Bombay High Court
Taterao Mahadu Bagul vs The State Of Maharashtra And ... on 18 December, 2017
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
REVIEW APPLICATION [STAMP] NO.22202 OF 2016
IN
WRIT PETITION NO.4103 OF 2016
Taterao s/o. Mahadu Bagul,
Age-54 years, Occ. Service,
[as Addl. Collector, Nandurbar]
r/o. Tokar Talav Road,
Nandurbar, Dist. Nandurbar ..Applicant
Vs.
1. The State of Maharashtra
Through its Addl. Chief
Secretary (Revenue),
Revenue and Forest Department,
M.S., Mantralaya, Mumbai-32
2. The Divisional Commissioner,
Nashik Division, Nashik .. Respondent
----
Mr.R.B.Raghuwanshi, Advocate i/b. Mr.D.S.Bagul,
Advocate for applicant
Mr.V.M.Kagne, AGP for respondent nos.1 and 2
----
CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : DECEMBER 04, 2017
PRONOUNCED ON : DECEMBER 18, 2017
JUDGMENT (PER SANGITRAO S. PATIL, J.) :
The applicant has sought review of the
judgment and order dated 13.04.2016 passed by this
2 R.A. ST.22202-16
Court in Writ Petition No.4103 of 2016 whereby it
came to be dismissed.
2. The applicant had filed Original Application
No.2 of 2015 before the Maharashtra Administrative
Tribunal, Mumbai, Bench at Aurangabad, seeking
directions against respondent no.1 to consider and
decide on merits his claim for correction in his date
of birth recorded in his service record in the light
of Instruction (1) under Rule 38(2) of the
Maharashtra Civil Services (General Conditions of
Services) Rules, 1981 ("Rules of 1981", for short),
as they stood prior to amendment of 2008, by quashing
and setting aside the communication dated 26.02.2015
issued by respondent no.1, whereby the applicant was
informed that since he had not applied for correction
of his date of birth within a period of five years of
entering into service, his request for effecting
change in his date of birth was refused.
3 R.A. ST.22202-16
3. The learned Member of the Tribunal, after
hearing the parties, dismissed the said Original
Application on the basis of various judgments of the
Hon'ble the Supreme Court. The applicant filed Writ
Petition No.4103 of 2016 against the judgment and
order passed by the Tribunal. After hearing the
learned Counsel for the applicant and the learned
A.G.P. for the respondents, this Court did not find
any reason to interfere with the judgment and order
passed by the Tribunal and accordingly, rejected the
Writ Petition on 13.04.2016.
4. The learned Counsel for the applicant
submits that the applicant entered into the
Government Service on 15.06.1988 initially as a
Police Sub-Inspector. He was then appointed as Deputy
Registrar of Co-operative Societies in the Department
of Co-operation, Government of Maharashtra, which was
a Class-I post, with effect from 19.07.1993. He then
applied for the post of Deputy Collector through the
Maharashtra Public Service Commission and got
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selected and appointed as Deputy Collector in Revenue
and Forest Department with effect from 19.07.1995.
He was promoted as an Additional Collector on
13.07.2011. His date of birth was wrongly recorded as
07.01.1960 in the service record. Since his date of
birth was approximate and not the actual one, the
applicant started searching and collecting the
necessary information about his correct date of
birth. After collecting the necessary documents and
information, he applied on 18.07.2005 for correction
of his date of birth to make it 07.01.1962 in the
place of 07.01.1960. The learned Counsel submits that
since the applicant had applied for correction of his
date of birth prior to amendment of 2008, that was
effected in the Rules of 1981, his application was
not liable to be rejected on the basis of the
limitation provided in the amended Rule 38 since it
was having prospective effect only. He submits that
the said vital question has not been considered by
this Court while dismissing Writ Petition No.4103 of
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2016, which has caused substantial injustice to the
applicant. He submits that the claim of the applicant
for correction in his date of birth should have been
considered on merits and should not have been
rejected on the technical ground of delay in applying
for correction thereof and more particularly, when
the amended provisions of Rule 38 were not having
retrospective effect. In support of his contentions,
he relied on the following judgments :-
(i) National Airport Authority Vs. M.A. Wahab,
(1994)4 SCC 439;
(ii) Union of India and anr. Vs. Hemraj Singh
Chauhan and ors., Civil Appeal No.2651-52 of
2010 (arising out of SLP(C) No.6758-
6759/2009) delivered by the Apex Court on
23.03.2010;
(iii) Unreported judgment in the case of Ashok
s/o. Pralhad Meshram Vs. The Head Master,
Zilla Parishad High School, Palandur
(Chauras), Tahsil Lakhni, Dist. Buldhana,
and anr. delivered by the single Bench of
this Court at Nagpur Bench on 09.07.2014.
