IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.09.2011 CORAM: THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN W.P.Nos.14493 of 2011 and M.P.No.1 of 2011 A. Ravi .. Petitioner Vs. 1.The Registrar of Coop. Societies, E.V.R. Periyar Salai, Poonamallee High Road, Kilpauk, Chennai – 10 2.The Joint Registrar of Coop. Societies, Coimbatore Region, Coimbatore, Coimbatore District 3.Mr. Vellingiri, Joint Registrar of Coop. Societies, Coimbatore Region, Coimbatore, Coimbatore District 4.The Special Officer, K.2069, Veerakeralam Primary Agricultural Coop. Credit Society, Veerakeralam, Coimbatore – 7 5.Mrs. Devaki, Special Officer, K.2069, Veerakeralam Primary Agricultural Coop. Credit Society, Veerakeralam, Coimbatore – 7 6.Mr. T. Vijayakumar, Secretary K.2069, Veerakeralam Primary Agricultural Coop. Credit Society, Veerakeralam, Coimbatore – 7 .. Respondents Prayer: The Writ Petition is filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing the first respondent to take necessary disciplinary actions against the respondents 2 to 6 for abating and committing offence for forgery and cheating in the fourth respondent Society. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr. C. Prakasam for M/s. D. Sathya For RR-1 & 2 : Ms. P. Kavitha, Government Advocate. For RR-3 & 5 : Mr. R. Sunilkumar For R-4 : Mr. Sesu Balan Rajan For R-6 : Mr. Yasodvardhan for Mr. R. Sivakumar Standing counsel O R D E R The petitioner has come before this Court seeking a Mandamus directing the first respondent to take disciplinary action against the respondents 2 to 6 for abetting and committing offence of forgery and cheating in the fourth respondent Society. 2. The petitioner was a terminated Assistant from the fourth respondent Society. The case of the petitioner is that the sixth respondent fabricated the documents with regard to his date of birth and based on which, he is continuing in his service. 3. According to the petitioner, as per the school records, the sixth respondent's date of birth 15.02.1951 and he joined the service on 08.07.1968. Subsequently, he obtained a date of birth certificate on 05.09.1994 from the Coimbatore City Municipal Corporation, Coimbatore, stating that he was born on 23.11.1953 and gave a representation to the fourth respondent to make a correction in the service records. Thereafter, he filed O.S.No.1454 of 2000 against the fourth respondent society and two others, seeking a declaration that the date of birth is 23.11.1953 and sought for a mandatory injunction to correct the date of birth in the school records. The said suit was decreed on 16.09.2003, and based on which, the date of birth of the sixth respondent was corrected. On the strength of the said proceedings the sixth respondent is continuing in the service. In this regard, pointing out the alleged fraud committed by the sixth respondent, the petitioner sent a representation on 16.05.2011 to the authorities to take action against the respondents 2 to 6, as no action was taken, the petitioner is before this Court. 4. Mr. C. Prakasam, the learned counsel appearing for the petitioner submitted that after sixteen years of joining service, the sixth respondent made his representation to correct the date of birth and that after lapse of six years, thereafter only, he filed O.S.No.1454 of 2000 and obtained decree on 16.09.2003 and that he was able to get the corrections of date of birth and is continuing the service which is contrary Rule 49(2) of the Tamil Nadu State Subordinate Service Rules. Therefore, he seeks for mandamus as prayed for. https://hcservices.ecourts.gov.in/hcservices/ 5. On the other hand Mr.Yasodh Vardhan, the learned senior counsel appearing for the sixth respondent submitted that the sixth respondent came to know about the discrepancies in the date of birth from his father only in the year 1994, when he was seriously ill. Subsequently, he applied to the Coimbatore City Municipal Corporation and got his actual date of birth certificate. Based on the same, the sixth respondent availed the remedies available under the law and got correction of the date of birth, as per the judgment passed by the Civil Court. He relied on the Division Bench Judgment of this Court in Government of Tamil Nadu, Rep. by its Secretary to Government, Revenue Department and another Vs. Marimuthu and another reported in 2003(2) CTC 103 and another Division Bench judgment in N. Veerasamy Vs. Union of India and four others reported in 2005 Writ. L.R.802, and point out in the disciplinary matters against an employee and the employer, the third parties cannot have say anything in this matter. He further pointed out that there is union rivalry between the sixth respondent and the petitioner. Earlier, writ petition in W.P.No.6203 of 2011 filed by the rival Union was dismissed by this Court on 31.03.2011. When the similar relief was denied in the earlier writ petition, the same cannot be sought for by the petitioner. Therefore, he seeks for the dismissal of the writ petition. 6. Heard the parties and perused the records. 