Bombay High Court
Mohan S/O Bhauraoji Yeole vs The Principal, Shri Ayurved ... on 1 March, 2024
Author: Avinash G. Gharote
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:2551-DB
1 WP7571.23-J.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION No. 7571 OF 2023
PETITIONER: : Dr. Mohan S/o Bhauraoji Yeole,
Aged 58, Occupation : Service,
R/o 422, New Nandanwan Lay Out,
Near Gurukul School, Nagpur
Vs.
RESPONDENTS : 1 The Principal, Shri Ayurved
Mahavidyalaya, Dhanwantari Marg,
Hanuman Nagar, Nagpur - 24
2 The Director, Ayush Govt. Dental
College & Hospital Building, 4th Floor,
St. George Hospital Compound, P
Demelo Road, Fort, Mumbai : 400 001
3 The State of Maharashtra,
through Principal Secretary, Medical
Education and Drugs Department,
Mantralaya, Mumbai - 32
4 Bharatiya Vaidyak Samanvaya Samiti, A
trust registered under Bombay Public
Trusts Act, Bearing Registration No. F-
85(N), Hanuman Nagar, Nagpur
through its Secretary Dhanwantari
Marg, Hanuman Nagar, Nagpur - 24
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Mr. N.S. Khubalkar, Advocate for petitioner.
Mr. P. D. Sharma, Advocate for Respondent Nos.1 & 4.
Mr. S.M. Ghodeswar, AGP for Respondent Nos.2 and 3.
Mr. Rohan Deo, Advocate to assist the Court.
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2 WP7571.23-J.odt
CORAM: AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
DATED : 1st MARCH, 2024
ORAL JUDGMENT (Per : AVINASH G. GHAROTE, J.)
1. Heard. Rule. Rule made returnable forthwith. The
petition is heard finally with the consent of the learned
counsel for the parties.
2. Heard Mr. Khubalkar, learned counsel for the
petitioner, Mr. Sharma, learned counsel for the respondent
Nos.1 and 4, Mr. S. M. Ghodeswar, learned Assistant
Government Pleader for respondent Nos. 2 and 3 and Mr.
Rohan Deo, learned counsel, who was asked to assist the
Court.
3. The petition questions the communication dated
01/09/2023 (page 56) issued by the respondent No.1,
intimating to the petitioner that he would be completing 60
years of age on 29/02/2024 and therefore, would be
superannuating from the post of Professor and Head of
Department held by him in Shri Ayurved Mahavidyalalya,
Hanuman Nagar, Nagpur run by the respondent No.4.
3 WP7571.23-J.odt
4. The contentions of Mr. Khubalkar, learned counsel
for the petitioner, are as under:
4.1. That the actual date of birth of the petitioner is
02/02/1966 and not 02/02/1964 as was recorded in the
service record earlier.
4.2. Since the father of the petitioner was illiterate the
birth of the petitioner was never reported to the authority
under the Registration of Birth and Deaths Act, 1969
(hereinafter referred to as "RBD Act") and therefore, there
was no birth certificate issued under the RBD Act to the
petitioner.
4.3. It is only on 14/02/2019, the petitioner came to
know about his exact date of birth, which he claimed to be
02/02/1966 that an application under Section 13(3) of the
RBD Act, came to be filed by him before the Judicial
Magistrate First Class, Umrer, which came to be registered
as Misc. Criminal Application No.43/2019 in which on
08/03/2019, by a judgment, a direction was issued to the
Gram Sachiv, Grampanchayat, Sirsi, who was the non-
applicant therein, to issue a birth certificate certifying that
the date of birth of the petitioner was 02/02/1966 (page 39).
4 WP7571.23-J.odt
4.4. This declaration by the Magistrate under Section
13(3) of the RBD Act, was upon recording the evidence and,
therefore, was in a judicial enquiry and was binding on all.
4.5. On the basis of the judgment by the learned
Magistrate and according certificate, came to be issued to the
petitioner under the RBD Act on 20/03/2019, certifying the
date of birth of the petitioner as 02/02/1966 (Page 40).
4.6. Thereafter, an entry regarding the date of birth of
the petitioner was taken in the school register of Loksewa
Primary School, Sirsi (page 41), who thereupon issued a
school leaving certificate on 23/03/2019 indicating that the
date of birth of the petitioner was 02/02/1966.
4.7. On the basis of this school leaving certificate,
recording the date of birth as 02/02/1966 an entry in the
service book came to be recorded (page 82).
