 3. After joining the service, the petitioner made a representation to the respondents on 24.07.1972 as per Rule 49 of the Tamil Nadu State and Subordinate Service Rules seeking alteration of date of birth enclosing his birth certificate. The representation filed by the petitioner has been kept pending and there has been exchange of correspondence between the petitioner and the respondents. An application was filed by the petitioner in O.A.No.936 of 1989 before the Tamil Nadu State Administrative Tribunal to consider his representation dated 26.09.1997 for alteration of date of birth as 27.4.1948. Finally on 27.02.2004, the petitioner's request was rejected on the ground that the application is made belatedly beyond the period of limitation. 4. The petitioner filed another application in O.A.No.1418 of 2004 challenging the order dated 27.2.2004, by which his application for alteration of date of birth was rejected on the ground of delay. The Administrative Tribunal dismissed the original application filed by the petitioner on 12.4.2004. Challenging the judgment rendered by the said Administrative Tribunal, the petitioner filed a writ petition before the Division Bench of this Hon'ble Court in W.P.No.19411 of 2004 and the Division Bench of this Court, by order dated 20.9.2004, was pleased to set aside the order passed by the Tribunal and directed the respondents to consider the application of the petitioner dated 24.7.1972 on merits and in accordance with law within a period of three months. Thereafter, the time limit was extended by an order dated 3.3.2005. By the impugned order dated 27.4.2005, the petitioner's request has been rejected. Thereafter, the time limit was extended by an order dated 3.3.2005. By the impugned order dated 27.4.2005, the petitioner's request has been rejected. Challenging the same, the petitioner has filed the present writ petition. 5. During the pendency of the writ petition, a report has been called for by this Court from the Revenue Divisional Officer, Kumbakonam. After verifying the birth records of the petitioner as well as that of his immediate elder brother, a report has been filed before this Court to the effect that the birth certificate of the petitioner and the birth certificate of the petitioner's elder brother as well as his death certificate are true. 6. Mr.Kannan, learned counsel appearing for the petitioner has submitted that the report of the Revenue Divisional Officer, Kumbakonam would clearly establish the fact the petitioner's birth certificate as stated by him is true. The petitioner has applied to the respondents within the time limit as held in the order of the Division Bench of this Court. Therefore, the reason assigned in the order impugned cannot be sustained. The respondents have rejected the request of the petitioner without any basis. According to him, between the birth extract maintained by the public authorities and the school records the earlier one will have to prevail. In support of his contention, the learned counsel has relied upon the recent judgment reported in 2011 W.L.R. 575 (K.C.KALAIKOVAN VS. THE COMMISSIONER, REVENUE ADMINISTRATION, CHEPAUK, CHENNAI 5 AND OTHERS 7. Per contra, the learned Government Advocate has filed a counter affidavit and submitted that the petitioner has not produced sufficient evidence to substantiate his case. The birth and death of his immediate elder brother has not been proved. The school records are the conclusive proof to show the correct date of birth. Therefore, he submitted that the writ petition will have to be dismissed. 8. Admittedly, the petitioner has made an application within time i.e. on 24.7.1972. This fact has been taken note of by the Hon'ble Division Bench and a direction was issued to the respondents to consider the application of the petitioner in accordance with law. It has been the consistent case of the petitioner that he was born on 27.4.1948 and not on 12.2.1946. The petitioner has been agitating this fact right from the year 1970 onwards. It has been the consistent case of the petitioner that he was born on 27.4.1948 and not on 12.2.1946. The petitioner has been agitating this fact right from the year 1970 onwards. The report of the Revenue Divisional Office, Kumbakonam, which has been filed before this Court clearly establishes the fact that the birth register of the petitioner indicating his date of birth as 27.4.1948 is true and genuine. The report also further states that the date of birth of his immediate elder brother is true and the relevant entries regarding the same are also true and genuine. The ground for rejection to the effect that the petitioner failed in VIII standard and he would have been taken from VIII to S.S.L.C by taking into consideration the original date of birth is not relevant for deciding the issue as to whether the date of birth given by the petitioner for correction is true or not. The respondents have not questioned the report of the Revenue Divisional Officer, Kumbakonam. 9. The entries made in Deaths and Births Register by the statutory authority raise a presumption of correctness and such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act. Such Register being a public record will have preference over the school records. 10. Considering the same it has been held by the Hon'ble Apex Court in CIDCO VS. VASUDHA GORAKHNATH MANDEVLEKAR in the following manner: "The Deaths and Births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent." 11. After considering the ratio laid down by the Hon'ble Apex Court, this Court in K.C.KALAIKOVAN VS. THE COMMISSIONER, REVENUE ADMINISTRATION, CHEPAUK CHENNAI 5 AND OTHERS (2011) W.L.R 575) held as follows: "9. When the birth register extract has been produced, the respondents have no justification in insisting upon further evidence. The authority cannot disown the birth certificate issued by the competent authority unless it is held to be false or obtained by misstatement. It will be valid so long it is in force". 12. When the birth register extract has been produced, the respondents have no justification in insisting upon further evidence. The authority cannot disown the birth certificate issued by the competent authority unless it is held to be false or obtained by misstatement. It will be valid so long it is in force". 12. Therefore, taking into consideration the legal principle enunciated by the Hon'ble Apex Court followed by this Court, coupled with the report given by the Revenue Divisional Officer, Kumbakonam dated 24.6.2009, this Court is of the view that the order impugned will have to be set aside and accordingly, the same is set aside. 13. However, the petitioner has not actually put in his service after the retirement since his date of birth as 12.2.1946 was taken into consideration by the respondents. Hence, taking into consideration the fact that the petitioner would have worked for more than two years if the correct date of birth had been taken into account, this Court is of the view that the retirement benefits due to the petitioner, including pension will have to be computed by taking into consideration the date of retirement of the petitioner as 27.4.1948. Therefore, the retirement benefits will have to be given to the petitioner by notionally taking into consideration all the benefits which he is otherwise entitled to had his date of birth been considered as 27.4.1948. It is made clear that the petitioner is not entitled for the actual salary for the extended period of service by taking into consideration his date of birth as 27.4.1948. He is entitled to other benefits as if he was working based on his date of birth as 27.4.1948. The respondents are directed to complete the said exercise and calculate the retirement benefits payable to the petitioner in the light of the discussion made above and pay the same to the petitioner within a period of three months from the date of receipt of a copy of this order. 14. The writ petition is disposed of. No costs.