Bombay High Court
State Of Maharashtra, Thr. Principal ... vs Bhaurao Ramsingh Chavhan on 30 September, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-NAG:11056-DB
22-WP-5755-2024.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO. 5755 of 2024
1. State of Maharashtra,
through its Principal Secretary,
Social Welfare Department,
Mantralaya, Mumbai.
2. The Commissioner,
Social Justice Department,
Maharashtra State, Pune. ..Petitioners
Versus
Bhaurao Ramsingh Chavhan,
Aged about 57 years, Occ. Service,
R/o. Juna Post Pomali, Tah. Umarkhed,
District Yavatmal. ..Respondent
..........
Shri D. P. Thakre, Additional Government Pleader for the petitioners.
Shri N. B. Karade, Advocate for the respondent.
...........
CORAM :- BHARATI DANGRE AND ABHAY J. MANTRI, JJ.
DATE :- 30th SEPTEMBER, 2024
ORAL JUDGMENT ( Per BHARATI DANGRE, J.)
Being aggrieved by the judgment dated 18.04.2024 passed by the
Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur in O. A.
No. 252 of 2024, thereby allowing the O. A. by quashing and setting aside
the order dated 23.02.2022 and directing the State Authorities to correct the
date of birth of the respondent, the State has preferred the present writ
petition.
We have heard Shri Deepak Thakre, learned Additional Government
Pleader for the petitioners-State and Mr. N. B. Karade, learned counsel for
the respondent-Bhaurao Ramsingh Chavhan, who had approached the
Maharashtra Administrative Tribunal and was successful in getting his date
of birth corrected in the service book.
2. By consent of the respective counsel for the parties, the petition
is taken up for hearing forthwith as we noticed it involve a short legal issue.
Hence, Rule. Rule made returnable forthwith.
3. The respondent-Bhaurao Chavhan was appointed as 'Senior Social
Welfare Inspector' at Chandrapur on 08.09.1997.
Pursuant to joining the services, on 19.01.1998 he submitted an
application to the District Social Welfare Officer, Chandrapur for change in
his date of birth. His application was forwarded to the Divisional Social
Welfare Officer, Nagpur Division, Nagpur on 27.05.1999.
The Additional Commissioner, Social Welfare, Maharashtra State,
Pune 23.01.2015 afforded an opportunity of hearing to all concerned which
included the respondent-employee as well as the Officers of the Social
Welfare Department and the Office of the Superintendent. in which the
respondent was serving.
It was noted by the Additional Commissioner that on being selected for
the post of 'Senior Social Welfare Inspector,' the respondent had resumed his
services on 30.10.1997 and preferred an application for correction in his
date of birth.
On the basis of the documents, the Additional Commissioner took a
note of the following facts:
(i) The School Leaving Certificate of respondent-Bhaurao Chavhan
reflected his date of birth as 05.04.1966.
(ii) The certificate issued by the Maharashtra State Secondary and Higher
Education Board on 02.01.1985 reflected his date of birth as 05.04.1966
(iii) In the certificate issued by the Tahsildar and Executive Officer,
Umarkhed on 29.06.1990 in regards to nationality and domicile, the date of
birth mentioned as 05.04.1966.
(iv) In the certificate issued by the Deputy Accountant (Junior), Local
Audit Fund, Maharashtra State, Chandrapur dated 03.06.1997 the date of
birth of Bhaurao Chavhan is reflected as 05.04.1966.
(v) In his service book the date of birth was entered as 05.04.1966.
4. Despite the aforesaid facts, Mr Bhaurao Chavhan had preferred an
application under Rule 38 of the Maharashtra Civil Services (General
Conditions of Services) Rules, 1981 and based upon the entry in Kotwal
Book in regards to Mouza Jamuna, Village No.112 Taluka Umarkhed,
District Yavatmal, his date of birth along with his name is reflected as
12.09.1967 and a certified copy of the same was obtained on 17.09.1996.
In addition, Mr. Chavhan also produced the extract of birth register of his
siblings and his own birth register where, against his name, the date of birth
is recorded as 12.09.1967.
5. The Additional Commissioner on perusal of the documents produced
and in terms of the Government Resolution dated 27.09.1994 and in
particular, Rule 38 and the Instruction nos. (1) and (2) of the Maharashtra
Civil Services (General Conditions of Services) Rules, 1981, a decision was
arrived at, to rectify the date of birth of respondent-Mr. Chavhan in his
service record from 05.04.1966 to 12.09.1967.