4.8. Though the date on which such correction is made
in the service book (page 82) is not clear, it is by the
management, which is indicated by a communication by the
Secretary of the respondent No.4 dated 27/06/2022
indicating that such an entry has been taken (page 43).
5 WP7571.23-J.odt
4.9. The respondent No.4 had also thereafter by its
communication dated 06/07/2022 intimated the change of
date to the Director of Ayurvedic Medicine (page 44).
4.10. It is in this background that the impugned
communication dated 01/09/2023 indicating the
superannuation of the petitioner on 29/02/2024, is being
questioned.
4.11. Mr. Khubalkar, learned counsel for the petitioner
by relying upon Sudarshan V. Biradar Vs. State of
Karnataka, AIR 2023 Karnataka 274 (Para-12), B.G.
Gangadharappa Vs. Tahsildar Soraba Taluk Soraba
1995 CRI.L.J. 2820 (para 12), Dr. Bhatindra Nath
Mukhopadhyay Vs. Kolkata Municipal Corporation
AIR 2007 Calcutta 116 (paras 8 & 9) and Md. Liyakat
Vs. The State of Jharkhand & Ors., 2006 SCC OnLine
Jhar 1142 (paras 9 and 10) contends, that the power of the
Magistrate under Section 13(3) of the RBD Act is a judicial
power and therefore, the judgment of the Magistrate would
be binding on all and the respondents therefore, would
equally be bound by the same and will have to abide by the
same.
6 WP7571.23-J.odt
4.12. He further contends, that the situation does not
rest at that, but has been carried forward by entries being
made in the service book of the petitioner of which
respondent No.4 was not only equally aware but in fact had
intimated this change of date of birth to the various
authorities by its communications.
4.13. He therefore submits that, there cannot be any
escape from the fact that the date of birth of the petitioner
was 02/02/1966 and not 02/02/1964 and therefore the
petitioner has two more years to attain the age of
superannuating and thus would be entitled to continue to
occupy the post on which he is presently working, till
02/02/2026.
5. Mr. Sharma, learned counsel for the respondent
Nos.1 and 4, submits as under :
5.1. Though the petitioner came to be appointed on
20/08/1992, he continued with the position that his date of
birth was 02/02/1964 and at the fag end of his career, as he
was to superannuate on 29/02/2024, has applied for change
of date of birth, on the premise that he came to know about
7 WP7571.23-J.odt
the actual date of birth in the year 2019, which was an
impossibility, apart from being impermissible.
5.2. It is further contended that the provisions of
Section 13(3) of the RBD Act, do not confer any judicial
power upon the Magistrate, apart from which, the language
of Section 13(3) of the RBD Act, does not contemplate a
judicial enquiry at all and therefore, the order dated
08/03/2019 by the learned Magistrate, would bind only the
authorities under the RBD Act and none else.
5.3. It is further contended that the order dated
08/03/2019, was merely a proceeding under Section 13(3) of
the RBD Act to verify the date of birth which would also not
contemplate any judicial enquiry on account of which, the
said judgment is not binding.
5.4. In support of this proposition, he places reliance
upon P. Duraisamy v. State represented by Secretary
to Government Department of Home (Prison),
(2017) 04 MAD CK 0149 in which while considering the
provisions of Section 13(3) of the RBD Act, it has been held
that the order passed under Section 13(3) of the RBD Act
8 WP7571.23-J.odt
binds only the Registrar and nobody else (Para-30). Reliance
is also placed upon Nisar Fatema Vs. State of
Maharashtra, in Criminal Writ Petition No.844/2018
dated 03/08/2018 of Hon'ble Bombay High Court, which
follows P. Durasami (supra); Rameshchandra v.
Secretary, Village Panchayat, (2020) 3 ALL MR 35,
which holds that the provisions of section 13(3) of the RBD
Act is not meant for getting adjudication of disputed date of
birth of the aggrieved party and the appropriate remedy is to
get a declaration from the Civil Court.
