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2021 DIGILAW 995 (BOM)

Santosh Bidwadkar v. Union Of India

2021-07-13

K.K.TATED, PRITHVIRAJ K.CHAVAN

body2021
JUDGMENT Prithviraj K. Chavan, J. - By this Petition under Article 226 of the Constitution of India, the petitioner is invoking writ jurisdiction of this Court impugning two decisions; dated 2nd March, 2016 by respondent No.5 and a decision dated 24th February, 2021 by respondent No.7 on the following substantive prayers; (a) That this Hon'ble Court may be pleased to issue a writ of Mandamus or any other writ, order or directions in the like nature thereby to quash and set aside the impugned decision dated 2nd March, 2016 of Respondent No.5 being (Exhibit V & VI hereto); (b) That this Hon'ble Court may be pleased to issue a writ of Mandamus or any other writ, order or direction in the like nature thereby directing Respondent No.4 to rectify the date of birth of the Petitioner in the School Leaving Certificate within specific period of time; (c) That this Hon'ble Court may be pleased to issue a writ of Mandamus or any other writ, order or directions in the like nature to quash and set aside the impugned decision dated 24th February 2021 of Respondent No.7 (Exhibit DD hereto); 2. We have heard Mr. Joshi, learned Counsel for the petitioner, Mr. Rodrigues, learned Special Counsel, for Respondent No.1, Mr. Satilkar, learned A.G.P, for Respondent-State and Mr. D'Souza, learned Counsel for respondent No.7. 3. Facts germane for the decision can be summarized as follows. 4. The petitioner is an employee of respondent No.7. The petitioner had joined respondent No.7 on 22nd January, 1993 as an "Accounts Clerk" in the Finance and Accounts Department. It is the contention of the petitioner that while admitting him in a School, his parents, owing to their illiteracy, had recorded incorrect date of birth as "6 th June, 1964". According to him, his correct date of birth is "6 th June, 1966". He came to know about the incorrect date of birth at the time of appearing for S.S.C Examination. He informed the School Authorities about the same. He approached respondent No.6 for a copy of his birth certificate which was issued by respondent No.6 on 5th June, 1980. Despite submitting copy of the birth certificate issued by respondent No.6 indicating his date of birth as "6 th June, 1966" which was issued by the Public Health Department of Municipal Corporation of Greater Mumbai, the School Authorities did not rectify the said mistake. 5. Despite submitting copy of the birth certificate issued by respondent No.6 indicating his date of birth as "6 th June, 1966" which was issued by the Public Health Department of Municipal Corporation of Greater Mumbai, the School Authorities did not rectify the said mistake. 5. In the year 1982, the petitioner took admission in People's Education Society, Junior College of Commerce and Science for his further education. The College Authorities advised the petitioner to file an application for rectification of his date of birth along with affidavit. Accordingly, the petitioner moved an application on 2nd July, 1983 for rectification of his date of birth as "6 th June, 1966" along with copy of the birth certificate and copy of an affidavit dated 26th June, 1983 along with School Leaving Certificate and S.S.C passing certificate. 6. By a communication dated 13th March, 1984, Peoples Education Society, Junior College forwarded application of the petitioner along with copies of birth certificate and affidavit to respondent No.3 i.e Deputy Director of Education, Mumbai requesting for rectification of date of birth of the petitioner as "6 th June, 1966". The College Authorities, however, did not receive any response from respondent No.3. By that time, the petitioner had completed his H.S.C in the year 1984. He was issued College Leaving Certificate dated 4th June, 1984 indicating his date of birth as "6 th June, 1964". 7. It is contended by the petitioner that thereafter he had worked with various private organizations and ultimately, joined the post of Clerk (Accounts) on probationary basis in the Finance and Accounts Department of respondent No.7 on 22nd January, 1993. At the time of his admission, the petitioner had intimated respondent No.7 as regards his incorrect date of birth being recorded in the School Leaving Certificate, inter alia, making a request to consider the said documents. However, it is contended that respondent No.7 neglected to rectify the date of birth of the petitioner in its record. By a communication dated 6th February, 1996, respondent No.7 had rejected the representation of the petitioner dated 25th December, 1995 seeking change