Pursuant to the said decision being taken, the report was forwarded
to the State Government along with the necessary recommendations.
6. The State Government vide its communication dated 23.02.2022
through the Section Officer of the Social Justice and Special Assistance
Department, communicated to the Commissioner about rejection of the
proposal without citing any reason.
The respondent being aggrieved by the decision taken, approached
before the Maharashtra Administrative Tribunal, thereby assailing the said
order, by contending that the extract of the Kotwal Book and the extract of
the birth register were not considered by the State Government.
The Original Application was opposed by the Regional Deputy
Commissioner, Social Welfare, Nagpur by filing his submissions and it was
contended that the applicant, who was appointed in the year 1997,
requested to update his service record to reflect his date of birth to be
12.09.1967 and since there was no clerical error or mistake on the part of
anyone other than the respondent himself and though the respondent-
employee furnished an abstract from the birth register but since his parents
were not clearly identified, the same came to be rejected.
7. The Tribunal considered the rival contentions advanced and
specifically reproduced the order dated 23.02.2015 passed by the Additional
Commissioner, Social Welfare, Maharashtra State, Pune which
recommended the rectification in the date of birth of respondent-Bhaurao
Chavhan. The Tribunal also considered the stand of the present petitioner
no.2, in specific relying upon Rule 38(2)(f) of the Maharashtra Civil Services
(General Conditions of Services) Rules, 1981 and also recorded the
objection that the date of birth was entered into the service book as per the
documents furnished by him and the employee had approached the Tribunal
when he was on the verge of retirement and he never pursued the matter
and slept over his rights.
8. The Tribunal referred to the additional affidavit filed by the employee
before it, which was accompanied with the copy of letter dated 19.08.1999
submitted by him for correction of his date of birth, which was also
accompanied with the affidavit of his father and a certificate that Ramsingh
Hari Chavhan and Ramsu Hari (Bagari) were one and the same. He also
placed on record his clarification dated 06.08.2009, which was a request to
take into consideration the extract of Kotwal Book Register where his date of
birth is recorded as 12.09.1967 as well as the extract relating to date of
birth of his siblings (collectively).
The Tribunal by recording that, the application for change of date of
birth was made within a period of five years after joining the post and his
application was positively recommended by the Additional Commissioner on
23.01.2015 and thereafter, it was forwarded to the petitioner no.1 but found
that it was kept pending for more than seven years. The Tribunal noted that
the applicant was not to be found at fault as he had applied for change in
his date of birth well within time and he was also pursuing the matter with
great zeal.
Reliance was placed by the Tribunal on the decision of the Bombay
High Court in the case of Smt. Vasundha Gorakhnath Mandvilkar vs. The
City and Industrial Development Corporation of Maharashtra Limited
(CIDCO) reported in [(2009) 120 FLR 267(Bom)], to the effect that the
record of births and deaths maintained by the Municipal Authority within its
limits has to be accorded due weightage, as the birth certificate is a certified
copy of the extract of a public document in terms of Section 77 of the Indian
Evidence Act, 1872 and such certified copy can be produced in proof of the
contents of the public document of which it purports to be a copy.
9. Since the death and birth register maintained by the statutory
authorities/State Authority raise presumption of correctness and the entries
made in the statutory register are admissible in evidence in terms of Section
35 of the Indian Evidence Act, 1872, the Tribunal rightly accorded due
weightage to it, in absence of any material shown to be contrary and as a
result, set aside the impugned order dated 23.02.2022, since it was sans any
reason and failed to take into consideration the extract of the birth register
produced by the respondent.
10. We have perused the order impugned passed by the Tribunal in the
backdrop of Rule 38 of the MCSR Rules of 1981 governing the general
conditions of service. Rule 38 specifically prescribes a procedure for writing
the events and recording the date of birth in the service book, clause (2)
thereof clearly stipulates the procedure to be followed while recording the
date of birth.
