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Gujarat High Court · body

2019 DIGILAW 800 (GUJ)

Kamlesh J. Rathod v. State of Gujarat

2019-09-09

A.S.SUPEHIA

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JUDGMENT : A.S. Supehia, J. 1. The present writ petition has been filed seeking correction in the date of birth of the petitioner from 01.06.1968 to 18.05.1969. Learned AGP has tendered a photocopy of the affidavit. The same is ordered to be taken on record. 2. The brief facts of the case leading to filing of the present petition are as under: 2.1. The petitioner was appointed on the post of Mamlatdar (Class-II) on 27.06.1997. When he was appointed as such, his date of birth was recorded as per his school leaving certificate issued by the government school, Gandhinagar specifying his date of birth as 01.06.1968. Thereafter, the petitioner inquired from the Halisa Gram Panchayat, Taluka Dehgam, District Gandhinagar and he came to know that in the Birth and Death Register, his date of birth was recorded as 18.05.1969. The petitioner immediately requested the respondent authorities vide letter dated 15.02.2001 to correct his date of birth from 01.06.1968 to 18.05.1969 on the basis of the Birth and Death Register. Thereafter, the respondent no. 1 informed the petitioner to furnish certain information regarding the details mentioned in the letter dated 03.01.2002. Necessary inquiry regarding his admission in the school was also made and information in this regard was also called for. The petitioner accordingly provided his details vide letter dated 12.04.2002 addressed to respondent no. 2. He also supplied the date of birth of his elder sister, younger brother and two younger sisters along with the letter dated 12.04.2002 and 10.04.2002 with documentary evidence. The respondent no. 1 thereafter asked for the original copy of birth certificate of Halisa Gram Panchayat vide communication dated 08.05.2002, which was accordingly supplied by the petitioner vide letter dated 23.08.2002. 2.2. After supplying the necessary information as well as the original birth register certificate, the petitioner inquired from the respondents about the status of his application and a necessary checklist was also supplied by him to the respondent authorities. By the letter dated 04.06.2003 it was informed by the respondents that his date of birth would not be changed and the birth date recorded in the service book is required to be treated as final. 2.3. Thereafter, on receiving the communications dated 04.06.2003 as well as 03.07.2003 denying the request of the petitioner, he personally visited the office of the respondent no. 2.3. Thereafter, on receiving the communications dated 04.06.2003 as well as 03.07.2003 denying the request of the petitioner, he personally visited the office of the respondent no. 2 and requested to correct his date of birth on the basis of the information received from the Birth and Death Register. 2.4. Since no reply was received, the petitioner preferred Special Civil Application No. 26766 of 2006, which was disposed vide order dated 22.12.2006 by the Coordinate Bench of this Court issuing directions to the respondents to consider the representation of the petitioner in light of the decision given by this Court in Special Civil Application No. 9564 of 1996 vide order dated 30.11.2006. The petitioner again submitted a representation on 25.01.2007 to the respondents as per the directions issued by this Court. However, the same was rejected vide communication dated 20.04.2007, which is subject matter of challenge before this Court. 3. Learned advocate Ms. Dilbur Contractor appearing for the petitioner has submitted that the impugned communication is required to be quashed and set aside since despite the directions issued by this Court to consider the order dated 30.11.2006 passed in Special Civil Application No. 9564 of 1996, the respondents, without applying any mind to that aspect, rejected the case of the petitioner. She has submitted that the petitioner when coming to know about the correct date of birth from the record of the Halisa Gram Panchayat had immediately made an application vide communication dated 15.02.2001 and requested the respondents to correct his date of birth. She has also submitted that the petitioner was directly appointed on 27.06.1997 and within a period of five years, as required by the Rule 171 of the Bombay Civil Services Rules, 1959 (for short 'the Rules') requested to alter the date of birth. She has also submitted that the date of birth recorded in Birth and Death Register is to be treated as final and has to be given preference to the date of birth recording in school leaving certificate. In support of her submissions, she has placed reliance on the judgments of the Supreme Court in the case of Haryana Urban Development Authority & Anr. vs. Satish Hans, (2009) 7 SCC 282 and in the case of Ishwarlal Mohanlal Thakkar vs. Paschim Gujarat Vij Company Limited & Anr., (2014) 6 SCC 434 . 4. Lastly, it is submitted by the learned advocate Ms. vs. Satish Hans, (2009) 7 SCC 282 and in the case of Ishwarlal Mohanlal Thakkar vs. Paschim Gujarat Vij Company Limited & Anr., (2014) 6 SCC 434 . 