Mayaram S/O Sahajram Sadhwani vs Teh Collector, Washim And 3 Others
2022 Latest Caselaw 9271 Bom

                                                   CORRECTED-Judgment WP 1015.2018.odt




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   NAGPUR BENCH AT NAGPUR

                  WRIT PETITION NO. 1015 OF 2018

     Mayaram s/o. Sahajram Sadhwani,
     Aged about 69 years, Occupation :
     Retired,
                                                               .. Petitioner
     R/o. Sindhi Colony, Karanja(Lad),
     Dist. Washim


                          Versus
 1) The Collector, Washim
    Dist. Washim
 2) Chief Officer, Municipal Council,
    Karanja(Lad), Dist. Washim
 3) Municipal Council Karanja,                               .. Respondents
    Through it's Chief Officer,
    Karanja(Lad) Dist. Washim
 4) Divisional Commissioner & Regional
    Director of Municipal Administration,
    Amravati Division, Amravati

Petitioner in person.
Mr. P. P. Deshmukh, Advocate for respondent No.2.

                          CORAM        :            MANISH PITALE, J.
                          RESERVED ON         :     19/07/2022
                          PRONOUNCED ON :           15/09/2022
JUDGMENT

Rule. Rule is made returnable forthwith. Heard finally with the

consent of learned counsel appearing for rival parties.

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2. The petitioner-in-person in the present petition has challenged

concurrent orders passed by the respondent No.1 - Collector and the

respondent No.4 - Divisional Commissioner, whereby an order passed by the

respondent No.2 - Chief Officer, treating the date of birth of the petitioner as

14/07/1948, has been set aside and it has been held that the date of birth of

the petitioner was 14/07/1946, thereby, holding that he stood correctly retired

w.e.f. 31/07/2004. The principal contention raised by the petitioner is that

his date of birth could not have been changed to his detriment at the fag end

of his service career and that the rule applying to the employee to seek change

in date of birth within five years of joining service, equally applied to the

employer.

3. The petitioner was appointed as Octroi Inspector with the

respondent No.3 - Municipal Council, Karanja (Lad), District Washim. In

the service book, his date of birth was recorded as 14/07/1948. On the basis of

the said date of birth, he was supposed to retire from service on 31/07/2006.

The Chief Officer of the Municipal Council issued communications dated

26/05/2005, 07/06/2005 and 17/06/2005, to the petitioner to submit cogent

proof about his date of birth being 14/07/1948, as doubts arose about the

genuineness of the said claim.

4. According to the Municipal Council, when it was found that

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other than one document, issued by K. N. College, Karanja(Lad), all other

documents obtained from the school and institutions attended by the

petitioner showed his date of birth as 14/07/1946, the Chief Officer of the

Municipal Council issued a letter dated 27/06/2005 to the petitioner stating

that he stood retired retrospectively from 31/07/2004 and a direction was also

issued for recovery of excess amount paid to the petitioner, beyond the

aforesaid date i.e. 31/07/2004.

5. Aggrieved by the aforesaid action of the Municipal Council, the

petitioner approached the respondent Commissioner by filing revision under

Section 318 of the Maharashtra Municipal Councils, Nagar Panchayats and

Industrial Township Act, 1965. The said revision application was allowed by

the Additional Commissioner by order dated 07/12/2011, thereby setting

aside the aforesaid communication dated 27/06/2005. It was directed that the

petitioner shall be deemed to have retired on 31/07/2006, with all benefits

including commutation of pension along with 50% back-wages from

01/07/2005 to 31/07/2006 and the order passed by the Municipal Council

ordering recovery of amount from the petitioner was also set aside.

6. Aggrieved by the same, the Municipal Council filed Writ Petition

No. 2264 of 2012 before this Court. By judgment and order dated

14/10/2013, this Court set aside the order of the Chief Officer of the

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Municipal Council, as also the order of the Additional Commissioner and

remanded the case back to the Chief Officer to pass a fresh order, after giving

an opportunity of hearing to the petitioner on the issue of alteration of date of

birth. On the question of recovery directed by the Chief Officer of the

Municipal Council, it was held that there was no question of recovery of

amount from the petitioner, as a consequence of which only the question of

alteration of date of birth of the petitioner stood remanded to the Chief

Officer.

7. Thereafter, the petitioner submitted a detailed representation

before the Chief Officer along with documents. By order dated 29/04/2014,

the Chief Officer of Municipal Council held in favour of the petitioner,

directing that since there cannot be any alteration of date of birth of an

employee as per the relevant Circular and under the Maharashtra Civil

Services (General Conditions of Services) Rules, 1981, after five years of entry

in service, the date of birth of the petitioner recorded as 14/07/1948 in the

service book was confirmed.

