Madras High Court
M.Dhanammal vs The Commissioner on 28 March, 2025
W.P. Nos.5176 & 5185 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 28.02.2025
PRONOUNCED ON : 28.03.2025
PRESENT:
THE HONOURABLE DR. JUSTICE A.D. MARIA CLETE
W.P.Nos. 5176 of 2020 & 5185 of 2020
and
W.M.P.Nos. 6115 & 6124 of 2020
1. M.Dhanammal,
W/o. Muniyandi,
No.1/15, Bajanai Koil Street,
Muppathu Vetti Village,
Arcot Taluk,
Vellore Distict. …Petitioner in WP No.5176/2020
2. M.Azeema Be
W/o. Nawab Jan (17951/16),
No.1/15, Bajanai Koil Street,
Muppathu vetti Village,
Arcot Taluk,
Vellore District. …Petitioner in WP No.5185/2020
Vs.
1. The Commissioner,
EPFO, Royapettah,
Chennai -14.
2. The Assistant Commissioner,
EPFO Regional Office,
No.3, Rajaji Salai,
Thambaram, Chennai – 600045.
3. The Regional PF Commissioner,
Sub Regional Office,
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W.P. Nos.5176 & 5185 of 2020
Employees Provident Fund Organisation,
S-1, TNHB Phase III, Vallalar Sathuvachari,
Vellore – 632 009.
4. Assistant PF Commissioner (Accounts)
Sub Regional Office,
Employees Provident Fund Organisation,
S-1, TNHB Phase III, Vallalar Sathuvachari,
Vellore – 632 009. ...Respondents 1 to 4 in
W.P.Nos.5176 & 5185 of 2020
5. S.Sadiq Basha,
Independent Contractor,
No.15, Chairman Munusamy Street,
Arcot, Vellore District – 632 503 ...5th Respondent in
WP No.5176/2020
6. R.M.Ibrahim
Independent Contractor,
No.3-A, Jayaram Street,
Arcot 632 503,Vellore District. ...5th Respondent in
W.P.No.5185/2020
Prayer in W.P.No. 5176 of 2020
To issue a writ or order or direction in the nature of writ calling for the
records connected with the order passed by the second respondent in
proceedings No.TB/VLR/17951 & 17952/Gr-06(3)/Rejection/2018/-19
dated 4.4.2019 and quash that portion of the order passed rejecting the
claim of the petitioner for family pension and further direct the
respondents one to three to grant the petitioner EPF pension from the
EPF Account of petitioner husband in No.TN 17952/44 from the date of
death of petitioner husband namely 01.01.2002 and the arrears of pension
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W.P. Nos.5176 & 5185 of 2020
for petitioner husband for the period from 1.10.1997 viz his date of
superannuation to 31.12.2001 viz his date of death and pass such further
or other orders as this Hon’ble Court may deem fit and necessary in the
circumstances of the case.
Prayer in W.P.No.5185 of 2020
To issue a writ of Certiorarified Mandamus or any other appropriate writ
or order or direction in the nature of writ calling for the records
connected with the order passed by the fourth respondent in proceedings
No.TB/VLR/17951&17952/Gr-06(3)/Rejection/2018/-19 dated 4.4.2019
and quash that portion of the order passed rejecting the claim of the
petitioner for family pension and further direct the respondents one to
three to grant the petitioner EPF pension from the EPF Account of
petitioner’s husband in No.TN 17951/16 from the date of death of
petitioner’s husband namely 20.05.2000 and the arrears of pension for
pensioner’s husband for the period from 1.10.1997 viz his date of
superannuation to 19.05.2000 viz the date prior to his death and pass
such further or other orders as this Hon’ble Court may deem fit and
necessary in the circumstances of the case.
Prayer in WMP No. 6115 of 2020
To dispense with the production of the original impugned order passed in
proceedings No.TB/VLR/17951 & 17952/Gr-06(3)/Rejection/2018-19
dated: 04.04.2019 by the 4th respondent rejecting the PF family Pension,
for the present.
