IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.12.2009 CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.No.268 of 2008 S.Visalakshi .. Petitioner Vs. 1. The Commissioner Corporation of Chennai Ripon Buildings Chennai – 600 003. 2. The Assistant Commissioner-I Revenue Department Zone-I Corporation of Chennai Chennai – 600 021. 3. The Assistant Commissioner (GA &P.) General Department Corporation of Chennai Chennai – 600 003. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to to quash the impugned order of the first respondent made in G.D.C.No.E4/39635/2007, dated 28.12.2007 after calling for the records and perusing the same and to further direct the first respondent to alter the date of birth of the petitioner from 21.1.1952 in the service register. For Petitioner : Mr.N.Anand Venkatesh For Respondents: Mr.E.R.K.Moorthy for 1st respondent Mr.V.Bharathidasan for respondents 2 and 3 ORDER The writ petition is directed against the order of the first respondent dated 28.12.2007, by which the first respondent has rejected the request of the petitioner to effect change in her date of birth as 18.7.1952 instead of 21.1.1950 stated to have been wrongly entered in her service register maintained by the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2.1. The petitioner was appointed as a Junior Assistant in the Corporation of Chennai on 6.8.1992 and her services were regularized with effect from the said date by the order dated 5.3.2001. She was promoted as Assistant and was working in the said capacity in Zone-I, Revenue Department. It is stated that her date of birth had been entered in her service register as 21.1.1950. She gave a representation to the first respondent on 31.1.1995 to effect change of her date of birth as 18.7.1952, by producing the birth certificate issued by the Corporation of Chennai. It is stated that the Corporation has adopted the General Rules for Tamil Nadu State and Subordinate Services Rules (for brevity, "the Rules") and therefore, as per Rule 49 of the Rules, she has made application within a period of five years from the date of entering into service. 2.2. It is the case of the petitioner that even though in the birth certificate issued by the Corporation of Chennai on 31.7.1952 her date of birth is stated as 18.7.1952, her date of birth has been wrongly entered as 21.1.1950 in her S.S.L.C. Book and it was placing reliance on the contents of the S.S.L.C. Book, the Corporation has noted her date of birth as 21.1.1950 and immediately after she came to know about the mistake she made application on 31.1.1995. It was after more than ten years from the date of such application, the third respondent on 18.1.2007 has directed the petitioner to produce some additional details, which were furnished by the petitioner on 23.2.2007. It was only on 9.8.2007, the second respondent has rejected the application of the petitioner on the ground that certain deficiencies were found out by the third respondent. 2.3. Against the said order of the second respondent, the petitioner filed W.P.No.34915 of 2007. It was after filing of the said writ petition, the first respondent has passed an order on 2.11.2007, stated to have been served on the petitioner on 12.11.2007, rejecting the request of the petitioner based on the above said order of the second respondent dated 9.8.2007. It is stated that by effecting necessary amendment to the prayer in W.P.No.34915 of 2008 the petitioner has challenged the said order of the first respondent dated 2.11.2007 in the said writ petition and this Court by order dated 17.12.2007 has set aside both the orders on the ground that no reason was given for rejecting the claim with a direction to the first respondent to decide the claim of the petitioner on or before 28.12.2007. 2.4. It was pursuant to the said order, the first respondent has passed the impugned order once again rejecting the claim of the petitioner. The impugned order is challenged on various grounds including: (i) that there was no personal enquiry conducted; (ii) that the application has been made within a period of five years and it was the respondents who have been https://hcservices.ecourts.gov.in/hcservices/ keeping the application pending for ten years; (iii) that the birth certificate issued by the Corporation of Chennai shows the date of birth of the petitioner as 18.7.1952 but the same has been rejected by the Corporation itself; (iv) that the first respondent has failed to take note of the birth certificates of one brother and four sisters of the petitioner; (v) that a certificate to the effect that one of her elder sister was born on 4.4.1950 was produced to substantiate that her date of birth entered in the service register cannot be correct, but the first respondent failed to consider the same; (vi) that it was at the time of admission in the school, as it was in practice, her father has given an approximate date of birth which happened to be a wrong one, viz., 21.1.1950; and (viii) that the procedure contemplated under Rule 49(a) of the Rules has not been followed, apart from other grounds. 3.1. In the counter affidavit filed by the first respondent dated 28.1.2008, it is stated that at the time of appointment the petitioner has given her date of birth as 21.1.1950, based on which her seniority was fixed and it was based on that subsequent promotion has been given to her as Assistant and the petitioner has kept silent during those times. 