5.5. State of Maharashtra Vs. Gorakhnath
Sitaram Kamble, (2010) 14 SCC 623, is also relied
upon, which holds, that the correction in the date of birth at
the fag end must be discouraged by the Court as that would
be at the cost of large number of employees; to the same
effect are Karnataka Rural Infrastructure
Development Limited Vs. T.P. Natraja (2021) 12
SCC 27 (para 10); State of Maharashtra Vs. Sudhir
Bhagwat Kalekar 2023 SCC OnLine Bom 1296 [para
16-DB];
5.6. In so far as the entry in the service record of the
9 WP7571.23-J.odt
petitioner is concerned he submits that such an entry has to
be made not only by a person who is duly authorized to do
so, but also needs to be certified and though there are no
specific rules in this regard, the principles laid down in Rule
38(2) of the Maharashtra Civil Services (General Conditions
of Service) Rules 1981, would be applicable. The entry
(pg.82) according to him, does not disclose, as to who has
made it, when, nor has it been certified by anyone and it is
alleged that the same was made by the petitioner himself,
surreptitiously, in order to enable continuance, in
employment.
5.7. He also submits that the communications of the
respondent no.4, which are being relied upon, were under a
misconception that the Court had ordered the entry to be
taken in respect of which affidavits have been placed on
record and thus those communications cannot be relied
upon.
6. Mr. Ghodeswar, learned AGP for the respondent
Nos.2 and 3, submits that there cannot be any change in the
entry regarding the date of birth at the fag end of the career
10 WP7571.23-J.odt
and relies upon T.P. Nataraja and Sudhir Kalekar,
(supra).
7. Mr. Rohan Deo learned Counsel called upon to
assist the Court, submits that :
(a) The enquiry under section 13(3) of the RBD Act is
not a judicial enquiry, for it only empowers the Magistrate to
verify the correctness of the entry sought to be made, on
account of the delay in reporting the occurrence of birth or
death, beyond a period of one year.
(b) The nature of the verification which is required to
be made can be indicated from, what is expected to be done,
in respect of an occurrence reported late, but before one
year, from its date, as provided in sec.13(1) & (2) of the RBD
Act.
(c) He also places reliance upon Kashmi K. Alex Vs.
Local Registrar of Births and Deaths, 2015 SCC
OnLine Ker 21632, Shanti Das v. State of Meghalaya,
(2013) 2 Gauhati Law Reports 238 (Shilong Bench),
Km.Para v. Director, Central Board of Secondary
11 WP7571.23-J.odt
Education, 2004 (74) DRJ 609 and H.Subba Rao v.
The Life Insurance Corporation of India, Bangalore-
2, 1976 SCC OnLine Kar 17.
8. In so far as the proposition that a change in the
entry in the service record ought not to be permitted at the
fag end of the career is concerned, the same is already
enunciated by the Hon'ble Apex Court in T.N. v. T.V.
Venugopalan, (1994) 6 SCC 302; Union of India v.
Harnam Singh, (1993) 2 SCC 162, wherein it has been
held that such a change in the entry regarding the date of
birth cannot be permitted to be made at the fag end of the
career. Though these judgments were in light of the rules
which provided that a change in the date of birth entry would
not be permitted after five years of employment, there is no
reason why the same principles cannot be made applicable to
the present case too, as it is submitted at the bar that there
are no rules governing this aspect, extant, in the instant
matter. Same position is reiterated in and State of Mah. V.
Gorakhnath Sitaram Kamble (supra).
12 WP7571.23-J.odt
8.1. In M.P. v. Premlal Shrivas, (2011) 9 SCC 664
which was a case in which in support of the application for
change of date of birth, the employee had submitted his
Class IV marksheet, transfer certificate of Class VIII and a
certificate from a local MLA, it was held as under :
8. It needs to be emphasised that in matters involving
correction of date of birth of a government servant, particularly
on the eve of his superannuation or at the fag end of his career,
the court or the tribunal has to be circumspect, cautious and
careful while issuing direction for correction of date of birth,
recorded in the service book at the time of entry into any
government service. Unless the court or the tribunal is fully
satisfied on the basis of the irrefutable proof relating to his date
of birth and that such a claim is made in accordance with the
procedure prescribed or as per the consistent procedure
adopted by the department concerned, as the case may be, and
a real injustice has been caused to the person concerned, the
court or the tribunal should be loath to issue a direction for
correction of the service book. Time and again this Court has
expressed the view that if a government servant makes a
request for correction of the recorded date of birth after lapse
of a long time of his induction into the service, particularly
beyond the time fixed by his employer, he cannot claim, as a
matter of right, the correction of his date of birth, even if he
has good evidence to establish that the recorded date of birth is
clearly erroneous. No court or the tribunal can come to the aid
of those who sleep over their rights (see Union of India v.
Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 :
(1993) 24 ATC 92] ).
This position has been reiterated in LIC v. R.
Basavaraju, (2016) 15 SCC 781.
8.2. In Bharat Coking Coal Ltd. v. Shyam
13 WP7571.23-J.odt
Kishore Singh, (2020) 3 SCC 411 while considering a
plea for change in the date of birth entry on the basis of a
verification which was made from the Bihar School
Examination Board and even though it was confirmed that
the date of birth of the employee was 20-1-1955, later than
what was stated in the service record, it has been held that
such change at the late stage was not permissible.
8.3. In Karnataka Rural Infrastructure
Development Ltd. v. T.P. Nataraja, (supra) the
following principles have been laid down by the Hon'ble
Apex Court :
11. Considering the aforesaid decisions of this Court
the law on change of date of birth can be summarised as
under:
(i) application for change of date of birth can only be as per the
relevant provisions/regulations applicable;
(ii) even if there is cogent evidence, the same cannot be
claimed as a matter of right;
(iii) application can be rejected on the ground of delay and
laches also more particularly when it is made at the fag-end of
service and/or when the employee is about to retire on
attaining the age of superannuation.
Same position is reiterated by the learned Division
Bench of this Court in Sudhir Bhagwat Kalekar (supra),
and Gajanan B. Rabde v. The Chief Administrative
Officer, MJP (Writ Petition (Stamp) No. 9744 of 2023,
14 WP7571.23-J.odt
decided on 30/05/2023).
Thus, the consistent view of the Hon'ble Apex
Court as well as by various High Courts, is that an
application for correction of the entry in respect of the date
of birth, cannot be made at the fag end of the career.
8.4. In this regard though it is contended by Mr.
Khubalkar, learned Counsel for the petitioner that since the
petitioner was to superannuate on 29/2/2024, and as an
application under sec.13(3) of the RBD Act was filed on
14/2/2019 and was decided on 8/3/2019, it cannot be said
that the attempt to change the entry in the date of birth was
made at the fag end of the career, however, the expression
'fag end of the career', has to be construed in light of the
length of service being put in by an employee. It is an
admitted position on record that the petitioner entered in
employment on 20/08/1992 and considering his date of
birth which was originally entered in the record as
02/02/1964, was to superannuate on 29/02/2024. The
change in the date of birth was sought in the year 2019,
which was just five years from the date of superannuation,
15 WP7571.23-J.odt
the petitioner having already put in 27 years of service and
therefore can be said to be falling within the expression 'at
the fag end of the career', as the expression cannot be said to
mean immediately preceding superannuation, only.
8.5. What is also necessary, is to note the reason for filing
an application under sec.13(3) of the RBD Act, which
according to the petitioner, was on account of his father
being illiterate, not having reported the occurrence of his
birth to the Registrar under the RBD Act and the petitioner
having come to know in 2019 itself that his date of birth was
02/02/1966 and not 02/02/1964, as was stated by him while
joining employment and had continued throughout. The plea
appears to be implausible, in as much as, it is not disputed
that at the time of his appointment which was on
20/08/1992, it was at his behest that the date of
02/02/1964, was inserted in his service record, which
continued throughout, for a period of 27 years, till 2019,
when the petitioner claims to have gained knowledge that it
was 02/02/1966. A perusal of the judgment dated
08/03/2019, by the Magistrate, indicates that nothing has
been said there as to how, in 2019 and on what basis, the
16 WP7571.23-J.odt
petitioner came to know that his date of birth was
02/02/1966 and not 02/02/1964. There is no whisper of any
document or for that matter anything else, regarding this
divination by the petitioner, after 27 years of his service. It is
trite that any change in the date of birth, has great
consequence not only for the petitioner, but also for those
employed with him, in the establishment, as on account of
the change in the date of birth, their prospects are likely to
be adversely affected. The change in the date of birth, thus
cannot be done, merely for the sake of asking, but will have
to be done, on the basis of an adversarial litigation, in which
the employer has to be made a party, so that there could be
an opportunity for an effective defense and the contest is on
merits. This therefore cannot be done, under sec.13(3) of the
RBD Act, which merely empowers the Magistrate to verify
the correctness of an entry, but has to be done, before the
Civil Court, so that the employer would be not only be aware,
but also bound by the decision which may be rendered
therein.
