Madras High Court
P.Vanitha vs The Secretary on 27 April, 2021
W.A.(MD) No.1297 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.04.2021
CORAM
THE HON'BLE MR.JUSTICE T. S. SIVAGNANAM
and
THE HON'BLE MRS.JUSTICE S.ANANTHI
W.A.(MD)No.1297 of 2020
and C.M.P.(MD)No.7402 of 2020
P.Vanitha ... Appellant
-Vs-
1.The Secretary,
Arulmigu Palani Andavar Arts
College for Women,
Palani.
2.The Joint Director of Collegiate Education,
Madurai Region, Vaidyanathaiyer Street,
Shenoy Nagar,
Madurai – 625 020.
3.The Commissioner,
Dindigul Municipality,
Dindigul. ...Respondents
Prayer: Writ Appeal filed under Clause 15 of Letter Patent against the
order dated 11.11.2020 made in W.P.(MD)No.842 of 2014.
For Appellant : Mr.S.Govindan
For Respondents : Mr.K.P.Krishnadoss,
Spl. Govt. Pleader for R2
for R1 & R3- No Appearance
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1/8
W.A.(MD) No.1297 of 2020
JUDGMENT
[Judgment of the Court was made by T. S. SIVAGNANAM, J.,]
This Writ Appeal filed by the Writ petitioner is directed against
the order dated 11.11.2020, made in W.P.(MD)No.842 of 2014.
2. The appellant filed a Writ Petition, challenging the proceedings
of the respondent institution dated 18.02.2011, and the consequential
communication, dated 28.10.2013. We need not labour much to arrive at
a decision in this case and consider as to what relief the appellant is
entitled to in this appeal.
3. The appellant has joined the respondent institution on
30.01.2009, as Assistant Professor in English and at the time of opening
the service book upon joining, her date of birth was recorded as
15.08.1970, based upon the school records. Since employee is entitled to
file an application for alteration of date of birth within five years from
the date of entering service in terms of Rule 49 of the State and
Subordinate Service Rules, the appellant submitted an application on
25.01.2011, to alter her date of birth as 13.03.1972, instead of
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W.A.(MD) No.1297 of 2020
15.08.1970. The basis for such application was the birth certificate
issued by the Dindigul Municipality. This was rejected by the respondent
institution, stating that the date of birth recorded in terms of the
educational certificates cannot be altered. Subsequently, the appellant
had also filed a writ petition in W.P.(MD)No.4422/2011. In that, the
appellant, sought for a direction to consider her representation dated
15.02.2011 and alter her date of birth in the light of the birth register
maintained in the Dindigul Municipality. The Writ Petition was
disposed by order dated 06.02.2012. Though the ultimate direction was
to consider the application and pass appropriate orders, within a time
frame, we find that the learned single Judge has elaborately dealt with the
factual position as well as noted various judgments, which are relevant to
this case. It would be worthwhile to refer to a few paragraphs of the said
order:
“4.The learned Counsel appearing for the petitioner
argued that the first respondent ought to have considered the
petitioner's representation seeking for alteration of date of birth in
the light of Rule 49 of the State and Subordinate Service Rules as
well as the Government letter dated 23.06.2004, whereby certain
norms were prescribed for considering the application seeking for
alteration of date of birth. He also cited decisions of this Court
reported in 2011(1) CWC 811 in the case of K.C.Kalaikovan vs.
The Commissioner, Revenue Administration, Chepauk, Chennai
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W.A.(MD) No.1297 of 2020
– 5 and 2009(8) MLJ 1109 in the case of R.Deepak vs.
Chairman, Tamil Nadu Uniform Service in support of his case to
the effect that the certificate issued by the competent authority is a
valid proof.
5.The learned Special Government Pleader fairly conceded
that since the petitioner has made an application within five years
from the date of joining in the first respondent-college, her
application for alteration of date of birth can be considered as per
Rule 49 of the said Rules.
6.Heard the learned Counsel for the petitioner as well as
respondents.
7.In the decision reported in 2011(1) CWC 811 in the case
of K.C.Kalaikovan vs. The Commissioner, Revenue
Administration, Chepauk, Chennai – 5, the learned Judge has
observed at paragraphs 8 and 9 as follows:-
“8.The Hon'ble Supreme Court has clearly held that the
statement contained in the School Admission Register based on
information given would be authenticated evidence unless it is
established by unimpeachable contrary materials. In this case,
the Petitioner has established his plea for correction of date of
birth based on the Birth Register extract, which is the most
appropriate document and the decision of the Apex Court
CIDCO v. Vasudha Gorakhnath Mandevlekar, CDJ 2009 SC
1100, referred to supra will therefore, squarely apply to the
case on hand.