7. It is an admitted case that the original school records of the sixth respondent reveal the sixth respondent's date of birth 15.02.1951 and he joined the service on 08.07.1968. Though it is claimed by the sixth respondent that he came to know about his actual date of birth namely 23.11.1953, in the year 1994, the sixth respondent filed the suit for declaration only in the year 2000, after lapse of six years. If, 23.11.1953 is taken as his date of birth, he would have joined the service at the age of fifteen years and that is not permissible in law. 8. Rule 49(2) of the Tamil Nadu State and Subordinate Service Rules speaks about alteration of date of birth, within five years from the date of entry into the service. Rule 49 of Tamil Nadu State and Subordinate Service Rules is extracted as follows:- 49. Alteration of date of birth.(a) if, at the time of appointment, a candidate claims that his date of birth is different from that entered in his S.S.L.C or Matriculation Register or school records, he shall make an application to the Tamil Nadu Public Service Commission in cases where the appointment is made in consultation with the commission and in other cases to the appointing authority stating the evidence on which he relies and explaining how the mistake occurred. The application shall be forwarded to the Commissioner of https://hcservices.ecourts.gov.in/hcservices/ Revenue Administration for report after investigation by an officer not below the rank of a Deputy collector and, on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall decide whether the alteration of date of birth may be permitted or the application may be rejected. Provided that in case of a candidate who was born outside the State of Tamil Nadu the investigation through the Commissioner of Revenue Adminsitration shall be dispensed with and the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall examine and scrutinize the records that may be produced by the candidate and shall decide whether the alteration of date of birth may be permitted or the application may be rejected. (b) After, a person has entered service, an application to alter the date of his birth as entered in the official records shall be entertained only if such an application is made within five years of such entry into service. Such an application shall be made to the authority competent to make an appointment to the post held by the applicant at the time of his application and shall be disposed of in accordance with the procedure laid down in sub-rule(a). (c) Any application received after five years after entry into service or any application, which is not supported by entries in Secondary School Leaving Certificate, School, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily rejected. *Proviso – (Omitted in G.O.Ms.No.388, P & AR (Per.S), dt. 27.12.95 w.e.f. 3.8.94) (d) In considering the question of permitting an alteration on the date of birth as entered in the official records even when such entry is proved to have been due to a bonafide mistake, the Government or the appointing authority shall take into consideration the circumstance whether the applicant would normally be eligible for appointment to the post at the time of entry into service had his age been correctly stated and what would have been its effect on his service and the service conditions of other officers in the service and may permit the alteration subject to such condition as they or it may deem fit to impose. https://hcservices.ecourts.gov.in/hcservices/ Provided that the Tamil Nadu Public Service Commission shall be consulted in the case of an applicant who has been initially recruited through the Tamil Nadu Public Service commission, if it is proposed to accept his request for alteration of date of birth. (e) The Procedure laid down in sub-rule(a) shall be followed in all cases where alteration of date of birth is proposed suo motu by the Head of Office on the basis of medical opinion, in the absence of any other authoritative records. Explanation- For the purpose of this sub-rule "authoritative records" are the secondary school leaving certificate or University, College, or School records or Discharge Certificate of Army. (f) The decision of Tamil Nadu Public Service commission, the appointing authority or the Government, as the case may be, shall be final. 49.A.(1) Correction of date of birth – After a person has entered service, if it is found that his date of birth entered in his Service Register is different from that entered in the Secondary School Leaving Certificate or Military Discharge Certificate, which may be due to some clerical error or otherwise wrong entries, application for correction of such clerical error or wrong entries, shall be made to the appointing authority. Such corrections in the Service Register shall be made straightway by the appointing authority. If the date of birth in the Service Register was entered on the basis of the Secondary School Leaving Certificate, correction of clerical error or wrong entries shall be made only with reference to Secondary School Leaving Certificate and if the date of birth in the Service Register was entered on the basis of the Military Dischargee Certificate, correction of clerical error or wrong entries shall be made only with reference to the Military discharge Certificate. Where the Secondary School Leaving Certificate and the Military discharge certificate contain different dates of birth, the