8.6. In LIC v. R. Basavaraju, (2016) 15 SCC 781
while considering the position that the employee for claiming
17 WP7571.23-J.odt
change in the date of birth had a decree of the Civil Court in
his favour, it has been held as under :
"9. As noticed above, the respondent filed a suit for
declaration with regard to his date of birth without impleading
the appellant, who is the employer, and has obtained the
decree against the persons, who have no concern with the date
of birth of the respondent. It goes without saying that the said
decree obtained by the respondent is not binding on the
appellant being not a party to the suit."
In the instant matter too, in the proceedings under
sec.13(3) of the RBD Act, the employer has not been made a
party. The petitioner, was very well aware that the only
person, who would be interested in contesting the claim for
change of date of birth, would have been his employer, from
whom, the benefit of the change of date of birth was to be
obtained. Well knowing this position, the petitioner, had
impleaded the Gram Sachiv, Gram Panchayat Sirsi, Tah:
Umred, alone as the non-applicant, on the plea that a
direction was to be issued against it, for the issuance of the
birth certificate, well knowing that the said non-applicant,
would not be having any interest in defending the claim
made by the petitioner, which is actually what happened, as
is apparent from the judgment dated 08/03/2019, in Misc.
Cri Application No.43/2019, as in spite of service of notice
18 WP7571.23-J.odt
the non-applicant did not appear at all, resulting in a default
judgment being passed in favour of the petitioner. It will
therefore have to be held that the judgment dated
08/03/2019, will not be binding upon the employer, on
account of it not being a party to it.
8.7. What is also material to note is that in Misc. Cri.
Application No.43/2019, all that the petitioner had filed is a
letter by the Gram Panchayat Sirsi, Ex.9, dated 13/02/2019,
stating that there was no entry in their records regarding the
birth of the petitioner; Ex.10 a school leaving certificate and
Ex.11 Aadhar Card. However a perusal of the judgment dated
08/03/2019, would indicate that there is no discussion
therein, regarding the documents at Ex.10 & 11, of
whatsoever nature as would be apparent from a perusal of
paras 6 & 7 and therefore, it appears that the direction has
been granted merely for the asking, without any verification
whatsoever. It would be material to note that the provisions
of Section 13(3) of the RBD Act, mandate that an order
thereunder can only be passed after there has been a
verification of the correctness of the birth or death.
19 WP7571.23-J.odt
8.8. The word 'verify', as per the Advanced Law Lexicon
by P.Ramnatha Aiyar, means 'to assent or approve to be
true; to ascertain, confirm or test the truth or accuracy of'; as
per Websters Encyclopedic Unabridged Dictionary of the
English language, it means 'to prove the truth of, as by
evidence or testimony; confirm; substantiate, to ascertain
the truth or correctness of, as by examination, research or
comparison: to verify a spelling'. Even considering this
meaning of the word 'verify', the judgment dated 8/3/2019,
clearly indicates that the learned Magistrate has not acted in
consonance and in terms of the meaning of the word 'verify',
while holding that the date of birth of the petitioner as
2/2/1966, instead of 2/2/1964 and has merely granted it for
the asking.
9. The contention that the Magistrate, acting under
Section 13(3) of the RBD Act, acts judicially and not
administratively, will have to be tested on the touchstone of
the language of the provisions. For the sake of ready
reference, sec.13 and 15, as they stood then which also has a
relevance as would be discussed hereinafter, being material
are quoted as under:
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"13. Delayed registration of births and deaths.--
(1) Any birth or death of which information is given to the
Registrar after the expiry of the period specified therefor, but
within thirty days of its occurrence, shall be registered on
payment of such late fee as may be prescribed.
(2) Any birth or death of which delayed information is given
to the Registrar after thirty days but within one year of its
occurrence shall be registered only with the written
permission of the prescribed authority and on payment of the
prescribed fee and the production of an affidavit made before
a notary public or any other officer authorised in this behalf
by the State Government.
(3) 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.
(4) The provisions of this section shall be without prejudice to
any action that may be taken against a person for failure on
his part to register any birth or death within the time specified
therefor and any such birth or death may be registered during
the pendency of any such action.
15. Correction or cancellation of entry in the
register of births and deaths. - If it is proved to the
satisfaction of the Registrar that any entry of a birth or death
in any register kept by him under this Act is erroneous in form
or substance, or has been fraudulently or improperly made, he
may, subject to such rules as may be made by the State
Government with respect to the conditions on which and the
circumstances in which such entries may be corrected or
cancelled, correct the error or cancel the entry by suitable
entry in the margin, without any alteration of the original
entry, and shall sign the marginal entry and add thereto the
date of the correction or cancellation."
