Gujarat High Court
Chhotekhan S Baloch vs State Of Gujarat on 11 January, 2022
Bench: Niral R. Mehta
C/LPA/338/2021 JUDGMENT DATED: 11/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 338 of 2021
In
R/SPECIAL CIVIL APPLICATION NO. 14885 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHHOTEKHAN S BALOCH
Versus
STATE OF GUJARAT
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Appearance:
MR J G VAGHELA(3971) for the Appellant(s) No. 1
MR TIRTHRAJ PANDYA, AGP for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 11/01/2022
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)
1. Feeling aggrieved and dissatisfied by the
order dated 29.1.2021 passed by the learned
Single Judge in Writ Petition being Special
Civil Application no.14885/19, the appellant-
C/LPA/338/2021 JUDGMENT DATED: 11/01/2022
original petitioner has preferred this intra-
Court appeal under Clause 15 of the Letters
Patent.
2. Following facts emerge from the record of the
appeal:-
That the appellant was appointed as daily
wager by the Forest Department in the year
1984. Record indicates that the benefit of
Government Resolution dated 15.9.2014 were
extended to the appellant in the year 2014 and
at that juncture, the appellant was asked by
the respondent no.2 to furnish the proof of
date of birth. It appears from the record that
in absence of any record of the date of birth,
the appellant approached the jurisdictional
Civil Court under Section 13(3) of the
Registration of Births and Deaths Act, 1969
(hereinafter referred to as "the Act") and the
said application was allowed and the learned
Magistrate directed the authority to register
the date of birth as 3.6.1969 and accordingly,
the birth was recorded in the record of
Village Mitha and birth certificate
accordingly came to be issued. Record
indicates that when the benefit of Government
Resolution dated 15.9.2014 was accorded to the
appellant, the appellant submitted his Aadhar
Card and election card which shows that his
date of birth was 1.1.1961. As the birth
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certificate recording the date of birth of the
appellant as 3.6.1969 was not accepted by the
authorities, the present Writ Petition came to
be filed by the appellant that too on the eve
of his retirement. It was contended by the
appellant that he joined services as a daily
wager at the age of 15 years and the date of
birth registered in the record pursuant to the
order passed by the competent Civil Court is
conclusive proof. The said fact was denied by
the respondent authorities and opposed on the
ground that as per the Aadhar Card and the
election card of the appellant, his real date
of birth is 1.1.1961 and that only in order to
extend the service tenure on the eve of
retirement, such order is put in service. The
learned Single Judge, after considering the
material on record, was pleased to dismiss the
Writ Petition and being aggrieved by the same,
the present appeal is filed.
3. Heard Mr. J.G. Vaghela, learned advocate for
the appellant and Mr. Tirthraj Pandya, learned
AGP for the State Government authorities on
advance copy.
4. Mr. Vaghela, learned advocate for the
appellant has contended that the order of
Civil Court is disregarded by the authorities
and even though the date of birth of the
appellant is 3.6.1969, he has been made to
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retire treating his birth date as 1.1.1961. It
was further contended that Aadhar Card and
election card are not authentic in nature and
the birth date as recorded under the
provisions of the Act is conclusive proof of
the date of birth. Mr. Vaghela therefore
contended that the authorities have wrongly
made the appellant to retire even though he
has not reached the age of superannuation. Mr.
Vaghela contended that the boy aged 15 years
can join the services of the Government as a
daily wager and therefore, it cannot be
inferred that the date of birth recorded in
the register as 3.6.1969 is incorrect. Mr.
Vaghela however submits that though the
appellant has joined the services in the year
1984, he will reach the age of superannuation
based upon the date of birth being 3.6.1969
and not 1.1.1961. Reiterating the contentions
raised in the petition, it was also contended
by the learned advocate for the appellant that
finding of fact recorded by the learned
Registrar based on the evidence led in the
Court cannot be questioned or disturbed again
without examining the evidence. Mr. Vaghela
also contended that it is not true that at the
last moment, the change that the appellant has
given for change of birth date but in reality,
as per the rules of the Government, it can be
changed within a period of 5 years from when
it is recorded. It was also contended that the
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order passed by the learned JMFC is not
challenged and referring to the certificate
issued by the respondent authorities, it was
contended by Mr. Vaghela that in the said
certificate, there is interpolation. On the
aforesaid grounds, it was contended that the
appeal requires consideration and the impugned
order passed by the learned Single Judge
deserves to be quashed and set aside with
consequential reliefs as prayed for.
5. Per contra, Mr. Tirthraj Pandya, learned AGP
for the State Government authorities has
vehemently opposed the petition and relying
upon the affidavit-in-reply filed by the
respondents before the learned Single Judge
which is forming part of the record of this
appeal, it was contended by Mr. Pandya that it
is unbelievable that at the age of 15, the
appellant joined services of the respondents
as a daily wager. Mr. Pandya contended that
the Aadhar Card as well as election card are
authenticated legal documents which records
that date of birth of the appellant is
1.1.1961. Mr. Pandya supported the impugned
order and contended that at the fag end of his
career, the appellant approached the Civil
Court and that no independent evidence was led
and only on the statement made by the
appellant's sister who was applicant before
the Civil Court, the order is passed. Mr.