8. It appears that thereafter the subsequent Chief Officer of the

Municipal Council moved an application under Section 308 of the aforesaid

Act before the Collector for setting aside of the order dated 29/04/2014. The

petitioner filed his reply opposing the said application.

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9. On 31/10/2015, the respondent Collector passed order allowing

the said application, thereby, setting aside the order dated 29/04/2014. The

respondent Collector found that the documents available on record clearly

demonstrated that the date of birth of the petitioner was 14/07/1946 and that

there was over writing in the service book. The contentions raised on behalf

of the petitioner were rejected and it was held that the date of birth of the

petitioner had to be treated as 14/07/1946.

10. The petitioner moved revision application under Section 318 of

the aforesaid Act before the respondent Commissioner. The application was

finally heard and on 31/01/2018, the respondent Commissioner dismissed the

revision application, confirming the order passed by the Collector.

11. Aggrieved by the same, the petitioner filed the present writ

petition in which notice was issued on 22/02/2018. Thereafter, the petitioner

placed on record certain additional documents in support of the writ petition.

On 19/07/2019, this Court granted Rule in the petition and since the

petitioner is a senior citizen the petition was taken up for final hearing

expeditiously. The petitioner appearing in person submitted that in the

present case, the orders passed by the respondents-Collector and

Commissioner, both deserved to be set aside as being wholly unsustainable. It

was submitted that the date of birth of the petitioner was changed in the

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record of the Municipal Council at the fag end of his service career. It was

submitted that the petitioner joined service in the year 1971 and till the year

2005, at various stages, the Municipal Council had made inquiries with the

petitioner about his date of birth, to which the petitioner had responded and

this was evident from note sheets of the office of the Municipal Council itself.

It was submitted that the explanations given by the petitioner at various points

in time can be found from the record of the Municipal Council. It was evident

that the Municipal Council had accepted the said explanation, because no

further communication was addressed to the petitioner in that regard and no

adverse action was taken by the Municipal council. Yet, at the fag end of the

service career of the petitioner, when he was to retire on 31/07/2006, by the

aforesaid communication dated 27/06/2005, the Municipal Council wrongly

treated the date of birth of the petitioner as 14/07/1946, thereby wrongly

treating him as retired retrospectively from 31/07/2004.

12. The petitioner emphasized that the Rule stipulating that an

employee could approach the Municipal Council for change of date of birth

only within five years of joining service, equally applied to the employer i.e.

Municipal Council and that on this ground itself, the writ petition ought to be

allowed. The petitioner further submitted that he was born on 14/07/1948

and at the time of joining service he had produced relevant documents from

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the educational institution he had attended. Even when the proceeding stood

initiated upon remand to the Chief Officer, Municipal Council, the petitioner

had produced sufficient material including Panchang of the relevant year in

support of his assertion. It was submitted that having accepted the

explanations given by the petitioner from time to time during his service

career, the Municipal Council could not have turned around to take the drastic

action of treating his date of birth as 14/07/1946, at the fag end of his service

career. The petitioner relied upon judgment of the Hon'ble Supreme Court in

the case of Union of India vs. Harnam Singh 1993(2) SCC 162 and recent

judgment dated 20/04/2022 passed in Civil Appeal No. 2808 of 2022

(Shankar Lal vs. Hindustan Copper Ltd. and others).

13. The petitioner further submitted that after this Court had

remanded the matter, only on the aspect of alteration of date of birth of the

petitioner, to the Chief Officer of the Municipal council, order dated

29/04/2014, was passed by the Chief Officer clearly holding in favour of the

petitioner. In the said order, specific reliance was placed on relevant rules of

the Maharashtra Civil Services (Conditions of Service) Rules, 1981 and

Government Circular, which stipulated that there can be no alteration in date

of birth of an employee after five years of entry into service. The petitioner

submitted that the said order passed by the Chief Officer was surprisingly

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challenged by a subsequent incumbent in the said position of Chief Officer, by

filing application before the respondent Collector under Section 308 of the

aforesaid Act. It was submitted that such an action was unheard of and it was

clearly illegal and unsustainable. The respondent Collector failed to appreciate

this aspect of the mater and erroneously entertained the application filed by

the Chief Officer against the order passed by his own predecessor. The

Collector wrongly went into the appreciation of documents and on the basis of

erroneous appreciation of the same, rendered findings against the petitioner.

It was submitted that the respondent Commissioner further erred in

dismissing the revision application filed by the petitioner, thereby holding that

the date of birth of the petitioner was 14/07/1946 and not 14/07/1948.

