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2013 DIGILAW 301 (GUJ)

Bhaijibhai Karshanbhai Tadvi v. State of Gujarat

2013-06-13

C.L.SONI

body2013
ORDER : The petitioner by way of this petition under Article 226 of the Constitution of India initially made following prayers at paragraph 20. 20(A) quashing and setting aside the mistake committed by the respondents in recording the date of birth of the petitioner as 18th October 1952 instead of 1st July 1957; (B) directing the respondents to rectify the mistake committed by them by making correct entry in the service record of the petitioner by entering his date of birth as 1st July 1957 instead of 18th October 1952; (C) directing the respondents to treat the petitioner's date of birth as 1st July 1957 for all consequential benefits; (D) passing any other appropriate order. Thereafter since, pending the petition, the petitioner retired w.e.f 31st October 2012, the petitioner amended the petition and incorporated further prayer in paragraph 20(E). "20(E) quashing and setting aside the order dated 30th October 2012 issued by the respondent no. 3 herein whereby the petitioner came to be retired from service." 2. It is the case of the petitioner that the petitioner entered service of respondent no. 4 as Class IV in the year 1978. At the time of joining the service, he produced his school leaving certificate showing his date of birth as 1st July 1957, however, due to mistake of the concerned clerk in recording the correct date of birth of the petitioner, wrong date of birth as 18th October 1952 was recorded in his service book. The petitioner came to know about such wrong recording of his birth date in the year 1996 and therefore, he immediately approached the respondent by representation, but unfortunately the respondent no. 4 informed the petitioner by a communication dated 24th January 1997 that since the entry was made in the service book on the basis of verification of the originals, no correction could be made in the birth date of the petitioner. However, the petitioner was asked to produce original school leaving certificate, which the petitioner produced on 28th January 1997. After the petitioner produced school leaving certificate the respondents made inquiry with the school authorities as well as the Talati of the village. On the basis of the inquiry the respondents found that the correct birth date was 1st July 1957 as mentioned in the school leaving certificate which was attached with the service book of the petitioner. After the petitioner produced school leaving certificate the respondents made inquiry with the school authorities as well as the Talati of the village. On the basis of the inquiry the respondents found that the correct birth date was 1st July 1957 as mentioned in the school leaving certificate which was attached with the service book of the petitioner. The petitioner further averred in the petition that his correct date of birth of 1st July 1957 is also there in other records like PAN card, the identity card issued by the respondents etc. On 2nd February 2012, the respondent no. 4 asked the petitioner to submit certain documents for preparation of his pension papers and by the said letter the petitioner was informed that he would be retired from service on 31st October 2012. The petitioner, therefore by another representation dated 1st March 2012 requested the respondent no. 4 to consider his case for the purpose of correction of birth date in the service book, however, since no favourable reply was received by the petitioner, the petitioner approached the District Collector with an application on 9th March 2012 but his application was rejected. The respondent no. 4 then by letter dated 28th March 2012 asked for further details from the petitioner, which the petitioner supplied to the Deputy Executive Engineer on 11th May 2012 who in turn forwarded to respondent no. 4 on 14th May 2012. It is further case of the petitioner that though the respondent no.4 got confirmed that the mistake was committed by the concerned clerk in recording the correct date of birth of the petitioner still however, the case of the petitioner was rejected. 3. The respondent no. 4 has filed affidavit in reply dated 21st December 2012. It is stated in the affidavit that the correct date of birth of the petitioner as per the school leaving certificate is 1st July 1957, however, the concerned clerk made entry in the service book showing his date of birth as 18th October 1952. It is further stated in the reply that the petitioner has filed an application for correction in the birth date on 18th May 1996 which was not within the time limit prescribed for making such application. 4. I have heard learned advocates for the parties. Learned advocate Mr. It is further stated in the reply that the petitioner has filed an application for correction in the birth date on 18th May 1996 which was not within the time limit prescribed for making such application. 4. I have heard learned advocates for the parties. Learned advocate Mr. Joy Mathew appearing for the petitioner submitted that at the time of entry in the service, the petitioner had produced the school leaving certificate wherein though the date of the birth of the petitioner was found recorded as 1st July 1957 still the concerned clerk committed mistake in recording wrong date of birth of the petitioner in the service book of the petitioner. Mr. Mathew pointed out that the copy of the school leaving certificate remained attached with the service book and except the school leaving certificate there is no other document with the respondents for recording the different date of birth then what is there in the school leaving certificate. Learned advocate Mr. Mathew submitted that the petitioner was not at fault for getting the wrong birth date recorded in his service book and it is clear case of mistake committed by the concerned clerk of the department. Mr. Mathew submitted that the petitioner was not made aware about such mistake of recording of wrong birth date of the petitioner in his service book till the petitioner came to know in the year 1996 and therefore, it cannot be said that the petitioner made application for correction of the birth date at a belated stage. Learned advocate Mr. Mathew submitted that after the