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2012 DIGILAW 544 (BOM)

Pramodini Muzawar v. Secretary of Tourism, Goa

2012-03-12

S.C.DHARMADHIKARI, U.V.BAKRE

body2012
JUDGMENAT :- U. V. BAKRE :- Heard. 2. Rule. Mr. G. Shirodkar, learned Government Advocate, waives service on behalf of the respondents. 3. Heard forthwith with the consent of the parties. 4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed as under: (i) This Hon' ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order, direction declaring the order dated 30/01/2012 issued by the respondent no. 2 as illegal and commanding the respondents no. 1 to 3 to withdraw the order dated 30/01 /2012 or set aside the same. (ii) This Hon 'bIe Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order, direction, commanding the respondents no. 1 to 3 to correct the date of birth of the petitioner from 25/05/1952 to 26/03/1956 in the service records of the petitioner. (iii) This Hon 'ble Court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order, direction, directing the respondents no. 1 to 3 not to retire the petitioner on the basis of wrong date of birth in the service record. 5. The petitioner states as fol1ows: She was born on 26/03/1956 at Mumbai and her birth was registered in Brihanmumbai Mahanagarpalika on 11/04/1956. After few months of the birth of the petitioner, her mother expired and her father came down to Goa and settled at Bicholim. The primary and higher education of the petitioner was completed at Bicholim, Goa and after her' marriage, the name of the petitioner is changed to Pramodini Muzawar. In October, 1980, the petitioner was appointed as Receptionist in the office of the Director of Tourism, Government of Goa and thereafter, she was appointed as Lower Division Clerk. In the year 1991, she got promotion as Upper Division Clerk and in 2003, she was promoted as Information Assistant. In the year 2003, the petitioner came to know that her date of birth has been wrongly recorded in the service record as 27/03/1952 instead of 26/03/1956 due to which on 17/02/ 2003, she made representation for correction of the service record. In the year 2003, the petitioner came to know that her date of birth has been wrongly recorded in the service record as 27/03/1952 instead of 26/03/1956 due to which on 17/02/ 2003, she made representation for correction of the service record. By letters dated 26/06/2003 and 28/08/2003, the Deputy Director of Tourism asked the petitioner to furnish details of the school and on 05/09/2003, she furnished the said documents. In the year 2007, the petitioner was orally informed by the then Director of Tourism Mr. Elvis Gomes that the correction about the date of birth of the petitioner, to be recorded in service records, has been approved. However, on 27/06/2010, the petitioner received a memorandum from the Director of Tourism, namely Shri Swapnil Naik to produce the original birth certificate and educational qualification certificate since they were not available in the file. The petitioner addressed a letter dated 07/07/2010 explaining the facts and requesting him to correct the records. Again on 22/07/2011, the petitioner sent a letter to the Director of Tourism to carry out correction in the office records by showing the correct birth date. On 24/10/2011, the petitioner issued legal notice to the respondents apprehending that the respondents may proceed to retire the petitioner on the basis of the wrong date of birth mentioned in the service record. However, by order dated 30/01/2012, the Director of Tourism namely Swapnil Naik rejected the request of the petitioner and ordered that that the date of birth as shown in the service book i.e. 27/03/1952 stands confirmed. The petitioner has conflict with the present Director of Tourism namely Mr. Swapnil Naik, who has issued the impugned order over the issue of putting up a bill for approval since the petitioner had not put up the note as desired by the Director since she found certain discrepancy and, therefore, the Director was annoyed. 6. In answer to the writ petition, the Director of Tourism i.e. respondent no. 2 has filed two affidavits, one prior to the amendment carried out to the petition and the other after the amendment. 7. Respondent no. 2 has stated as follows : The petitioner did not take steps to correct the date of birth in the record of service book within a period of five years as required by the service rules. 2 has filed two affidavits, one prior to the amendment carried out to the petition and the other after the amendment. 7. Respondent no. 2 has stated as follows : The petitioner did not take steps to correct the date of birth in the record of service book within a period of five years as required by the service rules. As per the service book record, the date of birth was recorded as 27/ 03/1952 and the same was acknowledged by the petitioner and attested by the designated officer on 18/02/1999 and even at that time, the petitioner did not take steps for correcting the date of birth. In the service records, neither the birth certificate nor school leaving certificate or educational qualification certificates are available. The birth certificate produced by the petitioner for correction of date, shows the date of birth as 26/03/1956 which is registered on 11/04/1956 at Mumbai. However, the school leaving certificate shows that the birth place of the petitioner is at Bicholim and the date of birth as 26/05/1956. Therefore, there is a doubt about the correct date of birth and place of birth. On the representation of the petitioner, enquiry was conducted, but the then Director without considering the service rules regarding the date of birth and its subsequent alteration, was pleased to approve the request. However, no further action was taken on the same. The respondents have not corrected the date of birth in the service record since the request for correction was made beyond the prescribed period under the service rules and further since there was discrepancy in the birth date and place of birth as stated earlier. The Director of Tourism, as a head of department, has power to review the decision taken in the year 2008. 