in his date of birth by assigning a reason that as per the existing rules of respondent No.7, request of the petitioner for change of his date of birth could not be acceded with. 8. By a communication dated 6th February, 1996, respondent No.7 had rejected the representation of the petitioner dated 25th December, 1995 seeking change in his date of birth by assigning a reason that as per the existing rules of respondent No.7, request of the petitioner for change of his date of birth could not be acceded with. 8. The petitioner thereafter relied upon a Office Memorandum No.20 (7) 96 - DPE (GM) - GL-31 dated 9th February, 2001 issued by Government of India, Ministry of Heavy Industries and Public Enterprises and Department of Public Enterprises issuing guidelines for alteration of date of birth in respect of employees in the Central Public Sector Undertakings. As per the said memorandum, an employee is required to request its employer for correction of date of birth within five years from his entry in the service of the Public Sector Undertakings. Respondent No.7, however, did not consider request of the petitioner. By a communication dated 13th June, 2002, respondent No.7 informed the petitioner that his School Leaving Certificate/ S.C.C board Certificate indicates "6 th June, 1964" as his date of birth and the same has been recorded at the time of his joining with it and, therefore, it had not acceded to his request for change of his date of birth as per existing rules of the Company. In short, respondent No.7 considered the school leaving certificate as an authenticated document for the date of birth which the petitioner had submitted. 9. It is evident from the aforesaid facts placed on record by the petitioner that he has approached this Court at a quite belated stage. It is, therefore, quite difficult to exercise discretionary jurisdiction of this Court as the petition suffers from delay and latches. It is well settled that delay defeats equity. Even if the law does not prescribe any definite period of limitation within which a petition under Article 226 can be filed by a citizen aggrieved by any action of the State or it's instrumentalities, writ Court may not exercise its jurisdiction just because it is lawful to do so. The writ Court may refuse relief in case where it finds that conduct of the petitioner is blameworthy. Lack of bona fides and diligence also provide reasons for the Court to decline the relief in appropriate cases. The writ Court may refuse relief in case where it finds that conduct of the petitioner is blameworthy. Lack of bona fides and diligence also provide reasons for the Court to decline the relief in appropriate cases. This is the case in which not only there is lack of bona fides but the petitioner has also not approached this Court with due diligence and waited for several years ever since he joined the service with respondent No.7 in the month of January, 1993. 10. As already stated, it is the contention of the petitioner that his parents being illiterate, they had recorded incorrect and erroneous date of birth in the school record at the time of his admission. The petitioner has even not named his father in the title of the petition. The petitioner could have tendered an affidavit of his father to that effect. The reason given by the petitioner is neither convincing nor trustworthy for the simple reason that he took a total contradictory stand in his representation dated 9th April, 2002 made to the Director, H.R.D , Air India Limited requesting for change of his date of birth in his personal record. The petitioner had stated that recording of incorrect date of birth in his school record is genuine and bona fide mistake on the part of his School Authorities who are responsible for wrongful registration of his date of birth which needs to be rectified as "6 th June, 1966". On one hand, the petitioner blames his parents and on the other, he blames school authorities. We are, therefore, of the view that the petitioner has not approached this Court with clean hands seeking equitable and extraordinary jurisdiction. Even in his application for change of date of birth (Page 33), the petitioner had stated that wrong date of birth came to be entered in the certificate by a mistake of his father which is also unfathomable as to why a father would record a wrong date of birth of his son, especially, when he is an illiterate. The Petition, therefore, deserves to be dismissed on this count along with the ground of gross delay and latches on the part of the petitioner. 11. Corollary of the aforesaid discussion is that the petition is devoid of merits. Hence, it stands dismissed with no order as to costs.