IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 27-6-2008 Coram The Honourable Mr.Justice N.PAUL VASANTHAKUMAR W.P.No.13000 of 2008 M.P.Nos.1 & 2 of 2008 A. Rajagopalan ... Petitioner Vs. The Registrar, University of Madras, Chepauk, Chennai - 600 005. ... Respondent Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records of the respondent in No.F1(B)/Estt/Tech.2008/2677, dated 22.5.2008 and quash the same and consequently direct the respondent to continue the petitioner in office beyond 31.5.2008 till orders are passed on the representation of the petitioner on merits as directed by this Court in W.P.No.9409 of 2008. For Petitioner : Mr.N.R.Chandran, Senior Counsel, for Mr.K.J.Parthasarathy For Respondents : Mr.P.S.Raman, Addl. Advocate General for Mr.Kandavadivel Doraisami O R D E R By consent of both sides, the writ petition is taken up for final disposal even at the admission stage. 2. Prayer in the writ petition is to quash the order dated 22.5.2008 and to direct the respondent to continue the petitioner in the office beyond 31.5.2008 till orders are passed on the representation of the petitioner on merits as directed by this Court in W.P.No.9409 of 2008. 3. The case of the petitioner is that he entered in the service of the respondent University on temporary basis during 1976-1978. Later he was temporarily appointed as Punch Operator on 6.8.1979 and https://hcservices.ecourts.gov.in/hcservices/ the said appointment was regularised on 27.3.1984 with effect from 6.8.1980. Petitioner's date of birth in the SSLC book is recorded as 1.6.1950, which according to the petitioner is a mistake. The said date is also entered in his service register. The service of the petitioner is governed by the Madras University Act and the conditions of service are enumerated at Chapter XXIV of the said Act. In Ordinance 3(a)(1)(iii) of Chapter XXIV, Volume-I of the Calendar of the University of Madras, the procedure for alteration of date of birth is prescribed. According to the petitioner, on 27.3.1984 he applied for alteration of his date of birth as '26.10.1952' instead of '1.6.1950' on the basis that his elder brother by name A.Swaminathan's date of birth is 11.3.1950 and that he is the 4th son of his father late P.Angappa Achari. 4. It is claimed in the affidavit that petitioner's date of birth was not registered in the municipal records, he submitted an application before the Taluk Magistrate, Papanasam, who in turn directed to carry out the date of birth entry in the municipal records as '26.10.1952'. Petitioner also produced the horescopes of himself and that of his elder brother to substantiate his date of birth as '26.10.1952'. Petitioner's contention is that having received no reply for the application dated 27.3.1984, he sent a representation on 11.9.1992, for which a reply was issued by the respondent on 24.9.1993 stating that the petitioner's request to alter the date of birth cannot be accepted unless the petitioner obtain an order from the Civil Court making the University as party. Again, petitioner submitted an application on 17.9.2003 and the same was rejected on 13.11.2003. Again another representation was submitted by the petitioner on 25.7.2005 and no orders having been passed and the petitioner's date of retirement being 31.5.2008 as per the original entry in the official records, he filed W.P.No.9409 of 2008 and prayed for issuing a writ of mandamus to dispose of his representation dated 25.7.2005 on merits. This Court by order dated 17.4.2008 directed the respondent to pass orders on the above said representation and pursuant to the said direction, the impugned order was passed on 22.5.2008 by stating that if the petitioner produces SSLC book mentioning revised date of birth in support of his claim, immediately it will be allowed, failing which he will be permitted to retire on the afternoon of 31.5.2008. The said order is challenged in this writ petition. 5. The respondent filed counter affidavit contending that the University has no records pertaining to petitioner's alleged application said to have been submitted in the year 1984 or the University's letter dated 24.9.1993. The only record available with the University is the petitioner's request dated 17.9.2003 and the said request was rejected, which was also informed to the petitioner in November, 2003. It is also stated in the counter affidavit that even in the subsequent applications submitted in the year 2003 and 2005, petitioner has not mentioned about his submission of earlier https://hcservices.ecourts.gov.in/hcservices/ application in the year 1984. Petitioner's application having been rejected on 13.11.2003, the matter has become final as no challenge is made to the said order. Petitioner again submitted application on 25.7.2005 wherein also petitioner has not disclosed the earlier rejection order and based on the said application, petitioner approached this Court by filing W.P.9409 of 2008 and without the knowledge of the earlier rejection order, this Court on 17.4.2008, gave a direction to consider the representation of the petitioner dated 25.7.2005 on merits and in accordance with law. In view of the direction issued by this Court, the impugned order was passed, even though petitioner's request was rejected twice earlier. 