Gujarat High Court
Talab Tarmamad Rayma vs Gujarat Mines Development Corporation ... on 19 February, 2025
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12292 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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Approved for Reporting Yes No
Yes
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TALAB TARMAMAD RAYMA
Versus
GUJARAT MINES DEVELOPMENT CORPORATION LIMITED & ANR.
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Appearance:
NILAY H PATEL(7856) for the Petitioner(s) No. 1
MS REETA CHANDARANA(3023) for the Respondent(s) No.
1,2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 19/02/2025
ORAL JUDGMENT
1. Heard learned advocate Mr. Nilay H. Patel
appearing for the petitioner and learned
advocate Ms. Reeta Chandarana appearing for the
respondents.
2. By way of this petition, the petitioner has
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prayed for a direction to consider the real
birth date of the petitioner as 1.6.1975 and has
prayed for further direction to extend the
service period of the petitioner for a further
period of 30.6.2035.
3. With the consent of learned advocates appearing
for the respective parties, the matter was heard
finally. Hence, RULE. Learned advocate Ms. Reeta
Chandarana waives the service of rule on behalf
of the respondents.
4. The facts in nutshell leading to filing of
present petition are stated as under :-
4.1 The present petitioner was serving as
labourer in the respondent - Corporation in
Kutch District and he joined the services under
the respondents on 14.3.1989 for the post of
labourer and since then the present petitioner
is working continuously with the respondent -
Corporation. Right from beginning all throughout
in the service record of the petitioner, the
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petitioner's date of birth is recorded as
14.3.1964. However, for some extraneous reasons,
the petitioner set idle and remained silent
till 2017 about his actual date of birth and for
the first time in the year 2017, he made an
application to the General Manager, HR of the
respondent - Corporation seeking correction of
his date of birth as 1.6.1975 which according to
the petitioner is in accordance with the Birth
Certificate and School Leaving Certificate.
4.2 The petitioner kept corresponding with
the respondents for the aforesaid correction,
but did not approach this Court at the first
instance when the petitioner's application was
not considered by the respondent within some
reasonable time and ultimately, the respondents
vide letter dated 14.4.2017 rejected the
petitioner's application for correcting date of
birth as 1.6.1975 and thereafter, being
aggrieved by the above, the petitioner has
preferred this petition with the prayer which is
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already incorporated in the foregoing
paragraphs.
5. Learned advocate Mr. Nilay Patel appearing for
the petitioner made following submissions to
canvass the case on behalf of the petitioner :-
5.1 According to learned advocate Mr. Nilay
Patel, the petitioner is an illiterate person
who started his career by doing some labour work
and therefore, he was unaware about the fact
that while joining the service, he has stated
his actual date of birth as 14.3.1964. The same
was a bonafide mistake on the part of the
petitioner and therefore, as there is no ill
will attached to the same, the respondents ought
to have considered the petitioner's application
and correct his date of birth as 1.6.1975 in the
service book.
5.2 Learned advocate Mr. Nilay Patel
further submitted that there is no discrepancy
in the school record or when it is matched with
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the birth certificate and therefore, the
petitioner's actual date of birth is 1.6.1975
and therefore, as the petitioner's actual date
of birth is supported by documentary evidence,
the petitioner's date of birth is required to be
treated as 1.6.1975 and accordingly, the
petitioner's age of superannuation would be
30.6.2035. Except these two submissions, no
other submissions are made by learned advocate
Mr. Nilay Patel appearing for the petitioner.
6. Learned advocate Ms. Reeta Chandarana appearing
for the respondents drew attention of the Court
to the details submitted by the petitioner to
the respondent - Corporations in his own
handwriting and having signature of the
petitioner at the bottom, the said form was
filled up by the petitioner on 14.3.1989 as can
be seen from Annexure-R2 produced at page No.32
of the petition. By relying upon the aforesaid
document which is annexed along with affidavit
in reply, learned advocate Ms. Reeta Chandarana
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submitted that the respondent corporation as
policy decision treats the date of birth
recorded in the said Form-B as final and they do
not entertain any request for change/correction
in the date of birth after five years from the
date of joining the service. The said policy of
the respondent Corporation is reflected in the
Circular dated 25.5.2009.
6.1 It is further submitted by learned advocate
Ms. Reeta Chandarana that in the Form -B the age
of the petitioner mentioned has been recorded as
25 years at the time of joining on 14.3.1989.
Accordingly, as per the record of the
respondent Corporation, the date of birth of the
petitioner is 14.3.1964.
6.2 It is also submitted by learned advocate
Ms. Reeta Chandarana appearing for the
respondent - Corporation that as per the prayer
of the petitioner i.e. his date of birth is
1.6.1975 instead of 14.3.1964, the petitioner
cannot be presumed to have joined the respondent
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- Corporation at the age of 14 years.