4. Lastly, it is submitted by the learned advocate Ms. Contractor that the petitioner is due to retire on his superannuation in the year 2026 and hence, the respondents may be directed to correct his date of birth from 01.06.1968 to 18.05.1969. 5. Vehemently opposing the submissions advanced by the learned advocate for the petitioner, learned AGP Mr. Ronak Raval has submitted that the decision taken by the State authority does not require any interference since at the time of appointment the petitioner produced his school leaving certificate and accordingly, in the service book the date of birth was recorded on the basis of the school leaving certificate. Further, reliance is placed by the learned AGP on the resolution dated 11.08.1989 wherein clause-4 refers to the limit of five years of altering the date of birth in those cases where the employees are appointed on temporary basis and thereafter, confirmed on the said post. He has further submitted that since the date of birth is recorded on the basis of the school leaving certificate as supplied by the petitioner, no alteration is permissible to the same. 6. I have heard the learned advocates appearing for the respective parties to the lis. 7. The facts, which are established from the submissions advanced by the learned advocates for the respective parties, are that the petitioner was directly appointed on the post of Mamlatdar (Class-II) on 27.06.1997 and his date of birth was recorded on the basis of the school leaving certificate provided by him. The school leaving certificate stipulates his date of birth as 01.06.1968. Thereafter, on procuring necessary information from the Halisa Gram Panchayat the petitioner realized that his date of birth recorded in the Birth and Death Register was 18.05.1969. The respondent authorities have not disputed the aforesaid fact. Neither it is stated that the date of birth recorded therein is not incorrect nor the veracity of the certificate issued by the Halisa Gram Panchayat is doubted. No such submission is advanced by the learned AGP disputing the authenticity of the certificate issued by the Halisa Gram Panchayat certifying the date of birth of the petitioner as 18.05.1969. 8. Neither it is stated that the date of birth recorded therein is not incorrect nor the veracity of the certificate issued by the Halisa Gram Panchayat is doubted. No such submission is advanced by the learned AGP disputing the authenticity of the certificate issued by the Halisa Gram Panchayat certifying the date of birth of the petitioner as 18.05.1969. 8. The Supreme Court in the case of CIDCO vs. Vasudha Gorakhnath Mandevlekar, (2009) 7 SCC 283 while examining the credence regarding date of birth registered in the school register of the Gram Panchayat or Municipality has observed thus: "13. Although criticism has been made by Shri Bhasme in regard to the certificate issued by the Panvel Municipal Council on the premise that it having itself been constituted in the year 1976, could not have issued the said certificate; we may notice that the Municipal Council in its letter dated 28.12.2007 issued to the Manager (Labour) CIDCO, not only disclosed the date of birth of the respondent but also her other sisters brothers. Veracity and/or genuineness of the said certificate is not in question. 14. Mr. Navare furthermore appears to be right in contending that although the Municipal Council came into being in 1976, the statutory records of birth and death used to be maintained by its predecessor, the Gram Panchayat. The said statement appears to be correct as would appear from a letter dated 3.11.2006 by the Panvel Municipal Council addressed to the Manager (Labour) of the appellant stating that the said certificate is issued as per the original record of deaths and birth with the Municipal Council. 15. It is of some significance to notice that the appellant for the first time, by its office letter dated 4.10.2006 stated that the employees mentioned therein including the respondent would retire in the month of October 2006. We have been taken through the order dated 26.2.2007 passed by the Manager (Personnel) of the appellant holding the date of birth of the respondent as 2.10.1948 which runs into 23 pages. We may, however, notice that the reasons assigned by the said authority are wholly unacceptable. Some of the reasons assigned by him are perverse. 16. We have been taken through the order dated 26.2.2007 passed by the Manager (Personnel) of the appellant holding the date of birth of the respondent as 2.10.1948 which runs into 23 pages. We may, however, notice that the reasons assigned by the said authority are wholly unacceptable. Some of the reasons assigned by him are perverse. 16. Only because the respondent for some time had been working in the personnel department, the same by itself, in our opinion, cannot be held to constitute sufficient proof to show that an interpolation was made at her instance particularly when the certificate issued by the Panvel Municipal Council was available with the Corporation as far back as in the year 1976. 