petitioner made application in the year 1996 and after the petitioner was called upon to produce more documents in support of his correct birth date of 1st July 1957, the respondents took longtime to take decision on the application of the petitioner for which the petitioner cannot be held responsible. Mr. Mathew submitted that the respondents have also got confirmed the birth date of 1st July 1957 to be correct birth date of the petitioner from the school which issued school leaving certificate as also from the Talati of the village. The respondents were thus fully satisfied that the correct birth date of the petitioner was 1st July 1957 and not 18th October 1952. Mr. The respondents were thus fully satisfied that the correct birth date of the petitioner was 1st July 1957 and not 18th October 1952. Mr. Mathew submitted that inspite of such satisfaction on the part of the respondents and inspite of the fact that the concerned clerk of the respondents had committed mistake in recording wrong birth date of the petitioner, the application of the petitioner for correction in the birth date of the petitioner came to be rejected and the petitioner was made to retire w.e.f 31st October 2012 which is almost five years prior to his actual date of retirement. Mr. Mathew, thus, urged to quash and set aside the action of the respondents in refusing to correct the birth date of the petitioner and to direct the respondents to take back the petitioner in service with all the benefits. 5. As against the above arguments, learned advocate Mr. Karia appearing for respondent no. 4 submitted that on account of delay in making the application by the petitioner for the correction of his birth date, the application was rejected. Mr. Karia submitted that though the petitioner was appointed in the year 1978 still till the year 1996, the petitioner did not make any application for correction in his birth date. Mr. Karia submitted that after the petitioner made application in the year 1996 for correction in his birth date, the respondents called upon the petitioner to produce necessary documents to verify the correct birth date of the petitioner, however, since on the basis of the birth date recorded in the service book of the petitioner the petitioner was approaching the superannuation age, the petitioner was retired from service. Mr. Karia, thus, submitted that respondent no. 4 has not committed any illegality in rejecting the application of the petitioner for correction of the birth date. 5.1 Learned AGP Mr. Niraj Ashar appearing for the State while adopting arguments made by learned advocate Mr. Karia further submitted that when the rule specifically provides for making application within the time limit, the petitioner was required to make application for correction in the birth date within the prescribed time limit. He submitted that since the petitioner failed to make such application within prescribed time limit no illegality could be found with the order/ decision of the concerned respondent in refusing to correct the birth date of the petitioner. He submitted that since the petitioner failed to make such application within prescribed time limit no illegality could be found with the order/ decision of the concerned respondent in refusing to correct the birth date of the petitioner. Learned AGP Niraj Ashar further submitted that after the petitioner made application in the year 1996 the respondents not only called upon the petitioner to produce more documents but also tried to gather further information as regards the correct birth date of the petitioner. However, since on the basis of the birth date already recorded in the service book of the petitioner since the petitioner reached to the age of superannuation, the petitioner was retired from service. Learned AGP Mr. Niraj Ashar thus urged to dismiss the petition. 6. Having heard learned advocates for the parties and having perused the record of the case, it appears that there is no dispute about the fact that at the time of entry in the service, the petitioner had produced the copy of the school leaving certificate in proof of his date of birth being 1st July 1957. There is also no dispute about the fact that the petitioner had not produced any other documents for proof of his date of birth. It is also not the case of the respondents that there was any other document available on record showing different date of birth of the petitioner. There is also no dispute about the fact that the copy of the school leaving certificate showing the correct date of birth of the petitioner as 1st July 1957 remained attached with the service book of the petitioner. It is not the case of the respondent that the wrong birth date of the petitioner was recorded on account of misrepresentation by the petitioner. In fact in the affidavit in reply the respondents have confirmed that the correct birth date of the petitioner is 1st July 1957 and 18th October 1952 recorded as birth date of the petitioner was mistake of the concerned clerk at the relevant time. 6.1 It is also required to be noted that at the time when the petitioner made application in the year 1996, he was still left with 16 years of service even on the basis of birth date of 18th October 1952 but unfortunately the respondents took long time to get the correct birth date of the petitioner verified. 6.1 It is also required to be noted that at the time when the petitioner made application in the year 1996, he was still left with 16 years of service even on the basis of birth date of 18th October 1952 but unfortunately the respondents took long time to get the correct birth date of the petitioner verified. However, during this long time the respondents got confirmed from the school of the petitioner that what was produced by the petitioner was correct school leaving certificate and were fully satisfied about correct birth date of the petitioner as recorded in the school leaving certificate. Still however, the respondents have rejected the application of the petitioner on the ground that under the provisions of Gujarat Civil Services (pension) Rules the petitioner was required to make application within a period of five years. In my view, in the facts of the case the respondents are not justified in rejecting the application of the petitioner on the ground that the petitioner did not make application for correction of birth date within the prescribed time limit. 