6. The learned Senior Counsel appearing for the petitioner submits that as per the Ordinance 3(a)(1)(iii) of Chapter XXIV, Volume-I of the Calendar of the University of Madras, which was the rule prevailing even earlier, the application submitted by the petitioner within five years i.e, in the year 1984, is bound to be considered. The earlier order issued on 24.9.1993 directing the petitioner to approach the civil Court and obtain an order cannot be treated as an order and therefore the petitioner has not challenged the same. The learned Senior Counsel further submitted that this Court in W.P.No.9409 of 2008 having issued a direction to the University to consider the representation of the petitioner on merits and in accordance with law, by order dated 17.4.2008, respondent cannot rely on the earlier order of rejection dated 13.11.2003 and the respondent is bound to consider the claim of the petitioner on merits. The learned Senior Counsel also relied on the horescope of the petitioner to prove the claim for correction of the date of birth of the petitioner. 7. The learned Additional Advocate General appearing for the respondent University on the other hand submitted that the order passed by the respondent University on 24.9.1993, even though may not be a proper order of rejection, the subsequent order passed by the University on 13.11.2003 specifically rejected the request of the petitioner seeking change of date of birth. Petitioner has not challenged the said order and the said order has become final. The learned Additional Advocate General further submitted that a mere direction issued by this Court in W.P.No.9409 of 2008 to consider the request of the petitioner without reference to earlier order of rejection dated 13.11.2003 will not confer any right on the petitioner to get over the limitation as well as the order passed by the University already. 8. I have considered the rival submissions of the learned Senior Counsel appearing for the petitioner as well as the learned Additional Advocate General for the respondent University. 9. Admittedly, petitioner entered into the service of the petitioner on 6.8.1979 temporarily and his service was regularised https://hcservices.ecourts.gov.in/hcservices/ with effect from 6.8.1990. The application said to have been submitted by the petitioner seeking correction of date of birth dated 27.3.1984 is not available on the file of the respondent University. In the subsequent applications submitted in the year 1992, 2003 and 2005 petitioner has not referred about his earlier application said to have been made in the year 1984. The said fact clearly raises a genuine doubt with regard to the petitioner's submission of application within five years. 10. The procedure for alteration of date of birth of a University employee is stated in Ordinance 3(a)(iii & iv) of Chapter XXIV, Volume-I of the Calendar of University of Madras, which reads as follows: "3(a) Alteration of date of birth: (i) If, at the time of appointment, a candidate claims that the date of his 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 appointing authority stating the evidence on which he relies upon and explaining how the mistake occurred. The application shall be forwarded to the Board of Revenue for report after investigation by an officer not below the rank of a Deputy Collector and, on receipt of the report, the appointing authority shall decide whether the alteration of date of birth may be permitted or the application may be rejected. (ii) Provided that in case of a candidate who was born outside the state of Tamil Nadu, the appointing authority shall examine and scrutinise 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. The approval of the Syndicate is final. (iii) 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. (iv) Any application received after five years after entry into service or any application, which is not supported by entries in SSLC School, College or University records, birth extract from records of local bodies or military discharges certificates, shall be summarily rejected. (v) In considering the question of permitting an alteration on the date of birth as entered in the official records even when such