1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 29/07/2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P(MD)No.6678 of 2011 and M.P.(MD)No.1 of 2011 T.T.Balsamy ... Petitioner Vs 1.The Principal Secretary to Government, Municipal Administration and Water Supply Dept., Secretariat, Chennai-9. 2.The Joint Secretary to Government, Municipal Administration and Water Supply Dept., Secretariat, Chennai-9. 3.The Deputy Secretary to Government Municipal Administration and Water Supply Dept., Secretariat, Chennai-9. 4.The Commissioner of Municipal Administration, Chepauk, Chennai. ... Respondents Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Mandamus, directing the first respondent to comply the Sub Registrar report in letter No.82/2011, dated 28.04.2011 without insisting limitation as per Rule 49(C) of the Tamil Nadu State Sub-ordinate General Service Rules, 1955 and to pass necessary orders to the claim of the petitioner and alter the date of birth as 29.04.1955 with all consequential benefits on the representation dated 06.06.2011. For petitioner : Mr.UM.Ravichandran For respondents : Mr.B.Pugulenthi Spl.Govt.Pleader O R D E R The petitioner has sought for a Writ of Mandamus, directing the first respondent to comply the Sub Registrar report in letter No.82/2011, dated 28.04.2011 without insisting limitation as per Rule 49(C) of the Tamil Nadu State Sub-ordinate General Service Rules, 1955 and to pass necessary orders to the claim of the petitioner and alter the date of birth as 29.04.1955 with all consequential benefits on the representation dated 06.06.2011. https://hcservices.ecourts.gov.in/hcservices/ 2 2. learned counsel for the petitioner submitted that his name, as per School records, T. Paulsamy. He changed his name, as T.T. Balsamy, by a Gazette Notification Book 45 T.N. Gazette, dated 19.11.2003. Thereafter in all the Government and other communications, he has been referred as T.T. Balsamy. Learned counsel further submitted that on 23.06.1986, the petitioner was initially appointed as Municipal Commissioner in the year 1986, vide Government Order Ms. No.753, Municipal Administration and Water Supply Department, dated 23.6.1986. In appreciation of his outstanding Performance he was promoted as a Joint Director of Municipal Administration and Water Supply Department. 3. It is his further submission that on 2-7-1993, the petitioner's elder sister applied for her birth certificate. When he perused the birth certificate of his elder sister, the petitioner observed that her date of birth is 21-8-1953. Whereas, the petitioner's date of birth, as per the service register, was 04-07-1953, which could not be possible, as the period between the said two Children was just 46 days. Learned counsel for the petitioner submitted that in the month of October 1993, the petitioner applied to the Sub Registrar, Mudukulathur, Ramanathapuram District, to get the birth extracts, to know his actual date of birth. From the original birth extract, duly certified by the Sub Registrar, the petitioner's actual date of birth is 29-4-1955, whereas, in the Government records, his date of birth has been erroneously recorded as 4- 7-1953. The said Sub Registrar has also verified and certified that there is no other entry in the relevant birth register, showing the birth of any male child to his parents, during the year 1953. 4. Learned counsel for the petitioner further submitted that the petitioner was born on 29.04.1955, but his date of birth has been erroneously given by his illiterate father, as 04.07.1953, at the time of joining the school. Accordingly, in his SSLC Certificate, the date of birth was entered wrongly as 04.07.1953 and consequently, the same date has been entered in his service register also. Therefore, the petitioner submitted a representation on 27.11.1993 to the 1st respondent herein to alter his date of birth as 29.04.1955. He also produced following material evidence, issued by the competent authority namely Sub- registrar, Mudukulathur, Ramanathapuram District. (a) Date of birth extract (D.O.B 29.04.1955) (b)"No entry Certificate" declaring that there was No birth of any male child to my parents during the year 1953 viz., dated on 04.07.1953. I produced certificate to the effect that I am the only third child to my parents together with the birth extracts of all my brother and sisters. (c)Birth certificate of my elder brother Periyasamy (D.O.B on 27.01.1951), expired on 22.2.77 (d)(d) Date of birth extract of my elder sister Pasuva&hy (D.O.B on 19.08.1953) https://hcservices.ecourts.gov.in/hcservices/ 3 Date of birth extract of my younger sister Selvi Saroja (D.O.B on 12.03.1958) (e)Date of birth extract of my youngest Sister Shrimathi Nagavlli (D.O.B on 11.02.1962). 