The date of birth at the time of its recording in the service book is to
be verified with reference to a documentary evidence and various
contingencies are stipulated when the exact date of birth or both the year
and month of birth are known but not the exact date of birth or when a
government servant is only able to state his approximate age. Clause (f) of
sub-rule (2) of Rule 38 contemplate that once an entry of age or date of
birth has been made in service book, no alteration of the entry should
afterwards be allowed, unless it is known that the entry was due for want of
care on the part of some person other than the individual in question or is
an obvious clerical error.
We must also reproduce the Instructions appended to the said Rule
and in particular Instructions (1) and (2) thereof which reads thus:
"(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 the 16 th August 1981, shall be entertained
after a period of five years commencing from the date of his
entry in Government service.
(2) Subject to Instruction (1) above, the correct date of birth
of a Government servant may be determined, if he produces
the attested xerox copy of the concerned page of the original
birth register where his name and date of birth has been
entered as per the rules for the time being in force regarding
the registration of birth, and maintained at the place where
the Government servant is born, such proof should be
considered as an unquestionable proof for change of date of
birth in service record."
11. It is not in dispute that the respondent-Bhaurao Ramsingh Chavhan,
preferred an application within five years and there is no reason why his
application should not be entertained as Instruction (1) create an embargo
that an application for correction of entry regarding date of birth in service
book or service roll of a government servant shall not be entertained after a
period of five years.
What is most relevant is Instruction No.(2) which clearly contemplate
that the correct date of birth of a government servant may be determined, if
he produces the attested xerox copy of the concerned page of the original
birth register which reflect his name and date of birth and this document is
maintained at a place, where the government servant is born and such a
document should be considered as unquestionable proof for change of date
of birth in service record.
12. The respondent-employee had produced the extract of Kotwal Book
Register of Mouze-Jamuna, Village No. 112, where his name is recorded,
with the date of his birth as 12.09.1967.
He also produced on record the Notification in the Government
Gazette dated 11.05.2000, where his date of birth is corrected to
12.09.1967 from March/April 1966 vide Entry No.C-128.
In addition, the respondent also produced on record the extract
relating to his date of birth as well as date of birth of his siblings where his
date of birth is recorded as 12.09.1967 and since a presumption is raised
under Section 35 of the Indian Evidence Act, which clearly specify that any
entry in public or other official book or register stating a fact in issue or a
relevant fact and is made by the government servant in discharge of his
official duty, or by any person in performance of his duty specifically
enjoined by law on him, then the entry in such book, or register is itself a
relevant fact.
13. In the wake of the aforesaid provision and the fact that the
respondent employee immediately after entering into government service
made an application for rectification of date of birth in his service record
and the Additional Commissioner recommended its rectification but for
unexplained grounds, his application is rejected without attaching value to
the two documents produced by him, including the extract of the Kotwal
Book and the extract of birth register.
14. We find no legal infirmity in the impugned judgment passed by the
Tribunal on 18.04.2024 thereby allowing the Original Application and
permitting the rectification of the date of birth of the petitioner in the
service record as 12.09.1967 in place of 05.04.1966, the petition filed by the
State is dismissed.
15. Shri Thakre, learned Additional Government Pleader has placed on
record the Government Resolution dated 14.08.2024 declaring that the
respondent stands retired from service retrospectively with effect from
30.04.2024, though the learned counsel Mr. Karade representing the
respondent has assertively stated before us that he continues to render his
services till the date of issuance of the Government Resolution.
Since we have dismissed the petition by upholding the impugned
judgment passed by the Tribunal, even the Government Resolution dated
14.08.2024 must meet the same fate as, according to us, the respondent is
entitled to have his date of birth rectified in the service record and therefore,
we set aside the Government Resolution dated 14.08.2024.
We direct the Petitioners to implement the decision rendered by the
Maharashtra Administrative Tribunal thereby declaring that the correct date
of birth of the respondent in service record is 12.09.1967.
The Government Resolution dated 14.08.2024 retiring the
respondent with retrospective effect from 30.04.2024 is set aside.
The respondent shall be immediately reinstated in service and
permitted to render service till he attain the age of superannuation i.e. 58
years considering his date of birth to be 12.09.1967, in normal
circumstances, with an exception of any adverse action against him,
resulting into putting an end to his services.
Rule is discharged. No orders as to costs.
(ABHAY J. MANTRI, J.) (BHARATI DANGRE , J.)
Andurkar.
Signed by: Jayant S. Andurkar
Designation: PA To Honourable Judge
Date: 04/10/2024 10:45:17
