Bombay High Court
Baba S/O Laxmanrao Jawade vs Zilla Parishad, Wardha, Thr. Its Chief ... on 8 May, 2024
Author: M.S. Jawalkar
Bench: Avinash G. Gharote, M.S. Jawalkar
2024:BHC-NAG:5301-DB
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.6635/2023
PETITIONER : Baba s/o Laxmanrao Jawade,
Aged about : 54 years, Occ. : Service,
R/o Chaitanya Colony, Sawangi (Meghe),
Tah. & Dist. Wardha.
...VERSUS...
RESPONDENTS : 1. Zilla Parishad, Wardha, through its
Chief Executive Officer.
2. Education Officer (Primary), Zilla
Parishad, Wardha.
3. State of Maharashtra, through Secretary,
Department of Rural Development, 25,
Marzban Path, Fort, Mumbai.
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Mr. P.D. Meghe, Advocate for petitioner
Mr. D.R. Bhoyar, Advocate for respondent nos.1 and 2
Mr. A.S. Fulzele, Addl. G.P. for respondent no.3
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CORAM : AVINASH G. GHAROTE AND
SMT. M.S. JAWALKAR, JJ.
Date of reserving the order : 30/04/2024
Date of pronouncing the order : 08/05/2024
O R D E R :
(PER : AVINASH G. GHAROTE, J.)
1. On 18/04/2024, the following position is recorded.
"The petition questions the communication dated
30/06/2023 by which the claim of the petitioner for
correction of his date of birth in service book has been turned
down.
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2) It is contended that, while appointment with the
respondent no. 1 on 30/06/1992, the date of birth of the
petitioner was recorded incorrectly as 21/09/1966 on the
basis of SSC certificate (Page 30). It is contended that
realizing this discrepancy, immediately on 10/08/1993, the
application for correction of the date of birth was filed by the
petitioner, which came to be decided by impugned
communication dated 30/06/2023 (Page 63). It is contended
that the date of birth of the petitioner is, in fact, 21/09/1969
for which reliance is placed upon the certificate dated
06/10/1997 issued by the Principal, Primary School Sarod,
Panchayat Samiti, Deoli (Page 35) and also the certificate
dated 17/01/1990 which certifies the date of birth of the
petitioner to be 21/09/1969 (Page 31). Reliance is also
placed upon the certificate issued under the Registration of
Births and Deaths Act, 1969, on 10/09/2022 which records
the date of birth of the petitioner as 21/09/1969 (Page 38). It
is, therefore, contended that since an application was made as
contemplated by Rule 38 of the MCS Rules within five years
from the date of entry in the service book, the fact that it was
not decided by the authorities, could not debar the petitioner
from claiming correction to be made in the service book in
that regard.
3) It is contended that rejection by the respondents
by the impugned communication is not justified. Reliance is
also placed upon Shankar S/o Arjun Nimsarkar vs Zilla
Parishad, Wardha & ors., Writ Petition No. 4336/2022
decided on 14/09/2022, which according to us, considers a
similar position.
4) Mr. Bhoyar, learned Counsel for the Respondent
Nos. 1 & 2 submits that, it is too late for the petitioner to
claim correction of his date of birth entry in the service book
as the petitioner is stated to retire on 30/09/2027. He also
placed his reliance upon the instructions issued by way of
notification dated 24/08/2008 indicating the manner in
which the request for correction of the date of birth entry in
the service book is to be processed. He seeks a day's time to
place on record the copy of aforesaid notification."
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2. Today, Mr. Bhoyar, learned counsel for the respondent
nos.1 and 2 places reliance upon the language of Rule 38 (2) (f) of
the Maharashtra Civil Services (General Conditions of Services)
Rules, 1981 ["MCS (GCS) Rules, 1981" for short hereinafter] to
contend, that unless the requirements contained therein are
satisfied, that the entry was due to want of care on part of some
person other than the individual in question or is an obvious clerical
error, no interference can be made. In support of this, he relies upon
Vijay Karbhari Chaudhari Vs. The State of Maharashtra & Anr.
decided on 24/09/2021 [Writ Petition No.5518/2021] and State of
Maharashtra and others Vs. Sudhir Bhagwat Kalekar 2023 DGLS
(Bom.) 3555, which, according to him, consider similar position.