9.When the birth register extract has been produced, the
Respondents have no justification in insisting upon further
evidence. The authority cannot disown the Birth Certificate
issued by the Competent Authority unless it is held to be false or
obtained by misstatement. It will be valid so long it is in force.”
8.Likewise in the another decision reported in 2009(8)
MLJ 1109 in the case of R.Deepak vs. Chairman, Tamil Nadu
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W.A.(MD) No.1297 of 2020
Uniform Service the learned Judge has observed at paragraph 8
as follows:-
“8.It is pertinent to note that the certificate issued by
the second respondent herein is correct as already pointed
out that the said authority is the competent authority and
further the certificate issued by the second respondent
reveals that the said certificate is based on the extract taken
from the original registered which makes it crystal clear that
the date of birth of the petitioner was recorded and
incorporated the date of birth of the petitioner on the next
day of his birth and there is no reason to doubt about the
date of birth certificate issued by the second respondent
herein.”
9.On considering the above said orders passed by the
learned Judges, I am of the view that the second respondent should
consider the petitioner's application based on the birth certificate
issued by the competent authority. As the petitioner's application
is still pending before the second respondent for seeking for
alteration of the date of birth, he has to consider the same and
pass orders on the petitioner's application by taking note of all the
above stated facts and circumstances. While passing an order the
first respondent should bear in mind, the orders passed by this
Court in 2011(1) CWC 811 in the case of K.C.Kalaikovan vs.
The Commissioner, Revenue Administration, Chepauk, Chennai
– 5 and 2009(8) MLJ 1109 in the case of R.Deepak vs.
Chairman, Tamil Nadu Uniform Service. Therefore, the first
respondent is directed to consider the application of the petitioner
dated 25.01.2011 and pass appropriate orders within a period of
12 weeks from the date of receipt of a copy of this order.”
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W.A.(MD) No.1297 of 2020
4. Though such a detailed directions were issued, the respondent
institution, by order dated 28.10.2013, rejected the same, stating that
there is no provision for alteration of date of birth. The appellant filed
the Writ Petition, which has been dismissed, alleging that there is some
suspicion. In fact, such was never the issue raised by the respondent
institution when passing the orders, dated 18.02.2011 and 28.10.2013.
However, the department or the institution can cause verification with
regard to the genuinity of the certificate, since the birth extract is a public
record. There is a presumption attached to its validity. If such
presumption is rebuttable, but it should be done in the manner known to
law. Furthermore, the date of registration of birth is on 29.03.1972. The
copy application was made by the petitioner in C.A.No.10768/2008 and
the copy of the birth extract has been given by the Municipality on
05.01.2009. Therefore, in our considered view the respondent institution
should consider the appellant's application for alteration of her date of
birth and if necessary, they can always cause verification from the
Commissioner of Municipality and then take a decision . Furthermore,
the Writ Court has not rendered any finding that Rule 49 of the State and
Subordinate Services Rules cannot be made applicable, because under
the provisions of the Tamil Nadu Private Colleges Regulation Act, there
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W.A.(MD) No.1297 of 2020
is no such provision and if that is so, the provision of State and
Subordinate Services Rules can be adopted. Therefore, we are of the
view that the appellant's application for alteration of her date of birth
should be considered by the respondents, after due verification.
5. In the result, this Writ Appeal is allowed. The order passed in
the Writ Petition is set aside and the matter is remanded to the
respondent institution to consider the appellant's application, cause
verification of the genuinity of the birth extract given by the appellant
from the Commissioner of Dindigul Municipality and thereafter, pass
orders on merits and in accordance with law. No costs. Consequently,
connected miscellaneous petition is closed.
[T.S.S. J.,] [S.A.I. J.,]
27.04.2021
Index : Yes/No
Internet : Yes
vsm
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for
official purposes, but, ensuring that the copy of the order
that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
https://www.mhc.tn.gov.in/judis/
W.A.(MD) No.1297 of 2020
T. S. SIVAGNANAM, J.,
and
S.ANANTHI, J.,
vsm
To
1.The Secretary,
Arulmigu Palani Andavar Arts
College for Women,
Palani.
2.The Joint Director of Collegiate Education,
Madurai Region, Vaidyanathaiyer Street,
Shenoy Nagar,
Madurai – 625 020.
3.The Commissioner,
Dindigul Municipality,
Dindigul.
W.A.(MD)No.1297 of 2020
and C.M.P.(MD)No.7402 of 2020
27.04.2021
https://www.mhc.tn.gov.in/judis/