9.1. What would be the attributes of a judicial enquiry,
has been delineated in Shankarlal Aggarwala and
others Vs. Shankarlal Potdar and others, AIR 1965
SC 507 in the following words :
21 WP7571.23-J.odt
"13. It is perhaps not possible to formulate a definition
which would satisfactorily distinguish, in this context,
between an administrative and a judicial order. That the
power is entrusted to or wielded by a person who functions as
a Court is not decisive of the question whether the act or
decision is administrative or judicial. But we conceive that an
administrative order would be one which is directed to the
regulation or supervision of matters as distinguished from an
order which decides the rights of parties or confers or refuses
to confer rights to property which are the subject of
adjudication before the Court. One of the tests would be
whether a matter which involves the exercise of discretion is
left for the decision of the authority, particularly if that
authority were a Court, and if the discretion has to be
exercised on objective, as distinguished from a purely
subjective, consideration, it would be a judicial decision. It
has some times been said that the essence of a judicial
proceeding or of a judicial order is that there should be two
parties and a lis between them which is the subject of
adjudication, as a result of that order or a decision on an issue
between a proposal and an opposition. (Sic) No doubt, it
would not be possible to describe an order passed deciding a
lis before the; authority, that it is not a judicial order but it
does not follow that the absence of a lis necessarily negatives
the order being judicial. Even viewed from this narrow
standpoint it is possible to hold that there was a lis before the
Company Judge which he decided by passing the order. On
the one hand were the claims of the highest bidder who put
forward the contention that he had satisfied the requirements
laid down for the' acceptance of the bid and was consequently
entitled to have the sale in his favour confirmed; particularly
so as he was supported in this behalf by the official
liquidators. On the other hand there was the 1 st respondent
and not to speak or him, the large body of unsecured creditors
whose interests, even if they were not represented by the 1 st
respondent, the Court was bound to protect. If the sale of
which confirmation was sought was characterised by any
deviation from the conditions subject to which the sale was
directed to be held or even otherwise was for a gross under
value in the sense that very much more could reasonably be
expected to be obtained if the sale were properly held in view
of the figure of Rs.3,33,000/- which had been bid by Nandlal
Agarwalla, it would be the duty of the Court to refuse the
confirmation in the interests of the general body of creditors
and this was the submission made by the 1 st respondent.
There were thus two points of view presented to the Court by
two contending parties or interest and the Court was called
upon to decision between them. And the decision vitally
affected the rights of the parties to property. In the view we
are clearly of the opinion that the order of the Court was, in
22 WP7571.23-J.odt
the circumstances, a judicial order and not an administrative
one and was therefore not inherently incapable of being
brought up in appeal."
9.2. In the instant case as pointed out above, the power of
the Magistrate under section 13(3) of the RBD Act was
restricted to verification of the entry sought to be made
regarding the occurrence of the birth or death of the person.
The nature of verification, required to be done by the
Magistrate would therefore, be required to be considered.
9.3. Section 13 (1) of the RBD Act, requires information as
to Birth or Death to be given to the Registrar, within 30 days
of its occurrence, whereupon the same would be registered
by the Registrar on payment of the prescribed fees.
Section 13(2) of the RBD Act, provides that when
such information has been given to the Registrar after 30
days as provided in Section 13(1) but within one year of its
occurrence, the same shall be registered only with the
written permission of the prescribed authority and on
production of an affidavit made before a notary public or any
other officer authorized in this behalf by the State
23 WP7571.23-J.odt
Government and on payment of prescribed fees.
Section 13(3) of the RBD Act, then, in case such
registration is not done within a period of one year of the
date of occurrence, mandates that the registration of the
birth or death, would only be on an order made by the
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.
