Bombay High Court
State Of Maharashtra Through ... vs Ghanhasham K Patil on 5 January, 2024
Author: Nitin Jamdar
Bench: Nitin Jamdar
2024:BHC-AS:410-DB
skn 1 WP-13881.2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 13881 OF 2023
SANJAY
KASHINATH
NANOSKAR 1. The State of Maharashtra through
Digitally signed by
SANJAY KASHINATH
NANOSKAR
Additional Chief Secretary,
Date: 2024.01.05
18:32:54 +0530 Home Department, Mantralaya,
Mumbai.
2. The Director General of Police,
Shahid Bhagat Singh Marg,
Colaba, Mumbai 400 001
3. The Commissioner of Police,
Near CST, Crawford Market,
Mumbai. ... Petitioners.
V/s.
Shri Ghanhasham K. Patil,
Age 53 years, Occ. Police Inspector at
Nagpada Police Station,
R/at Chandramalika, Room No.4.
Sir Pochkhanwala Road, Worli Police
Camp, Worli, Mumbai 400 030. ... Respondent.
Mr.B.V.Samant, Addl.GP with Mr.M.M.Pabale
for the Petitioners.
Mr.Ashwinikumar R. Kapadnis for the Respondent.
CORAM : NITIN JAMDAR, AND
MANJUSHA DESHPANDE, JJ.
DATE : 5 January 2024.
JUDGMENT :
(Per Nitin Jamdar, J.)
Rule. Rule made returnable forthwith. The learned Counsel
for the Respondent waives service. Taken up for disposal.
skn 2 WP-13881.2023.doc
2. The Petitioner- State has filed this petition challenging the
judgment and order passed by the Maharashtra Administrative
Tribunal dated 18 August 2022 allowing the Original Application
No.490/2021 filed by the Respondent.
3. The Respondent is working as a Police Inspector at Nagpada
Police Station, Mumbai. Through a selection process conducted by
the Maharashtra Public Service Commission, the Respondent came
to be appointed as Police Sub Inspector on 31 March 1995. At the
time of entry in the service, his date of birth was recorded as 1 June
1965 based on his school leaving certificate. On 23 August 2002,
Respondent made an application for correction of his date of birth as
22 November 1967 which, according to him, was recorded in the
Birth Register. Accordingly, his date of birth was corrected to 22
November 1967, however, upon scrutiny, it was found that the
Respondent was not entitled to this correction and the same was
cancelled which was communicated to the Respondent on 30 May
2008.
4. The Respondent filed Original Application No.490/2021
contending that his date of birth is 22 November 1967 which is
reflected in the Birth Register and based on which a notification in
the gazette was also made and, therefore, the action of the Petitioner-
State in not treating his date of birth as 22 November 1968 is bad in
skn 3 WP-13881.2023.doc
law, contrary to the governing Rules and needs to be set aside. The
Petitioner filed a reply and contested the claim.
5. The Petitioners contended that the Respondent's date of birth
recorded in the service records as 1 June 1965 was on the basis of his
own school leaving certificate and the extract of the birth register
sought to be relied upon is suspicious. The Petitioners also
contended that a change in date of birth towards the end of service
should not be permitted. The Tribunal after considering the rival
contentions allowed the original application by the impugned order
dated 18 August 2022. Challenging this order, the State is before us
in this writ petition.
6. We have heard Mr. B.V. Samant, Additional Government
Pleader for the Petitioners and Mr.Ashwinikumar Kapadnis, the
learned Counsel for the Respondent.
7. Two aspects arise for consideration in this petition. First, the
limitation/ period within which the Respondent ought to have
applied for correction in date of birth. Second, on merits, whether
the claim of the Respondent for change in date of birth should have
been granted and whether there was unquestionable material for the
same.
8. The procedure for maintaining and correcting the date of birth
in the service book of a government servant in the State of
skn 4 WP-13881.2023.doc
Maharashtra is contained in Rule 38 of the Maharashtra Civil
Services (General Conditions of Service) Rules, 1981. Rule 38 was
amended on 24 December 2008. Rule 38(2)(a) and (f) and the
instructions are of relevance. They read thus:
"38. Procedure for writing the events and recording the
date of birth in the service book.
(1) ..... ..... ..... ..... ..... .....
(2) While recording the date of birth, the following
procedure should be followed :-
(a) The date of birth should be verified with reference to
documentary evidence and a certificate recorded to
that effect stating the nature of the document relied
on;
(b) to (e) ..... ..... ..... ..... .....
(f) When once an entry of age or date of birth has been
made in a service book no alteration of the entry
should afterwards be allowed, unless it is known, that
the entry was due to want of care on the part of some
person other than the individual in question or is an
obvious clerical error;
Instruction.-
(1) No application for alteration of the entry regarding
date of birth as recorded in the service book or
service roll of a Government servant, who has
entered into the Government service on or after 16th
August 1981, shall be entertained after a period of
five years commencing from the date of his entry in
Government service.
