Gujarat High Court
Niruben Mafatbhai Solanki W/O ... vs Sir Sayaji General Hospital Through ... on 23 April, 2025
NEUTRAL CITATION
C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3695 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
NO
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NIRUBEN MAFATBHAI SOLANKI W/O MAFATBHAI SOLANKI
Versus
SIR SAYAJI GENERAL HOSPITAL THROUGH MEDICAL
SUPERINTENDENT & ANR.
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Appearance:
MR SUBRAMANIAM IYER(2104) for the Petitioner(s) No. 1
MS SURBHI BHATI, ASST.GOVERNMENT PLEADER for the Respondent(s)
No. 1,2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 23/04/2025
ORAL JUDGMENT
1. The present petition is filed under Articles 226 and 227 of the Constitution of India, challenging the award dated 14.09.2021 passed in Reference (LCB) No.26 of 2018, whereby the Reference filed by the petitioner challenging the order of retirement dated 30.06.2016 based on the consideration of her date of birth as 06.06.1956 came to be rejected.
2. It is the case of the petitioner that she was employed as a sweeper with respondent No.1-Hospital since the year 2001-2002 and was receiving a fixed salary of ₹1,500/- per month. Pursuant to the Government Resolution dated 18.05.2005, her services were regularized, and she was granted a regular pay scale of ₹2550-55-2660-60-3200 per month with effect from 24.06.2005. It is further submitted that the petitioner belongs to a poor and illiterate family of the Scheduled Caste community and, Page 1 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025 NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined therefore, was unable to produce any document proof in support of her date of birth at the time of appointment. In the absence of any such document, she was referred to the Civil Surgeon at Jamnabai Hospital, Vadodara, for a medical examination to determine her approximate age. Upon examination, along with other similarly situated employees, the Civil Surgeon assessed the petitioner's probable age as 52 years as on 03.11.2008, thereby estimating her date of birth as 06.06.1956.
2.1. Accordingly, the petitioner's age and date of birth were recorded in the service book as 06.06.1956. Subsequently, the petitioner came to know that she had been admitted by her parents to the village primary school managed by the District Panchayat Education Committee, Vadodara (Jilla Panchayat Shikshan Samiti, Vadodara), situated at Gumanpura, Taluka Dabhoi. The petitioner, therefore, applied for a duplicate school leaving certificate on 22.06.2009, which was issued by Gumanpura Primary School, Dabhoi. In the said certificate, her name was recorded as Niruben Karsanbhai Ranchorbhai Harijan. The school leaving certificate mentioned her date of birth as 01.06.1960 and the date of admission as 13.06.1967.
2.2. Thereafter, the petitioner submitted an application dated 29.06.2009 to respondent No.2, requesting rectification of her date of birth in the service book to Page 2 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025 NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined 01.06.1960, as reflected in the duplicate school leaving certificate. Respondent No.1 then requested the Mamlatdar, Dabhoi, to verify the authenticity of the said certificate. Pursuant thereto, the Mamlatdar, vide communication dated 10.05.2013, confirmed the genuineness of the duplicate school leaving certificate. Based on the said verification, respondent No.1 passed an order dated 07.06.2013, declaring the petitioner's correct date of birth to be 01.06.1960 and directed that the necessary correction be carried out in the service book, substituting the previously recorded date of 06.06.1956 with 01.06.1960.