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Prayer in WMP No. 6124 of 2020
To dispense with the production of the original impugned order passed in
proceedings No.TB/VLR/17951 & 17952/Gr-06(3)/Rejection/2018-19
dated 04.04.2019 by the 4th respondent rejecting the PF family Pension,
for the present.
Appearance of Parties:
For Petitioner:
In both WPs : M/s.S.Arunachalam, D.Ponventhan and
M.Navinkumar, Advocates
For Respondents 1 to 4
In both WPs : Mr.P.K.Panneer Selavam, Advocate
For Respondent 5
In both WPs : No appearance
COMMON JUDGMENT
Heard.
2. Both writ petitions challenge a common impugned order dated
04.04.2019 and are founded on nearly identical facts. Consequently, they
were clubbed together and a common judgment has been pronounced.
The petitioners in both writ petitions are widows of their respective
husbands, who were beedi workers employed under different beedi
contractors, each of whom is arrayed as the fifth respondent herein.
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3.Following the demise of their husbands, the petitioners submitted
applications seeking a family pension under the Employees' Provident
Fund Act. These applications, along with those of two others, were
rejected by the second respondent by way of a common order. As regards
the two petitioners, the order sets out the following particulars and
provides the reasons for rejection:
Details of PF Acc & DOB Service Member Form-D Remarks
the WP Name details died on submitte
(Mr) or d by
5185/2020 17951/16 01.01.193 DOJ 20.05.0 Spouse The member
Azeema Nawabjoh 3 0 has attained 60
Be n (53 years 01.01.198 years as on
as on 6 01.01.1993(i.e
01.01.86) Preponed . before
to 01.04.93) and
01.06.199 the DOB
7 certificate was
registered
DOE almost after 65
years. DOB
30.09.199 certificate is
7 not acceptable.
Hence Form-
10D is
rejected
5176/2020 17952/44 01.01.192 DOJ 01.01.0 Spouse The member
Dhanamm Muniyandi 9 2 has attained 60
al (57 years 01.01.198 years as on
as on 6 01.01.1989
01.01.86) Preponed (i.e. before
to 01.04.93) and
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01.06.197 the DOB
7 certificate was
registered
DOE almost after
the death of
30.09.199 member. DOB
7 certificate is
not acceptable.
Hence Form-
10D is
rejected.
4. A counter affidavit dated 06.10.2021 was filed on behalf of
respondents 1 to 4 in W.P. No. 5185 of 2020, pertaining to M. Azeema
Be. In paragraphs 8 and 13 of the affidavit, the following averments were
made:
“8. …..Birth certificate produced by the Petitioner in respect
of her deceased husband was issued on 1-6-1998 mentioning
the date of birth as 7-10-1939. The circumstances under
which the Registrar of Birth recorded the date of birth after a
lapse of 60 long years, is not known. However, the
Respondent Organisation has existing rules that the Birth
Certificate issued based on Self-declaration / affidavits,
cannot be a valid document for effecting change in the date
of birth provided by the employer at the time of joining
service.”
“13...in the case of the Petitioner, his date of birth was
registered on 1-6-1998 by Registrar of Births, i.e., around 60
years after the alleged date of birth. Hence, the date of birth
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certificate produced by the Petitioner in respect of her
deceased husband was not accepted.”
5. It is pertinent to note that the Employees' Family Pension Scheme,
1971, was framed by the Central Government in the exercise of the
powers conferred under Section 6A of the Employees' Provident Funds
and Family Pension Act, 1952. The retention of membership under the
scheme is governed by Paragraph 6. An explanation was issued on
16.02.1983, with effect from 01.01.1983, stipulating that the age of 60
years shall be determined with reference to the subscriber's date of birth.
In cases where the exact date of birth could not be ascertained, the
manner of determination is set forth in the explanation. However, this
does not imply that employees are entitled to seek a change of date of
birth either at the twilight of their service or after the demise of the
subscriber.