https://hcservices.ecourts.gov.in/hcservices/ entry is provided to have been due to a bonafide mistake the appointing authority shall take into consideration the circumstances whether the applicant would normally be eligible for appointment to the post at the time of entry into service has 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. (vi) the decision of the appointing authority shall be final." From the above referred rule, it is evident that any person, seeking alteration of date of birth, shall submit the application within five years of his entry into the service, failing which it is to be rejected summarily. Here, petitioner has not established with documentary proof that he had submitted application before the expiry of five years of his entry into the service. The respondent having disputed receipt of the application within five years, the onus is on the petitioner to prove that he submitted the application within the prescribed time. The petitioner having failed to prove the same, it has to be held that no application was submitted by the petitioner within five years of his entry into service. 11. Petitioner's application submitted on 17.9.2003 was already rejected by the University which order reads as follows: "Official Communication No.F1/Estt/2003/4615 Sub: Estt - Thiru A.Rajagopalan, Asst.Technical Officer (Spl.Gr), I-O Section, ICE - Change in Date of Birth - rejected - reg. Ref: His letter dt.17.9.03 forwarded through the Deputy Registrar, ICE on 22.10.2003. ---- Thiru A.Rajagopalan, Assistant Technical Officer (Spl.GR), I-O Section, ICE is informed that as per rule, his request for change of Date of Birth in the service register is rejected. Sd/- xxxxxxxxxxx REGISTRAR (i/c)" The said rejection order is in terms of the above referred rule/procedure, prescribed for seeking alteration of the date of birth. The rule provides for summary rejection of belated application. Therefore, no reason need be assigned by the respondent for rejecting the belated application. Further, the said order dated 13.11.2003 is not challenged by the petitioner till date. Therefore the said order has become final. https://hcservices.ecourts.gov.in/hcservices/ 12. The subsequent application submitted on 25.7.2005 is at the fag end of the petitioner's service. The said application also nowhere discloses the rejection of petitioner's earlier applications. Once the application is already rejected and the said order having not been challenged, it is not open to the petitioner to submit further application to consider the very same request, which was already considered and rejected. Therefore, the direction issued by this Court to consider the said application submitted on 25.7.2005 on merits and in accordance with law will not confer any right to the petitioner. 13. Admittedly, petitioner's date of superannuation was 31.5.2008. This writ petition was filed on 26.5.2008 i.e, just five days prior to his date of retirement and interim order was obtained on 27.5.2008. The Honourable Supreme Court considered how to deal with the belated applications seeking alteration of date of birth in very many decisions. (a) A similar rule applicable to the Government Servants of the State of Tamil Nadu viz., Rule 49 of the Tamil Nadu State and Subordinate Service Rules, 1961, came up for consideration before the Supreme Court in the decision reported in (1994) Supp (1) SCC 155 (Secy. and Commr., Home Deptt. v. R. Kirubakaran). In paragraph 9 the Supreme Court held as follows: "9. The Tamil Nadu Service Manual contains Rules 49 and 49-A, which are the provisions in respect of alteration and correction of the date of birth. Whenever any application is filed by persons governed by those service rules, procedures prescribed therein have to be strictly followed, including the time-limit prescribed for making such an application. Clause (b) of the aforesaid Rule 49 provides that after a person has entered in 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 in service....” It need not be pointed out that if an application is made for correction of the date of birth mentioned in the service records at an early date or within the time prescribed, the authorities are in a much better position to verify the same. Normally, in most of the services, the date of birth is recorded in the service records on the eve of the appointment with reference to the date of birth mentioned in the Matriculation Certificate, Higher Secondary Education Board Certificate or any other certificate of similar nature produced by the https://hcservices.ecourts.gov.in/hcservices/ applicant concerned at the time of making application for his appointment. As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal." (b) Same is the view taken in the