3.2. While it is admitted that the petitioner has made representation on 31.1.1995 for change of date of birth as 18.7.1952, it is the case of the first respondent that after receipt of the said representation, by a communication dated 15.5.1995, the petitioner was directed to produce the original certificates before the District Revenue Officer on 17.5.1995 and the same has not been produced and it was only on 23.2.2007, she has produced the documents and it was thereafter found that the claim is not acceptable and hence, the same was rejected and therefore, according to the first respondent, the delay is due to the conduct of the petitioner. It is stated that after the direction given by this Court by setting aside the earlier order, the impugned order was passed immediately. 3.3. It is the case of the first respondent that even at the time of appointment the petitioner was in possession of the birth certificate and she has deliberately failed to produce the same and even along with the representation dated 31.1.1995 she has not produced any supporting documents. It was based on the date of birth given by the petitioner as 21.1.1950, the petitioner was found to be eligible for appointment and she was placed on seniority and therefore, the subsequent change cannot be effected. https://hcservices.ecourts.gov.in/hcservices/ 4. In the reply affidavit filed by the petitioner dated 4.2.2008, while meeting the contents of the counter affidavit stated above regarding the letter of the respondent dated 15.5.1995 directing to produce the original S.S.L.C. Certificate and mark sheet before the District Revenue Officer on 17.5.1995, it is stated that as per the direction she has submitted the relevant original certificates and the same were verified and subsequently, by a communication dated 22.6.1995, she was directed to produce birth certificates of her seven sisters and by her letter dated 28.8.1995, she has furnished the said documents, including 'not found' certificates from the Corporation in respect of five of her sisters and therefore, it is stated that the documents were furnished immediately and it was not correct to state that the delay was on the part of the petitioner and it is not as if the petitioner has produced the documents only on 23.2.2007. 5.1. The first respondent has filed further affidavit dated 9.10.2009 stating that the Corporation has acted as per the Government letter dated 17.2.1995, wherein it is clarified in respect of government servants that when there is a difference in the date of birth between the birth certificate and transfer certificate, the date of birth given in the school certificate should be taken into consideration and therefore, the date of birth of the petitioner as found in the school certificate as 21.1.1950 has to be taken into account as per the government letter. 5.2. It is again reiterated that after the representation dated 31.1.1995 made by the petitioner, she was directed to produce the original certificates on 17.5.1995 but she has chosen to produce the documents only on 23.2.2007. 5.3. It is stated that as per Rule 49 of the Rules alteration of date of birth cannot be considered based on the birth certificate. It is stated that the birth certificate issued by the Corporation showing her date of birth as 18.7.1952 was not produced at the time of her appointment or at the time of opening of service register. 6.1. Mr.N.Anand Venkatesh, learned counsel appearing for the petitioner, by referring to Rule 49 of the Rules, would submit that when the application was filed by the petitioner within the time stipulated under the said Rule, it was the duty of the respondents to follow the procedure contemplated therein and the respondents have not even produced the report of the District Revenue Officer. 6.2. He would submit that the evidentiary value of the birth certificate issued by the Corporation stands in a better position than the S.S.L.C. Certificate. He would rely upon the decision in Thambi @ Giri v. V.M.Duraisamy, 2009 (1) CTC 97, apart from the decision in P.Chinnathai Selva Rani v. State of Tamil Nadu, rep. by its Secretary, Education Department, Chennai, CDJ 2007 MHC 3760. https://hcservices.ecourts.gov.in/hcservices/ 6.3. He has also stated that the petitioner has retired from service on 31.1.2008 and if the correct date of birth has been entered in the service register she would have got two more years of service and that she has been deprived of the same only due to the conduct of the respondents in unnecessarily delaying the matter for 12 years. 7. On the other hand, it is the contention of the learned counsel for the respondents that inasmuch as there was a delay on the part of the petitioner in producing the records, the respondents could not pass orders in time and the petitioner having retired on 31.1.2008 on attaining the age of superannuation as per the entry made in the service register is not entitled to any relief. He would rely upon the judgments in State of U.P. v. Gulaichi, [2003] 6 SCC 483 and State of Gujarat v. Vali Mohd. Dosabhai Sindhi, [2006] 6 SC 537 to substantiate his contention. 8. The facts that the petitioner was appointed as Junior Assistant on 6.8.1992; that at the time of appointment the date of birth given by her to the respondents was 21.1.1950 based on her S.S.L.C. Book; and that she has made representation for alteration of date of birth on 31.1.1995, which is within the period of five years from the date of entry into service as contemplated under Rule 49 of the Rules, are not in dispute. 