8. The petitioner has filed an affidavit-in-rejoinder, denying the averments made by the respondent no. 2 in the affidavits and stating some new facts. 9. Shri P. A. Kamat, learned Advocate, argued on behalf of the petitioner and learned Government Advocate Shri G. Shirodkar argued on behalf of the respondents. 10. Shri Kamat, learned Counsel for the petitioner, in support of the petition, has contended that though the petitioner was appointed in the year 1980, however no renewal/re-attestation of the service book was done within five years. He invited our attention to the note no. 10. Shri Kamat, learned Counsel for the petitioner, in support of the petition, has contended that though the petitioner was appointed in the year 1980, however no renewal/re-attestation of the service book was done within five years. He invited our attention to the note no. 1 in service book which says that the entries on this page should be renewed or re-attested at least every five years and the signatures against items 14 and 15 should be dated. 11. The learned counsel for the petitioner, further contended that for the first time, the petitioner has signed the service book on 18/02/1999 and within five years thereafter i.e. on 17/02/2003, she made her request to correct the date of birth. He pointed out that the birth certificate produced by the petitioner shows the date of birth as 26/03/1956 and the school leaving certificate issued by Our Lady of Grace High School, Bicholim Goa shows the date of birth as 25/05/1956. The learned Counsel further argued that the respondents do not have any documents to show that the petitioner had furnished the date of birth as 27/ 03/1952. According to learned counsel, since the correction of the date of birth as 25/05/ 1956 was approved by the Director of Tourism by order dated 09/05/2008, which approval was on verification of documentary evidence i.e. School Leaving Certificate, the same could not have been subject to any further alteration. He invited our attention to Note 6 under Rule 56 of the Fundamental Rules. Therefore, it is submitted by the learned counsel that the petitioner is entitled to continue in service till 26/3/2016 and since the respondent no.2 is bent upon to retire the petitioner from March 2012, she is entitled to the reliefs claimed. 12. Per contra, learned Government Advocate argued that the petitioner was appointed in the year 1980 and the service book reveals that she had declared her date of birth as 27/03/1952. He argued that as per the said Note 6 under rule 56 of the Fundamental Rules, an alteration of date of birth of Government servant can be made, inter alia, if (a) a request in this regard is made within five years of entry into Government service; (b) it is clearly established that a genuine bona fide mistake has occurred. 13. 13. Learned Government Advocate would further submit that the petitioner has approached the department for the first time on 17/02/2003 i.e. almost after 22 years for correction of birth date. He pointed out from the service records that on 18/02/ 1999 the petitioner has signed the said record and, therefore, at least on that date she had knowledge that her birth date has been recorded as 27/03/1952. He further argued that there is material contradiction between the birth certificate issued by the Municipal Corporation of Greater Mumbai and the School Leaving Certificate issued by Our Lady of Grace High School insofar as the birth of the petitioner is concerned. In the birth certificate, the place of birth is mentioned as Mumbai and the date of birth is mentioned as 26/03/1956, whereas in the School Leaving Certificate, the place of birth is mentioned as Bicholim and date of birth is mentioned as 25/05/1956. He, therefore, argued that on account of such material discrepancy, there is serious doubt about birth date and, therefore, the Director of Tourism has rightly rejected the request. The learned Government Counsel has relied upon the judgment in the case of "State of M.P. and Others Vs. Premlal Shrivas" [(2011) ALL SCR 2456]". 14. With the assistance of the learned counsel for the parties, we have perused the entire material on record. 15. Admittedly, the petitioner joined the service in the office of Director of Tourism, Government of Go a in October, 1980. The service book mentions the date of birth of the petitioner as 27/03/1952. The request for correction in the birth date has been made to the Director, Department of Tourism, for the first time on 17/02/2003, which is almost after 22 years. The petitioner is due for retirement in March 2012 and has filed this Writ Petition on 14/11/2011, i.e. at the fag end of her career. Note 6, under Rule 56 of the Fundamental Rules, reads as under: "Note 6 - The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry or Department of the Central Government, or the Comptroller and Auditor-General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving. If – (a) a request in this regard is made within five years of his entry into Government service; (b) it is clearly established that a genuine bona fide mistake has occurred; and (c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service." 