Reliance is also placed upon Commissioner of Police, Bombay and
another Vs. Bhagwan V. Lahane, (1997) 1 SCC 247 and State of
Madhya Pradesh and others Vs. Premlal Shrivas (2011) 9 SCC 664.
Insofar as reliance placed by the learned counsel for the petitioner
upon Shankar s/o Arjun Nimsarkar Vs. Zilla Parishad, Wardha
through its Chief Executive Officer [Writ Petition No.4336/2022,
decided on 14/09/2022] it is contended, that though Rule 38 (2)(f)
of the MCS (GCS) Rules, 1981 has been considered, there is no
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finding rendered that the entry made in the service book, was not on
account of any fault on part of the petitioner at whose behest the
entry was made. He, therefore, submits, that the petition needs to
be dismissed.
3. What is material to note, is that when the petitioner
joined services, he was aware of the requirement of submitting the
correct date of birth, for the purpose of entering in his service book.
It is true that it is at the behest of the petitioner, that the date of
birth 21/09/1966 came to be recorded in his service book on the
basis of his SCC certificate, consequent to his appointment on
30/06/1992, however, it is equally true that the petitioner upon
realizing this position had filed an application on 10/08/1993 with
the respondent nos.1 and 2 for correction of date of birth in the
service record. Once this was done, it was for the authorities to have
processed the application and decided it one way or the other,
however, it is only by the communication dated 30/06/2023
(pg. 63) that the request came to be rejected. It would, therefore, be
apparent, that the application, for change in the date of birth, came
to be filed within the time frame of five years, as contemplated by
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Instruction No.1, appended below Section 38 (2) of the MCS (GCS)
Rules, 1981.
4. What is therefore, required to be considered, is whether
the second limb of Rule 38 (2) (f) of the MCS (GCS) Rules, 1981
that the entry was due to want of care on part of some person other
than the individual in question, or was an obvious clerical error.
5. That an entry in the service book can be corrected on
account of "obvious clerical error" has been held by the Full Bench in
Janabai d/o Himmatrao Thakur Vs. The State of Maharashtra and
others 2020 (1) ALL MR 360 (F.B.).
6. The recording of an entry regarding date of birth in the
service book, has serious consequences, as it determines the tenure
of employment of the employee, which would in turn, also have a
cascading effect, upon the vacancy to be created on account of the
superannuation of the employee. Rule 38 of the MCS (GCS) Rules,
1981, therefore, mandates that it is necessary for an employee, to
ensure, recording of the correct date of birth, in the service book and
in case it is incorrectly done, to get it corrected as early as possible,
with which purpose Instruction No.1 appended below Rule 38 of the
MCS (GCS) Rules, 1981 requires the application in that regard, is to
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be made within a period of five years from the date of the entry. The
obligation, of the employee, does not stop there, but for getting the
entry corrected, he has to fulfill the requirement as enumerated in
Rule 38 (2) (f) of the MCS (GCS) Rules, 1981, which mandates that
no alteration in the entry should be allowed, once it is made in the
service book, unless it is known, that the entry was due to want of
care on part of some person other than the individual in question or
is an obvious clerical error. The expression "the entry was due to
want of care on part of some person other than the individual in
question", as occurring in Rule 38 (2) (f) of the MCS (GCS) Rules,
1981, would necessarily relate to the entry made in the service book
and therefore, has to be necessarily demonstrated to be attributable
to some person other than the petitioner, when the entry is made in
the service book. No doubt, that the entry can also be corrected on
account of "obvious clerical error", as indicated in Rule 38 (2) (f) of
the MCS (GCS) Rules, 1981, which cannot be construed narrowly, so
as to restrict it, at the point of time, when the entry is made in the
service record, but has to be given an expanded meaning to include
an error, which may have occurred even earlier thereto, in view of
the fact, that it is not qualified and the provision contemplates, grant
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of an opportunity to the employee to ensure the correct date to be
recorded in the service book, and therefore, would take into its
compass, errors which have occurred in recording the date of birth
in documents earlier to the entry in the service book, the
incorrectness of which can be demonstrated to be obvious in nature.