14. It was further submitted by the petitioner that the Municipal

Council had also caused a First Information Report (FIR) to be registered

against him for allegedly having cheated the Municipal Council and for having

indulged in forgery. It was brought to the notice of this Court that the

petitioner had applied for discharge before the concerned Court in the said

criminal proceeding, but the application was dismissed. Later, this Court

allowed the revision application bearing Criminal Application (APL) No. 679

of 2013, whereby the order of the competent Court was set aside and the

prayer of the applicant for his discharge was allowed. The petitioner sought to

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emphasize on the contents of the said order dated 22/11/2018, passed by the

learned Single Judge of this Court, to contend that there was no substance in

the allegations levelled against him regarding cheating and forgery in the

context of the date of birth. On this basis, it was submitted that the present

writ petition ought to be allowed and the impugned order deserves to be set

aside, so as to restore order dated 29/04/2014, passed by the Chief Officer,

Municipal Council.

15. On the other hand, Mr. P. P. Deshmukh, learned counsel

appearing for the contesting respondent No.2 Municipal Council submitted

that there was no substance in the contentions raised on behalf of the

petitioner, for the reason that he had indulged in fraud and forgery while

claiming his date of birth as 14/07/1948. It was submitted that when a case of

fraud was raised by the Municipal Council, the aforesaid stipulation of five

years for alteration in date of birth would not apply, because fraud goes to the

root of the matter and vitiates everything. According to the respondent

Municipal Council, when documents came to the fore, demonstrating that the

date of birth of the petitioner was 14/07/1946 and not 14/07/1948,

communications were addressed in the year 2005 to the petitioner to submit

explanation. It was found that the explanation was inadequate. In fact, it was

found that the petitioner had indulged in interpolation in documents and

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other than one single document pertaining to the K. N. College, Karanja

(Lad), all other documents indicated that the date of birth of the petitioner

was 14/07/1946. In such a situation, according to the learned counsel

appearing for the respondent Municipal Council, there was enough material

on record to sustain the impugned orders passed by the respondents-Collector

and Commissioner.

16. The learned counsel further submitted that even before this

Court, the petitioner had indulged in fabrications and on this ground alone

the writ petition ought to be dismissed. It was submitted that the petitioner

had placed on record certain documents with the writ petition and later certain

more documents as additional documents claiming that they were note sheets

from the record of the Municipal Council. These note sheets allegedly

recorded the explanation given by the petitioner in his own hand on

30/12/1971 and 21/09/1989, on the aforesaid question of correct date of

birth. The respondent Municipal Council denied existence of any such note

sheets wherein the petitioner had recorded his explanation in his own hand.

According to the learned counsel for the respondent Municipal Council this

was evident from the fact that reference to and production of the said alleged

note sheets was made for the first time by the petitioner before this Court. If

such note sheets had indeed existed from December, 1971 onwards, the

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petitioner ought to have referred to them from the very beginning of the

dispute pertaining to his date of birth. At no stage did the petitioner either

refer to or produce the said note sheets till filing of the present writ petition,

thereby demonstrating that he had indulged in fabrication even before this

Court. It was strenuously urged that such a petitioner who had come before

this Court with unclean hands ought not to be granted any relief.

17. Thereafter, the learned counsel for the respondent referred to

copies of documents filed along with reply, to emphasize that all documents

pertaining to educational qualification of the petitioner recorded his date of

birth as 14/07/1946, except one document pertaining to K. N. College,

Karanja (Lad). It was submitted that in the face of such documents, the

petitioner ought not to be granted any relief. It was emphasized that even in

the document purportedly issued by K. N. College, Karanja (Lad), it could be

seen that the figure "6" was manipulated as "8". This was further evident from

document issued on 25/06/2005 by the Principal of the very same college,

specifically stating that as per record of the said college, the date of birth of the

petitioner was 14/07/1946. On this basis, the learned counsel for the

Municipal Counsel submitted that the writ petition deserved to be dismissed.

18. Having heard the petitioner in person and the learned counsel

appearing for the contesting respondent Nos.2 and 3, it would be appropriate

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to refer to the documents and other material on record, before adverting to the

position of law upon which reliance is placed on behalf of the rival parties.

19. The controversy in the present case is about the date of birth of

the petitioner. The question is whether his date of birth could have been

altered from 14/07/1948 to 14/07/1946, by the respondent - Municipal

Council, virtually at the end of his service career. The appointment of the

petitioner with the Municipal Council and progression of his career is already

noted above. The Municipal Council by its order dated 27/06/2005, held

that the petitioner stood retired retrospectively from 31/07/2004, on the basis

that entry of date of birth in his service record was wrongly taken as

14/07/1948, instead of 14/07/1946. The petitioner has seriously questioned

the authority of the Municipal Council to make such an alteration to his

detriment at the end of his service career, claiming that the action is arbitrary

and unsustainable. As noted above, this is the second round of litigation on

the aforesaid controversy before this Court. In the first round, by judgment

and order dated 14/10/2013, a learned Single Judge of this Court partly

allowed Writ Petition No.2264 of 2012, filed by the respondent - Municipal

Council, thereby remanding the matter back to the Chief Officer of the

Municipal Council for fresh consideration, having reached the conclusion that

principles of natural justice were violated while passing the aforesaid order

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dated 27/06/2005, against the petitioner.