5. The petitioner also produced the declaration form of two credible persons' viz., Thiru Krishnan S/o Udaiyar, aged about 59 years and Thiru.Karungappan S/o Shanmugavelu aged about 68 years. Both of them are residing at his birth place of Melachirupothu village, Mudukulathur, Ramanathapuram District. It is the contention of the learned counsel that the 2nd Respondent, without application of mind and ignoring the Judgment of the Principal Bench of this Court in W. P. No. 3142 and 3143/1970 rejected a case, without adducing any valid reasons. The 2nd respondent vide his letter No. 8554/ME/1/94-2, dated 1.7.1994 rejected his request. It is the further contention of the petitioner that the 2nd respondent without applying his mind suo motu rejected the representation of the petitioner, dated 27.11.1993, under rule 49 (C) of the Tamil Nadu State Sub Ordinate General Service Rules, even though the petitioner has adduced valuable evidence along with authoritative documents. According to the learned counsel for the petitioner, the 1st and 2nd respondents have not adhered to various Government letters (No.72317I PER-P/87-1) Personnel and Administrative Reforms (Per- P) Department, dated 17.08.1997, regarding alteration of date of birth, which had prescribed that the appointing authority alone is empowered to entertain an application for alteration of date of birth and condone the delay and pass further orders. 6. Learned counsel further submitted that while so, he came to understand that under similar circumstances / similar requisition of the Government Servants (a) Mr. T.P.Ekambaram, Chief Engineer, Highways, Rural works, Madras-5. In its GO. Ms. No. 1528 Public works under Secretary to Government, (H-l) Department, (b) Mr.S.Sathyanathan, dated 02.11.1993, and Higher Education Department were favourably considered correcting the date of birth to them to continue in service and to retire based on the corrected date of birth. Learned counsel prayed that similar benefits ought to have been extended to the petitioner also. However, the appointing authority did not consider the above said facts. Therefore, he has submitted a further representation dated 28-2-2011 to the 1st Respondent. The Deputy Secretary to the Government, Municipal Administration and Water Supply Department, Chennai, the third respondent herein directed the petitioner to submit all the relevant original records with SSLC Certificate and Service Register relating to his claim for change of date of birth and send the same to Government, for processing further vide letter No. 5996/ ME-/2011-1 Municipal Administration and Water Supply Department, dated. 28.3.2011. Consequently the 4th respondent in his letter No. 14947/2011/CI, dated 29.03.2011, has called for all original records from the Petitioner for processing further, for alteration of date of birth as 29.04.1955, instead of 04.07.1953. On 30.03.2011, the petitioner submitted all the original records as instructed by the 4th respondent and that the same was also sent to the 1st respondent vide his letter No. 14947 /2011/ CI dated 30.3.2011 recommending to condone the delay. https://hcservices.ecourts.gov.in/hcservices/ 4 7. He further submitted that, the 1st and 2nd respondents have perused all original documents received from the 4th respondent and also of the view that the petitioner claim was genuine and it is a fit case, for taking a sympathetic view and the delay to be condoned. While doing so, they have also suggested that the genuineness of birth certificate issued by the Sub-Registrar Department of registration Mudukulathur be verified and the Sub- registrar be addressed in this connection. Accordingly the 3rd respondent vide his letter No.5996/ME 1/2011-1, dated 26-04-2011 directed the Sub-Registrar to verify and confirm the Genuineness of my birth extract issued to the petitioner. The Sub- Registrar, Mudukulathur, by letter No.82/2011, dated 28-4-2011 stated that the petitioner's birth certificate was verified with the original entry was found to be correct. According to the learned counsel, the particulars furnished in the said birth certificate No. 117/2011 Pa padi No. 16/2011, dated 24-4-2011 have been confirmed, as correct and genuine. The Sub Registrar's vide his letter No.82/2011, dated 28-4-2011, has sent his remarks confirming the authentication of the birth certificate issued to the petitioner. The Sub registrar did not send any negative remarks, pertaining to the petitioner's second representation, dated 28.2.2011, to the 1st respondent. Without considering the documentary evidence, the appointing authority, on 13.05.2011, has rejected the said representation, citing the rule 49 (c) of Tamil Nadu State subordinate service Rules, 1955. 8.Learned counsel for the petitioner further submitted that the Principles of law laid down by the Tamil Nadu State Administrative Tribunal, Chennai in O.A Nos.4283&4284/1992, dated l2.11.1993, and the orders of this Court in W.P. No.25389 of 2004, dated. 