7. It is, however, equally trite that such a correction, has to
be ensured by the employee, to be carried out, within a reasonable
period of time and though it would be the duty of the employer once
an application is made within the time frame of five years, as
indicated by Instruction No.1 appended below Rule 38 (2) of the
MCS (GCS) Rules, 1981, to decide the same within a reasonable
period of time, so that, in case of any rejection of the claim of the
employee, the remedy to approach the higher authorities, or
appropriate Court, would be available and not lost to him, it would
be equally the responsibility of the employee to ensure that the
application for correction of date of birth is pursued by the employee
and got decided. The employee, cannot be permitted to say that he
has made an application for correction of date of birth within the
time frame stipulated by the rules applicable and thereafter forgot
about the same, for decades together and then woke from his
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slumber, at the fag end of his service to revive the claim regarding
the correction in his date of birth. As held by the Hon'ble Apex Court
in a catena of decisions, that the claim for correction of the date of
birth, has to be made and got decided, at the earliest, and cannot be
permitted to be raised at the fag end of the service, as the general
principle of delay and latches, would clearly be attracted [ see :
Union of India Vs. Harnam Singh (1993) 2 SCC 162; The General
Manager South Eastern Coalfields Ltd. and Others Vs. Avinash
Kumar Tiwari 2023 LiveLaw (SC) 124.]
8. In the instant case, though the petitioner had made an
application on 10/08/1993, the petitioner, did not pursue the same
till 14/09/2022, which is nearly a period of 29 years from his initial
application. Even thereafter, the petitioner merely continued making
several representations on 29/11/2022, 30/12/2022 and
03/01/2023, well knowing that considering the age of retirement of
teachers with the Zilla Parishad schools was 58 years, which
considering the date of birth of 21/09/1966, as recorded in his
service book, was to superannuate on 20/09/2024. The silence on
part of the petitioner, for nearly a period of 29 years, is telling. The
petitioner cannot be permitted to sleep over his rights, for decades
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together and then one fine morning realizing that his retirement is
approaching fast, make an attempt, to correct his date of birth. The
entire petition, does not disclose any reason whatsoever, for this 29
years hiatus on part of the petitioner, in pursuing his application for
correction of the date of birth. No explanation whatsoever is
forthcoming for explaining the delay and latches on the part of the
petitioner.
9. Examining the position in the instant case, in light of the
above dictum, it would be necessary to note, that in support of his
claim that the correct date of birth of the petitioner was
21/09/1969, the certificate of the Principal, Primary School, Sarul,
Panchayat Samiti, Deoli dated 06/10/1997 (pg.35), which certifies
this position, on the basis of the school admission register has been
relied upon. A copy of the school register is also placed on record at
page 37, which also affirms this position. Reliance is also placed
upon the certificate issued by the authority under the Registration of
Births and Deaths Act, 1969, (pg.38) which certifies the date of birth
of the petitioner as 21/09/1969. A perusal of the entry of change of
school (pg.36) of the Higher Primary School, Takli (Chana), Deoli
Panchayat Samiti, Zilla Parishad, Wardha indicates, that while
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changing the school, the date of birth of the petitioner has been
incorrectly recorded as 21/09/1966 instead of 21/09/1969, which
unfortunately has been carried forward. However, in spite of this
position, the petitioner, has made no attempt, to get the date of birth
corrected, in the records of the Higher Primary School, Takli
(Chana), Deoli Panchayat Samiti, Zilla Parishad, Wardha or for that
matter, in his SSC certificate corrected at any point of time, in spite
of realizing as far back as in 1993 itself the fact that the date of
birth, as entered therein, was incorrect. Rather on the contrary, the
petitioner continued to be said the date of birth, throughout, and the
position is that even today, the date of birth, in the register of the
aforesaid school, as well as the SSC certificate continues to be
recorded as 21/09/1966 in stead of 21/09/1969, which is claimed
by the petitioner to be his correct date of birth.
