IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.2.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Appeal No.945 of 2006 1. The Commissioner for Revenue Administration, Chepauk, Madras-5. 2. The District Collector, Periyar District. 3. The Revenue Divisional Officer, Gobichettipalayam. .. Appellants/Respondents Vs. K.Bharathan .. Respondent/Petitioner * * * Writ Appeal filed under Clause 15 of the Letters Patent, against the Order passed by the learned single Judge in W.P.No.36704 of 2005 dated 4.4.2006. Writ of Certiorarified Mandamus to call for the records relating to the order passed by the first respondent in his proceedings in No.Pa.Mu(G) 82430/91 dated 4.1.93 and quash the same and further direct the respondents to alter the date of birth of the petitioner on 12.3.1950 instead of 7.8.1948, in the service Register maintained by them as well as in all other records and extend all benefits to the petitioner based on the correct date of birth viz. 12.3.1950. * * * For Appellants : Mr.P.Subramaniam,G.A., For Respondent : Mr.G.Rajagopalan, Senior Counsel for Mr.A.Thirumurthy * * * https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT S.R.SINGHARAVELU, J. The writ appeal is directed against the order of the learned single Judge dated 04.04.2006 in W.P.No.36704 of 2005, which itself was filed by the respondent/writ petitioner challenging the order dated 04.01.1993 of the first appellant refusing to alter the date of birth of the respondent as 12.03.1950 instead of 07.08.1948. 2. The respondent as Junior Assistant in the Office of the Revenue Divisional Officer, Erode has applied for change of alteration of date of birth to 12.03.1950 instead of 07.08.1948. He entered into Government service on 12.09.1980 and submitted the said application on 07.04.1983 i.e. within five years period from the date of joining. 3. The Revenue Divisional Officer, Gobichetipalayam, by his enquiry report, has rendered a finding in favour of the respondent. The Enquiry Officer and the Revenue Divisional Officer has stated in his enquiry report that the respondent has submitted that the respondent and his brothers were born on the dates noted below: 1. Palanisamy 21.04.1942 2. Kannappan 17.09.1945 3. Bharathan 12.03.1950 (Respondent) 4. Kaliappan 16.09.1953 4. As could be seen from the Enquiry Officer's report, one A.Ramasamy, who is said to have the knowledge about the respondent's family, had given a statement that the respondent could not have been born on 12.03.1950 and by perusing the extract of the birth register, the Revenue Divisional officer has recommended that the date of birth of the respondent may be altered as 12.03.1950, even though the name has been mentioned in the birth extract as 'Varathan' instead of 'Bharathan', as the name of the mother and father tallied with that of the respondent's parents. 5. But, the Principal Commissioner and Commissioner of Revenue Administration, the first appellant herein, upon perusing https://hcservices.ecourts.gov.in/hcservices/ the report of the Revenue Divisional Officer, found in the impugned order dated 4.1.1993, that the veracity of the birth extract produced by the respondent was not proved and its genuineness is also doubtful. Therefore, he has turned down the request of alteration of date of birth. 6. It is, as against the same, the respondent has filed the writ petition, wherein the learned single Judge has ensured that he could not have been born in 1948 and observed that, "... there is a document to show that a child was born to the parents of the petitioner on 12.03.1950 and in that document, the name of the child is written as Varadhan instead of Bharathan. Taking into account, the certificate produced by the Tahsildar in this regard, which has been enclosed in the typed set of papers, and basing on the Revenue Divisional Officer's report, that the petitioner's year of birth could be only 1950 and not 1948....." With such observations, the learned single Judge has allowed the writ petition. Aggrieved, this writ appeal has been filed by the officials. 7. The learned Government Advocate, appearing for the appellants would submit that at no point of time, the respondent/writ petitioner has mentioned his name as Bharathan @ Varadhan in any other Government records and had it been true, he ought to have produced some other related documents such as wedding invitation, registration of sale deeds, purchase deeds, Bank Accounts etc. and in the absence of any other valuable documents and mere production of Tahsildar's certificate which is not genuine and tenable, could not prove the claim of the respondent. The learned Government Advocate further submitted that while changing or altering the date of birth, it must be seen that there is unimpeachable evidence in support of alteration of date of birth, since it leads to extension of service and in the case on hand, since no such evidence is available, the order passed by the learned single Judge is liable to be set aside and would pray to allow the writ appeal. 8. On the other hand, Mr.G.Rajagopalan, learned Senior Counsel appearing for the respondent submitted that among the downtrodden and uneducated people in village, there may be some colloquial calling of names just like 'Varadhan' instead of 'Bharathan' as referring to the respondent in this case in the birth extract and that it need not be assumed as if some fraud was played, as it is not uncommon in remote hamlets to shorten the names as they would like. https://hcservices.ecourts.gov.in/hcservices/ 9. In STATE OF U.P. vs. SHIV NARAIN UPADHYAYA (AIR 2005 SC 4192) the Honourable Apex Court has observed as follows: "Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public 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. ..... In Executive Engineer, Bhadrak (RandB) Division, Orissa and Ors. v. Rangadhar Mallik (1993 Supp.