The scheme of Section 13 of the RBD Act, indicates
the nature of the enquiry to be made for the delay and for
verifying the birth or death. While Section 13(1) of the RBD
Act, requires the registration of the occurrence, if
information thereof is given after the prescribed period,
which is 20 days from the date of occurrence as prescribed in
Rule 5(3) of the Maharashtra Registration of Births and
Deaths Rules 2000, but within 30 days of the occurrence, all
that is required is for the prescribed fees to be paid, for the
registration; under Section 13(2) of the RBD Act, the nature
of verification, where the information is given within one
year of the date of occurrence, production of an affidavit
24 WP7571.23-J.odt
made before the notary public or any other authorized
officer, with the prescribed fees and the written permission
of the prescribed authority is required. A perusal of the RBD
Act and the Rules framed thereunder do not indicate as to
who is the prescribed authority. Be that as it may, that is not
germane for the discussion of the issue in hand. In a
progressive step Section 13(3) of the RBD Act, requires that
verification, in case the information is supplied after one
year of the date of occurrence, to be made by the Magistrate
of the First Class or the Presidency Magistrate. This would
only indicate that the nature and extent of the verification,
where under Section 13(1) it is totally absent; under Section
13(2) is limited to the sworn affidavit and written
permission of the prescribed authority; and finally under
Section 13(3) is by the Magistrate, which indicates that the
extent of the verification/scrutiny, of the information
supplied regarding the occurrence of a birth or death, is
made more stringent and by a higher authority, as the length
of delay increases.
9.4. What is also material to note is that under sec.13(3)
of the RBD Act itself, the order has to be passed by the
25 WP7571.23-J.odt
Magistrate, only after verifying the correctness of the birth or
death. Sec.13(3) of the RBD Act, does not mandate that for
the purpose of verifying, the Magistrate is empowered to
conduct an enquiry of a judicial nature. Merely because the
verification has to be done by a Magistrate of the First Class,
who in terms of Section 3(4)(a) of the Cr.P.C. would be a
Judicial Magistrate, that by itself would not mean that the
process of verifying, is a judicial enquiry. It is also necessary
to note that the Rules framed under the RBD Act viz.
Maharashtra Registration of Births and Death Rules, 2000,
do not indicate what could be the nature of procedure, which
is required to be adopted by the Magistrate while considering
an application under Section 13(3) of the RBD Act.
9.5. That the process of verification by the Magistrate
under sec.13(3) of the RBD is not a judicial enquiry, but
would be an administrative one, in fact is substantiated by
what has been stated in sec.15 of the RBD Act, which
empowers the Registrar to make any correction in or cancel
an entry made in the register of birth and deaths. It would be
necessary to bear in mind that consequent to the order by
the Magistrate under sec.13(3) of the RBD, the birth or death
26 WP7571.23-J.odt
is required to be registered, which would mean that the entry
of the birth or death has to be then taken in the register
maintained for that purpose. However, the very same entry
is permissible to be corrected or canceled by the Registrar
under Section 15 of the RDB Act. Thus had the power to be
exercised by the Magistrate under sec.13(3) been a judicial
one, the RBD Act, would not have empowered the Registrar,
who is not a judicial officer but is appointed under sec.6 of
the RBD Act, to correct or cancel the entry made as a
consequence of the order under sec.13(3) of the RBD Act, by
the Magistrate.
9.6. It is perhaps realizing this fallacy, that Sec.13(3) of
the RBD Act, has been amended in 2023, by deleting the
expression 'the Magistrate of the First Class or the
Presidency Magistrate', and replacing it by 'District
Magistrate or Sub-Divisional Magistrate or by an Executive
Magistrate authorized by the District Magistrate, having
jurisdiction over the area', as the person to verify the claim of
occurrence of the birth or death. Though Mr. Khubalkar,
learned Counsel for the petitioner would be correct in
claiming that this amendment does not enure to the benefit
27 WP7571.23-J.odt
of the respondents, the decision in respect of the petitioner
having taken place, earlier to the amendment, however, the
amendment, would be a pointer of the intention of the
legislature regarding the nature of verification to be done
under sec.13(3) of the RBD Act.
9.7. Though a certified copy of the extract of the entry in
the register under the RBD Act, is admissible in evidence
under sec.16(2) of the RBD Act, there is no presumption
attached to it of conclusivity.
9.8. The direction, by the learned Magistrate, under
section 13(3) of the RBD Act, to register the occurrence of the
birth or death, upon its verification, in our considered
opinion, certainly cannot be said to be a decision in rem, so
as to bind one and all. Mr. Khubalkar, learned counsel for
the petitioner, fairly concedes that this would be the position.