20. The observations made in the said judgment and order while

disposing of Writ Petition No.2264 of 2012, are significant and they pertain to

the operation of the relevant Rule i.e. Rule 38 of the Maharashtra Civil

Services (General Conditions of Service) Rules, 1981. In the said judgment, it

was found that under Rule 38(2)(f) of the said Rules, the Municipal Council

as an employer could certainly undertake the exercise of altering date of birth

in the service record of the petitioner i.e. the employee and that the period of

limitation of five years fixed as per the said Rules read with the relevant

Government Resolutions and Circulars, could not apply to the Municipal

Council, as the employer. Therefore, the power of the respondent -

Municipal Council to examine the question of correct date of birth of the

petitioner and making alteration therein, even towards the end of the service

career of the petitioner, was recognized. But, the action of the Municipal

Council stood set aside due to the finding that there was violation of the

principles of natural justice and that the petitioner deserved to be granted

proper opportunity before such action of alteration of date of birth and

consequential orders could be passed.

21. Upon the matter being remanded to the Chief Officer of the

Municipal Council, by order dated 29/04/2014, the Chief Officer held in

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favour of the petitioner only on the ground that as per Rule 38 of the aforesaid

Rules and relevant Government Circulars, there was no provision for

alteration of date of birth of an employee of the Municipal Council after five

years of having joined service. A perusal of the proceeding initiated by the

subsequent incumbent in the post of Chief Officer of the Municipal Council

under Section 308 of the Act of 1965, would show that the said order dated

29/04/2014, was itself sought to be set aside, inter-alia, on the ground that the

period of five years from joining service for alteration of date of birth would

apply to an employee and it would not apply to the employer. The Collector

took into consideration the entire material available on record and gave a

finding that documents, which became available to the Municipal Council

indicated that most of them recorded the date of birth of the petitioner as

14/07/1946 and that even in the service book there appeared to be

overwriting. On this basis, the Collector allowed the application filed under

Section 308 of the Act of 1965 and set aside the order dated 29/04/2014,

passed by the Chief Officer.

22. The Revision Application preferred by the petitioner under

Section 318 of the Act of 1965, was dismissed by the Divisional

Commissioner. It was specifically observed that in all documents, including

school leaving certificate and such other documents, the date of birth of the

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petitioner was recorded as 14/07/1946 and that his date of birth was recorded

as 14/07/1948, only in a leaving certificate issued by K.N. College, Karanja

(Lad). On this basis, it was found that the findings rendered by the Collector

could not be interfered with.

23. In this context, the rival parties before this Court have relied

upon documents which they perceive to be in favour of their respective stands.

This Court has perused all the documents placed on record by the rival parties.

Insofar as the petitioner is concerned, reliance is placed on a college leaving

certificate or transfer certificate dated 16/02/1970, issued by the K.N. College

of Arts and Commerce, Karanja (Lad). In the said document, the date of birth

of petitioner is recorded as 14/07/1948. The petitioner has further relied

upon certificate of date of birth issued by the University College of Law,

stating that his date of birth was 14/07/1948. The petitioner also relied upon

a judgment and order dated 22/11/2018, passed by a learned Single Judge of

this Court in Criminal Application (APL) No.679 of 2013, whereby an

application for discharge filed by the petitioner in the context of a criminal

case initiated against him was allowed. The criminal case was initiated for

offences under Sections 420 and 468 of the Indian Penal Code, for allegedly

having interpolated and forged the entry of date of birth in the college leaving

or transfer certificate issued by K.N. College of Arts and Commerce, Karanja

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(Lad). It was found that the allegation was not sustainable and the petitioner

stood discharged. Much reliance was placed on the said judgment and order

on behalf of the petitioner.

24. The petitioner further placed reliance on copy of a panchang and

an affidavit of Astrologer in the context of the said panchang, claiming that the

date of birth of the petitioner was 14/07/1948. But, it is significant that the

petitioner, for the first time along with the Writ Petition, placed on record a

copy of a purported entry dated 21/09/1989, in note-sheets maintained by the

respondent - Municipal Council. The petitioner also placed reliance on such

note-sheets dated 30/12/1971, claiming that in the note-sheets the petitioner

in his own handwriting had placed on record detailed explanation about his

correct date of birth being 14/07/1948. These documents were admittedly

never referred to or placed before any of the authorities below and they were

sought to be relied before this Court for the first time in the writ petition. The

respondent - Municipal Council stoutly denied the very existence of the said

documents i.e. note sheets pertaining to years 1971 and 1989.

