Bombay High Court

The State Of Maharashtra Through ... vs Mr. Ganpat D. Salunkhe on 21 July, 2017

Bench: V.K. Tahilramani

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                  CIVIL APPELLATE JURISDICTION

                   WRIT PETITION NO. 5518 OF 2016


1. The State of Maharashtra,
Through Deputy Commissioner
of Police, Motor Transport
Department (Under the Admin.
Control of the Commissioner of
Police, Mumbai) having office at
Nagpada, Mumbai.

2. The State of Maharashtra,
through Additional Chief Secretary,
Home Department, having office at
Mantralaya, Mumbai-32.              .......Petitioners
                                    (Orig. Respondents)

         V/s.

Mr. Ganpat D. Salunkhe
Om Sagar Park, Amrut Nagar
Ghatkopar, Mumbai-86                            .......Respondent
                                                (Orig. Applicant)

                                     ------

Mr. Nitin P. Deshpande, AGP for the State, petitioners.

Mr. Bhushan                A.   Bandiwadekar,    Advocate           for      the
respondent.



                 CORAM :-            SMT. V.K. TAHILRAMANI, &

                                     SANDEEP K. SHINDE, JJ.

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                 DATE :-              21 ST JULY, 2017.

ORAL JUDGMENT (PER :- SMT. V.K. TAHILRAMANI, J) :

1. Heard Learned AGP for the petitioners and

Learned Counsel for the respondent.

2. Rule. By consent, Rule is made returnable

forthwith and the matter is heard finally. This petition

has been preferred by the petitioners i.e. Deputy

Commissioner of Police, Motor Transport Department and

the State of Maharashtra against the order of the

Maharashtra Administrative Tribunal dated 6th August,

2015 passed in O.A. No. 892 of 2014 preferred by the

respondent.

3. The issue in this petition is in relation to the

date of birth of the respondent. The respondent had

reported for duty as Police Constable for the first time on

26th September, 1981. Initially, the date of birth was

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wrongly recorded in the service book as 26th September,

1976. That would mean that, in 1981 when he joined

service, he was five years of age. Obviously, at the age of

five, he could not have been appointed. This mistake in

filling in the date of birth in the service record was of the

office of the Commissioner of Police or Deputy

Commissioner of Police. Thereafter, the date of birth was

changed to 26th September, 1956. The respondent started

his career as a Police Constable in 1981 and in the year

2014, he became Assistant Sub-Inspector. Going by the

date of birth of 26th September, 1956, the respondent was

proposed to be superannuated on 30th September, 2014.

When it came to his notice, the respondent preferred O.A.

before the Maharashtra Administrative Tribunal praying

therein that, the clerical mistake committed by the

Commissioner Office be corrected and his date of birth be

corrected in the service book from 26 th September, 1956

to 26th September, 1960. As no interim relief was given

to him, he superannuated on 30th September, 2014.

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4.               The           records    show    that,     the       Assistant

Commissioner of Police addressed a communication dated

12th June, 2014 to the General Administration

Department (GAD), which was at Exhibit-A to the O.A. It

was clearly mentioned in the said communication, that

the respondent had requested for a change of date of

birth. The lapses on the part of the office was set out in

the communication. It was then stated that the date of

birth of the respondent should be changed to 26 th

September, 1960. It was clearly stated in the

communication that this mistake in the date of birth

occurred due to mistake of the office. It was specifically

stated in the communication that, on account of mistake

by the office, a wrong date of birth was noted in the

service record and hence orders be given to change the

date of birth to 26th September, 1960. The same authority

again wrote to the Government on 12th September, 2014

with the same request.

5. On 4th February, 2013 the respondent wrote to

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the Deputy Commissioner of Police, Motor Transport

Department that he had already submitted the documents

in respect of the date of birth being 26 th September, 1960.

Similarly, on 26th September, 2014 the respondent

annexed copies of documents to support his stand i.e. his

date of birth is 26th September, 1960. There was a School

Leaving Certificate showing the date of birth of the

respondent as 26th January, 1960. There was also a

Certificate from the Assistant Commissioner (Motor

Vehicles) dated 6th January, 1993 which showed that the

date of birth of the respondent was 26th September, 1960.

There was also an Identity Card issued by the Bombay

Police on 17th July, 1995 wherein the date of birth is

mentioned as 26th September, 1960. There were some

other office documents also showing that the date of birth

of the respondent was 26th September, 1960.

6. Thus, it is clear that, there was a record in the

Bombay Police Department from the year 1993 to show

that the date of birth of the respondent was 26 th

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September, 1960. The respondent had informed

repeatedly that his date of birth was 26 th September,

1976. The authorities due to mistake on their part had

initially also entered the wrong date of 26 th September,

1976 in the service record of the respondent. This date of

26th September, 1976 was corrected. However, thereafter

it was substituted with the date "26th September, 1956"

without any document to support the same.

7. This is not a case where the respondent wanted

a change in the date of birth. This is not a case where the

respondent had given a particular date at the time of

initial entry which was later on sought to be changed by

him. Infact, the office of the petitioner itself had

convincing material before them to show that the date of

birth of the respondent was 26 th September, 1960 yet

wrong date was noted in the service book. The Learned

Counsel for the petitioners, submitted that, after a period

of 5 years from entry in Government Service, no change

can be carried out in date of birth. To support this

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submission, reliance is placed on Instruction (1) to Rule

38 of the Maharashtra Civil Services (General Conditions

of Service) Rules, 1981 which states as under :-

"(1) No application for alteration of the entry regarding date of birth as recorded in the Service Book or Service Roll of a Government servant should be entertained after a period of five years commencing from his entry in Government service."

8. In the first place, the respondent had not given

his date of birth as 26 th September, 1956, nor had he

preferred an application for alteration of the entry. There

was no tangible material before the petitioners to record

the date of birth as 26th September, 1956. On the other

hand, as far as, the date 26th September, 1960 is

concerned, there was ample convincing documentary

material before the petitioners who were the custodians of

his service book to show that the date of birth of the

respondent is 26th September, 1960. Infact, Rule 38(3)

of the above Rules, read as under :-

"All cases relating to alteration of dates of birth of Gazetted Government Servants and

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such of the requests of the Non-Gazetted Servants as are proposed to be entertained on merits in relation of instruction no.(1) above should invariably be referred to the General Administration Department and the Finance Department through the Administrative department concerned."

Accordingly, the Assistant Commissioner of Police had

addressed a communication to the GAD and sought orders

to change the date of birth of the respondent from 26 th

September, 1956 to 26th September, 1960. The

petitioners themselves have written an erroneous date of

birth in the service book of the respondent without any

material to support the same. On the other hand, there

was ample material to show that the date of birth of the

respondent was 26th September, 1960. In such case, the

petitioners cannot be allowed to take advantage of their

own wrong and the respondent cannot be made to suffer

for some thing for which he was not responsible or