9. A reference to the original representation dated 31.1.1995 shows that the petitioner has enclosed the birth certificate issued by the Corporation even at that time denoting her date of birth as 18.7.1952. The relevant portion of the said representation of the petitioner dated 31.1.1995 is as follows: ".. My parents were wrongly recorded my date of Birth as 21-01-1950 in my school records. But according to the Vital Statics in Corporation of Madras my Correct date of Birth as 18-07-1952. I am herewith enclosing my birth certificate issued by authority for the above fact." 10. In the communication of the District Revenue Officer dated 15.5.1995, in which the representation of the petitioner dated 31.1.1995 has been referred to, the petitioner was directed to produce the original S.S.L.C. Certificate and mark sheet by 17.5.1995. Subsequently, by a letter of the Deputy Commissioner of the Corporation dated 22.6.1995, the petitioner was directed to produce the birth certificates of seven female children of her parents. In the said communication also, the representation of the petitioner dated 31.1.1995 for alteration of date of birth has been referred to. https://hcservices.ecourts.gov.in/hcservices/ 11. It is the case of the petitioner that after the above said communication dated 22.6.1995 directing the petitioner to produce the birth certificates of seven female children of her parents as stated above, on 28.8.1995 she has enclosed the birth certificates issued by the Corporation relating to her two sisters as well as the certificates issued by the Corporation in respect of her five other sisters as 'not found' dated 3.7.1995 and 10.7.1995. Therefore, it cannot be presumed that the petitioner having obtained the certificates from the Corporation authorities in respect of her sisters would not have sent the same to the respondents, especially when she has stated that on 28.8.1995 she has enclosed the said documents, as it is seen in the typed set of papers. 12. Rule 49 of the Rules, which has been admittedly adopted by the Corporation, is as follows: "Rule 49. Alteration of date of birth - (a) If, at the time of appointment, a candidate claims that his date of birth is different from that entered in his Secondary School Leaving Certificate or Matriculation Register or School records, he shall make an application to the Tamil Nadu Public Service Commission in cases where the appointment is made in consultation with the Commission and in other cases to the appointing authority stating the evidence on which he relies and explaining how the mistake occurred. The application shall be forwarded to the Commissioner of Revenue Administration for report after investigation by an officer not below the rank of a Deputy Collector and, on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall decide whether the alteration of date of birth may be permitted or the application may be rejected: Provided that in case of a candidate who was born outside the State of Tamil Nadu the investigation through the Commissioner of Revenue Administration shall be dispensed with and the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall examine and scrutinize 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. (b) 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. Such an application shall be made to the authority competent to make an appointment to the post https://hcservices.ecourts.gov.in/hcservices/ held by the applicant at the time of his application and shall be disposed of in accordance with the procedure laid down in sub-rule (a). (c) Any application received after five years after entry into service or any application, which is not supported by entries in Secondary School Leaving Certificate, School, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily rejected. (d) In considering the question of permitting an alteration on the date of birth as entered in the official records even when such entry is proved to have been due to a bonafide mistake, the Government or the appointing authority shall take into consideration the circumstance whether the applicant would normally be eligible for appointment to the post at the time of entry into service had 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: Provided that the Tamil Nadu Public Service Commission shall be consulted in the case of an applicant who has been initially recruited through the Tamil Nadu Public Service Commission, if it is proposed to accept his request for alteration of date of birth. (e) The Procedure laid down in sub-rule (a) shall be followed in all cases where alteration of date of birth is proposed suo motu by the Head of Office on the basis of medical opinion, in the absence of any other authoritative records. Explanation - For the purpose of this sub-rule “authoritative records” are the S.S.L.C. or University, College, or school records or Discharge Certificate of Army. (f) The decision of the Tamil Nadu Public Service Commission, the appointing authority or the Government, as the case may be, shall be final." 13. The case of the petitioner is covered under Rule 49(b) of the Rules since she has made an application within five years of entry into service. But as per the Rule when such an application is made, the procedure to be followed is prescribed under Rule 49(a) of the Rules and based on the same the appointing authority should have https://hcservices.ecourts.gov.in/hcservices/ referred the same to the Commissioner of Revenue Administration for a report after investigation by an officer not below the rank of a Deputy Collector. Therefore, the procedure contemplates a report of the Commissioner of Revenue Administration when such application is received. 