Bombay High Court

Shivaji Baburao Zanzan vs The State Of Maharashtra And ... on 31 March, 2017

Bench: S.V. Gangapurwala

                                        1                   W.P.No.10935/15




                     IN THE HIGH COURT OF JUDICATURE AT

                                       BOMBAY

                                BENCH AT AURANGABAD.


                           WRIT PETITION NO.10935 OF 2015


          Shivaji S/o Baburao Zanzan,
          Age 52 years, Occ.Service,
          R/o Parijat Nagar, N-4,
          CIDCO, Aurangabad, Tq.
          and Dist.Aurangabad.                   ... Petitioner.

                           Versus

          1. The State of Maharashtra
          through the Secretary,
          Urban Development Ministry,
          Mantralaya, Mumbai-32.

          2. The Commissioner,
          Municipal Corporation,
          Aurangabad.                            ... Respondents.

                                   ...
          Mr.V.M.Thorat, advocate holding for
          Mr.S.J.Salunke, advocate for the petitioner.
          Mr.P.S.Patil, Additional Government Pleader for
          the State.
          Mr.Deelip Patil Bankar, advocate for Respondent
          No.2.
                                   ...



                                 CORAM : S.V.GANGAPURWALA AND
                                         K.L.WADANE,JJ.

                          Reserved on : 01.03.2017.
                        Pronounced on : 31.03.2017.




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                                                       2                    W.P.No.10935/15

          JUDGMENT (Per S.V.Gangapurwala,J.)

1. The petitioner seeks correction of date

of birth in his service book and consequently

assails the order of the Commissioner, Municipal

Corporation, Auragnabad, dated 20.10.2015,

thereby rejecting the application of the

petitioner for correction of date of birth in his

service book as 22.6.1963 instead of 3.6.1959.

2. The facts necessary to decide the

petition are hereby culled out :

3. The petitioner was appointed as a

Station Officer in Municipal Corporation,

Aurangabad, on 1.9.1987. His date of birth in

the service book is recorded as 3.6.1959. The

petitioner on or about 24.9.1987 gave an

application for correction of date of birth in

his service book. It is the contention of the

petitioner that from 24.9.1987 to 19.4.2014 he

applied on 19 occasions, however, no cognizance

is taken of his applications for correction of

date of birth in his service book. The

Commissioner on or about 28.7.2014 sought

guidance from Respondent No.1 with regard to

correction of the date of birth of the petitioner

in the service book. The Respondent No.1 on or

about 30.8.2014 communicated to the Commissioner

that he is competent to take decision on his own.

Under order dated 20.10.2015, the Commissioner

rejected the request of the petitioner.

4. Mr.Thorat, learned counsel for the

petitioner strenuously contends that within 25

days of joining the service, the petitioner had

applied for correction of date of birth in his

service book. The Respondent No.2 did not take

immediate decision upon the same and kept the

matter pending. Time and again the petitioner

applied for correction of date of birth but to no

avail. On 28.7.2014, the Commissioner came to

the conclusion that the date of birth of the

petitioner is required to be changed in the

service book and that the correct date of birth

of the petitioner is 20.6.1963. The Commissioner

upon consideration of the documents submitted

before him was convinced that the date of birth

of the petitioner recorded in the service book as

3.6.1959 is erroneous and the correct date of

birth is 22.6.1963. Once the Commissioner was

convinced about the correct date of birth of the

petitioner, it was for the Commissioner to direct

correction of the date of birth in the service

book of the petitioner and was not required to

seek guidance from the Respondent No.1 as was

sought to be done by the Commissioner pursuant to

his letter dated 28.7.2014 addressed to

Respondent No.1. The Respondent No.1 on

30.8.2014, communicated the Commissioner to take

decision on his own as he is the appointing

authority.

5. The Commissioner had already concluded

about the fact that the correct date of birth of

the petitioner is 22.6.1963, as such he was only

required to carry out the correction in the

service book. He had no authority to review the

earlier decision wherein he had concluded the

correct date of birth of petitioner to be

22.6.1963 and the entry in the service book as

3.6.1959 is erroneous. The statute does not

permit the Commissioner to review his earlier

order.