6. The learned counsel for the respondent brought to the attention
of this Court a judgment of the Supreme Court that lays down the general
principles governing the determination of the date of birth of a
government servant, as well as the scope of the High Court's power under
Article 226 to issue directions in this regard. Reliance was placed on the
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judgment in G.M. Bharat Coking Coal Ltd., West Bengal v. Shib Kumar
Dushad reported in 2000 (8) SCC 696, and the following passages were
cited:
“Before entering into the question of validity and
sustainability of the judgment passed by the single Judge and
the Division Bench of the High Court in this case we would
like to make the observation that in a case where the
controversy over the date of birth of an employee has been
raised long after joining the service and the matter has
engaged the attention of the authority concerned and has been
determined by following the procedure prescribed under
Service Rules or General Instructions issued by the employer
and it is not the case of the employee that there has been any
arithmetical mistake or typographical error patent on the face
of the record, the High Court in exercise of its extraordinary
jurisdiction under Article 226 of the Constitution should not
interfere with the decision of the employer.
…..
The date of birth of an employee is not only important for
employee but for the employer also. On the length of service
put in by the employee depends the quantum of retiral benefits
he would be entitled to. Therefore, while determining the
dispute in such matters courts should bear in mind that a
change of the date of birth long after joining service,
particularly when the employee is due to retire shortly which
will upset the date recorded in the service records maintained
in due course of administration should not generally be
accepted. In such a case the burden is heavy on the employee
who comes to the court with the case that the date of birth in
the service record maintained by the employer is untrue and
incorrect. The burden can be discharged only by producing
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acceptable evidence of a clinching nature. We are constrained
to make this observation as we find that in a large number of
cases employees who are on the verge of retirement raise a
dispute regarding correctness of the date of birth entered in
the service record and the courts are inclined to pass an
interim order for continuance of such employee beyond the
date of superannuation on the basis of the entry of date of
birth in the service record. Such a situation cannot be
commended for the reason that the court in passing such an
interim order grants a relief to the employee even before
determining the issue regarding correctness of the date of
birth entered in the service record. Such interim orders create
various complications. Anticipated vacancy for which the
employee next in the line has been waiting does not
materialise, on account of which the junior is denied
promotion which he has all along been lead to believe will be
his due on the retirement of the senior.
…..
In the case of Burn Standard Co.Ltd. & Ors. vs. Dinabandhu
Majumdar & Anr., (1995) 4 SCC 172, this Court sounded a
caution regarding entertaining writ petitions by High Courts
for correction of date of births. This Court observed:
"Entertaining by High Courts of writ applications made by
employees of the Government or its instrumentalities at the fag
end of their services and when they are due for retirement
from their services, in our view, is unwarranted. It would be so
for the reason that no employee can claim a right to
correction of birth date and entertainment of such writ
applications for correction of dates of birth of some employees
of Government or its instrumentalities will mar the chances of
promotion of their juniors and prove to be an undue
encouragement to the other employees to make similar
applications at the fag end of their service careers with the
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sole object of preventing their retirements when due.