25. On the other hand, the respondent - Municipal Council referred

to the notices issued to the petitioner in June, 2005, when the Municipal

Council claimed to have in its custody copies of certain documents, indicating

that the actual date of birth of the petitioner was 14/07/1946 and not

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14/07/1948. These documents are school leaving certificate issued by the

Municipal Council Primary Hindi School recording the date of birth of the

petitioner as 14/07/1946; copy of letter sent by Headmaster of J.D. Chawre

Vidyamandir, Karanja (Lad) to the Chief Officer of the Municipal Council

stating that as per the record of the said school of which the petitioner was

student, his date of birth was recorded as 14/07/1946; copy of birth date

certificate dated 06/06/2005, issued by the Headmaster of J.C. High School

and Junior College, Karanja (Lad), certifying that as per the records, the date

of birth of the petitioner was 14/07/1946 and crucially a birth date certificate

dated 25/06/2005, issued by K.N. College of Arts and Commerce, Karanja

(Lad) stating that the petitioner was student of the said college from 1965 to

1969 and that as per the college records the date of birth of the petitioner was

14/07/1946. This certificate is indeed crucial because it is issued by Principal

of the very college i.e. K.N. College of Arts and Commerce in respect of which

the petitioner had submitted the aforesaid college leaving and transfer

certificate, wherein his date of birth was recorded as 14/07/1948. In other

words, the very college stated on the basis of its own record that the date of

birth of the petitioner was 14/07/1946, despite the certificate upon which the

petitioner placed reliance.

26. These were the set of documents with the Municipal Council in

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June, 2005, when it sent notices to the petitioner, leading to the order dated

27/06/2005, whereby the petitioner was retrospectively retired from

31/07/2004, by treating his date of birth as 14/07/1946. This Court is of the

opinion that the glaring discrepancies certainly merited action in the matter. In

the first round of litigation, by partly allowing the Writ Petition No.2264 of

2012, filed by the Municipal Council, this Court found violation of principles

of natural justice and, therefore, the matter was remanded to the Chief Officer

of the Municipal Council. Thus, when the matter was considered again by the

Chief Officer of the Municipal Council, it was expected that these documents

would be examined, analyzed and acted upon for determining whether the

date of birth of the petitioner was 14/07/1946 or 14/07/1948.

27. But, a perusal of the order dated 29/04/2014, passed by the Chief

Officer of the Municipal Council demonstrates that no such examination was

undertaken on merits and a finding was rendered in favour of the petitioner,

only on the basis that alteration of date of birth could not be permitted in

terms of the aforesaid Rules and relevant Government Circulars after five years

of the employee joining service. The aspect of the petitioner having

suppressed relevant documents and thereby vitiating the entire process, was

not even considered by the Chief Officer of the Municipal Council. The

orders passed by the Collector and the Divisional Commissioner examined the

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documents and found that the date of birth of the petitioner was 14/07/1946.

Before proceeding further on the analysis of the documents and more

importantly the purported note-sheets of the years 1971 and 1989, it would be

appropriate to consider the specific contention raised by the petitioner that the

enquiry into the correctness of date of birth and alteration thereof could not

have been permitted at the end of the service career of the petitioner and that

as a matter of law, the respondent - Municipal Council could not be permitted

to even examine the correctness of date of birth.

28. The petitioner heavily relied upon judgments of the Hon'ble

Supreme Court in the cases of Union of India Vs. Harnam Singh reported in

1993(2) SCC 162; State of Maharashtra and another Vs. Gorakhnath Sitaram

Kamble reported in 2010 (14) SCC 423; CIDCO Vs. Vasudha Gorakhnath

Mandevalekar reported in 2009(7) SCC 283 and judgment and order dated

20/04/2022, in the case of the Shankar Lal Vs. Hindustan Copper Ltd. & Ors.

passed in Civil Appeal No. 2858 of 2022.

29. On the other hand, the learned counsel appearing for the

contesting respondent - Municipal Council relied upon judgment in the case

of Union of India Vs. Harnam Singh (supra), judgments of this Court in the

cases of The Deputy Director, Social Forestry Division, Amravati Vs.

Chandrakala w/o. Gopalrao Ukhalkar reported in 2007(3) ALL MR 752;

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Shaikh Abdul Hasib Abdul Mannan (Dr.) Vs. Union of India and others

reported in 2006(5) Mh.L.J. 310 and Yashwant G. Tambe VS. Union of India

and Anr. reported in 2010 (3) Mh. L.J. 753.