6. The learned counsel further submits

that the petitioner had relied on the documents

dated 3.1.1970 issued by the Grampanchayat Sakhri

Borgaon, Tq. and Dist.Beed, through its Sarpanch,

so also the Gramsevak of Sakhri Borgaon

Grampanchayat on 1.4.2013 had given the birth

certificate stating the date of birth of the

petitioner as 22.6.1963. The said certificate

has a presumptive value under the provisions of

the Registration of Births and Deaths Act. The

said certificate is a conclusive evidence of the

date of the birth of the petitioner as 22.6.1963.

Even the uncle of the petitioner, the father of

the petitioner and the Sarpanch of the

Grampanchayat had given affidavits before the

Tahsildar and Executive Magistrate, Beed that the

real date of birth of petitioner is 22.6.1963.

The horoscope of the petitioner was also

submitted showing that the date of birth of the

petitioner is 22.6.1963. Upon perusal of all

these documents, the Commissioner had concluded

about the real date of birth of the petitioner to

be 22.6.1963 and that entry of date of birth in

the service book as 3.6.1959 is wrongly recorded.

The Commissioner could not have reviewed the

said decision taken on 28.7.2014 by separate

order dated 20.10.2015.

7. The learned counsel further submits

that subsequent order dated 20.10.2015 was

without jurisdiction as the Commissioner has no

powers of review. The said order is also bad in

law as it is an unreasoned order. According to

learned counsel, even principles of natural

justice are not followed while passing the

impugned order by the Commissioner. The learned

counsel submits that even the petitioner was

referred to the Medical Board. On 21.10.2014,

Medical Board opined the age of petitioner to be

between 45 to 50 years. All these facts would go

to show the real date of birth of the petitioner

to be 22.6.1963. Due to the illiteracy of the

parents of the petitioner, the date of birth was

wrongly recorded in the School record of the

petitioner as 3.6.1959 and the same is continued.

According to the learned counsel, the impugned

order passed by the Commissioner deserves to be

set aside and the Respondent No.2 be directed to

correct the date of birth in the service book of

the petitioner as 22.6.1963 instead of 3.6.1959.

8. Mr.Deelip Patil Bankar, learned counsel

for the Respondent No.2 submits that on

28.7.2014, the Commissioner had sought guidance

from the Respondent No.1 about correction in date

of birth of the petitioner and had only expressed

its opinion. There would be distinction between

opinion and the decision. On 28.7.2014, the

Respondent No.2 had not given any decision about

changing the date of birth of the petitioner in

the service book. As such it can not be said

that any order was passed by the Commissioner on

28.7.2014. After the Respondent No.1

communicated to the Respondent No.2 that

Respondent No.2 is competent to take decision on

his own regarding change of date of birth of the

petitioner in the service book. The Respondent

No.2 after considering all the documents on

record negatived the claim of the petitioner.

There is no question of review of any order, as

no order was passed prior to the impugned order

by Respondent No.2.

