Gajanan Badansing Rabde vs The Chief Administrative Officer ...
2023 Latest Caselaw 4872 Bom

2023:BHC-AS:14478-DB


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 vai                IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                                CIVIL APPELLATE JURISDICTION

                            WRIT PETITION (STAMP) NO.9744 OF 2023

           Gajanan B. Rabde                                            ...Petitioner
                     V/s.
           The Chief Administrative Officer,
           Maharashtra Jeevan Pradhikaran & Anr.                       ...Respondents


           Mr.Akshay Patil with Mr.Akshay Kamble with Mr.Rajesh Devtharkar,
           Ms.Neha Patil and Mr.Sanket Naik i/b Vivaka Partners for the
           Petitioner.

           Mr.Tushar Sonawane for the Respondent Nos.1 and 2.

                                                CORAM : R.D. DHANUKA, CJ &
                                                         G.S. KULKARNI, J.

DATE : 30TH MAY, 2023.

(VACATION COURT)

ORAL ORDER : (Per G.S.Kulkarni, J.)

1. The Petitioner who is in employment of the respondents -

Maharashtra Jeevan Pradhikaran has approached this Court at the

fag end of his service tenure praying for change of his date of birth in

the service record from 4 June, 1965 to 26 August, 1966.

2. The petitioner joined the employment of the Respondent No.1

on 4 January, 1990 declaring his date of birth as recorded by

respondent No.1 as 4 June, 1965, which is stated to be recorded on

the basis of the school leaving certificate dated 6 June, 1985, a copy

of which is annexed at Exhibit - A to the petition.

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3. The case of the petitioner is that on 30 April, 1990 he obtained

a domicile certificate from Tahsildar/Executive Magistrate, Motala,

District Buldana in which his date of birth was shown as 26 th August,

1966. The basis of which the domicile certificate is issued by the

Executive Magistrate has not been stated in the petition. The

Petitioner has contended that after having obtained the domicile

certificate, the Petitioner on 7th May, 1990 made an application to the

Petitioner No.1 for change of date of birth from 4th June, 1965 to 26th

August, 1966, a copy of the said application is annexed at Exhibit - D

to the petition. Perusal of the said application indicates that such

representation was purely based on the domicile certificate and not

any certificate. The petitioner having made any such representation /

application dated 7 May 1990 is seriously disputed by the

respondents interalia contending that it is not on record of the

respondents.

4. It is quite peculiar that since 7 May, 1990 till the fag-end of his

service tenure, the petitioner did not take any steps to pursue the

petitioner's case on the purported representation dated 7 May, 1990.

It appears that on the eve of his retirement, the petitioner obtained a

birth certificate from the Health Department office at Taroda, Taluka

Motala, District Buldana, dated 12 January, 2022 indicating the

petitioner's date of birth to be 26 August, 1966. It appears from the

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perusal of the certificate that although the certificate shows the

petitioner to have born on 26 August 1966, the registration of the said

date of birth was in fact made on 13 December 1993 which is about

27 years after the petitioner's birth and 3 years after he joined the

employment with respondent No.1. Having obtained the birth

certificate, the petitioner made a fresh application on 24 February,

2023 to respondent No.1, requesting that his date of birth in the

service record be modified/changed from 4 June, 1965 to 26 August,

1966. On a perusal of the said application, it is seen that again the

request of the petitioner was only on the basis of domicile certificate

which was issued to the petitioner on 30 April, 1990, as in such

application, there is no reference to the birth certificate obtained by

the petitioner on 12 January, 2022. This does not appear to be

innocuous considering the nature of the birth certificate.

5. As the petitioner's application for change in the date of birth in

the service record was not considered / accepted by respondent

No.1, the petitioner has approached this Court by the present

proceedings praying for writ of mandamus that respondent nos. 1 and

2 be directed to correct the date of birth of the Petitioner in the service

book from 4 June, 1965 to 26 August, 1966 and for a further relief that

the respondents be directed not to initiate retirement process to

superannuate the Petitioner pending the final disposal of the petition.

