IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.09.2009 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.36347 OF 2006 (O.A.NO.3731 OF 1998) S.Vijayakumar .. Petitioner/ Applicant Vs. 1.The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-600 005. 2.The Commissioner/Director of Employment of Training, Chepauk, Chennai-600 005. 3.The Director of Co-operative Audit, Chennai-5. .. Respondents/Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records relating to the order of the second respondent, dated 7.10.1996 issued in RC.No.77042/Estt 3/96 and to quash the same and to direct the respondents to alter the date of birth of the applicant from the existing date 3.11.1951 to the correct date 14.1.1953 and to award the consequential reliefs. For Petitioner : Ms.K.R.Sundarakantham For Respondents : Mr.R.Neelakantan, GA ORDER Heard both sides. 2.This writ petition arose out of O.A.No.3731 of 1998 filed by the petitioner before the Tamil Nadu Administrative Tribunal. In view of the abolition of the Tribunal, it was transferred to this court and was renumbered as W.P.No.36347 of 2006. https://hcservices.ecourts.gov.in/hcservices/ 3.The petitioner sought for the issuance of a writ of certiorarified mandamus to call for the records relating to the order of the second respondent, dated 7.10.1996 issued in RC.No.77042/Estt 3/96 and to quash the same and to direct the respondents to alter the date of birth of the applicant from the existing date 3.11.1951 to the correct date 14.1.1953 and to award the consequential reliefs. 4.The petitioner challenged the order of the second respondent, dated 7.10.96 in refusing to consider the alteration of date of birth requested by the petitioner. The petitioner at the time of joining service had given his date of birth as 3.11.1951. But subsequently, he made an application to alter the same as 14.01.1953 as per his birth extract. The Revenue Divisional Officer, Madurai who was directed to conduct an enquiry on the claim made by the petitioner and upon the receipt of the said report, the first respondent communicated to the second respondent by a communication dated 15.9.96 refusing to alter the date of birth. It is that report which was accepted by the second respondent and the petitioner's request was rejected. 5.On notice from the Tribunal, the second respondent has filed a reply affidavit, dated 29.4.99. It was stated in the reply affidavit that when he made a gazette notification for change of his name on 3.12.80, he had given his date of birth as 3.11.1951 in the gazette publication. Similarly, his father had signed in the first page of the SSLC book, showing the date of birth as 3.11.1951 with an endorsement affirming the said date. The signature was made in English. Though the petitioner claimed that his grand father at the time of admitting him in a primary school gave the wrong date, at least at the time of opening the SSLC book, the petitioner could have sought for alteration at the relevant time. Therefore, in view of the suspicious circumstances, the petitioner's claim was not accepted. 6.In the matter of alteration of date of birth, the authorities must be satisfied with the materials produced by the petitioner. In the present case, the report of the RDO, Madurai and accepted by the first respondent, the respondents were not satisfied with the credibility of the birth extract produced by the petitioner. In this context, it is necessary to refer to two decisions of the Supreme Court which will have a bearing on the present case. 7.The first is the decision of the Supreme Court rendered in Govt. of A.P. v. M. Hayagreev Sarma reported in (1990) 2 SCC 682. Paragraph 7 of the said judgment may be usefully extracted below: 7. The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the https://hcservices.ecourts.gov.in/hcservices/ service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth. Rule 4 laid down a salutary principle to prohibit reopening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules. Since the question of alteration of the respondent’s date of birth had been made on the basis of the school certificate and his application for alteration had already been rejected in 1968, he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules. It was not open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry contained in births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886 as the question of correction of his date of birth had already been finally decided in 1968. 8. As regards validity of Rule 5 is concerned, the view taken by the Tribunal is wholly misconceived. Rule 5 lays down that where application of a government employee for alteration of his date of birth was pending on the date of the commencement of 1984 Rules the same will be dealt with on the basis of date of birth recorded in the school and college records at the time of the entry of the employee into service. In substance Rule 5 lays down that the pending applications of the employees for alteration of their date of birth shall be decided on the basis of the age as recorded in the school and college records. Thus if on the date of entry into service the date of birth of an employee was recorded in his service book on the basis of his age as recorded in the school and college certificate in that event the date so recorded shall be treated to be correct date of birth. However, if the date of birth recorded in the service book at the time of the entry of an employee is not based on school or college records the Rule 5 does not operate as a bar to consideration of other relevant materials in determining the date of birth of the employee. In the instant case as already noted the respondent’s date of birth had been recorded in his service book on the basis of his SSLC Certificate, at the time of his entry into service, therefore, that entry had become final and he was not entitled to reopen the https://hcservices.ecourts.gov.in/hcservices/ correctness of that entry on the basis of extract of birth register. Moreover, since the respondent’s application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was not entitled to maintain application for any alteration of his date of birth. In either case respondent was not entitled to claim alteration of his date of birth, his application was rightly rejected although on different grounds. 8.The second decision related to the judgment in Commr. of Police, Bombay v. Bhagwan V. Lahane reported in (1997) 1 SCC 247. The following passage found in paragraph 6 may be usefully extracted below: 6....The respondent ought to have produced the reliable material to show that the date of birth mentioned in the School Leaving Certificate was incorrect. No such material was produced by him. The extract from the birth register produced by him along with his representation being inconsistent with the School Leaving Certificate produced by him earlier, he ought to have proved to the satisfaction of the competent authority that he was given a name before or soon after his birth and that his name was entered in the birth register at the time of registration of his birth. Ordinarily, a child is not given a name before birth and in the entry in the birth register only sex, viz., male or female would be mentioned. After naming ceremony, the name is given. It is, therefore, highly doubtful if the parents of the respondent who were villagers and illiterate had named the appellant either before or on the day of his birth. The explanation given now on behalf of the respondent that his elder brother, who was named Bhagwan, was born on 12-11-1949 and died on 26-11-1949 and, therefore, his date of birth cannot be 12-11-1948 is also not convincing. His further explanation that as his elder brother died, his parents thought of calling him by the same name is also not believable. Moreover, if that was so, his parents would not have committed a mistake in giving his date of birth to the school authorities even though they were illiterate. It appears that he got the entry in the birth register corrected, then obtained a copy of it and produced the same before the authority. Once it was found to be doubtful, the authorities were right in not correcting his https://hcservices.ecourts.gov.in/hcservices/ date of birth in the service-book. Admittedly, the School Leaving Certificate was produced by the respondent and the entry in the service-book was made on the basis of the date of birth mentioned therein. As he failed to show that the said entry was made due to want of care on the part of some other person or that it was an obvious clerical error, the Tribunal ought not to have directed the appellant to correct the same." 9.In the light of the above, the writ petition is bound to fail and accordingly, it stands dismissed. No costs. vvk Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1.The Principal Commissioner and Commissioner of Revenue Administration, Chepauk, Chennai-600 005. 2.The Commissioner/Director of Employment of Training, Chepauk, Chennai-600 005. 3.The Director of Co-operative Audit, Chennai-5. + 1 CC to the Government Pleader SR.50071 + 1 CC to Mr. Koviramalingam Advocate SR.50540 PRE DELIVERY ORDER IN W.P.NO.36347 OF 2006 BV(CO) VC(06.10.2009) https://hcservices.ecourts.gov.in/hcservices/