2.3. Accordingly, on 07.06.2013, the service book of the petitioner was rectified, and the date of birth was corrected from 06.06.1956 to 01.06.1960. Thereafter, the petitioner received a communication informing her that the date of retirement was considered as 30.06.2016, upon attaining the age of superannuation. It was further stated that since there was no clerical error while recording the date of birth in the service book, the date of birth was treated as 06.06.1956, and accordingly, she was retired from service with effect from 30.06.2016. In response to the said communication/order, the petitioner made a representation to respondent No.1, requesting that her corrected date of birth, i.e., 01.06.1960, be considered, and that she be permitted to continue in service til 30.06.2020, which would be the correct date Page 3 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025 NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined of retirement 2.4. "As the respondent did not reply to the representation, the petitioner filed a Civil Suit before the learned Civil Judge, S.D., Vadodara, being Regular Civil Suit No.447 of 2016, which came to be withdrawn on 14.06.2017. Thereafter, the dispute was raised before the learned Assistant Labour Commissioner, Vadodara, which culminated into a Reference seeking a declaration that the action of respondent No.1 in retiring the petitioner from service with effect from 30.06.2016 is illegal, along with a prayer for consequential reliefs. The learned Labour Court rejected the Reference on the ground that the petitioner failed to establish that her correct date of birth is 01.06.1960, by passing the award dated 14.09.2021, which is the subject matter of challenge before this Court.
3. Heard the learned advocate Mr.Subramaniam Iyer for the petitioner and learned AGP Ms.Surbhi Bhati for respondent-State.
4. Learned advocate Mr. Iyer submits that, upon obtaining the school leaving certificate, an application was preferred for rectification of the date of birth in the service book, which came to be allowed vide office order dated 07.06.2013. However, the respondent authority subsequently considered the date of birth as 01.06.1956 and passed an order of retirement on 13.06.2016.
Page 4 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined Learned advocate Mr. Iyer further submits that, since the service of the petitioner was regularized in the year 2005, the application preferred in the year 2009 was well within the prescribed period of five years as required under Rule 40 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002.
4.1. Learned advocate Mr. Iyer submits that the learned Reference Court has committed an error in dismissing the Reference by assigning the reason that corrections to the date of birth can be permitted only once during the tenure of service, and that the date of birth entered in the service book was based on the ossification test. Learned advocate Mr. Iyer further submits that the Reference Court has also erred in holding that, though the petitioner was regularized on 01.05.2005, the Reference was filed in the year 2018, i.e., after a lapse of 18 years. Learned advocate Mr.Iyer submits that, as per the office order dated 28.06.2016, rectification had already been ordered and was in fact carried out on 07.06.2013. Therefore, the cause of action arose only upon receipt of the retirement order dated 28.06.2016, which considered the date of birth as 06.06.1956.
4.2. Learned advocate Mr. Iyer submits that the impugned order has been passed without considering the aforesaid aspects, and therefore, the same deserves to be interfered with and quashed. Learned Page 5 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025 NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined advocate Mr.Iyer, accordingly, submits that the present petition deserves to be allowed.
5. Per contra, learned AGP Ms. Bhati submits that the date of birth of the petitioner was determined pursuant to the ossification test conducted on 03.11.2008, along with other similarly situated employees. Learned AGP Ms.Bhati further submits that the petitioner had entered into service during the year 2001-2002 and had submitted an application for correction of date of birth on 29.06.2009, which is beyond the stipulated period of five years as prescribed under Rule 40 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002. Learned AGP Ms. Bhati also submits that the office order dated 07.06.2013, passed by the Executive Officer allowing the correction, was without any authority or jurisdiction, and consequently, a departmental inquiry was initiated against the said officer by issuance of a memo.
5.1. Learned AGP Ms. Bhati submits that, undisputedly, correction of date of birth can be carried out only once during the service tenure, and that too within a period of five years from the preparation of the service book. As the petitioner filed the application after a lapse of eight years, the authority has rightly considered the date of birth as 06.06.1956 and passed the order retiring the petitioner from service with effect from 30.06.2016. Learned AGP Ms. Bhati has relied upon the decision rendered by the Hon'ble Apex Court in Union of India v. Harnam Singh, reported in (1993) 2 Page 6 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025 NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined SCC 162, wherein it was held that inordinate and unexplained delay on the part of the employee in seeking correction of date of birth would disentitle the employee from the relief claimed. She, therefore, prays that the petition be dismissed, as it is devoid of any merit.