..... ..... ..... ..... ..... .....
(2B) No application for alteration of entry regarding date
of birth of the Government servant pending with the
Government on the date of commencement of the
Maharashtra Civil Services (General Conditions of
skn 5 WP-13881.2023.doc
Services) (Amendment) Rules, 2006 shall be
processed after the date of retirement of such
Government servant and such application shall
automatically stand disposed of as rejected on the
date of retirement. Any such application made by
the retired Government servant shall not be
entertained.
..... ..... ..... ..... ..... ....."
By the amendment of 2008, Instruction No.1 was inserted, which
reads thus:
"Instruction:- (1) Normally, no application for alteration of
the entry regarding date of birth as recorded in the service
book or service roll of a Government servant should be
entertained after a period of five years commencing from
the date of his entry in Government service."
9. It was debated before the Tribunal as to whether this period of
limitation introduced by the amended provision would apply to the
case of the Respondent. The Tribunal held in favour of the
Respondent that the amendment of 2008 is not retrospective and as
per the old Rules there was no ban on considering the application for
change in date of birth after the period of five years. Mr.Samant
learned Additional Government Pleader submitted that the State is
not pressing this point as the Tribunal is right in holding that the
Respondent's case would be governed by the old Rules which do not
provide for limitation. This brings us to the position before the
amendment of 2008 and the Second aspect, the ground for the
change in date of birth.
skn 6 WP-13881.2023.doc
10. The Petitioners have placed on record the Government
Circular dated 3 March 1998. This circular is issued with reference
to Rule 38 of the MSC Rules of 1981. Paragraph-4 of the said
Circular refers to the position where the entries in the service records
regarding the date of birth are made on the basis of school leaving
certificates and quite often there is difference between the date of
birth in the school leaving certificate and the birth register. As per
the said Circular, when such conflict arises, the date in birth register
should have primacy, however, care must be taken that it is
unquestionable and the extract from the birth register must be tallied
with the original birth register and once the date of birth so recorded
the same should not be changed. The learned Additional GP
contended that therefore even assuming that in case of conflict
between the date of birth as per the school leaving certificate and
date of birth recorded in the birth register the birth register can be
considered, but the same must be unquestionable. Proceeding on
this basis, we have to note that as regards the date of birth in the
school records of the Respondent is 1 June 1965 and the same is
continued to be the same even as of today. Therefore, if the
Respondent's date of birth is taken as 22 November 1967 based on
the birth register as contended, this position must not admit any
doubt. In that context, the circumstances surrounding the birth
certificate, the manner in which the Respondent has proceeded will
have to be examined.
skn 7 WP-13881.2023.doc
11. In the school leaving certificate and in the service records, the
Respondent has given his name as Ghanhasham Krishnarao Patil.
The school leaving certificate is issued under the signature of the
Head Master of the School. This entry, as stated earlier, has
remained unchanged. The Secondary Schools Code covers the
subject matter of school records. The learned Additional GP points
out that under clauses 26.3 and 26.4 of said the Code, after the
student has left the school, change of date of birth is not permissible,
however, as per the decision of the Full Bench of this Court in case of
Janabai v. State of Maharashtra1, in case of an obvious mistake an
application for alteration of date of birth can be considered even after
the student has left the school. In the case at hand, the Respondent
has not made any attempt to get his date of birth changed in the
school leaving certificate or his further education certificates and his
date of birth in those documents continues as 1 June 1965.
12. It is now the theory of the Respondent that the Respondent is
also known by another name, that is, Subhash Krishnarao Patil. His
affidavit and the affidavit of his mother to that effect are placed on
record. The Respondent has placed these affidavits on record stating
that in the birth register his name is mentioned as Subhash and his
father's name as Krishnarao Sadashiv. It is above Subhash that
Ghanashyam is written. The entry "Ghanashyam" appears to be in
different handwriting. The Assistant Police Commissioner
(Administration) had called for information from the concerned
1 2020 (1) ALL MR 360
skn 8 WP-13881.2023.doc
Tahsildar regarding the original birth register. The Tahsildar, Pachora
wrote to the Senior Police Inspector on 26 October 2023 along with
the copy of the original birth register which shows that there is only
one entry in the birth register and the name mentioned is only
"Subhash". The Tahsildar clarified that the extract of the birth
register did show both names Ghanashyam alias Subhash, however,
in the original birth register the only name Subhash appears.
Therefore, a doubt arises when the Tahsildar himself states that in
the original birth register, the entry is of Subhash Krishnarao Patil
and when the Respondent's name in the service records is
Ghanashyam Krishnarao Patil. At no point in time, during the entry
into the service, that the Respondent inform the authorities that he is
also known by the name Subhash.