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6. Mr. Patil, learned counsel for the petitioner has limited

submissions. His first submission is to the effect that the petitioner's

representation / application for change in the date of birth dated 7

May, 1990 was kept pending by the respondents and the same was

not decided and therefore the respondents need to consider the

documents as submitted by the petitioner and make appropriate

modification in the service record by changing the petitioner's date of

birth i.e. from 4 June, 1965 to 26 August, 1966. Mr. Patil's second

submission is to the effect that when the petitioner availed the

employment, the petitioner did not possess the birth certificate and,

therefore, the petitioner had to rely upon school leaving certificate.

Now as the birth certificate is available which clearly shows the

petitioner's date of birth as 26 August, 1966, the respondents need to

accept the same. The third submission of Mr. Patil relying on the

decision of a co-ordinate Bench of this Court in Ashok Shankar Kale

vs. The State of Maharashtra & Anr. 1, to contend that in similar

circumstances, the prayer of the petitioner therein for change of date

of birth was accepted and relief was granted.

7. Mr. Sonawane, learned counsel for respondent nos. 1 and 2

has opposed the petition relying on the reply affidavit filed on behalf of

respondent no. 1. He submits that the petitioner could not have

1 Writ Petition No. 13535 of 2018 dated 18 February, 2019

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invoked jurisdiction of this Court under Article 226 of the Constitution

of India praying for change in the date of birth at the fag-end of the

service. He submits that on this count itself, the writ petition deserves

to be dismissed. The second submission of Mr. Sonawane is that

the petition is clearly barred by the principles of delay and laches. In

this context he submits that even assuming that in the year 1990 the

petitioner had made a representaton / application for change in the

date of birth the petitioner did not taken steps to get the date of birth

corrected from 30 April, 1990 till the petitioner made a fresh

application on 24 February, 2023, i.e., for a period of almost 33 years.

It is submitted that the petitioner obtaining birth certificate dated 12

January, 2022 itself has been objected by the respondents to be

illegal. According to Mr. Sonawane issuance of such certificate after

57 years of his birth is contrary to Section 13(3) of the Registration of

Births and Deaths Act, 1969 which provides that any birth or death

which has not been registered within one year of its occurrence, shall

be registered only on an order made by a Magistrate of the first class

or a Presidency Magistrate after verifying the correctness of the birth

or death and on payment of the prescribed fee. Mr.Sonawane has

also drawn the Court's attention to paragraph 5(ii) of the reply affidavit

filed on behalf of the respondents, to contend that it is a categorical

stand of the respondents that upon enquiry, it was found that no such

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representation dated 7 May 1990 was on the record of the

respondents or of the said authority namely the Executive Engineer

who is supposed to have acknowledged such receipt of the

petitioner's representation / application, hence, it is not justifiable to

accept the contention of the petitioner on the basis of such

representation made by him on 7 May 1990. It is therefore his

submission that the petition deserves to be rejected by this Court.

8. We have perused the pleadings of the parties as also the

documents as placed on record. We have also heard learned

counsel for the parties at length. At the outset we may observe that

the petitioner has filed the present petition after delay of almost 33

years, even assuming that an application was made by the petitioner

on 7 May, 1990 for change of his date of birth on the basis of domicile

certificate. The petitioner did not take any steps to pursue such

application for such inordinately long period of almost 33 years. It

appears that on the eve of his retirement, the petitioner has woken up

from deep slumber and reapplied for correction of the date of birth in

the service record, by his application dated 24 February, 2023. A

person cannot be permitted to sleep over his rights. In these

circumstances in our opinion, only on the ground of delay and latches,

the petition ought not to be entertained.

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9. Insofar as Mr.Patil's submissions are concerned, we are not

inclined to accept any of these submissions, for more than one

reason. The State Government has a policy which is reflected in the

circular dated 27 September, 1994 as annexed to the petition, of

which the petitioner at all material times was well aware which is to

the effect that once an employee was permitted to set out the date of

birth on the basis of school leaving certificate due to non-availability of

birth certificate issued by the appropriate authority, such employee is

subsequently precluded from seeking change in the date of birth so

recorded. Such bar is specifically stated in paragraph (2) of the said

circular which is not the subject matter of challenge by the petitioner.