9. The learned counsel submits that the

entry in the service book showing the date of

birth of the petitioner as 3.6.1959 was on the

basis of representation of the petitioner and

also the documents submitted by the petitioner at

the time of his appointment. The documents

submitted by the petitioner showed his date of

birth as 3.6.1959. At the time of entry of the

petitioner in the service, the petitioner had

submitted the documents i.e. the School Leaving

Certificate of Bhagwan Vidhyalaya, Beed dated

20.7.1977, showing the date of birth of the

petitioner as 3.6.1959, the S.S.C. Certificate

issued by the Maharashtra Secondary and Higher

Secondary Education, Divisional Board, Aurangabad

dated 20.6.1977, showing the date of birth of

petitioner as 3.6.1959, the certificate issued by

the Executive Magistrate, Beed dated 15.6.1982,

showing the date of birth of the petitioner as

3.6.1959. The certificate issued by Civil

Surgeon, Aurangabad in respect of Medical fitness

of petitioner dated 20.10.1987 which clearly

states that as per the statement of the

petitioner, his age is 28 years, so also by

appearance, the age appears to be 28 years. On

the basis of all these documents the entry in the

service book is taken of the date of birth of the

petitioner as 3.6.1959. The petitioner is well

qualified. The learned counsel submits that even

after petitioner was employed with Respondent the

subsequent documents also show the date of birth

of the petitioner as 3.6.1959. The passport

dated 7.7.2005 issued in favour of the petitioner

by the Passport authority of India shows the date

of birth of the petitioner as 3.6.1959. Adhar

card dated 27.8.2011, driving license, PAN card

issued by the Income Tax Department show the date

of birth of the petitioner as 3.6.1959. Earlier

applications relied by the petitioner to state

that since 1987, he is applying for the change of

date of birth in his service record were not

addressed to the Commissioner of Municipal

Corporation, who is the appointing authority but

to the Estate Officer or to the Deputy

Commissioner. The applications annexed by the

petitioner at pages 24-A to 24-E show that he has

given these applications to the Fire Department

as acknowledgments are obtained from Fire

Department. It is only after the period of five

years some communications were addressed by the

petitioner to the Commissioner of the Municipal

Corporation.

10. The learned counsel further submits

that reliance placed by the petitioner on the

certificate issued by the Sarpanch dated 3.1.1970

is misplaced. It nowhere states as to on what

basis the said certificate is issued by the

Sarpanch and what is source of knowledge, whereas

subsequent certificates of the School records -

Secondary School Certificate and the certificate

issued by the Executive Magistrate show the date

of birth as 3.6.1959. The certificate issued by

the Gramsevak, Sakhri Borgaon on 4.1.2013 is

based on the affidavits of his father and uncle.

The same is at the fag end of the service career

of the petitioner. The said certificate can not

have any presumptive value. According to the

learned counsel, the subsequent documents such as

Passport, Adhar Card, Pan Card are submitted by

the petitioner to the Respondent No.2 Corporation

for getting certain certificates. On one hand,

petitioner relies upon the said documents for

getting certificates wherein the date of birth is

recorded as 3.6.1959 and now claims his date of

birth as 22.6.1963. Within a period of five

years, no application for correction of date of

birth was ever addressed to the Commissioner but

were to the other authorities.

11. Learned counsel for Respondent No.2

further submits that correction of date of birth

in the service book can not be allowed unless it

is shown that the recorded date was due to

negligence of some other person or that it was a

case of clerical error. Learned counsel relies

on the judgment of the Apex Court in the case of

"State of M.P.and others" Vs. Premlal Shrivas"

reported in 2011 (3) G.L.H. 656. The learned

counsel also relies on the judgment of the Apex

Court in the case of "Commissioner of Police,

Bombay Vs.Bhagwan V.Lahane" dated November 26,

1996. The learned counsel submits that unless a

clear case on the basis of material which can be

held to be conclusive in nature is made out by

the petitioner, the Court may not issue direction

for correction of date of birth made in

accordance with the procedure. The learned

counsel relies on the judgment of the Apex Court

in the case of "State of Maharashtra and another

Vs. Gorakhnath Sitaram Kamble and others"

reported in 2011 AIR SCW 206.

12. We have considered the submissions

canvassed by the learned counsel for respective

parties and the documents sought to be relied by

them.

13. The onus is on the petitioner to prove

about the wrong recording of his date of birth in

his service book.

14. The contention of the petitioner that

earlier the Commissioner of the Municipal

Corporation had taken the decision to effect the

change of date of birth of the petitioner in the

service record does not appear to be in tune with

the factual matrix. The petitioner is placing

his reliance on the letter dated 28.7.2014

written by the Commissioner, Municipal

Corporation to the Principal Secretary, Urban

Development Department. In the said letter, the

Commissioner, Municipal Corporation had jotted

down various documents presented by the

petitioner and had referred the same to the

Principal Secretary, stating that it is the

opinion of the administration that there may not

be any objection to effect the change of date of

birth of the petitioner in the service record and

sought confirmation of the opinion from the

Principal Secretary. It would be seen that no

actual decision was taken and the Commissioner

was of the opinion that the said decision would

be taken by the Urban Development Department.