13. The second theory of the Respondent is that he was not aware
of this birth register and during a wedding in the year 1998 his
brother showed this extract of the birth register wherein the entry of
his date of birth is mentioned as 22 November 1967. Such assertions
are easy to make but difficult to counter because it is difficult to lead
proof against such vague and generalized assertions. Once the
Tahsildar states that the original birth register bears another name
then this document, that is, the extract of the birth register cannot be
used to overreach the school leaving certificate. The learned counsel
for the Respondent sought to give various explanations, such as to
ignorance of the family and practices followed, however, as stated
skn 9 WP-13881.2023.doc
earlier, if the entry regarding the date of birth made in the service
records based upon the school leaving certificate is to be altered
based on the entry in the birth register, then such a birth register
must be an unquestionable document. It cannot be that lengthy
arguments advanced to establish the genuineness of the document
which prima facie appears to be doubtful to override the school
leaving certificates and other education certificates showing the entry
to the contrary.
14. The Respondent sought to contend that it is because of the
change of date of birth notified in the government gazette that an
application for a change of date of birth was made which was initially
accepted. As pointed out by the learned Additional GP, there is no
merit in the contention because the declaration in the gazette, as the
gazette itself would show, is a self-declaration and it is made
explicitly clear in the gazette that merely because information is
published in the gazette, the State does not accept any responsibility
for its truthfulness. Therefore, the self-declaration stated to be based
on the birth register, which itself is unquestionable, cannot be a
conclusive proof.
15. Lastly, as per the school leaving certificate, the Respondent
joined the school in the first standard on 23 June 1972. If his date of
birth as contended by him is 22 November 1967, then he would
have been 4 years and 7 months old at the date of joining the school.
As per the provisions of the Primary Education Act, 1947 'child' is
skn 10 WP-13881.2023.doc
defined as not having the age less than 6 years. On the other hand, if
the date of birth is taken as 1 June 1965, then he would have been 7
years old. Presumption would follow that the Respondent's entry
into the school would be legal and as per the provisions of the
Primary Education Act and not otherwise. The generalized
contention of the Respondent that it could be that he was admitted
at a younger age cannot be accepted.
16. The Respondent relying on the decision of the Supreme Court
in CIDCO v. Vasudha Gorakhnath Mandvekar2, contended that the
death and birth register maintained by the statutory authorities raise
a presumption of correctness and would prevail over the school
leaving certificate. This principle is also reflected in the Circular of
1998. However, before this principle is applied, the extract of the
birth register itself must be unquestionable. When there is no
dispute about both the documents, that is, birth register and school
leaving certificate, then issue may arise as to which of these entries in
these documents would have primacy. But in the case at hand, there
is serious doubt about the entry in the birth register, not only from
the bare perusal of the original birth register, but from the
clarification by the Tahsildar, the custodian of the death and birth
register, and the overall conduct of the Respondent, and the fact that
no efforts were made to change the date of birth in the school
records.
2 (2009) 7 SCC 283
skn 11 WP-13881.2023.doc
17. The Tribunal in the impugned judgment, after noting that the
amendment prescribing period of five years did not apply to the
Respondent, has simpliciter reproduced the case of the Respondent
and accepted it. It is settled law that the change in the date of birth
towards the end of the service career of the employee cannot be
casually granted. The Tribunal has sidestepped the aspects which
needed scrutiny and has straightway directed change in the date of
birth. The learned Additional GP rightly makes a grievance that
such a change in the date of birth, apart from unjustly benefiting the
Respondent would negatively impact career advancement
opportunities for the other employees and fresh recruitments.
18. The learned counsel for the Respondent contended that the
impugned order of the Tribunal has been implemented and,
therefore, the Petitioners cannot challenge the same. The learned
Additional Government Pleader submitted that the Petitioner- State
has not given up its right of challenging the impugned order and
after taking a considered decision, the writ petition is filed
challenging the impugned order on the grounds which we have dealt
with above.
19. Considering the overall circumstances of the case, we are of the
opinion that the Tribunal has committed a serious error in allowing
the Original Application and directing the State to change the date of
skn 12 WP-13881.2023.doc
birth of the Respondent. As a result, the Petitioners are entitled to
succeed.
20. Writ petition is accordingly allowed. The impugned judgment
and order dated 18 August 2022 passed by the Maharashtra
Administrative Tribunal in Original Application No.490/2021 is
quashed and set aside.
21. Rule is made absolute in the above terms. No costs.
22. At this stage, the learned counsel for the Respondent states
that the Respondent is currently in service and intends to challenge
the order in higher forum. In light thereof, no coercive action be
taken against the Respondent based on this judgment for a period of
four weeks. The salary, if paid to the Respondent for this period,
will be subject to the further orders, if any.
(MANJUSHA DESHPANDE, J.) (NITIN JAMDAR, J.)