10. We are even otherwise not inclined to exercise our extra

ordinary jurisdiction under Article 226 of the Constitution of India in

the present facts as we find much substance in the contentions as

urged on behalf of the respondents. The respondents have seriously

disputed the petitioner making an application dated 7 May 1990 for

change of date of birth on the basis of domicile certificate. Such

document is not on record of the respondents, which itself is a

disputed question of fact, which certainly cannot be gone into in the

exercise of the writ jurisdiction of this Court. Thus, once the case of

the petitioner on the basis of his representation / application dated 7

May 1990 cannot be accepted, then the petitioner's case is rested

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merely on the fresh application filed by the petitioner on 24 February

2023, on the basis of which the petitioner has knocked the doors of

this Court to seek change in the date of birth after having joined

services with respondents on 4 January 1990. Such course of action

is certainly not available to the petitioner considering the principles of

law as laid down in several decisions.

11. It is a settled position in law that the employee cannot

approach the employer at the fag end of his employment seeking a

change in the date of birth. In such context, we note the legal position

as reflected in the decisions of the Supreme Court. We refer to some

of the decisions. In State Of Maharashtra & Anr vs Gorakhnath

Sitaram Kamble & Ors.2 the Supreme Court taking a review of the

law on the issue, has held that correction in the date of birth at the fag

end of the career is impermissible. Considering the provisions of the

Maharashtra Civil Services (General Conditions of Service) Rules,

1981, it was interalia held that no application for alteration of date of

birth could be permitted at the fag end of the career and accordingly,

set aside the orders passed by the High Court. The Supreme Court

observed that the High Court had failed to notice the settled legal

position which was crystallized in series of judgments of the Supreme

Court, which had consistently taken the view that change in the date

2 (2010) 14 SC 423

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of birth cannot be permitted at the fag end of the service career. The

Supreme Court also referring to the decision in Union of India Vs.

Harnam Singh3, observed that the respondent therein had occasion

to see his service book on numerous occasions and that he had

remained silent and did not seek alteration in the said case for a

period of 28 years, and hence, the inaction on the part of the

respondent for such a long period from the date of joining of service

precluded him from showing that the entry of his date of birth in the

service record, is not correct. A similar view has been taken in the

recent decision of the Supreme Court in the case of Karnataka Rural

Infrastructure Development Ltd. Vs. T. P. Nataraja & Ors. 4 In this

decision, the Supreme Court referring to the settled principles of law

as laid down in catena of judgments, has reiterated the legal position

that it is not permissible for an employee to seek any change in the

date of birth at the fag end of his service.

12. Also a Division Bench of this Court in Hemantkumar

Pandurang Rane Vs. Municipal Corporation of Gr. Mumbai &

Ors.5, following the decision of the Supreme Court in Burn Standard

Co. Ltd. Vs. Shri. Dinabandhu Majumdar6, did not accept the plea

of the petitioner therein to accept change in the date of birth on the

3 (1993) 2 SCC 162 4 (2021) 12 SCC 27 5 2020 SCC OnLine Bom 9710 6 (1995) 4 SCC 172

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eve of the petitioner's retirement. The contentions as urged on behalf

of the petitioner are in the teeth of these settled principles of law.

13. Insofar as the reliance placed by the learned Counsel for

Petitioner on the decision of Ashok Shankar Kale vs. State of

Maharashtra (supra) is concerned, in our opinion, the same is not well

founded in the facts of the present case. We are bound by the law as

laid down by the Supreme Court as noted by us above. In any event,

Mr.Patil would concede that the decision in Ashok Shankar Kale does

not take into consideration any of the settled principles of law as laid

down by the Supreme Court in the several decisions, to which we

have made a reference in the foregoing paragraphs.

14. In the light of the above discussion, we are not inclined to

entertain this Writ Petition. The Petition is accordingly dismissed. No

order as to costs.

(G.S. KULKARNI, J.)                                    (CHIEF JUSTICE)