6 R.A. ST.22202-16
5. On the other hand, the learned AGP submits
that the amended provisions of Rule 38 would be very
much applicable to the case of the applicant. Even
prior to that, there was a provision prescribing
time limit of five years from the date of entry in
the service for filing application for correction of
date of birth in the service record. According to
him, there has been delay of 17 years on the part of
the applicant in filing the application for
correction of his date of birth, which is not at all
satisfactorily explained. Relying on the judgment in
the case of State of U.P. and anr. Vs. Shiv Narain
Upadhyaya, (2005)6 SCC 49, the learned AGP submits
that such a belated claim of the applicant, that too
at the fag end of his service career, cannot be
considered and rightly has not been considered by the
Tribunal. He submits that this Court has rightly
dismissed the Writ Petition.
7 R.A. ST.22202-16
6. Admittedly, the applicant joined the service
with respondent no.1 on 15.06.1988. He recorded his
date of birth as 07.01.1960 in his service record.
It seems to have been verified from time to time. The
applicant acquired higher position as Deputy
Registrar of Co-operative Societies on 19.07.1993,
Deputy Collector in Revenue and Forest Department on
19.07.1995 and then got promoted to the post of
Additional Collector on 13.07.2011. He is due for
retirement on attaining the age of superannuation in
the month of January, 2018. It is only on 18.07.2005
(i.e. after about 17 years) that the applicant
thought of applying for correction of his date of
birth. The reason for the delay given by the
applicant is that his native place is a remote
village in Aurangabad District and it was difficult
for him to collect the necessary information and
documents showing his correct date of birth.
Considering the vertical progress made by the
applicant in his service career, the reason shown by
8 R.A. ST.22202-16
him for delay in filing the application ex-facie does
not appear to be natural, probable and acceptable.
7. The further contention of the applicant that
his application for recording his date of birth filed
after 17 years of his entering into the service was
maintainable, also is not at all acceptable. As per
Instruction (1) given under sub-rule (2) of Rule 38,
as it stood prior to amendment of 2008, normally, no
application for alteration of the entry regarding the
date of birth as recorded in service book or service
record of Government servant should be entertained
after five years commencing from the date of his
entry in Government service. The applicant has
produced the Circular dated 03.03.1998 (page 163)
issued by the General Administration Department,
Government of Maharashtra. In the said Circular, in
view of the judgment of the Hon'ble Apex Court in the
case of Union of India Vs. Harnam Singh, (1993) 2 SCC
162, it is made clear that the application for
correction of date of birth of in-service Government
9 R.A. ST.22202-16
Officers/servants, who have entered into the
Government service prior to or after 15.08.1981,
should be considered only if they are made within
five years of their entering into the service. This
Circular was binding on the applicant. It has not
been ever challenged by him. Thus, even prior to
filing of the application for correction of his date
of birth, the applicant was aware that his
application would be considered only if it was filed
within five years of his entering into the service.
He entered into the service on 15.06.1988.
Consequently, the application for correction of date
of birth filed for the first time on 18.07.2005, was
not at all tenable.
8. The learned Member of the Tribunal has
referred to the judgment in the case of State of
Maharashtra and anr. Vs. Gorakhnath Sitaram Kamble
and ors., (2010)14 SCC 423 and reproduced paragraphs
9 and 11 to 20 in the judgment, while rejecting the
claim of the applicant for entertaining his
10 R.A. ST.22202-16
application. In that case, respondent no.1, who was
appointed as an Assistant Teacher on 13.02.1978, had
applied for correction of date of birth on
23.05.2004. The Hon'ble the Supreme Court, referring
to a number of judgments, held that the application
of respondent no.1 for alteration of date of birth
after five years could not have been entertained.
Though respondent no.1 therein had filed application
for correction of his date of birth prior to
amendment of 2008 effected in the Rules of 1981, the
Hon'ble the Supreme Court held that according to the
notification dated 24.12.2008 amending the Rules of
1981 from 16.08.1981, the date of birth of Government
servant cannot be changed after five years from
16.08.1981. As such, the Hon'ble the Apex Court
treated the said notification amending Rules of 1981
in the year 2008 as retrospective. In our opinion,
if the amendment of 2008 in the Rules of 1981 is
treated as prospective, the Government servants, who
joined service on 16.08.1981, would be entitled to
11 R.A. ST.22202-16
file application for correction of date of birth
even after the said amendment of 2008. In that event,
the amended provisions of Rule 38 prescribing time
limit of five years for filing application for
correction in date of birth from the date of entry in
the Government service would become nugatory. Though
the judgment in the case of State of Maharashtra Vs.
