Chandrakant Punju Wagh vs Chairman & Managing Director And ...
2017 Latest Caselaw 7090 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                            WRIT PETITION NO. 4188 OF 2017


      Chandrakant Punju Wagh
      Aged 56 years, R/o Kavyadhara, Malhar
      B-3/203, Dhokali-Kolshet Road,
      Thane (W) 400 607.
      working as Chief Engineer (C) with
      Maharashtra State Electricity Distribution Co. Ltd.
      having registered address at
      Prakashgad, Bandra, Mumbai 400 051.                          .. Petitioner


                    Versus


      1.    Chairman & Managing Director
            Maharashtra State Electricity Distribution
            Co. Ltd., 6th Floor, Prakashgad, Prof. Anant
            Ghanekar Road, Bandra (E), Mumbai 400 051.

      2.    Chief General Manager (T/E)
            Maharashtra State Electricity Distribution
            Co. Ltd. , 4th Floor, Prakashgad, Prof. Anant
            Ghanekar Road, Bandra (E), Mumbai 400 051.             .. Respondents


      Mr. Nilkanth D. Batule for petitioner.
      Ms. A. R. S. Baxi for respondent nos.1 and 2.


                             CORAM: NARESH H. PATIL &
                                    Z. A. HAQ, JJ.

SEPTEMBER 13, 2017.

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

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

consent of the parties.

2. The petitioner joined service of respondents in the year 1997

based on school leaving certificate, wherein the date of birth was

mentioned as 19/02/1960.

3. Under the service Rules, the petitioner could have applied for

change of date of birth within one year from joining service. In January

1998, petitioner secured a Birth Certificate issued by the Chopda Municipal

Council, wherein birth date was mentioned as 01/03/1961. It is submitted

that the petitioner applied to the respondents on 02/03/1998 for making

necessary change in the petitioner's service record in respect of the date of

birth. To an application filed by the petitioner to change date of birth in

service record, it was informed by the respondents to the petitioner that the

date of birth certificate issued by Chopda Municipal Council does not

mention name of the petitioner. It was also mentioned that the petitioner

had submitted an application for the post of Deputy Executive Engineer

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(Civil), in which the date of birth was recorded in his handwriting as

19/02/1960. The school leaving certificate and other documents produced

by the petitioner at the relevant time showed date of birth as 19/02/1960.

Inspite of the said communication, the petitioner did not take any steps for

getting the record corrected which include school leaving certificate,

municipal record etc.

4. The petitioner has approached this Court with a plea that the

certificate issued by the Chopda Municipal Council on 5/3/2016,

mentioning the date of birth of the petitioner as 01/03/1961, be taken into

consideration. Reply has been filed by the respondents. Rejoinder is

submitted by the petitioner today, which is taken on record.

5. The learned counsel appearing for the petitioner submits that

there is no time limit prescribed for the respondents to correct the service

record by entering the change in date of birth. It is further submitted that

in view of the birth certificate issued by the Health Department of Chopda

Municipal Council on 5/3/2016, mentioning date of birth of the petitioner

as 1/3/1961, the same be held to be correct and genuine and based on the

same, the service record be corrected. The petitioner is also placing

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reliance on the circular dated 27/7/2015 issued by the State Government

and the Rules of 2000 framed by the State Government in respect of birth

and death registration.

6. The learned counsel appearing for the respondents submits

that it would not be possible and appropriate to correct the date of birth of

the petitioner based on the certificate issued by the Chopda Municipal

Council. The other ground raised by the counsel is that at the fag end of

service tenure, said request has been made. The petitioner is to retire in the

month of February, 2018. The learned counsel further submitted that near-

about 17 to 18 years, the petitioner kept mum, without taking necessary

steps in respect of change of birth record. The counsel requests for

dismissal of the petition.

7. The learned counsel for the petitioner submits that the

petitioner's application for change of date of birth was rejected by the

respondents in the year 2017. In case such a rejection was communicated

to the petitioner, petitioner would have taken necessary steps. We do not

find that such a submission advances any credibility to the petitioner's case

as under the existing laws, the petitioner was not prevented from taking

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necessary steps for getting the date of birth corrected, if such a correction

was required in accordance with the Rules framed for the said purpose.

8. We have perused the record placed before us. As on today two

contrary certificates showing date of birth are placed on record, one is

school leaving certificate, which indicates birth date of the petitioner as

19/2/1960 and another is the birth certificate recently issued by the Chopda

Municipal Council, which indicates birth date of the petitioner as

01/03/1961. On what information and material Chopda Municipal Council

issued the birth certificate is a matter of inquiry and investigation.

9. In the case of Life Insurance Corporation of India and ors. vs.

R. Basavraju alias Basappa [(2016) 15 SCC 781], the Supreme Court in

paras 5 and 7 observed as under:

"5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement.

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7. This Court in State of T.N. v. T. V. Venugopalan, elaborately dealt with such a demand made by the employee with regard to alteration in the date of birth. This Court observed : (SCC p. 307, para 7)

"7. As held by this Court in Harnam case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force i.e. 1961. If no application is made, after expiry of five years , the government employee loses his right to make an application for correction of his date of birth. It is seen that the respondent entered into the service on 12-1- 1952, and only when he was due for superannuation at the age of 58 years on 31-8-1991, he made the application exactly one year before his superannuation. The Government rejected his claim before he attained the age of superannuation on 30-8-1991. When questioned, the Tribunal, for incorrect reasons, set aside the order and remitted the matter for reconsideration. The Government considered various facts and circumstances in GOMs No. 271 and rejected the claim on 31-3-1993. The evidence is not unimpeachable or irrefutable. The Tribunal in its judicial review is not justified in trenching into the field of appreciation of

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evidence and circumstances in its evaluation to reach a conclusion on merits as it is not a court of appeal. This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejected the correction of date of birth. The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed

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by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs.3000."

In the case of State of Madhya Pradesh and ors. vs. Premlal

Shrivas [(2011) 9 SCC 664], the Supreme Court in para 9 observed as

under:-

"9. In Home Deptt. v. R. Kirubakaran indicating the factors relevant in disposal of an application for correction of date of birth just before the superannuation and highlighting the scope of interference by the courts or the tribunals in such matters, this Court has observed thus: (SCC pp.158-59, para 7)

"7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their

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promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by the rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy

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on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior."

10. In the instant case, in view of the contrary documents

indicating different date of birth of the petitioner, we find that it will not be

appropriate to issue a writ to the respondents to carry out necessary change

in the service record as desired by the petitioner. The petitioner's request

is affected by abnormal delay in approaching the court for seeking

necessary directions as prayed for in this petition. At the fag end of the

service tenure, the petitioner seeks such direction.

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11. In view of the facts and record placed before us, we are not

inclined to go into questions of facts as to why the petitioner's name was

not included in the certificate issued by the Chopda Municipal Council in

the year 1993 and as to on what basis the petitioner's date of birth was

mentioned in the certificate issued in the year 2016. All these issues may

be gone into by a fact finding forum or by an appropriate authority

entrusted with such powers.

12. In the fact, we are not inclined to issue directions as prayed

for by the petitioner.

13. The learned counsel submits that petitioner would approach

appropriate forum on the issue of correction of date of birth. The

petitioner may resort to appropriate alternate proceedings as permissible in

law.

14. The petition is dismissed. Rule stands discharged. No costs.

  (Z. A. HAQ,J.)                                      (NARESH H. PATIL,J.)