10. Vijay Karbhari Chaudhari (supra) upon which reliance
has been placed by Mr. Bhoyar, learned counsel for the respondent
nos.1 and 2, was a case, in which after joining the Government
service on 09/10/1997 as an Agricultural Extension Officer,
whereupon the date of birth was recorded as 01/06/1971 an
application for correction to record it as 17/10/1972 was made on
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17/11/2000, which application was rejected by the order dated
10/02/2003, challenge to this before the Maharashtra
Administrative Tribunal in Original Application No.949/2004 was
dismissed by the order dated 05/01/2006, which had attained
finality in absence of any challenge thereto. It was seven years
thereafter that again an application was filed for change of date of
birth on 28/06/2013, which also came to be rejected on
30/07/2014, which rejection was never challenged. Again, for a
third time, an application came to be filed for correction on
26/08/2015, which came to be rejected on 22/05/2018, which was
challenged in the petition. It was, therefore, in this background, held
that though the application for correction of date of birth in the
service book was made within three years from the date of entering
services, however, the law did not permit repeated filing of
applications, the rejection of which, had already attained finality.
11. Sudhir Bhagwat Kalekar (supra) on which reliance is
also placed by Mr. Bhoyar, learned counsel for respondent nos.1
and 2 was also a case, in which the employee who had entered
services consequent to 17/08/1992 wherein his date of birth was
recorded as 23/05/1965 had filed an application on 22/07/1994 for
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correction of his date of birth as 23/11/1965 by relying upon the
birth certificate issued by the Municipal Corporation of Greater
Mumbai, on which no action was taken, whereupon again an
application was made after 10 years on 29/01/2004, which were
followed by the applications in 2004, 2005, 2011, 2013 and 2014. In
March, 2023, Original Application No.280/2023 came to be filed on
account of rejection of his representation dated 22/07/2022 on
01/03/2023, for correction of date of birth, which Original
Application was allowed, on account of which, the petition came to
be filed, in which, it was held that on account of absence of any
efforts to get the entry of date of birth in the school/college records
or in the matriculation certificate, the same could not be permitted
at the fag end of his career. These judgments, are clearly in
consonance with the settled position of law that correction in the
entry of the date of birth, cannot be permitted at the fag end of the
career.
12. Though reliance is placed by Mr. Meghe, learned counsel
for the petitioner upon Shankar s/o Arjun Nimsarkar (supra), in
which, upon entering service with the Zilla Parishad, Wardha
consequent to the advertisement dated 23/09/1986, the petitioner
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on 24/02/1989 had pointed out to the Chief Executive Officer
regarding incorrect recording of his date of birth in the school
leaving certificate as 29/08/1964, the correct date of birth being
19/02/1966, in support of which, an affidavit was also filed,
subsequent to which an application on 23/02/1993 also came to be
filed by the petitioner to the Block Education Officer, Samudrapur
for forwarding the same to the Zilla Parishad and Education Officer
and the rejection was communicated on 14/07/2022 in pursuance to
which the date of birth of the petitioner, was directed to be
corrected, it is material to note, the same does not advert to the
language of Rule 38 (2) (f) of the MCS (GCS) Rules, 1981 and
specifically the expression "that the entry was due to want of care on
part of some other person other than the individual in question",
which would relate to the entry itself made in the service book,
which was at the behest of the petitioner, on account of the entry
made in his SSC certificate and therefore, was an act attributable to
the petitioner and not to any other person.
13. In the instant case, the entry in the service book,
admittedly has been made at the behest of the petitioner, on the
basis of the entry made in the SSC certificate, which was produced
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by the petitioner himself and therefore, the requirement in this
regard, as contained in Rule 38 (2) (f) of the MCS (GCS) Rules,
1981, in our considered opinion, has clearly not been satisfied.
Moreover, there is no explanation whatsoever, as to the delay and
latches of more than 29 years, which are directly attributable to the
petitioner for getting his date of birth to be decided, as the cause of
action for filing the present petition is stated to the judgment passed
by this Court in Shankar s/o Arun Nimsarkar (supra). We, therefore,
do not think this a fit case, to interfere in our extraordinary
jurisdiction under Article 226 of the Constitution. The writ petition
is, therefore, dismissed. Considering the circumstances, there shall
be no order as to costs.
(SMT. M.S. JAWALKAR, J.) (AVINASH G. GHAROTE, J.)
Deshpande/Wadkar
Signed by: S.S. Wadkar (SSW)
Designation: PS To Honourable Judge
Date: 08/05/2024 19:53:36