Gorakhnath Kamble (supra) was cited before the
learned single Judge of this Court while deciding the
case of Ashok Meshram (supra), the learned Judge did
not at all consider the effect of that judgment and
held amendment of 2008 as prospective with the
following observations :-
"07. Comparison of the old rule and
amended rule clearly shows that the
rule making authority has after
amendment in 2008 prohibited the
employees from making any application
for correction in the date of birth
after the period of five years from the
date of entry in service but since the
12 R.A. ST.22202-16
amendment is not retrospective, it must
be read as prospective."
9. The above observations do not find any
support of any provision or precedent. As a matter
fact, the bare wording of amended Rule 32(2) would
make it clear that it has retrospective effect. In
the circumstances, the findings of the learned single
Judge that the amended provisions of Rule 38(2) have
prospective effect, cannot be accepted, being not the
correct exposition of law.
10. The learned Counsel for the applicant
further cited the judgment in the case of National
Airport Authority (supra), which prohibits the
provision of Note 5 of Fundamental Rule 56(m) as
substituted in 1979, governing correction of date of
birth in service record, substituted by Government of
India, Ministry of Home Affairs, Department of
Personnel and Administrative Reforms Notification
No.19017/79 dated 30.11.1979. The said provisions are
13 R.A. ST.22202-16
not pari-materia to the amended provisions of
Instruction (1) under sub-rule (2) of Rule 38 of
Rules 1981 inasmuch as there is no mention in Note
no.5 of any specific date of entry in service of the
Government servant, as has been mentioned in
Instruction (1). Therefore, it has been interpreted
that the employees, who completed five years of
service prior to substitution of Note 5 prescribing
time limit of five years of entry into the Government
service for alteration of date of Birth, would be
entitled to apply for correction of date of birth
within a period of five years from the date of such
notification.
11. As stated above, the case of State of
Maharashtra Vs. Gorakhnath (supra), takes into
consideration the amended provisions of Rule 38 of
Rules of 1981, while rejecting the application dated
23.05.2004 filed by respondent no.1 therein for
correction of his date of birth, the judgment in the
case of National Airport Authority (supra) relating
14 R.A. ST.22202-16
to some other provision, which is not pari-materia
with Rule 38(2) would be of no help to the applicant
to claim that the amended provisions of Rule 38 would
not be applicable to his case.
12. The judgment in the case of Union of India
and anr. Vs. Hemraj Singh (supra) relates to Rule
4(2) of the Indian Administrative Service (Cadre)
Rules, 1954, which is not at all in consonance with
Rule 38 of Rules of 1981. Consequently, the said
judgment would not be helpful to the applicant.
13. In the case of State of U.P. and anr. Vs.
Shiv Narain Upadhyaya (supra) cited by the learned
AGP, it has been observed that most of the states
have framed statutory rules or in the absence thereof
issued administrative instructions stating as to how
a claim made by a public servant in respect of
correction of his date of birth in the service record
is to be dealt with and what procedure is to be
followed. It is further observed that in many such
15 R.A. ST.22202-16
Rules a period has been prescribed within which if
any public servant makes any grievance in respect of
error in the recording of his date of birth, the
application for that purpose can be entertained. It
is then observed that the sole object of such rules
being that any such claim regarding correction of the
date of birth should not be made or entertained after
decades, especially on the eve of superannuation of
such public servant. If no rule or order is made or
framed prescribing the period within which such
application must be filed, then such application must
be filed at least within reasonable time.
14. In the present case, as stated above, even
prior to the amendment effected in the year 2008 in
the Rules of 1981, period of five years was
prescribed within which normally the Government
servant was expected to make an application of
correction of his date of birth after entering into
the service. The Circular dated 03.03.1998 mandates
that no such application shall be entertained in case
16 R.A. ST.22202-16
it was not made within five years from the date of
entry in the Government service. The amended Rule 38
mandates that such application shall be made within
five years from the date of entry in the service.
Even if the period five years, as mentioned in the
Rules of 1981, as they stood prior to amendment of
2008 and even thereafter, is ignored for a while, it
was expected of the applicant to make an application
within a reasonable period. The application made by
the applicant after 17 years of his entry in the
Government service, by no stretch of imagination can
be said to have been made within reasonable time. In
the above circumstances, the claim of the applicant
seeking correction in the date of birth cannot be
entertained and rightly has not been entertained by
respondent no.1. The Tribunal also has rightly
dismissed the Original Application filed by the
applicant giving sound reasons based on the law laid
by the Apex Court. In the circumstances, the Writ
Petition filed by the applicant was liable to be
17 R.A. ST.22202-16
dismissed and accordingly, has been dismissed by this
Court.
15. We do not find any error apparent on the
face of record to review the said judgment. The
Review Application is sans substance. It is liable to
be dismissed and accordingly, dismissed.
[SANGITRAO S. PATIL, J.] [S.S. SHINDE, J.]
kbp