Extraordinary nature of the jurisdiction vested in the High
Courts under Article 226 of the Constitution, in our
considered view, is not meant to make employees of
Government or its instrumentalities to continue in service
beyond the period of their entitlement according to dates of
birth accepted by their employers, placing reliance on the so-
called newly-found material. The fact that an employee of
Government or its instrumentality who has been in service for
over decades, with no objection whatsoever raised as to his
date of birth accepted by the employer as correct, when all of
a sudden comes forward towards the fag end of his service
career with a writ application before the High Court seeking
correction of his date of birth in his Service Record, the very
conduct of non-raising of an objection in the matter by the
employee, in our view, should be a sufficient reason for the
High Court, not to entertain such applicants on grounds of
acquiescence, undue delay and laches. Moreover,
discretionary jurisdiction of the High Court can never be said
to have been reasonably and judicially exercised if it
entertains such writ application, for no employee, who had
grievance as to his date of birth in his "Service and Leave
Record" could have genuinely waited till the fag end of his
service career to get it corrected by availing of the
extraordinary jurisdiction of a High Court. Therefore, we have
not hesitation, in holding, that ordinarily High Courts should
not, in exercise of their discretionary writ jurisdiction,
entertain a writ application/petition filed by an employee of
the Government or its instrumentality, towards the fag end of
his service, seeking correction of his date of birth entered in
his "Service and Leave Record" or Service Register with the
avowed object of continuing in service beyond the normal
period of his retirement. [para 10] Prudence on the part of
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every High Court should, however, in our considered view
prevent it from granting interim relief in a petition for
correction of the date of birth filed under Article 226 of the
Constitution by an employee in relation to his employment,
because of the well-settled legal position governing such
correction of date of birth, which precisely stated, is the
following: [para 11] When a person seeks employment, he
impliedly agrees with the terms and conditions on which
employment is offered. For every post in the service of the
Government or any other instrumentality there is the minimum
age of entry prescribed depending on the functional
requirements of the post. In order to verify that the person
concerned is not below that prescribed age he is required to
disclose his date of birth. The date of birth is verified and if
found to be correct is entered in the service record. It is
ordinarily presumed that the birth date disclosed by the
incumbent is accurate. The situation then is that the incumbent
G.M., Bharat Coking Coal Ltd., West ... vs Shib Kumar
Dushad & Ors on 2 November, 2000 Indian Kanoon -
http://indiankanoon.org/doc/671024/ 8 gives the date of birth
and the employer accepts it as true and accurate before it is
entered in the service record. This entry in the service record
made on the basis of the employee's statement cannot be
changed unilaterally at the sweet will of the employee except
in the manner permitted by service conditions or the relevant
rules. Here again considerations for a change in the date of
birth may be diverse and the employer would be entitled to
view it not merely from the angle of there being a genuine
mistake but also from the point of its impact on the service in
the establishment. It is common knowledge that every
establishment has its own set of service conditions governed
by rules. It is equally known that practically every
establishment prescribes a minimum age for entry into service
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at different levels in the establishment. The first thing to
consider is whether on the date of entry into service would the
employee have been eligible for entry into service on the
revised date of birth. Secondly, would revision of his date of
birth after a long lapse of time upset the promotional chances
of others in the establishment who may have joined on the
basis that the incumbent would retire on a given date opening
up promotional avenues for others. If that be so and if
permitting a change in the date of birth is likely to cause
frustration down the line resulting in causing an adverse effect
on efficiency in functioning, the employer may refuse to permit
correction in the date at a belated stage. It must be
remembered that such a sudden and belated change may upset
the legitimate expectation of others who may have joined
service hoping that on the retirement of the senior on the due
date there would be an upward movement in the hierarchy. In
any case in such cases interim injunction for continuance in
service should not be granted as it visits the juniors with
irreparable injury, in that, they would be denied promotions, a
damage which cannot be repaired if the claim is ultimately
found to be unacceptable. On the other hand, if no interim
relief for continuance in service is granted and ultimately his
claim for correction of birth date is found to be acceptable, the
damage can be repaired by granting him all those monetary
benefits which he would have received had he continued in
service. We are, therefore, of the opinion that in such cases it
would be imprudent to grant interim relief."
7. The learned counsel for the respondent also referred to a
judgment rendered by a learned Judge of this Court, which dealt with
several cases arising under the Employees' Pension Scheme concerning
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the alteration of the date of birth. Reliance was placed on the decision in
R. Devanesan v. The Regional Provident Fund Commissioner reported in
2011 (1) CLR 830, particularly on the following passages found in
paragraphs 20 and 35 to 38:
“20. The date of birth particulars furnished at the time of
enrolment cannot be altered or changed at a later point of
time and that too after leaving the service. In this
connection, the learned counsel appearing for the first
respondent/Regional Provident Fund Commissioner,
Tirunelveli relies on the judgment of the Honourable
Supreme Court in Civil Appeal No.6142 of 2000 {arising
out of SLP (Civil) No.14116 of 1999} that the date of birth
cannot be changed long after joining the service and the
said judgment will apply squarely to the present facts and
circumstances of the cases.”