The Commissioner had not taken any conscious

decision with regard to effecting the change in

the date of birth of the petitioner in the

service book of the petitioner. After the

Commissioner received communication from the

Urban Development Department dated 30.8.2014 and

asking the Commissioner to take the decision at

his end thereafter, the Commissioner by applying

his mind and upon considering various documents

on record did not find sufficient evidence to

effect the change in date of birth of the

petitioner in the service record.

15. The order is not a detail or a reasoned

order by referring all the documents, however,

various documents on record would imply that the

correct date of birth of the petitioner is

recorded in the service book at the time of his

entry in service. It is for the first time on

20.10.2015, decision has been taken by the

Commissioner, thereby rejecting the application

of the petitioner to effect the change of date of

birth of the petitioner in the service book. By

no stretch, it can be said that the Commissioner

has reviewed any earlier order as no order was

passed before the impugned order passed by the

Commissioner.

16. It is undisputed that the School record

of the petitioner records the date of birth of

the petitioner as 3.6.1959. The said record

includes the School Leaving Certificate of the

petitioner, the certificate issued by the

Secondary School Board, so also the certificate

of the Executive Magistrate dated 15.6.1982,

showing the date of birth of the petitioner as

3.6.1959.

17. To buttress his case, the petitioner

relies on the documents such as :

                   (i)           Horoscope;



                   (ii)          The certificate of Sarpanch of

                   Grampanchayat                Sakhri             Borgaon

                   dt.3.1.1970;



                   (iii)         The   birth     certificate          dated

                   4.1.2013      issued    by    Gramsevak       and      the

affidavits of his father and uncle.

(iv) The letter of the Medical

Board dated 23.8.2013, stating that the

age of the petitioner may be between 45

to 50 years.

18. The birth certificate dated 4.1.2013 is

said to have been issued under the provisions of

Registration of Births and Deaths Act, 1969.

19. The certificate under the Registration

of Births and Deaths Act, would have a

presumptive value only if the same is issued in

consonance with the procedure as established

under the said Act. In the present case, the

petitioner contends of having been born on

22.6.1963 and the entry of the said birth as per

the Registration of Births and Deaths Act, is

taken on 4.1.2013, that too on the basis of

affidavits. For the said certificate to have the

benefit of presumption, the entry ought to be

made adhering to the condition stipulated under

sub-section (1) of Section 22 of the said Act.

Reliance can be had to the Division Bench

judgment of this Court in the case of "Gangadhar

S/o Gonduram Tadme Vs. Trimbak S/o Govindrao

Akingire and others" reported in 2005 (1)

Mh.L.J.94.

20. As against the aforesaid documents

relies by the petitioner, the following documents

depict the date of birth of the petitioner as

3.6.1959.

                  (i)           School      Leaving        Certificate

                  issued       by    Bhagwan    Vidhyalaya,          Beed,

                  dated 20.7.1977;



                  (ii)          Secondary       School     Certificate

issued by the Maharashtra Secondary and

Higher Secondary, Divisional Board,

Aurangabad dated 20.6.1977;

(iii) The certificate issued by the

office of Executive Magistrate, Beed

dated 15.6.1982;

                  (iv)          The     certificate        issued          by

                  Civil         Surgeon,        Aurangabad           dated

                  20.10.1987;



                  (v)               The Passport dated 7.7.2005

issued in favour of the petitioner by

the Passport Authority of India;

(vi) The Adhar Card dt.27.8.2011

issued in favour of the petitioner by

the competent authority;

(vii) The Driving licence issued by

the concerned Regional Transport Office,

Aurangabad to the petitioner shows date

of birth as 3.6.1959;

(viii) The PAN Card issued to the

petitioner by the Income Tax Department

shows date of birth as 3.6.1959;

          21.              Even       at     the       time    of    entry       in      the

          service,             the     petitioner         had       submitted            the

documents from serial Nos.1 to 3 above showning

the date of birth of the petitioner as 3.6.1959.

The date of birth recorded in the service book

was based on the documents submitted by the

petitioner himself at the time of his appoitment.

There is nothing on record to show that the

recorded date was due to negligence of some other

person or that due to want of proper care of

other person, date of birth of petitioner at the

time of entry in service was recorded incorrectly

in the service book or it is a case of clerical

error. The date of birth in the service book of