13.09.2004, have not been applied. He further submitted that the 3rd respondent ought not to have rejected and made his application futile, after calling for a report from the Sub Registrar and such a view is totally against the object of rule 49(b) and 49(c) of the general rule 1955. The original documents required under rule 49 (b) of the General Rule were produced and the Sub-registrar, Mudukulathur, has also certified and confirmed the genuineness of the birth extract. Learned counsel for the petitioner further submitted that the appointing authority ought to have accepted the report of the Sub-registrar, Mudukulathur and consequently, the 3rd Respondent ought to have adhered to Rule 49(c) of the Tamilnadu State Sub Ordinate Services and granted the relief, when the birth certificate and all other documents produced by the petitioner have been found as genuine. 9.Learned counsel further submitted that as per the rule 49 (f) of the general rule 1955, the 2nd respondent is not a Competent authority to decide the issue in connection with the alteration of the petitioner's date of birth, as he was not the appointing authority. As per rule 49 (c) General Rules and Government order issued thereunder the final decision has to be taken only by the appointing authority. That being so, the 2nd respondent has taken a final decision in its order No. 85541ME-1194-2, dated 1.7.1994, is contrary to the said rules, and therefore, it is not sustainable in law. He further submitted that the objection of the learned counsel for the State that in 1994 itself, the application has been rejected and therefore, the application now submitted cannot resurrect an old matter has to be overruled because, at that time of https://hcservices.ecourts.gov.in/hcservices/ 5 rejection he was not competent to do so and that is why, another application has been entertained and enquiry was ordered. According to the learned counsel for the petitioner Rule 49(c) has been deleted only from 27/12/1995 and when the petitioner applied on 27/11/1993 for change of date of birth on which date the proviso to Rule 49 (c) was available. 10.On the basis of the available proviso, Thiru.P. Ekambarram was given the benefit and his date of birth was altered and changed into the service register and therefore, there is discrimination violating Article 14 of the Constitution of India. According to the learned counsel, when the petitioner has produced genuine documents to prove his date of birth and requested for alteration of the date of birth in his service registers and pursuant to which an enquiry has been conducted, the report drawn up by a competent authority has to be accepted. 11.Learned counsel in support of his contention drew the attention of this Court to a judgment reported in 2003 (2) CTC 103, wherein, in para 5, it has been held that "we are not impressed by this contention there is a specific G.O. on record which is G.O.Ms.No. 395 dated. 15.12.1992, where by an amendment was effected to rule 49 and subsequently there is another G.O. in G.O.Ms.No.66 dated 02.02.1996, where by further amendment was made, which has the effect that such limitation is not applicable to Government Servants who entered in service before 19.08.1970. Both the above G.O.numbers 395, dated 16.12.1992 and G.O.Ms.No.66, dated 02.02.1996, when read together, the obvious result would be that the limitation of 5 years made applicable to erstwhile Rule 49 would not be so applicable in cases of the Government Servants who have entered the services before 19.08.1970. In the wake of this rule there will be no question of finding fault with the order of the Tribunal. There is no question of limitation applicable in this case. 12.Learned counsel, therefore the judgment of this Court in Second Appeal granting declaration regarding the date of birth would be binding on the Government and the Government is bound to treat that the first respondent has having been born on 16.07.1945". Learned counsel also relied on a Judgment of the Hon'ble Supreme Court reported in 1997 VI SCC Page 304 wherein, it has been held that "the change of date of birth must be made within five years from the date of appointment. Last minute representation at the verge of retirement is not entertainable. When similarly placed persons are considered for change of date of birth on the basis of genuine and authenticated documents, the same benefit should have been extended to him. 13.Though no counter affidavit has been filed, the objections raised by the learned counsel for the State are mainly on the basis of the letter dated 13.05.2011, of the Principal Secretary, Municipal Administration Department, Chennai, that as per Rule 49(c) of the Tamil Nadu State and Subordinate Services Rules 1955, when the request for alteration of date of birth, has already been rejected, no mandamus can be sought for, without challenging the said order. Learned counsel for the State submitted that the request of the petitioner has already been https://hcservices.ecourts.gov.in/hcservices/ 6 rejected in 1994 and no fresh claim can be made after so many years. The decision made in Gendalal Vs. Union of India and others reported in (2007 (15) SCC 553), and relied on by the petitioner, can be made applicable to repel the said objections. As the reported judgment is very short, this Court deems it fit to extract the same. 1. Special leave granted. 