Smt. Smita Madhav Patki vs The State Of Maharashtra, Through ...
2017 Latest Caselaw 3111 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 6067 OF 2013

      Smt. Smita Madhav Patki                                      .. Petitioner

            Versus

      The State of Maharashtra and ors.                            .. Respondents

      Mr. V. S. Talkute for petitioner.
      Mr. S. S. Aradhye for respondent no.1.
      Ms. A. R. S. Baxi for respondent nos.2 to 5.

                             CORAM: NARESH H. PATIL &
                                    SMT. BHARATI H. DANGRE, JJ.

JUNE 13, 2017.

ORAL JUDGMENT [ Per Naresh H. Patil,J.] :

1. Rule. Rule made returnable forthwith. Heard finally by

consent of parties.

2. The petitioner's husband was serving with Maharashtra State

Electricity Distributor Company Ltd. He died while in service on

9/11/1999. The petitioner applied for service on compassionate ground.

Initially, petitioner was allowed to join work on a consolidated pay of

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Rs.2000/- per month. Petitioner represented to the Department to appoint

her on compassionate ground on regular basis. Finally by appointed order

dated 27/1/2009, the petitioner was appointed as a Lower Divisional

Clerk / Office Assistance in a prescribed pay-scale on compassionate

ground subject to her selection by the Designated Selection Committee.

The petitioner claims that she worked in that capacity till the date of her

superannuation. She retired on 31/7/2013. During this period, on

14/8/2009, petitioner contends that she filed an application addressed to the

Executive Engineer of respondent no.5 for getting her date of birth

corrected in the service book.

3. It is the contention of the petitioner that she even addressed a

communication dated 16/1/2013 to the Education Officer, Higher

Secondary, Solapur for correction of date of birth. According to the

petitioner in service record and the school record, the date of birth was

mentioned as 7/7/1955, but the correct date, according to the petitioner,

ought to be 20/8/1957. In reply to the application filed by the petitioner,

the Education Officer by communication dated 12/7/2013 rejected the

application of the petitioner on the ground that in accordance with the

provisions of Rule 26.4 of the Secondary School Code, correction of date

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of birth could be carried out in case the student is taking education in the

school and as petitioner had left the school, the issue regarding the

correction of the birth date entry cannot be looked into.

4. Learned counsel for the petitioner places reliance on the

following judgments in support of the contention that Rule 26.4 of the

Secondary School Code has been considered to be directory and not

mandatory. In that case, the petitioner's application ought to have been

considered on merits.

(a) Vilas s/o Dattatraya Ransubhe vs. The State of

Maharashtra [2013(1) Bom CR 666].

(b) Shaikh Shafi Ahmed Khadarsab vs. State of

Maharashtra and ors. [2013(1) Bom.CR 660].

Learned counsel places reliance on an entry appearing in the

Birth Register maintained by the Pandharpur Municipal Council.

5. Learned counsel appearing for the Pandharpur Municipal

Council, produced the original register and photostat attested copy of the

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entry-sheet wherein the petitioner's name is mentioned along with her date

of birth to be 20/8/1957, which is taken on record and marked "X" for

identification.

6. The learned AGP submits that in view of the settled position as

regards the interpretation of the provisions of Rule 26.4, appropriate orders

may be passed.

7. We have perused the record placed before us and the

judgments cited (Supra). This court has taken a view that Rule 26.4 of the

Secondary School Code is directory in nature and even if a person had left

the school, still his/her application for correction of date of birth is

required to be considered on its own merits. The Education Officer

committed an error in rejecting the application of the petitioner on the

ground stated therein. We are, therefore, inclined to set aside the impugned

order and remand the matter back to the Education Officer for considering

afresh.

8. Impugned order dated 12/7/2013 passed by the respondent

no.2A - Education Officer (Secondary), Zilla Parishad, Solapur, is hereby

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quashed and set aside and matter is remanded back to Education Officer

(Secondary), Zilla Parishad, Solapur. Respondent No.2A is directed to take

into consideration the relevant record produced by the petitioner and shall

thereafter take appropriate decision at the earliest by passing a brief

reasoned order. This exercise shall be completed by respondent no.2A

within three months from the date of receipt of this order.

9. Rule made absolute in the above terms. No costs.

(SMT. BHARATI H. DANGRE,J.) (NARESH H. PATIL,J.)