16. Therefore, the request for correction of birth date in the service record has to be made within five years of the entry into Government service and further it has to be clearly established that a genuine, bona fide mistake has occurred. In paragraph 10 of the judgment in the case of "Premlal Shrivas" (supra), the Apex Court has observed as under: "10. In Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran. 1994 Supp (1) SCC 155, indicating the factors relevant in disposal of an application for correction of date of birth just before the superannuation and highlighting the scope of interference by the Courts or the Tribunals in such matters, this Court has observed thus: "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. 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. 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 their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, 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 by the Respondent, 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 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. 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, it has come to the notice of this Court that in many cases, 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 junior." (Emphasis supplied) 17. In the present case, it is seen from the service records that on 18/02/1999, the petitioner has signed the said service record. Hence, the petitioner cannot deny that at least on 18/0211999 she was aware that the birth date recorded in the service record is 27/03/ 1952. In-spite of that, the petitioner kept quiet till 17/02/2003. Relying upon paragraph 15 of the judgment in the case of "Premlal Shrivas, (supra), learned counsel for the petitioner urged that the incorrect recording of the birth date was made due to negligence or mistake or oversight of some other person for which the petitioner should not suffer. No evidence is there to show that the date of birth recorded in the service book as 27/3/1952 is on account of some mistake or negligence of some other person. It is seen that as per the birth certificate issued by Municipal Corporation of Greater Mumbai, the date of birth of the petitioner, is registered as 26/03/1956 and the place of birth is registered as Mumbai. However, in the School Leaving Certificate issued by the Headmaster of Our Lady of Grace High School, the date of birth is mentioned as 25/05/1956 and the place of birth is mentioned as Bicholim. Thus, the discrepancy in these two documents is not only with regard to the place of birth, but also regarding the date of birth. However, in the School Leaving Certificate issued by the Headmaster of Our Lady of Grace High School, the date of birth is mentioned as 25/05/1956 and the place of birth is mentioned as Bicholim. Thus, the discrepancy in these two documents is not only with regard to the place of birth, but also regarding the date of birth. Therefore, it is not clearly established that a genuine bona-fide mistake has occurred in the service record since no conclusive material regarding the correct date of birth has come forth. 18. No doubt, the petitioner has pointed out that the previous Director of Tourism, namely Shri Elvis Gomes had approved the correction to be made in the service record to show that the birth date is 25/05/1956. It is true that the subsequent Director of Tourism, namely Shri Swapnil Naik has passed an order dated 30/01/2012 thereby rejecting the request of the petitioner to change the date of birth. Though the previous Director of Tourism had approved the correction of birth date on 09/05/2008, however, the service records were not corrected/altered at all. From the notings of the department, it is seen that the petitioner had only produced the School Leaving Certificate issued by the Headmaster of Our Lady of Grace High School, Bicholim, Goa for verification. According to the petitioner herself, the place of birth and the date of birth, as mentioned in this leaving certificate is not correct. The petitioner did not produce the birth certificate before the Deputy Director of Tourism. The then Director of Tourism had approved the correction on the basis of the said noting which in turn was based on the wrong information mentioned in the School leaving certificate. However, the present Director of Tourism has seen the birth certificate issued by the Brihanmumbai Mahananagarpalika as also the School Leaving Certificate and he has found that there is serious discrepancy. Therefore, no fault can be found with the order of the Director of Tourism in rejecting the request to correct the birth date. The petitioner has tried to impress upon this Court that the present Director of Tourism is on inimical terms with her. There is no material save and except some statements in the Rejoinder Affidavit. The Director of Tourism, who passed the impugned order, was not there in the year 1980 when the service record of the Petitioner was prepared. The petitioner has tried to impress upon this Court that the present Director of Tourism is on inimical terms with her. There is no material save and except some statements in the Rejoinder Affidavit. The Director of Tourism, who passed the impugned order, was not there in the year 1980 when the service record of the Petitioner was prepared. He was not on the scene in 1999 and 2003. Even after 2003, the earlier Director, who is supposed to have accepted the version of the Petitioner, did not make the change in the date of birth. Once such are the facts and the present Director has gone by the record and the contents of admitted documents, we are of the opinion that the allegations made against him are without any basis. 19. In view of the above, this is not a fit case for interference in the exercise of writ jurisdiction under Article 226 of the Constitution of India. Hence, the petition is dismissed. Rule discharged, however, in the circumstances of the case, with no order as to costs. Petition dismissed.