2. In the present case, the appellant was appointed as a gangman on 22-4-1964 and the date of birth which was recorded was 14-6-1941. As per the school certificate his actual date of birth was 4-6- 1945 and he made representation for correction of the date of birth. This first representation was made on 5-12-1970. He continued to make representations and supply documents as required by the respondents till 22-4-1974. After a gap of nearly 21 years the respondents wrote a letter to the appellant on 6-3- 1995 asking for some more documents which as per the order of the Central Administrative Tribunal was complied with. Ultimately, nothing was heard and on 5- 1-2001 a cryptic order was passed in which it was observed as follows: “With reference to your letter quoted above, it is advised that the request for change in date of birth 32 years after appointment and 6 months prior to retirement is not tenable and hence rejected.” 3. The application of the appellant for relief before the Central Administrative Tribunal was unsuccessful because the Tribunal was of the view that the last representation was in 1974 and he has come to the Tribunal at the fag end of his retirement. 4. Having heard the counsel for the parties, we are at a loss to understand as to how the appellant could have been non-suited on the ground of delay. He first represented against his wrong recording of the date of birth within six years of his joining service. Two years after his representation the Railway Board issued an office order dated 4-8-1972 inviting representations for correction of date of birth, this representation was filed. When no action was taken reminders were sent, the last reminder being of 22-4- 1974. As we have already noticed 21 years thereafter the representation was not rejected but vide a letter dated 6-3-1995 certain more documents were asked for from the appellant. These documents were supplied. There was no lack of diligence on the part of the appellant. For the Tribunal to state that his last representation was in 1974 is not correct because pursuant to the respondents' letter of 6-3-1995 the documents were supplied. Merely because the appellant did not want to litigate and sought relief from the respondents departmentally and as his application had https://hcservices.ecourts.gov.in/hcservices/ 7 not been rejected till the year 2001, 31 years after he had first made the representation the appellant cannot be regarded as not having acted diligently. On merits, the respondents have not stated that the date of birth of the appellant was not 4-6-1945 as per the school certificate. There is obviously an error committed by the respondents and the date of birth should have been corrected. On the other hand, the appellant has been driven to years of litigation for no fault of his. 5. For the aforesaid reasons, these appeals are allowed. The order dated 5-1-2001 is set aside. The appellant will be treated as being in service as per his date of birth being 4-6-1945. The appellant will be entitled to reinstatement and all consequential benefits including arrears of salary after deducting the terminal benefits if received by the appellant. This order shall be complied with within eight weeks from today. The appellant will be entitled to costs. 14.Materials on record shows that earlier, the Commissioner of Municipal Administration, Chennai, in his letter, dated 30.03.2011, addressed to the Government, has stated as follows:- “5. Minimum age of appointing as Junior Assistant is 18 years. Thiru.T.T.Balsamy was appointed as Junior Assistant on 01.09.1983 under rule 10(a)(1) of General Rules for the Tamil Nadu State and Subordinate Service through a candidate sponsored by the employment exchange at the age of 30 years. So it is highly improbable that he could have give an earlier date of birth on the grounds of being under aged for seeking employment. 6.Since the date of birth as per the birth certificate issued by the Sub-Registrar, Department of Registration, Mudukulathur is 29.04.1955 and that as per S.S.L.C. Book is 04.07.1953. Thiru. T.T.Balsamy stands to loss above 22 months Government Service if birth certificate issued by the Sub- Registrar, Department of Registration, Mudukulathur is genuine. There was no doubt being undue delay in his part in apply for rectification of his date of birth. But considering the fact that is stands stood loss 22 months of service at fag end of his carrier which also be heavy monitory loss of both pay and pension. There is a case for taking sympathetic views of matter and considering the delay. However before doing that it is suggested that the genuine of the birth certificate issued by the Sub-Registrar, Department of Registration, Mudukulathur may be verified and he may be addressed. https://hcservices.ecourts.gov.in/hcservices/ 8 7.Once Sub-Registrar, Department of Registration, Mudukulathur has certified that the genuine of the birth certificate further action condoning the delay may be taken. From To Thiru.S.Rajendran The Deputy Secretary to Government Sub-Registrar, Municipal Administration and Water Mudukulathur – 623 704 Supply Department, Ramanathapuram District Fort St.George, Chennai – 600 009. Lr.No.82 of 2011, dated 28.04.2011 ----------------------------------------------------------- Sub: Birth certificate – Genuineness of the Birth Certificate issued in respect of Thiru.T.T. Balsamy, S/o.Thirunagalingam report called for by the Government – Genuineness confirmed – report submitted – regarding. Ref: 1) Birth Certificate No.117/2011, Pa.Padi No.16/2011, dated 24.02.2011 issued by this Office. 