6.3 Learned advocate Ms. Reeta Chandarana also
submitted that in the present case, the date of
birth of the petitioner as per the details given
in his Form-B would be 14.3.1964 and
accordingly, the date of superannuation of the
petitioner would be 31.3.2024. Learned advocate
Ms. Chandarana further submitted that the
petitioner himself has stated his date of birth
to be 14.3.1964 as back as in the year 1989
which shows that the petitioner was aware about
his actual birth date and thereafter also, for a
period of 28 years, the petitioner set silent
and thereafter as the date of superannuation has
come closer, the petitioner tried to mislead the
respondent authorities belatedly by stating that
his actual date of birth is 1.6.1975.
6.4 Learned advocate Ms. Reeta Chandarana
also drew attention of this Court to two
Circulars issued by the respondent -
Corporation, first Government Resolution dated
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8.5.1978 by the General Administration
Department of State Government which provides
for a five years window for change of date of
birth. However, such application for change of
birth as per Government Resolution dated
8.5.1978 is required to be made within a period
of five years from the date on which the
petitioner's services are made permanent.
Another circular dated 25/27.5.2009 issued by
the respondent - Corporation is also on the same
line and provides period of five years from the
date of joining within which any application for
change of birth date can be made by the
petitioner. She submitted that in the instant
case, the petitioner has made such application
after a period of 28 years and therefore, the
same has rightly not been considered by the
respondent - Corporation and therefore, the same
is required to be quashed and set aside.
6.2 Learned advocate Ms. Reeta Chandarana
relied upon the decision of the Supreme Court in
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case of Karnataka Rural Infrastructure
Development Limited Versus T. P. Nataraja and
others reported in Civil Appeal No. 5720 of 2021
and Civil Appeal No. 5721 of 2021 decided on 21 st
September, 2021 and by relying upon paragraph
Nos.17 to 25 of the said decision, learned
advocate Ms. Reeta Chandarana submitted the law
in this regard is very clear and in that case,
after delay of 24 years, such request for change
of date of birth was rejected and accordingly,
in the instant case also when the request is
made after 22 years, the same is required to be
rejected on the ground of delay and latches
itself. By making the above submissions, learned
advocate Ms. Reeta Chandarana prayed for
dismissal of this petition.
7. I have heard learned advocates appearing for the
respective parties and perused the record. On
perusal of record, I found that even before the
petitioner joined the services, the GAD
department of the State Government has issued a
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Government Resolution whereby time limit of five
years is provided after a person is made
permanent in the organization for change of date
of birth. On similar line, the respondent -
Corporation also has issued a circular dated
25/27.5.2009 which also provides a period of
five years for making an application for making
an application for correction in date of birth
within a period of five years from the date of
joining. In the instant case, the petitioner has
joined the service in the year 1989 whereas for
the first time the application for making
necessary correction in his birth date was made
only in the year 2017 i.e. after a period of 22
years and therefore, the present petition
suffers from the vice of delay and latches.
8. Even otherwise the law on the subject is very
clear as the Hon'ble Supreme Court observed in
case of Karnataka Rural Infrastructure
Development Limited Versus T. P. Nataraja and
others reported in Civil Appeal No. 5720 of 2021
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and Civil Appeal No. 5721 of 2021 decided on 21 st
September, 2021 has observed in paragraph No. 17
to 21 which are as under :-
"17. Even otherwise and assuming that the
reasoning given by the High Court for the
sake of convenience is accepted in that
case also even respondent No.1 - employee
was not entitled to any relief or change
of date of birth on the ground of delay
and laches as the request for change of
date of birth was made after lapse of 24
years since he joined the service. At this
stage, few decisions of this court on the
issue of correction of the date of birth
are required to be referred to.
18. In the case of Home Deptt. v.
R.Kirubakaran (Supra), it is observed and
held as under:−
"7. An application for correction of the
date of birth should not be dealt with
by the Tribunal or the High Court
keeping in view only the public servant
concerned. It need not be pointed out
that any such direction for correction
of the date of birth of the public
servant concerned has a chain reaction,
inasmuch as others waiting for years,
below him for their respective
promotions are affected in this process.
Some are likely to suffer irreparable
injury, inasmuch as, because of the
correction of the date of birth, the
officer concerned, continues in office,
in some cases for years, within which
time many officers who are below him in
seniority waiting for their promotion,
may lose the promotion for ever..."
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19. In the case of State of M.P. v.
Premlal Shrivas, (Supra) in paragraph 8
and 12, it is observed and 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]).
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12. Be that as it may, in our opinion,
the delay of over two decades in
applying for the correction of date of
birth is ex facie fatal to the case of
the respondent, notwithstanding the fact
that there was no specific rule or
order, framed or made, prescribing the
period within which such application
could be filed. It is trite that even in
such a situation such an application
should be filed which can be held to be
reasonable. The application filed by the
respondent 25 years after his induction
into service, by no standards, can be
held to be reasonable, more so when not
a feeble attempt was made to explain the
said delay. There is also no substance
in the plea of the respondent that since
Rule 84 of the M.P. Financial Code does
not prescribe the time−limit within
which an application is to be filed, the
appellants were duty−bound to correct
the clerical error in recording of his
date of birth in the service book."
20. In the case of Life Insurance
Corporation of India & Others v.
R.Basavaraju (Supra), it is observed as
under:−
"5. The law with regard to correction of
date of birth has been time and again
discussed by this Court and held that
once the date of birth is entered in the
service record, as per the educational
certificates and accepted by the
employee, the same cannot be changed.