(1) SCC 763), Rule 65 of the Orissa General Finance Rules, was examined which provides that representation made for correction of date of birth near about the time of superannuation shall not be entertained. The respondent in that case was appointed on November 16, 1968. On September 9, 1986, for the first time, he made a representation for changing his date of birth in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the Order of the Tribunal saying that the claim of the respondent that his date of birth was November 27, 1938 instead of November 27, 1928 should not have been accepted on basis of the documents produced in support of the said claim, because the date of birth was recorded as per document produced by the said respondent at the time of his appointment and he had also put his signature in the service roll accepting his date of birth as November 27, 1928. The said respondent did not take any step nor made any representation for correcting his date of birth till September 9, 1986. In case of Union of India v. Harnam Singh (1993(2) SCC 162) the position in law was again reiterated and it was observed: "A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil https://hcservices.ecourts.gov.in/hcservices/ servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay." 10. From the above judgment of the Honourable Apex Court, it is clear that the evidence required in support of the claim of correction of date of birth must be irrefutable and such claim must be made without any unreasonable delay. Under Rules 49 and 49A of the Tamil Nadu State and Subordinate Service Rules the provisions for alteration and correction of date of birth are prescribed. According to Rule 49A of the Tamil Nadu State and Subordinate Service Rules, 1961, such an application shall be made within five years of entry into service. In the case on hand, there is no dispute regarding the fact that the respondent has made his application for change of date of birth within three years of his entering into the service. Therefore, he has satisfied the condition of Rule 49A of the Tamil Nadu State and Subordinate Service Rules 1961 viz. submitting the application within five years of entering into the service. But, submitting the application within the prescribed period alone will not be sufficient to prove the claim of the respondent and he must produce the evidence unimpeachable and irrefutable character. If there is any element of doubt regarding the evidence produced, the claim of the employee must fail and the onus is on the employee to prove about the wrong recording of his date of birth in his service book since the correction of date of birth of the employee will have a chain reaction in the concerned Department, affecting the others waiting for years below him for their respective promotions and some may even lose the promotion for ever. Therefore, such matters require deep and careful consideration by the Courts. Thus, now, it has to be seen whether the evidence produced by the respondent, in support of his claim for correction of date of birth is unimpeachable and irrefutable. 11. From the materials placed on record and from the extracts of birth register, it is seen that before the Enquiry Officer, the respondent has stated that his first elder brother Palanisamy was born on 21.4.1942 and his second elder brother Kannappan was born on 17.9.1945 and his younger brother Kaliappan was born on 16.9.1953. But, from the report of the Principal Commissioner and Commissioner of Revenue Administration, it is seen that on comparison with the original birth registers, the said authority https://hcservices.ecourts.gov.in/hcservices/ has found that the date of birth of elder brother Palanisamy is noted as 21.4.1942, but in this registration, the name of father is mentioned as 'Karuppana Gounder, son of Kolanda Gounder' instead of 'Karuppa Gounder son of Kalianna Gounder'. Regarding the second elder brother Kannappan, the date of birth has been registered as 17.9.1945, but his name has been registered in the original birth register as Malaiappan. Regarding the younger brother Kaliappan, whose date of birth has been given as 16.9.1953, his name has not at all registered in the original birth register. Further, though the date of birth in the certificate produced by the respondent is mentioned as 12.3.1950, the name has been registered in the certificate as Varadhan. 12. Thus, there are four varying circumstances, the first one being the name of the grand father is not tallying, insofar as the first elder brother Palanisamy is concerned. To explain, instead of Kalianna Gounder, the grand father's name has been mentioned as Kolanda Gounder. The second circumstance is that the second elder brother's name has been registered as Malaiappan, instead of Kannappan. The third circumstance is that no name has been registered insofar as the younger brother is concerned. The fourth circumstance is that the name of only Varadhan is registered, but not Bharathan, as has been claimed by the respondent. If the respondent is also called as Varadhan, as is now being claimed on his part, he should have produced material in support of such of his claim. The fifth and last circumstance, which further nullifies the claim of the respondent is that the verification of original birth register, revealed that the ink used to record the name 'Varadhan' differs from the ink used to record other information relating to birth registration of the respondent. All these circumstances will make the claim of the respondent doubtful. Since the respondent has not produced the evidence of unimpeachable and irrefutable character, as is expected in such cases, he cannot succeed. 13. When the documentary evidence speaks volumes against the claim of the respondent, the Enquiry Officer has committed an error in placing reliance on the testimony of the mother and one A.Ramasamy, who is alleged to have knowledge about the family of the respondent, without properly assessing the facts and circumstances of the case. On a thorough and careful perusal of the entire materials placed on record, we have no hesitation to hold that the Principal Commissioner and Commissioner of Revenue Administration has properly appreciated the materials. https://hcservices.ecourts.gov.in/hcservices/ For the above reasons, we are unable to accept the reasons assigned and the conclusions arrived at by the learned single Judge. Therefore, the order of the learned single Judge is set aside and this appeal is allowed. No costs. gl/Rao Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. To 1. THE COMMISSIONER FOR REVENUE ADMINISTRATION, CHEPAUK, CHENNAI-5. 2. THE DISTRICT COLLECTOR PERIYAR DISTRICT 3. THE REVENUE DIVISIONAL OFFICER GOBICHETTIPALAYAM 1 cc to Government Pleader, SR.10955 vsv (co) dv/5.3. Judgment in Writ Appeal No.945 of 2006 https://hcservices.ecourts.gov.in/hcservices/