14. On the facts of the present case, while the records show that the District Revenue Officer has called for certain particulars and documents which are stated to have been produced by the petitioner, nowhere in the counter affidavit the respondents have chosen to state about either the report of the Commissioner of Revenue Administration or that the impugned order has been passed based on such report. Therefore, it is clear that the case of the respondents that in spite of the request of the respondents to the petitioner on 15.5.1995, the petitioner has not chosen to produce the certificates which were produced only on 23.2.2007 has not been substantiated on the face of it. Nowhere it is seen that there has been any report filed by the Commissioner of Revenue Administration and the same has been relied upon by the first respondent while passing the impugned order, which is a required procedure to be followed as per Rule 49(a) of the Rules. 15. In the impugned order, the first respondent has chosen to rely upon the physical fitness certificate submitted by the petitioner at the time of her appointment issued by the Deputy Superintendent of Government Hospital for Women and Children, Egmore, Chennai-600 008, in which the petitioner's age has been recorded as 42 years, which is stated to have been entered based on the date of birth furnished by the petitioner as 21.1.1950. This is totally an extraneous reason. The case of the petitioner itself is that at the time when she entered into service she has been under the bonafide belief that her date of birth was 21.1.1950 as it is seen in her school certificate, but it was only thereafter she found out her correct date of birth and within five years from entry into service she has made application for alteration. Therefore, the said reasoning by the first respondent in the impugned order is not sustainable. 16. The impugned order further relies upon a Government letter dated 17.2.1995 stated to have been issued by the Government in respect of Municipal Administration and Water Supply Department. In the said Government letter it is stated that when there is a difference between the birth certificate and transfer certificate, the date of birth given in the school certificate should be taken into consideration. The said Government letter is not tenable for the reason that it is not known as to whether the Government letter is applicable to the respondents/ Corporation, especially when such communication of the Government has not been placed before this Court. https://hcservices.ecourts.gov.in/hcservices/ 17. Again, the reason given by the first respondent in the impugned order that the petitioner has not given any valid reason for alteration of her date of birth, but has only furnished her birth certificate, shows the total non application of mind on the part of the first respondent. As elicited above, the birth certificates of the petitioner's sisters have been produced as requested by the respondents and in the absence of an enquiry report of the authority contemplated under Rule 49(a) of the Rules, it is not known as to how the first respondent has arrived at such a conclusion. 18. In Thambi @ Giri v. V.M.Duraisamy, 2009 (1) CTC 97, while deciding about the evidentiary value of the birth certificate issued by the competent authority vis-a-vis School Certificate for the proof of date of birth in the light of Section 74 of the Indian Evidence Act, 1872, of course in a suit for partition, G.RAJASURIA,J., while observing that the birth certificate issued by the public authority will have more evidentiary value than the school certificate, especially when the same has not been proved by the author of such certificate in the manner known to law, has held as under: "28. I am of the considered opinion that in the facts of this case, the birth extract Ex.B20 is more reliable than the School Certificate. It is also to be highlighted that as per Indian Evidence Act, Ex.A10, the Certificate issued by the Headmaster was not proved by examining the Headmaster concerned or the School Authorities. At this juncture, my mind is redolent with the following decision of the Honourable Supreme Court. LALA SATYANARAIN PRASAD VS. GADADHAR RAM, 1975 (2) SCC 564: certain excerpts from it would run thus: "7. The High Court rightly did not place any reliance on the certificate. The truth of the contents of the certificate could not be proved by a clerk who only proved the handwriting on the certificate. The Head Master, who issued the certificate, was not examined. The original admission register on the basis of which the certificate was given was not proved. The clerk, who proved the handwritings of the certificate, could not say who made the original entry in the admission register." 29. It is therefore clear from the above cited precedent that Ex.A10 cannot be taken as one proved as per law. However as per Section 74 of the Indian Evidence Act, Ex.B20 could be taken as the Public Document. Section 74 of the Indian Evidence Act is extracted hereunder for ready reference:- https://hcservices.ecourts.gov.in/hcservices/ Section 74. Public documents.- The following documents are public documents: (1) documents forming the acts or records of the acts.- (i) of the sovereign authority, (ii) of official bodies and tribunals, and (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) public records kept in any State of private documents." 30. A bar perusal of it would reveal that documents and records kept and maintained by the Public officials, as per law, are public documents. As such, it is crystal clear that birth registers are to be treated as Public documents and there could be no doubt about it. Sections 76 and 77 of the Indian Evidence Act are also extracted here under for ready reference. "Section 76.Certified copies of public documents . - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written, at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such office with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal; and such copies so certified shall be called certified copies. Explanation.- Any officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such