30. The judgments of the Hon'ble Supreme Court in the cases of

Union of India Vs. Harnam Singh (supra), State of Maharashtra and another

Vs. Gorakhnath Sitaram Kamble (supra) and CIDCO Vs. Vasudha

Gorakhnath Mandevalekar (supra), all pertained to the question as to whether

the request of employee for change of date of birth at the fag end of the career

can be entertained or not. It has been categorically held that such request

cannot be entertained at the behest of the employee. In this regard, it is an

admitted position that as per Rule 38 of the aforesaid Rules read with relevant

Government Resolutions and Circulars, request for change of date of birth

after five years of having joined service cannot be entertained at the behest of

the employee. But, the crucial question is, as to whether such action of

alteration of date of birth cannot be undertaken by the employer after the

period of five years of joining of the employee and towards end of service

career of the employee. As noted above, in the judgment and order dated

14/10/2013, passed by this Court in Writ Petition No.2264 of 2012, in the

first round of litigation between the parties, after referring to Rule 38 of the

said Rules, it was held that under Rule 38(2)(f), although alteration of the

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entry of date of birth once made in the service book is not to be allowed, but,

it is also provided that such alteration may take place in specific circumstance.

It is for this reason that in the said judgment and order, while remanding the

matter to the Chief Officer respondent - Municipal Council, it was

categorically held that no fault can be found with the Municipal Council in

the facts and circumstances of the present case in initiating the process of

alteration of date of birth of petitioner, virtually towards the end of his career.

31. The petitioner has heavily relied upon the aforesaid recent

judgment of the Hon'ble Supreme Court in the case of Shankar Lal Vs.

Hindustan Copper Ltd. (supra), particularly paragraph No.21 thereof to

contend that since an employee is not permitted to seek correction / alteration

of date of birth towards fag end of his service career, the same embargo applies

to the employer also. In this context, it becomes necessary to consider the

factual background in which the Hon'ble Supreme Court has made the said

observation. It is found that in the said case of Shankar Lal Vs. Hindustan

Copper Ltd. (supra), the date of birth of the concerned employee was sought

to be altered after he had opted for Voluntary Retirement Scheme (VRS) and

such alteration was to have a significant detrimental effect to the financial

benefits payable to the employee.

32. In the said case, it was found on facts that there were large

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number of documents showing the date of birth as claimed by the employee

and as recorded in his service record for number of years. It was also found as

a matter of fact that the employer therein, relied upon an entry made in one

Form "B", showing the date of birth of the employee of the year 1945, instead

of the year 1949, as recorded in the service record. It was found that the

relevant clause of the standing order, upon which the employer had placed

reliance, did not treat the entry in the said Form "B" recording date of birth of

the employee to be conclusive proof of his or her age. It is in the context of

such facts where there were indeed documents showing the date of birth as

claimed by the employee and that only the entry in the particular form

appeared to be different that the Hon'ble Supreme Court held that unilateral

decision of the employer to treat the entries repeatedly made in the service

record as erroneous and seeking alteration thereof, could not be permitted at

the fag end of the service career of the employee.

33. It is in the backdrop of such facts that the Hon'ble Supreme

Court found that the stand taken by the employer that date of birth of the

employee recorded in the service book was an act by mistake, was a weak

argument, which could not be accepted. In such facts, the Hon'ble Supreme

Court made the following observation in the aforesaid judgment.

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"21. We do not think the appellant's complaint over the dispute was belated so as to non-suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employee's application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latter's service tenure and they ought not to be permitted to fall back on the Form "B" which would curtail the VRS benefit of the appellant."

PAGE 23 CORRECTED-Judgment WP 1015.2018.odt

34. This Court is of the opinion that the Hon'ble Supreme Court

made the aforesaid observation in the backdrop of the employer therein

having proceeded on the basis of the age of the employee as reflected in the

service book during his service tenure and that the employer could not be

permitted to fall back on Form "B" to curtail the VRS benefits of the

employee. The facts in the present case are different, for the reason that the

documents which came to the fore indicated that, right from the school

records to other relevant documents, the date of birth of the petitioner was

14/07/1946 and not 14/07/1948, as claimed by him. This Court finds that in

the present case, the petitioner as the employee had indulged in suppression of

vital documents and that reliance was sought to be placed on a set of

documents i.e. purported note-sheets of the years 1971 and 1989, which to

this Court appear to be documents that ought to have been relied upon by the

petitioner at the very outset when the controversy erupted.

