1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3177 OF 2004 1. State of Maharashtra Through Principal Secretary, Revenue & Forests Department of Government of Maharashtra, Mantralaya, Mumbai. 2. Collector of Mumbai Suburban District Bandra (E), Mumbai. ..Petitioners Versus Shri Sahadev Sayyappa Patane .. Respondent Awwal Karkoon, Office of the Tahsildar, Kurla, Mumbai. Shri V. P. Malvankar, A.G.P. for petitioners. None for the respondent CORAM: V. C. DAGA, & MRS. MRIDULA BHATKAR, JJ. DATED: 11th February, 2009 J U D G E M E N T Heard. Perused petition. 2 1. The petitioners have preferred this Writ Petition against the order passed by the Maharashtra Administrative Tribunal( the 'Tribunal' for short), dated 9th January, 2004 that the birth date of the respondent is to be corrected as 26.9.1947 in the place of 1st March, 1945; thereby he be given all consequential service and pecuniary benefits. 2. Factual matrix reveals that the respondent was appointed as Clerk in the office of Tahsildar, Borivali, Mumbai. In his service book, his date of birth was recorded as 1.3.1945. The respondent, by letter dated 23.10.1981, had asked for correction in his date of birth giving his true date of birth was 26.5.1947. It was his contention that the date mentioned in the school leaving certificate was wrong. The authority found some overwriting in the date of birth in the school leaving certificate. So, the said certificate was sent to Forensic Science Laboratory, Pune. On the basis of the report expert from the Laboratory, a criminal case was registered against the respondent for the offence punishable under Section 420, 467, 468 and 471 of the Indian Penal Code on 6.11.1989. However, the prosecution ended in acquittal. 3. The respondent, after attaining the age of superannuation of 58 years was retired on 28.2.2003. The 3 respondent approached the respondent challenging the date of his retirement and filed application before the Tribunal. After hearing both the parties, the learned Tribunal gave verdict in favour of the respondent on 9th January, 2004 and held that the respondent had been been wrongly retired on 28.2.2003 and he should have been retired on 31.5.2005. By the said order the petitioners were directed to effect necessary correction in the service book of the respondents and also to reinstate the respondent within 15 days from the date of order and that he be paid pecuniary benefits from 1.3.2003 till his reinstatement in service. Being aggrieved by the decision of the Tribunal, the petitioners preferred this petition challenging the said order. 4. When the matter was called out, the Advocate for the respondent was not present. However, we looked into the rival pleadings and all documents presented by the respondent as well as petitioners. It was submitted by the learned AGP for the petitioners that the order passed by the Tribunal is erroneous. He has submitted that the Learned Member of the Tribunal erred in placing reliance on the so called birth extract issued by the Sarpanch of Grampanchayat showing the date of birth as 26.5.1947. It was submitted that the importance should not have been 4 given to the tampered birth certificate. It was further pointed out that any objection about date of birth ought to have been raised within 5 years from the date of joining the service. However, the respondent raised such objection for the first time after 5 years of his joining the service. The learned Advocate also relied on the overwriting in the School Leaving certificate, Service book so also the letter by the respondent dated 1.7.1999 addressed to the Tribunal in which he has mentioned his date of birth as 1.3.1945 and prayed for exemption from passing Revenue Qualifying Examination and also for his entitlement to time bound promotion after completion of 12 years service. Learned A.G.P., in view of these documents and factual premise, submitted that the order passed by the Tribunal be set aside. 5. Reasonings: The issue of change in the date of birth in the service record and birth Certificate exclusively revolves around the documents. The learned A.G.P. rightly pointed out the letter dated 1.7.1999 written by the respondent to the Tribunal which speaks in volumes. Along-with the said letter, extract of the service book regarding date of birth was also produced. The entry of birth date in the said extract clearly showed overwriting. Moreover, in the said letter, the respondent himself has 5 relied on his date of birth as 1.3.1945. He has further made it clear that in the year 1990, he completed 45 years of his age and 23 years of Government service. On these facts, he asked for the exemption from passing Revenue Qualifying examination and also claimed his entitlement to time bound promotion after completion of 12 years service. If this be so, the petitioner is estopped from contending contrary to this letter. The respondent cannot be allowed to take contradictory stand to his previous statement. Obviously, the said letter was written voluntarily. Thus, the respondent cannot be allowed to blow hot and cold. Learned AGP is right in contending that the respondent ought to have applied for correction in his date of birth within 5 years from the date of joining his service as held by the Apex Court in State of Tamilnadu Vs. T. V. Venugopalan reported in (1994) 6 SCC 302. Ordinarily, request to correct date of birth of the Government employee at the fag end of his carrier, seeking correction of his date of birth entered in the service record, should not be entertained by the Court in exercise of its discretionary jurisdiction. (Relied- Burn Standard Co. Ltd. Vs. Dinabandhu Majumdar & ors. Reported in AIR 1995 SC 1499 ). The submission made by the learned AGP that the date of retirement of the respondent was correctly held as 28.2.2003 and no correction was required to be made in the date of birth of 6 the respondent needs acceptance. Hence, the finding given by the learned Maharashtra Administrative Tribunal is arbitrary, erroneous and perverse. The impugned order dated 9.1.2004, is liable to be set aside. Needless to mention that if Statutory Tribunal exercises its discretion on the basis of irrelevant considerations or without regard to the relevant factors, certiorari would be justified to quash its order ( we placed reliance on Hindustan Steel Vs. A.K. Roy, AIR 1970 SC 1401). In the result, impugned order dated 9.1.2004 is set aside. Rule is made absolute in terms of this order. No order as to costs. (MRS. MRIDULA BHATKAR) (V. C. DAGA) jpc/-