The Bombay High Court allowed a writ petition challenging the judgment and order dated 21 April 2023 passed by the Maharashtra Administrative Tribunal vide which it allowed the O.A., directing Petitioners to correct Respondent’s date of birth in service records.
The Court observed that if an application for correction of date of birth is made within 5 years of entry into service and if the same is not acted upon, remedy in respect of such inaction must be exercised in a timely manner.
Brief Facts:
Respondent came to be appointed to the post of Police Sub-Inspector through a selection process conducted by Maharashtra Public Service Commission (MPSC) on 17 August 1992. At the time of his appointment, he relied upon a School Leaving Certificate which reflected his date of birth as ‘23 May 1965’. Even on his Matriculation certificate, the date of birth is reflected as 23 May 1965. Accordingly, the Respondent’s date of birth came to be registered in the service records as 23 May 1965. Later, he made an application dated 22 July 1994 for correction in his date of birth as 23 November 1965 by relying upon the birth Certificate issued by the Municipal Corporation of Greater Mumbai (M.C.G.M.).
No action was taken on the application dated 22 July 1994. The Respondent did not take any steps for correction of his date of birth for a considerable period of time and made the next application after ten years on 29 January 2004. After brief hiatus, he resumed making applications. He made a representation dated 22 July 2022 for correction of date of birth. His application was rejected on 1 March 2023. He filed O.A. before the Tribunal which was allowed. Aggrieved by the order of the Tribunal, Petitioners have filed the present petition.
Contentions of the Petitioner:
The Learned Counsel for the Petitioner submitted that the Tribunal ought to have rejected the Original Application filed for a change of date of birth at the fag end of service. He argued that the alleged erroneous entry was neither an obvious mistake nor attributable to any person other than the Respondent; therefore, the case of Petitioner is not covered by Rule 38 (2a)(f) of the Rules of 1981.
Contentions of the Respondent:
The Learned Counsel for the Respondent submitted that the Birth Certificate issued by M.C.G.M. has more evidentiary value over the School Leaving Certificate. The Respondent was requesting for change of his date of birth right since 22 July 1994. His case was under active consideration which is the reason why he did not approach the Tribunal earlier.
Observations of the Court:
The Court noted that Rule 38 of the Rules of 1981 deals with the correction of the date of birth of Government Servants. It provides that an application for a change of date of birth can be entertained only within a period of five years from the date of appointment. The Court said that the Tribunal ought not to have entertained the O.A. filed by Respondent two months before his retirement. The issue of correction of date of birth cannot be kept pending till the fag end of an employee’s retirement. If an application for correction of date of birth is made within 5 years of entry into service and if the same is not acted upon, remedy in respect of such inaction must be exercised in a timely manner, and filing of litigation at the fag end of service is required to be discouraged. Mere rejection of a request for a change of date of birth by the employer before the date of retirement would not revive the cause which got time-barred by the officer’s failure to exercise remedies in a timely manner.
The Court observed that the Respondent did not make any attempt to get the date of birth corrected in his school records. Even if it is assumed that Respondent did make an application for a change of date of birth on 22 July 1994, he failed to pursue his remedies in respect of his grievance, immediately thereafter.
The decision of the Court:
The Bombay High Court, allowing the petition, held that the judgment and order dated 21 April, 2023 passed by the Tribunal is set aside and the O.A. filed by the Respondent stands dismissed.
Case Title: State of Maharashtra & Ors. vs Sudhir Bhagwat Kalekar
Coram: Hon’ble Justice Dhiraj Singh Thakur and Hon’ble Justice Sandeep V. Marne
Case no.: WRIT PETITION NO. 6976 OF 2023
Advocate for the Petitioner: Mr. B.V. Samant
Advocate for the Respondents: Ms. Vaishali Jagdale
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