6. Having considered the submissions advanced by the learned advocates for the respective parties, it emerges that the petitioner joined the respondent establishment in the years 2001, and her services were regularized in the year 2005 on the post of Sweeper. Admittedly, at the time of initial appointment, the petitioner did not possess any documentary evidence indicating her date of birth. Consequently, a medical test was conducted, along with other similarly situated employees, to determine the petitioner's age as on the date of entry into service. Pursuant to the said examination, the Civil Surgeon, Jamnabai Hospital, Vadodara, determined the petitioner's date of birth as 06.06.1956, vide report dated 03.11.2008. Subsequently, on 29.06.2009, the petitioner submitted an application seeking correction of her date of birth on the basis of a school leaving certificate issued by Gumanpura Primary School, which recorded her date of birth as 01.06.1960. The said duplicate school leaving certificate was forwarded for verification, and a positive report was received from the office of the Mamlatdar, confirming the genuineness and correctness of the certificate.
Page 7 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined 6.1. The application filed by the present petitioner for rectification of the date of birth was allowed in her favour vide order dated 07.06.2013. However, subsequently, an order came to be passed retiring the petitioner from service with effect from 30.06.2016, considering her date of birth as 06.06.1956. Learned AGP Ms.Bhati has placed reliance on the communication dated 03.01.2017 addressed to the Superintendent of SSG Hospital, which indicates that the order dated 07.06.2013 rectifying the date of birth was issued without proper authority. Consequently, a notice was issued to the concerned officer seeking an explanation as to why appropriate action should not be taken against him. It is further submitted by learned AGP Ms. Bhati that a warning was eventually issued to the officer, and the departmental proceedings were thereafter dropped. The learned Reference Court has rejected the Reference, placing reliance on Rule 40 of the Gujarat Civil Services (General Conditions of Service) Rules, 2002, which, for the purpose of adjudication of the present petition, is reproduced hereinbelow:
"40.Procedure for writing the events and recording the date of birth in the service book:
(2) While recording the date of birth, the following procedure should be followed:
(a) to (e) .......
(f) when once an entry of age of date of birth has been Page 8 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025 NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined made in a service book, no alteration of the entry should afterwards be allowed, unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error;
g) requests made for alteration of date of birth should not be entertained after the preparation of the service book of the Government employees 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.
(h) 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."
7. As per Rule 40(h) of the Gujarat Civil Services (General Condition of Service) Rules, 2002, any application for correction of date of birth made after five years from the date of joining is not maintainable, and the authorities are under no obligation to entertain such requests thereafter.
8. Admittedly, the case of the present petitioner does not fall within the ambit of sub-Rule (f) or sub-Rule (h) of Rule 40, which permit rectification only in cases of bona fide mistake. At the time of entering into service, the petitioner did not produce any documentary evidence such as a school leaving certificate in support of the date of birth, which was only submitted after a lapse of nine Page 9 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025 NEUTRAL CITATION C/SCA/3695/2022 JUDGMENT DATED: 23/04/2025 undefined years. The contention of the petitioner that, upon regularization in the year 2005, the application filed in 2009 is within the prescribed period of five years is misconceived. As per sub-Rule (g) of Rule 40, the relevant date for calculating the period of five years is the date of initial appointment, not the date of regularization, as erroneously claimed by the petitioner.
9. This Court has also considered the decision rendered by the Hon'ble Apex Court in the case of Karnataka Rural Infrastructure Development Limited vs. T.P. Nataraja, reported in (2021) 12 SCC 27, wherein it is held that an application for change of date of birth can only be considered in accordance with the relevant regulations and provisions, and even if cogent evidence is produced, such a change cannot be claimed as a matter of right. In that background also, since the claim made by the petitioner is dehors sub-rule (g) of Rule 40, this Court is of the opinion that the learned Reference Court has not committed any error in dismissing the Reference and in refusing the request for change of the date of birth.
10. Accordingly, the petition being devoid of merit deserves to be dismissed, and is hereby dismissed.
(M. K. THAKKER,J) M.M.MIRZA Page 10 of 10 Uploaded by M.M.MIRZA(HC01407) on Tue May 06 2025 Downloaded on : Sat May 10 07:17:52 IST 2025