2) The Deputy Secretary to Government, Municipal Administration and Water Supply Department, Lr.No.5996/M.E.1/2011-I, dated 26.04.2011. ............ I am to invite kind attention to the references cited and to inform that as directed in the Government letter second cited, the Birth Certificate, pertaining to date of birth namely 29.04.1955 bearing Annual No.23 and Monthly No.12/1955 issued in respect of Thiru.T.T.Balsamy, S/o. Thirunagalingam has been verified with the original entry and found the particulars furnished in the said Birth Certificate confirmed that Correct and Genuine. Necessary Certificate in this regard has been furnished on the Photostat copy of the Birth Certificate of Thiru.T.T.Balsamy, S/o. Thirunagalingam, received along with the Government leter second cited and returned herewith. Encl: The above mentioned Photostat copy of Birth Certificate. Yours faithfully, SUBREGISTRAR MUDUKULATHUR Copy to Thiru.T.T.Balsamy, Commissioner, Tiruchirapalli Corporatiion, Tiruchirapalli. https://hcservices.ecourts.gov.in/hcservices/ 9 15.The contention of Mr.UM.Ravichandran, learned counsel for the petitioner that once the Department has undertaken to conduct a detailed enquiry, as regards the claim of the petitioner for alteration of date of birth on the basis of acceptable evidence, and when a specific finding has been recorded as regards the actual date of birth, then it is not open to the respondents to simply ignore the report and reject the application citing Rule 49(c) of the above said rule is acceptable. 16.The contention, that the petitioner, had already submitted his application for alteration of date of birth, within the limitation period and that when the said application has been erroneously rejected by an incompetent authority and that is why, the 4th respondent himself, has called for a report, in such circumstances, a vested right is created, under the then rules, and that cannot be deprived of and set at naught by the impugned order, ignoring the action taken by the department to ascertain the truth or otherwise of the claim, regarding the actual date of birth of the petitioner is also, acceptable and supported by a decision of this Court in M.Palanisamy and others vs. State of Tamil Nadu reported in (2009 (4) CTC 492) where, this Court, has held that whether the enactment is retrospective or not, has to be ascertained from the terms of the statute, which expressly provide or necessarily require. In the case on hand, though rule 49 has underwent an amendment, there is nothing to indicate about the applications for alteration of date of birth already pending on the file of the appointing authority or the Government, as a case may be. The contention of the petitioner that once the Government servant has filed an application for effecting a correction in the service register, as per the rules then in force and if, the appointing or the appropriate authority has undertaken an enquiry, then it is not open to them to reject the said application on the ground of delay, is also well founded, as per the decision of this Court made in W.P.Nos.3142 and 3143 of 1970 dated 18th March 1971. The decision stated supra, squarely applicable to the case on hand, in all respects. 17.From the material on record, it is evident that when the birth extract of a Government has been verified under the orders of the Government, in the case on hand, as per the proceedings of the Deputy Secretary to Government, Municipal Administration and Water Supply Department, Chennai, in Lr.No.5996/ME.1/2011-3, dated 13.05.2011, as true and correct certificate, applicable to the petitioner, the same ought to have been acted upon, otherwise, there is no point in ordering an enquiry for verification of the certificates and documents and thereafter, simply ignoring the same, does not reflex the bonofides of the action initiated. The bonafides of the Sub-Registrar, Mudukulathur, or the authenticity of his report has not been doubted at all. What is put against the petitioner is only rule 49(c) of the rules, which ought not to have been approved to the facts and circumstances of this case. 18.Yet another aspect to be considered is that when the petitioner has alleged discrimination that in the matter of Thiru.Ekambaram, whose age has been altered, even though the application was made, as per the then proviso and that he has been allowed to continue, has not been disputed by any counter affidavit. Hence, there is violation of Article 14 of the Constitution of India also. https://hcservices.ecourts.gov.in/hcservices/ 10 19.Birth Extract is an important and a primary piece of evidence. When the said extract has been found to be genuine,