“35. As far as the case of the petitioner in W.P.(MD)
No.6382 of 2005 is concerned, on receipt of claim in Form
D inasmuch as the petitioner has not attained the minimum
age of 50 years as on 14/10/2003 and the first respondent
on receipt of claim in Form 10 (D) has issued Scheme
Certificates in accordance with the provision under
paragraph 12 (8) of Employees Pension Scheme, 1971, the
petitioner has not completed 50 years of age and any
change in particulars after introduction of Employees'
Provident Funds Scheme after 16/11/1995 cannot be
accepted by the first respondent and also the age provided
by the petitioner at the time of his enrolment to the
Employees' Provident Fund Scheme, 1952 cannot be
changed.
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36. As far as the petitioner in W.P.(MD) No.6384 of 2005 is
concerned, on receipt of claim in Form 10 (D) and since the
petitioner has not attained the minimum age of 50 years, the
Scheme Certificate dated 19/3/2004 as provided under
paragraph 12 (D) of Employees Pension Scheme, 1995 has
been issued and the employer viz., the second
respondent/Mills as per letter dated 7/10/2004 has only
furnished a fresh Form 5 instead of furnishing a copy of
Form 5 submitted the original and also not furnished the
justification for the age already furnished to the office of the
first respondent and therefore, the request for change of
Date of Birth has not been accepted and the same was
informed as per letter dated 2/11/2004.
37. Therefore, the aspect of considering the documents
furnished by the petitioners after the introduction of
Employees Pension Scheme, 1995 does not arise on any
score. Indeed, the petitioner draw or reduced Pension as
per paragraph 12 (7) only from 1/4/2007 and therefore,
they have been issued with the Scheme Certificate in
accordance with the provisions of paragraph 12 (8) of
Employees Pension Scheme. To put it precisely, the date of
birth furnished by the petitioners in a fresh Form 2 executed
by an existing member under Family Pension Scheme, 1971
as on 15/11/1995 is not to be taken into account as per the
existing instructions, as informed by the first
respondent/Regional Provident Fund Commissioner.
38. In view of the qualitative and quantitative discussions
mentioned supra and also this Court taking note of the
entire gamut of the facts and circumstances of the case in
an integral manner comes to an inescapable conclusion that
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the date of birth/age provided by a member/petitioner at the
time of enrolment of Employees' PF cannot be changed by
him at a subsequent point of time and that too the
petitioners after leaving the service. Viewed in that angle,
the writ petitions filed by the petitioners san merit and
resultantly, the writ petitions fail”
8. In light of the foregoing, the claims made by the two petitioners
for a family pension based on the altered age of their late husbands are
misconceived. The reasons stated in the impugned order passed by the
second respondent do not warrant interference. Accordingly, both writ
petitions stand dismissed. Consequently, the connected miscellaneous
petitions are also dismissed. There shall be no order as to costs.
28.03.2025
ay
Index: Yes / No
Speaking Order / Non-speaking Order
Neutral Citation : Yes / No
To
1. The Commissioner,
EPFO, Royapettah,
Chennai -14.
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W.P. Nos.5176 & 5185 of 2020
2. The Assistant Commissioner,
EPFO Regional Office,
No.3, Rajaji Salai,
Thambaram, Chennai – 600045.
3. The Regional PF Commissioner,
Sub Regional Office,
Employees Provident Fund Organisation,
S-1, TNHB Phase III, Vallalar Sathuvachari,
Vellore – 632 009.
4. Assistant PF Commissioner (Accounts)
Sub Regional Office,
Employees Provident Fund Organisation,
S-1, TNHB Phase III, Vallalar Sathuvachari,
Vellore – 632 009.
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W.P. Nos.5176 & 5185 of 2020
DR. A.D. MARIA CLETE, J
ay
Pre-Delivery Judgment made in
W.P.Nos. 5176 of 2020 &
5185 of 2020 and
W.M.P.Nos. 6115 & 6124 of 2020
28.03.2025
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