35. This Court finds that when the date of birth of the petitioner was

recorded in the service book, it was based only on two documents, one

pertaining to K.N. College of Arts and Commerce, Karanja (Lad) and

certificate issued by the University College of Law. The veracity of the college

leaving certificate or transfer certificate issued by K.N. College of Arts and

Commerce dated 16/02/1971, was rendered seriously doubtful when the

PAGE 24 CORRECTED-Judgment WP 1015.2018.odt

Principal of the very same college issued a birth date certificate on

25/06/2005, based on the records of the college, stating that the date of birth

of the petitioner was 14/07/1946 and not 14/07/1948, as noted in the

certificate dated 16/02/1970, produced by the petitioner. This gives a serious

turn to the case because there is major discrepancy between the certificate

purportedly issued on 16/02/1970 and the birth date certificate issued by the

Principal of the very same college on 25/06/2005, which became the basis for

the respondent - Municipal Council to enquire into the matter and to proceed

against the petitioner.

36. As regards the certificate issued by the University College of Law,

dated 27/03/1971, recording that the date of birth of the petitioner was

14/07/1948, it is found that the same was based on the said purported

certificate dated 16/02/1970, issued by the K.N. College of Arts and

Commerce, Karanja (Lad), correctness of which is rendered seriously doubtful

by the birth date certificate issued by the Principal of the very same college on

25/06/2005, stating the date of birth of the petitioner was 14/07/1946. Thus,

the material on record creates a serious doubt about the only document on

which the petitioner relied, while entering into service.

37. This is further compounded by the certificates issued by the

Municipal Council and Primary Hindi School, Karanja (Lad), J.D. Chawre

PAGE 25 CORRECTED-Judgment WP 1015.2018.odt

Vidyamandir, Karanja (Lad) and birth date certificate issued by J.C. High

School and Junior College, Karanja (Lad), all stating that the date of birth of

the petitioner was 14/07/1946. It is in the face of such documents that the

respondent - Municipal Council initiated enquiry and action in the matter.

38. The question is, can the Municipal Council as an employer be

prevented from even enquiring and proceeding further in the matter, only

because the service career of the petitioner was coming to an end, despite the

fact that there was sufficient material to raise suspicion about the claim of the

petitioner regarding his date of birth. It is a settled position that suppression

of relevant material with the object of misleading, indicating fraud on the part

of the employee would vitiate the entire process, as also the service record,

warranting appropriate action in the matter. In this context, when Rule 38(2)

(f) of the aforesaid Rules is appreciated, it can certainly be said that given the

circumstances and material that became available to the respondent -

Municipal Council, issuing notices to the petitioner for alteration of his date

of birth could not be said to be illegal or unsustainable. The limitation of five

years from joining of service for initiating any process of alteration / correction

of date of birth is in tune with the law laid down in that context, but, when an

employer is faced with a situation indicating fraud on the part of the

employee, it cannot be said that even in such circumstances, the employer

PAGE 26 CORRECTED-Judgment WP 1015.2018.odt

cannot proceed to enquire into the matter.

39. This Court is of the opinion that above quoted observations

made by the Hon'ble Supreme Court in the case of Shankar Lal Vs. Hindustan

Copper Ltd. (supra), are in the facts of the said case where there were number

of documents supporting the claim of the employee and entry in one

particular form was relied upon by the employer to proceed for alteration of

date of birth towards end of service career of the employer. The aspect of fraud

and suppression on the part of the employee did not arise for consideration in

the context of the right of an employer to take appropriate action even towards

the end of service career of the employee. The facts in the present case are,

therefore, distinguishable and the petitioner cannot simply rely upon the

judgment of the Hon'ble Supreme Court in the case of Shankar Lal Vs.

Hindustan Copper Ltd. (supra), to claim that the impugned orders deserves to

be set aside.

40. Another aspect of the matter assumes great significance in the

facts of the present case. It pertains to the purported note-sheets on which the

petitioner has placed much reliance. The petitioner has claimed in the writ

petition that he was called upon by the Municipal Council in the year 1989, to

give clarification about his date of birth and that he had given such

clarification in his own handwriting on 21/09/1989, which was on note-sheets

PAGE 27 CORRECTED-Judgment WP 1015.2018.odt

maintained by the Municipal Council. Thereafter, the petitioner filed

application for permission to place additional documents on record and filed

copy of purported explanation submitted on his behalf on 30/12/1971, in

note-sheets maintained by the Municipal Council. It is crucial that in the said

purported handwritten explanations of the petitioner recorded in the note-

sheets for the years 1971 and 1989, he has given an explanation as far back as

on 30/12/1971, about the manner in which his date of birth was wrongly

recorded as 14/07/1946, by the Municipal Council Primary Hindi School and

it is asserted that date of birth recorded by the K.N. College of Arts and

Commerce as 14/07/1948, was correct.