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Pandya submitted that the appeal, being
meritless, deserves to be dismissed at the
threshold.
6. No other or further submissions, averments,
grounds and/or contentions are made by the
learned advocates appearing for the respective
parties.
7. Upon considering the submissions made and
having gone through the record of this appeal,
it clearly shows that the appellant joined the
services as a daily wager in the year 1984 at
Deodar. It is rightly contended by the learned
AGP that if date of birth of the appellant is
considered as 3.6.1969, it would mean that the
appellant joined services as a daily wager at
the age of 15, which is not believable. Record
indicates that in the year 2014, the appellant
himself produced certain documents including
the identity card issued by the Election
Commission dated 31.5.1995 and Aadhar Card as
well as certificate of age issued by the
office of CDMO-cum-Civil Surgeon, General
Hospital, Palanpur dated 9.10.2014 and
certificate issued by Mitha Gram Panchayat
dated 18.11.2013. These documents indicate
that the date of birth of the appellant is
1.1.1961. It is also a matter of record that
the service book has been prepared, wherein
date of birth has been recorded as 1.1.1961.
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Even if the contention of the learned advocate
for the appellant is examined based upon the
order passed in Criminal Misc. Application
no.21 of 2015 by the learned Magistrate at
Deodar, it transpires that the application was
not preferred by the appellant but it was
preferred by Bhaguben, his sister and after
serving for more than 31 years, the appellant
claims on the basis of the order passed by the
learned JMFC, Deodar that his date of birth is
3.6.1969.
8. The learned Single Judge, after considering
the material on record, has observed thus:-
"7. It is an admitted fact that the
petitioner had joined the Forest
Department in the year 1984 as a
daily wager. The submission of the
learned advocate for the petitioner
is that the petitioner was born in
the year 1969. If this submission is
accepted then the petitioner would
have joined the Forest Department as
a daily wager at the age of 15 which
is highly improbable as no
Government Department would engage a
minor as a labourer. It emerges from
the affidavit of respondent No.2
that at the time of extending the
benefit of Government Resolution
dated 15.9.2014, the petitioner was
called upon to produce proof of his
date of birth. Accordingly, the
petitioner has produced the
certificate issued by the office of
the CDMO-cum-Civil Surgeon, General
Hospital Palanpur dated 9.10.2014
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wherein it is stated that on
clinical examination, the petitioner
was found to be 50 years of age as
on 9.10.2014. The petitioner had
also produced certificate dated
18.11.2013 issued by the Talati-cum-
Mantri of Mitha Gram Panchayat
wherein the birth date of the
petitioner is stated as 1.1.1961.
The same age is reflected in the
identity card issued by the Election
Commission of India as well as the
Aadhar card. As noted hereinabove,
all these documents regarding the
date of birth were produced by the
petitioner himself and on the basis
of these proofs, his date of birth
was recorded as 1.1.1961 in the
service record.
8. It is eminently clear that
thereafter with a view to get
superannuation age enhanced, the
petitioner through his elder sister,
approached the jurisdictional civil
court for direction to the concerned
authority for registering his birth
date as 3.6.1969 and thereafter, got
this date entered in his identity
card of Election Commission as well
as Aadhar card. The conduct of the
petitioner itself smacks of
malafides, inasmuch as, while taking
benefit of Government Resolution
dated 15.9.2014, he himself had
produced the documentary proof to
indicate that his birth date was
1.1.1961 and thereafter with an
oblique motive of getting extension
in superannuation age, he had
approached the jurisdictional civil
court for registration of his birth
date as 3.6.1969. In view of such
conduct, at the fag end of the
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service when the petitioner is
reaching superannuation age on the
basis of his recorded birth date of
1.1.1961, this petition, in my view,
is without merit and does not
warrant consideration."
9. Even considering the documents which were
produced by the appellant himself before the
authorities earlier, it clearly shows that
even according to the appellant, his real date
of birth is of the year 1961.
10. So far as the contention as regards the
certificate dated 27.1.2015 raised by Mr.
Vaghela, learned advocate for the appellant is
concerned, the fact remains that the appellant
joined services as daily wager on 16.3.1984
having muster no. 2922. The contention that
the correction is not counter signed is also
incorrect. The same would not take the case of
the appellant any further. We are in total
agreement with the observations made by the
learned Single Judge. The appellant cannot be
permitted to correct his date of birth on the
eve of his retirement to see that he works for
the extended period. We find that the
authorities have rightly acted upon the
documents which were supplied by the appellant
himself which show at least the year of his
birth, if not the date of birth. All the
contentions raised by the learned advocate for
the appellant fail. The appeal being
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misconceived, the same deserves to be
dismissed and is hereby dismissed. However,
there shall be no order as to costs.
(R.M.CHHAYA,J)
(NIRAL R. MEHTA,J)
Maulik