9.9. Kashmi K. Alex (supra) relied upon by learned
counsel Mr. Deo, is a case in which, the verification which is
required to be conducted by the Executive Magistrate First
Class and notes that even for this purpose no procedure has
28 WP7571.23-J.odt
been prescribed, even in the Rules. Shanti Das (supra)
holds, that since the RBD Act is a beneficial piece of
legislation, the procedure for issuing the certificate should be
simple and the Magistrate would only be required to verify
the correctness of the information regarding the birth or
demise and the regular process of proving a document as in a
suit or a trial is not required to be followed. H. Subba Rao
(supra) holds, that an entry in the register of birth is not
conclusive evidence of the disputed date of birth, which
position would equally apply to an entry made therein
pursuant to the direction of the Magistrate under Section
13(3) of the RBD Act. It has also been held that Section 13(3)
of the RBD Act is not a provision whereby an aggrieved party
could get an adjudication of his disputed date of birth and
the order of the Magistrate binds only the Registrar and none
else.
9.10. We are therefore in agreement with what has been
held by the learned Division Bench of the Karnataka High
Court in P. Duraisami (supra), that the order under
Section 13(3) of the RBD Act binds only the Registrar and
nobody else.
29 WP7571.23-J.odt
10. Much reliance has been placed by Mr.Khubalkar,
learned counsel for the petitioner on the fact, that the
employer by the communication dated 27/06/2022 had
accepted the change in the date of birth, for which the
communications dated 27/06/2022 and 06/07/2022 are
being relied upon, however, that action as is indicated from
the communications was clearly based upon the perception
regarding the order of the Magistrate under section 13(3) of
the RBD Act, as is indicative from the language used therein
that the entry is being taken on account of the order of the
Court. In view of what we have held above, the respondent
Nos.1 and 4 cannot be held bound by the said perception,
which is contrary, to the purport and scope of section 13(3) of
the RBD Act.
10.1. Though Mr. Khubalkar, learned Counsel for the
petitioner has relied, upon Sudarshan B. Biradar Vs.
State of Karnataka, AIR 2023 Karnataka 274 (Para-
12), that the power under sec.13(3) conferred upon the
Magistrate is a judicial one, we are unable to subscribe to that
view for the reason that it merely proceeds on a presumption
30 WP7571.23-J.odt
in that regard, considering that the verification is to be done
by the Magistrate and does not give the reasons therefor. B.
G. Gangadharappa (supra), while holding the that the
function to be exercised by the Magistrate under sec.13(3) of
the RBD Act involves appreciation and sifting of evidence,
does not take into consideration that Sec.13(3) of the RBD
Act, permits a verification and not an enquiry to be made by
the Magistrate. Dr. Bhatindra Nath Mukhopadhyay (supra)
also does not delve into the language of sec.13(3) of the RBD
Act, but merely proceeds upon a presumption that since the
Magistrate had passed an order under sec.13(3) of the RBD
Act, the same was required to be followed. Md. Liyakat
(supra) is based upon the premise that it was the employer
himself who had entertained the claim of the employee for
change in the date of birth and had referred the employee for
medical examination and therefore the requirement of 10
years as per the service rules, within which such claim was to
be made stood relaxed. All these judgments, it is evident, do
not take into consideration the language of section 13 of the
RBD Act, or for that matter the effect and import of sec.15
thereof and therefore we are unable to agree with the views
taken therein.
31 WP7571.23-J.odt
11. In the result, we are unable to accept, that the
verification to be done by the Magistrate under Section 13(3)
of the RBD Act can be termed as judicial enquiry, as the
language of Section 13(3) of the RBD Act does not indicate so
and all that is required to be done by the Magistrate is
verification of the correctness of the claim regarding the
occurrence of birth or death. The direction by the Magistrate
under section 13(3) of the RBD Act, is one, which would bind
the Registrar under the RBD Act alone and would not bind
the respondent Nos.1 and 4. That apart, it can be said that the
claim for change of the date of birth has been made at the fag
end of the service, inasmuch as after having been made after
rendering 27 years of service. The order by the Magistrate
under Section 13(3) of the RBD Act, as is pointed above, is
not based upon any verification at all, but is merely for the
sake of asking. The petition is therefore without any merit
and is accordingly dismissed. Rule stands discharged. No
order as to costs.
12. We record our appreciation for the valuable assistance
32 WP7571.23-J.odt
rendered by the learned counsel for the parties as well as
learned counsel Mr.Rohan Deo, who was called upon by the
Court to be rendered assistance.
(SMT. M.S.JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
KHUNTE
Signed by: Mr. G.S. Khunte
Designation: PS To Honourable Judge
Date: 02/03/2024 16:53:01