17. If an allegation is made that a lower grade employee was responsible for withholding the said document from the higher authorities, proof there for was necessary. It is wholly unlikely that the seniority list of the officers which are prepared by the higher authorities would contain the same mistake as purported to have been committed by the lower authorities. The appellant prima facie is bound by its own records. If any fraud is alleged, it must be proved. Only because there appears to be a so-called interpolation, the same by itself would not lead to a conclusion that the respondent had supplied a wrong date of birth. 18. 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." Thus, the Supreme Court has specifically observed that the deaths and births register maintained by the statutory authorities raises 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 and 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. Similar view has been reiterated by the Supreme Court in the case of Ishwarlal Mohanlal Thakkar (supra), which reads as under: "19. Similar view has been reiterated by the Supreme Court in the case of Ishwarlal Mohanlal Thakkar (supra), which reads as under: "19. Therefore, in view of the above judgments we have to hold that the High Court has committed a grave error by setting aside the findings recorded on the points of dispute in the Award of the labour court. A grave miscarriage of justice has been committed against the appellant as the respondent should have accepted the birth certificate as a conclusive proof of age, the same being an entry in the public record as per Section 35 of the Indian Evidence Act, 1872 and the birth certificate mentioned the appellant's date of birth as 27.6.1940, which is the documentary evidence. Therefore, there was no reason to deny him the benefit of the same, instead the respondent-board prematurely terminated the services of the appellant by taking his date of birth as 27.6.1937 which is contrary to the facts and evidence on record. This date of birth is highly improbable as well as impossible as the appellant's elder brother was born on 27.1.1937 as per the School Leaving Certificate, and there cannot be a mere 5 months difference between the birth of his elder brother and himself. Therefore, it is apparent that the School Leaving Certificate cannot be relied upon by the respondent-board and instead, the birth certificate issued by the BMC which is the documentary evidence should have been relied upon by the respondent. Further, the date of birth is mentioned as 27.6.1940 in the LIC insurance policy on the basis of which the premium was paid by the respondent to the Life Insurance Corporation on behalf of the appellant. Therefore, it is only just and proper that the respondent should have relied on the birth certificate issued by the BMC on the face of all these discrepancies as the same was issued on the order of the JMFC." 9. At this stage, it would be apposite to refer to the Rule 171 of the Rules, which would be applicable to the present petitioner since he was appointed directly on 27.06.1997, which reads as under: "171. At this stage, it would be apposite to refer to the Rule 171 of the Rules, which would be applicable to the present petitioner since he was appointed directly on 27.06.1997, which reads as under: "171. In the service book every step in a Government servant's official life, including temporary and officiating promotions of all kinds, increments and transfer, and leave of absence taken, should be regularly and concurrently recorded, each entry being duly verified with reference to departmental orders, pay bills and leave statements, and attested by the head of the office. If the Government servant is himself the head of an office the attestation should be made by his immediate superior. Officiating and temporary service and leave taken prior to first substantive appointment to a permanent post should also be recorded in the service book and duly attested after verification. The date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on. In the case of a Government servant, the year of whose birth is known but not the date, the 1st July should be treated as the date of birth. When both the year and the month of birth are known, but not the exact date, the 16th of the month should be treated as the date of birth. In the case of a Government servant who is only able to state his approximate age, and who appears to the attesting authority to be of that age, the date of birth should be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment. When the date month and year of birth of a Government servant are not known, and he is unable to state his approximate age the age by appearance as stated in the medicate certificate of fitness, in the form prescribed in Rule 11, should be taken as correct, he being assumed to have completed that age on the date the certificate is given, and his date of birth reduced accordingly. When once an entry of age or date of birth has been made in a service book, no alteration of the entry should