7. The petitioner is class IV employee and as averred by him he was not aware about recording of wrong birth date by the concerned clerk. The respondents have not come out with a case that the petitioner was informed about recording of wrong birth date in his service book at any point of time prior to making of application by him in the year 1996. Therefore, there is no reason to doubt the statement made by the petitioner that he came to know about wrong recording of his birth date in his service book in the year 1996. In my view if such are the facts situation of the case, even if the petitioner had not made application within prescribed time limit, the same should not work to the disadvantage of the petitioner. In such circumstances, the respondents were expected to take reasonable view of the matter, especially when the petitioner was vigilant enough to make application for correction in his birth date at least 14 years prior to his retirement on the basis of wrong birth date. On account of mistake of the concerned clerk and for no fault on the part of the petitioner, the petitioner would lose the benefit of further five years of service. On account of mistake of the concerned clerk and for no fault on the part of the petitioner, the petitioner would lose the benefit of further five years of service. Such further five years of service for a class IV employee would prove to be of great help to his family members. 8. At this stage the decision of the Hon'ble Supreme Court in the case of Mohd. Yunus Khan v. U.P Power Corporation Limited and others, (2009) 1 SCC 80 needs to be referred. Hon'ble Supreme Court has held and observed in para no. 14 and 15 as under : 14. No material has been placed before us in regard to existence of a statutory rule fixing a time frame for filing an application for correction of the date of birth in the service record. Even if there was such a provision, the same, in our opinion, would not be of much significance as the respondents had not shown that the mistake in the matter of recording of date of birth in the service record was known to the appellant at any earlier point of time. If the appellant's contention is correct that he came to learn about it only in April 1988 where after he filed a representation, it must be held that there was no delay on his part in this behalf. An employee may take action as is permissible in law only after coming to know that a mistake has been committed by the employer. 15. The appellant was to retire, even treating his date of birth as 27th February 1934, in 1992. In that view of the matter a representation filed by him in the year 1988 should have received due and expeditious consideration at the hands of the authority of the Board. Had such a step been taken, the principles of nature justice of giving an opportunity of hearing to the other Moh. Yunus Khan could also have been complied with. Even the records of both the employees could have been verified with reference to the other documents as also the names of the parents of the parties, if necessary, in the presence of each other. No such step admittedly had been taken by the Board. Yunus Khan could also have been complied with. Even the records of both the employees could have been verified with reference to the other documents as also the names of the parents of the parties, if necessary, in the presence of each other. No such step admittedly had been taken by the Board. Particularly when Respondent 5, the Executive Engineer, indeed found that such a mistake had been committed and recommended for correction thereof, the Board, which is a "State" within the meaning of Article 12 of the Constitution of India, was obligated to rectify the same. Such a mistake being totally in the hands of the authorities of the Board, stricto sensu even the even the principle of natural justice was not required to be complied with so far as the appellant was concerned. Principle of justice was required to be complied with only in respect of the other Mohd. Yunus Khan for affording him an opportunity of hearing. However, it appears from the record that the other Mohd. Yunus Khan had expired in 1980." 8A. In light of above, the decision of the respondent in refusing the request of the petitioner to correct his birth date is required to be quashed and set aside. The petitioner is required to be held to be in continuos service irrespective of impugned order decision/order till the date of his superannuation on the basis of his correct date of birth as 1st July 1957. 9. However, as regards back wages/ the actual salary after the petitioner was retired on 31st October 2012 till the petitioner is taken back in service, since learned advocate for the petitioner fairly conceded to consider the said period only for notional benefit without actual monetary benefit, the petitioner shall not be entitled to back wages/ actual salary for the said period. 10. For the reasons stated above, the petition is allowed. The action of the respondents in refusing to correct the birth date of the petitioner and the order to retire the petitioner w.e.f 31st October 2012 at Annexure W is quashed and set aside. The petitioner is held entitled to be continued in service on the basis of his correct date of birth as 1st July 1957 till the age of his superannuation. The petitioner is held entitled to be continued in service on the basis of his correct date of birth as 1st July 1957 till the age of his superannuation. The respondents are directed to take back the petitioner in service and permit him to resume duty on his original post within a period of two weeks from the date of receipt of this order. It is held and declared that the period from 31st October 2012, the date when the petitioner was retired from service till the petitioner is taken back in service shall be considered to be continues service for all purposes and the petitioner shall be entitled to all consequential benefits except back wages/actual salary for the said period. The respondents are directed to rectify their mistake by recording the correct birth date of the petitioner as 1st July 1957 in the service book of the petitioner. Rule is made absolute. Petition allowed.