Not only that, this Court has also held
that a claim for change in date of birth
cannot be entertained at the fag end of
retirement"
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21. In the case of Bharat Coking Coal
Limited and Ors. v. Shyam Kishore Singh
(Supra) of which one of us (Justice A.S.
Bopanna) was a party to the bench has
observed and held in paragraph 9 & 10 as
under:−
"9. This Court has consistently held
that the request for change of the
date of birth in the service records
at the fag end of service is not
sustainable. The learned Additional
Solicitor General has in that regard
relied on the decision in the case of
State of Maharashtra and Anr. v.
Gorakhnath Sitaram Kamble (2010)14 SCC
423 wherein a series of the earlier
decisions of this Court were taken
note and was held as hereunder:
"16. The learned counsel for the
appellant has placed reliance on the
judgment of this Court in U.P.
Madhyamik Shiksha Parishad v. Raj
Kumar Agnihotri [(2005) 11 SCC465:
2006 SCC (L&S) 96]. In this case, this
Court has considered a number of
judgments of this Court and observed
that the grievance as to the date of
birth in the service record should not
be permitted at the fag end of the
service career.
17. In another judgment in State of
Uttaranchal v. Pitamber Dutt Semwal
[(2005) 11 SCC 477 : 2006 SCC (L&S)
106] relief was denied to the
government employee on the ground that
he sought correction in the service
record after nearly 30 years of
service. While setting aside the
judgment of the High Court, this Court
observed that the High Court ought not
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to have interfered with the decision
after almost three decades.
19. These decisions lead to a different
dimension of the case that correction at
the fag end would be at the cost of a
large number of employees, therefore,
any correction at the fag end must be
discouraged by the court. The relevant
portion of the judgment in Home Deptt.v.
R. Kirubakaran [1994 Supp (1) SCC 155 :
1994 SCC (L&S) 449 : (1994) 26 ATC 828]
reads as under: (SCC pp. 158 59, para 7)
"7. An application for correction of
the date of birth [by a public servant
cannot be entertained at the fag end
of his service]. It need not be
pointed out that any such direction
for correction of the date of birth of
the public servant concerned has a
chain reaction, inasmuch as others
waiting for years, below him for their
respective promotions are affected in
this process. Some are likely to
suffer irreparable injury, inasmuch
as, because of the correction of the
date of birth, the officer concerned,
continues in office, in some cases for
years, within which time many officers
who are below him in seniority waiting
for their promotion, may lose their
promotion forever. ... According to us,
this is an important aspect, which
cannot be lost sight of by the court
or the tribunal while examining the
grievance of a public servant in
respect of correction of his date of
birth. As such, unless a clear case on
the basis of materials which can be
held to be conclusive in nature, is
made out by the respondent, the court
or the tribunal should not issue a
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direction, on the basis of materials
which make such claim only plausible.
Before any such direction is issued,
the court or the tribunal must be
fully satisfied that there has been
real injustice to the person concerned
and his claim for correction of date
of birth has been made in accordance
with the procedure prescribed, and
within the time fixed by any rule or
order. ... the onus is on the applicant
to prove the wrong recording of his
date of birth, in his service book."
"10. This Court in fact has also held
that even if there is good evidence to
establish that the recorded date of
birth is erroneous, the correction
cannot be claimed as a matter of
right. In that regard, in State of
M.P. vs. Premlal Shrivas, (Supra) it
is held as hereunder:−
"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
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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
sleepover their rights" (see Union of
India v. Harnam Singh [(1993) 2 SCC
162 : 1993 SCC (L&S) 375 : (1993) 24
ATC 92] ).
12. Be that as it may, in our opinion,
the delay of over two decades in
applying for the correction of date of
birth is ex facie fatal to the case of
the respondent, notwithstanding the
fact that there was no specific rule
or order, framed or made, prescribing
the period within which such
application could be filed. It is
trite that even in such a situation
such an application should be filed
which can be held to be reasonable.
The application filed by the
respondent 25 years after his
induction into service, by no
standards, can be held to be
reasonable, more so when not a feeble
attempt was made to explain the said
delay. There is also no substance in
the plea of the respondent that since
Rule 84 of the M.P. Financial Code
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does not prescribe the time−limit
within which an application is to be
filed, the appellants were duty−bound
to correct the clerical error in
recording of his date of birth in the
service book."
9. While summarizing the law about the change of
date of birth the Hon'ble Supreme Court in
paragraph No. 22 observed as under :-
"22. Considering the aforesaid decisions
of this Court the law on change of date of
birth can be summarized 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 latches 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."
10. In view of above, as the petitioner has
made the application for change of date of birth
after lapse of 28 years and as the same cannot
be claimed as matter of right, the respondent -
Corporation is justified in rejecting the
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petitioner's application for change of date of
birth. I don't see any illegality committed by
the respondents in rejecting the petitioner's
application for change of date of birth.
Accordingly, the present petition is required to
be dismissed and the same is dismissed. Rule is
discharged. No order as to costs.
(NIRZAR S. DESAI,J)
Pallavi