after words be allowed, unless it is known, that the entry was due to want of care on the party of some person other than the individual in question or is an obvious clerical error. Requests made for alteration of date of birth should not be entertained after the preparation of the Service Books of the Government servants concerned and in any event not after the completion of the probation period or five years' continuous service, whichever is earlier. In the case where there is no probation period such request should not be entertained after the completion of five years' continuous service. The date of birth may, however be permitted to be altered at a later stage if the Government is satisfied that a bonafide clerical mistake has been committed and that it should be rectified. Officers of a rank not lower than the Principal District Officer in the Department concerned may correct errors in the service book which are obviously clerical. Cases in which the correctness of the original entry is questioned on the other grounds should be referred to a competent authority. Finger prints of the Government servant [who is not literate enough to sign his name in English, Hindi, Marathi, (including signature in Modi script) or Gujarati] should be recorded in the column headed "Personal marks of identification" in the service book itself. The impressions should not be taken on separate slips of paper and pasted to the service book. Exemptions.-When a military employee is transferred to a civil department and assumes a civilian status or when a military employee discharged from the army without earning a pension is employed in a post in a civil department in which his military service counts towards pension, the date of birth to be entered in his service book or roll shall be either that entered by the Military authorities in his form of attestation when he first joined the army or, if at the time of attestation he stated only his approximate are, the date arrived at by deducting the number of years representing his age from his date of appointment. Note 1.-The latest discharge certificate (printed as Appendix VIII-A) issued to Military employees on release of discharge does not provide for the age on the date of attestation or enrolment. It does however provide inter alia for (I) age at the time of completion of the certificate, and (ii) date of enrolment. In such cases the age at the time of enrolment (attestation) should be worked out as indicated below:- (a) Calculate the difference between (I) the date of commanding officer's signature (vide space provided below serial No. 8 in the certificate), and (ii) the date of enrolment. (b) Deduct the period calculated as per (a) above from the age at the time of completion certificate (The date of commanding officer's signature is the same as the date of the completion of the certificate-vide serial No. 2 in the certificate) Note 2-Cases in which the date of birth has been deduced by any other method, from the age at appointment or attestation, or cases in which Government have passed specific orders accepting a particular date of birth, need not be re-opened." 10. The provision of rule 171 of the Rules prescribes that requests made for alteration of date of birth should not be entertained after the preparation of the Service Books of the Government servants concerned and in any event not after the completion of the probation period or five years' continuous service, whichever is earlier. In the case where there is no probation period such request should not be entertained after completion of five years' continuous service. 11. Indubitably, in the present case, the petitioner vide communication dated 15.02.2001 had requested the respondent no. 1 to change his date of birth from 01.06.1968 to 18.05.1969 on the basis of the Birth and Death Register. Thus, within a period of five years, the petitioner has requested the authorities to correct his date of birth. 12. Thus, in light of the observations made by the Apex Court in the aforenoted judgments as well as the provision of rule 171 of the Rules, the prayers of the petitioner for altering his date of birth from 01.06.1968 to 18.05.1969 requires to be acceded to. The respondents should not have refused the change in the date of birth of the petitioner in wake of the fact that the authenticity of the birth and death certificate issued by the concerned Gram Panchayat is not doubted. The respondents should not have refused the change in the date of birth of the petitioner in wake of the fact that the authenticity of the birth and death certificate issued by the concerned Gram Panchayat is not doubted. 13. Thus, on the backdrop of the aforesaid observations, the present writ petition succeeds. The impugned order dated 20.04.2007 is hereby quashed and set aside. The respondents are hereby directed to correct the date of birth of the petitioner from 01.06.1968 to 18.05.1969 in the service record of the petitioner. Necessary orders shall be passed within a period of eight weeks from the date of receipt of the writ of the order of this Court. Rule is made absolute.