41. This Court is of the opinion that if the petitioner had indeed

given such explanation in his own handwriting in note-sheets of the

Municipal Council on 30/12/1971 and 21/09/1989, when the controversy

first erupted in June, 2005, the petitioner ought to have referred to the said

note-sheets. It is indeed surprising and even disturbing that the petitioner did

not refer to such handwritten explanations given in note-sheets of the

Municipal Council at any stage from June, 2005, till the matter came up to

this Court in the first round and upon being remanded to the Chief Officer of

the Municipal Council. No mention was made by the petitioner to the said

material before the Chief Officer of the Municipal Council when the matter

PAGE 28 CORRECTED-Judgment WP 1015.2018.odt

was remanded and also not before the Collector or the Commissioner. For the

first time, in this writ petition filed in the year 2018, the petitioner referred to

the purported note-sheet dated 21/09/1989, while purported note-sheet dated

30/12/1971, was referred to subsequently for the first time in an application

for additional documents filed in the pending writ petition.

42. This Court put pointed queries to the petitioner, who appeared in

person, as to what prevented him from at least referring to the said documents,

at the very outset, because they were obviously crucial to support the claim of

the petitioner. There was no answer given by the petitioner. Instead he

claimed that he had sought copies of the said note-sheets under the provisions

of the Right to Information Act, 2005, but, they were not provided to him.

43. This Court perused the documents on record placed by the

petitioner as regards proceedings under the Right to Information Act, 2005.

It is found that the Information Officer had specifically responded to the

application made by the petitioner pertaining to the aforesaid note-sheets,

stating that such information was not available in the record of the Municipal

Council. In fact, in the replies filed before this Court, the Municipal Council

specifically denied the existence of such note-sheets. The learned counsel

appearing for the Municipal Council, on instructions, specifically submitted

that such note-sheets were not even maintained by the Municipal Council in

PAGE 29 CORRECTED-Judgment WP 1015.2018.odt

the years 1971 and 1989. This raises a serious disputed question of fact and

prima facie indicates that the stand of the petitioner pertaining to the aforesaid

note-sheets is not only doubtful, but, even suspicious.

44. In this context, the learned counsel appearing for the respondent

- Municipal Council is justified in relying upon judgment of this Court in the

case of Yashwant G. Tambe VS. Union of India (supra), on the aspect of

disputed questions of facts not to be decided in writ jurisdiction and that

remedy of Civil Court would be available. Reliance placed on the judgment of

this Court in the case of Shaikh Abdul Hasib Abdul Mannan (Dr.) Vs. Union

of India (supra) on behalf of responded - Municipal Council is also justified,

wherein it is laid down that any suppression of material fact would be

sufficient to reject a writ petition by this Court.

45. The conduct of the petitioner in the above circumstances is found

not to be above board. The record shows that specific documents showing the

date of birth of the petitioner as 14/07/1946, were suppressed from the

employer i.e. the Municipal Council. No proper explanation at any stage was

given by the petitioner as regards the questions that arose when such

documents surfaced. All along the stand of the petitioner was that the

question of date of birth could not be reopened at the fag end of his career,

giving an impression that the petitioner throughout the present controversy

PAGE 30 CORRECTED-Judgment WP 1015.2018.odt

has adopted a stand of stalling enquiry into the aspect of the correct date of

birth, based on the documents, that had come on record.

46. In this context, reliance placed on the judgment of a learned

Single Judge of this Court, allowing the application for discharge for offences

under Sections 420 and 468 of the Indian Penal Code, can be of no assistance

to the petitioner. In the said case, a learned Single Judge of this Court

observed that the controversy appeared to be more a service matter and that

criminality could perhaps not be foisted on the petitioner. But, the present

petition concerns the question as to whether the petitioner can be permitted to

seek setting aside the concurrent orders passed against him on the question of

his actual date of birth, only on the basis that the dispute arose towards the

end of his service career.

47. In the facts of the present case, this Court is not satisfied that the

petitioner has indeed made out a case for interference in the orders passed by

the Collector and the Commissioner. On an overall analysis of the material on

record, this Court finds that the approach adopted by the authorities below

cannot be said to be unsustainable. The finding regarding date of birth of the

petitioner being 14/07/1946, is certainly a reasonable finding, in the light of

the documents admittedly available on record, showing the date of birth of

petitioner as 14/07/1946, including school leaving certificate and other such

PAGE 31 CORRECTED-Judgment WP 1015.2018.odt

birth date certificates.

48. The petitioner has failed to make out a case for interference in the

concurrent orders passed by the authorities and, therefore, the writ petition

deserves to be dismissed. Accordingly, the writ petition is dismissed. Rule is

discharged.

[ MANISH PITALE J.]

Kolhe / Deshpande

Digitally signed by:MILIND P DESHPANDE Signing Date:15.09.2022 17:57 PAGE 32