subsequent decision reported in (1994) 6 SCC 302 (State of T.N. v. T.V. Venugopalan), wherein in paragraph 7 it is held thus, "7. As held by this Court in Harnam case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force, i.e., 1961. If an application is made, after expiry of five years, the government employee loses his right to make an application for correction of his date of birth. It is seen that the respondent entered into the service on 12-1-1952, and only when he was due for superannuation at the age of 58 years on 31-8- 1991, he made the application exactly one year before his superannuation. The Government rejected his claim before he attained the age of superannuation on 30-8-1991. When questioned, the Tribunal, for incorrect reasons, set aside the order and remitted the matter for reconsideration. The Government considered various facts and circumstances in the GO.Ms.No.271 and rejected the claim on 31-3-1993. The evidence is not unimpeachable or irrefutable. The Tribunal in its judicial review is not justified in trenching into the field of appreciation of evidence and circumstances in its evaluation to reach a conclusion on merits as it is not a court of appeal. This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before https://hcservices.ecourts.gov.in/hcservices/ superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs.3000." (Emphasis Supplied) (c) In the decision reported in (2003) 6 SCC 483 (State of U.P. v. Gulaichi), in paragraphs 8 and 9 the Supreme Court held as follows: "8. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. 9. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public https://hcservices.ecourts.gov.in/hcservices/ servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained, the sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. ......." (d) The application submitted for correction of date of birth on the verge of retirement shall be summarily rejected is the view taken by the Supreme Court in the following decisions; (i) (1994) 2 SCC 491 (State of Orissa v. Brahamarbar Senapathi) (ii) (1996) 7 SCC 421 (Union of India v. Ram Suia Sharma) (iii) (2000) 8 SCC 696 (G.M.,Bharat Coking Coal Ltd., v. Shib KUmar Dushad) (iv) (2004) 3 SCC 394 (State of Punjab v. S.C.Chadha) (v) (2005) 6 SCC 49 (State of U.P. v. Shiv Narain Upadhyaya) (vi) (2005) 11 SCC 465 (U.P.Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri) (vii) (2005) 11 SCC 477 (State of Uttaranchal v. Pitamber Dutt Semwal) (viii) (2005) 12 SCC 201 (Coal India Ltd. v. Ardhendu Bikas Bhattacharjee) (ix) (2006) 6 SCC 537 (State of Gujarat v. Vali Mohd. Dosabhai Sindhi) (e) The evidenciary value of the entry made in the SSLC book with regard to the date of birth is also considered by the Supreme Court in the decision reported in (2002) 7 SCC 719 (State of M.P. v. Mohanlal Sharma). In paragraph 2 the Supreme Court held as follows: "2. .............. The date of birth, as recorded in the matriculation examination, carries a greater evidential value than the evidential value attached to the certificate given by the retired headmaster showing the date of birth of the respondent. Such an evidence is not to be preferred when, admittedly, the date of birth of the respondent as recorded in the matriculation examination was 19-4-1935. The Tribunal erred in relying on the certificate issued by the retired headmaster as well as the horoscope furnished by the respondent." 14. The contention of the learned Senior Counsel for the petitioner that the petitioner is relying upon his horescope to prove his date of birth also is not sustainable in view of the decision of https://hcservices.ecourts.gov.in/hcservices/ the Supreme Court reported in (2005) 3 SCC 702 (State of Punjab v. Mohinder Singh). In paragraphs 11 to 13, the evidentiary value of the horescope and the entries made in the school records are considered and held as follows: "11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time, etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age. (See Ramnarain Kallia v. Monee Bibee, Biro v. Atma Ram and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak.) 12. On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32 clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of one’s birth relates to the commencement of one’s relationship by blood and a statement therefore of one’s age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 clause (5). 13. As observed by this Court in Umesh Chandra v. State of Rajasthan ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public https://hcservices.ecourts.gov.in/hcservices/ or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant case the entries in the school register were made ante litem motam." (Emphasis supplied) 15. On analysing