date of birth entered in the Secondary School Leaving Certificate shall be accepted. But the date of birth entered in the Military Discharge Certificate shall be accepted in the absence of the Secondary School Leaving Certificate. Substituted in G.O.Ms.No.855, (P&AR) (Per.P) dated 28.08.86. (2) Where the date of birth of a person, whose qualification is less than the minimum general education al qualification, is entered in the Service Register on the basis of the medical certificate or the transfer https://hcservices.ecourts.gov.in/hcservices/ certificate obtained from the school in which he studied or an affidavit sworn before a Magistrate and if there is any error in the entry so made, the appointing authority may, on application, make necessary correction only with reference to the original record on the basis of which an entry relating to the date of birth is made in the Service Register. * Added in G.O.Ms.No.770, P & AR (Per.P), dt. 12.08.1987, w.e.f. 12.08.1987 9. Admittedly, in this case the sixth respondent joined the service in the year 1968 and he should have taken steps to amend the correct date of birth within five years as per the above Rule. Merely because he alleges that he came to know about his date of birth only in the year 1994, when his father fell ill, it would not give a cause of action for him to make an attempt to alter the date of birth. The action was taken by the sixth respondent after twenty six years of joining the service. It clearly shows that there was lapse on his part. That apart, having obtained date of birth certificate which shows 23.11.1953, as his date of birth on 05.09.1994. The sixth respondent ought to have approached the Civil Court at the earliest. Even thereafter he was sleeping over the mater for about six years and thereafter only filed the suit for declaration in 2000. 10. If at all decree is to be passed is only to get the declaration of actual date of birth as 23.11.1953 and that would not be made to correct his date of birth after a lapse of twenty five years i.e. in the year 2003. The Hon'ble Supreme Court has decried about the altering the date of birth at the fag end of services of Government Servants, to continue in the service and that will have a chain of reaction affecting the juniors who are waiting for promotion. That apart it would be against the public interest, as eligible new candidates would be deprived of chances of getting into service. A person who crossed the age of superannuation should not be allowed to continue in the service on the ground of alteration of date of birth, which has been done belatedly. The Civil Court should have considered all these points and consequences while granting the decree. However, the Civil Court did not take note of implications of altering the date of birth. The alteration of date of birth shown as 23.11.1953, in respect of the sixth respondent has done in the year 2003 is clearly in violation of Rule 49(2) of Tamil Nadu State and Subordinate Service Rules and also against the public interest. 11. If his actual date of birth namely 15.12.1951 which is as per the original records is taken into consideration, the sixth respondent would have attained superannuation on 14.02.2009. Based on the order passed in the year 2003, on the strength of the Civil Court, the sixth respondent cannot be allowed to continue beyond 14.02.2009. Therefore, this Court determines the sixth respondent https://hcservices.ecourts.gov.in/hcservices/ date of birth as 15.02.1951 and the subsequent correction as 23.11.1953 is contrary to law. Therefore, the sixth respondent cannot continue in the service. 12. As rightly contended by the learned senior counsel, relying the judgment of the Division Bench of this Court, the disciplinary action is a dispute between the employer and employee. However, when it is brought to the knowledge of the employer about the alleged act of the sixth respondent, appropriate orders should have been passed by the first respondent. However, in view of the order passed by this Court no further action is necessary to be taken action against the respondents. 13. Though the Writ of Mandamus is sought for, as stated above, this Court moulding the prayer disposes of the writ petition declaring that the sixth respondent has already attained superannuation on 14.02.2009 finding that his date of birth as 15.02.1951. He is not entitled to continue in service. Since, the sixth respondent is stated to be working till date, the salary which was drawn till date by the sixth respondent need not be recovered. 14. With the above direction the writ petition is disposed of. Consequently, connected Miscellaneous petition is closed. There is no order as to costs. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. trp To 1. The Registrar of Coop. Societies, E.V.R. Periyar Salai, Poonamallee High Road, Kilpauk, Chennai – 10 2. The Joint Registrar of Coop. Societies, Coimbatore Region, Coimbatore, Coimbatore District 3. The Special Officer, K.2069, Veerakeralam Primary Agricultural Coop. Credit Society, Veerakeralam, Coimbatore – 7 1 cc To Mr.R.Sivakumar, Advocate Sr 58757 1 cc To Mr.C.Prakasam, Advocate Sr 59085 W.P.No.14493 of 2011 ksk[co] gp/29.9. https://hcservices.ecourts.gov.in/hcservices/