IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 21-07-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Writ Petition No.15007 of 2006 O.A.No.3236 of 1994 K.Sathuru Sankaravelan .. Petitioner. Versus 1.The Government of Tamilnadu represented by the Secretary to Government, P & AR (Personnel S) Department, Fort St. George, Madras-600 009. 2.The Principal Commissioner, Commissioner of Revenue Admn. Chepauk, Madras-600 005. 3. Director of Secondary Education, DPI Complex, Nungambakkam, Madras-600 006. 4.Chief Educational Officer, Nagapattinam, Nagai Quaid-E-Milleth District. 5.District Educational Officer, Nagapattinam, Nagai-Quaid-E-Milleth District-614 810. .. Respondents. (Amended cause title as per the order of Court III, dated 23.11.2001 in M.A.No.2783 of 1994 made herein) Prayer: This petition has been filed seeking for a writ of Certiorarified Mandamus, to call for the records on the file of the first respondent in connection with the Rule 49(c) of the Tamil Nadu State and Subordinate Service Rules in G.O.Ms.No.395 and on the file of the third respondent in connection with the order passed in his proceedings in A.Ti.Mu.No.1508/A4/94, dated 21.4.94, and quash the same and direct the respondents to enter the date of birth of the applicant as 5.3.1955 instead of 5.3.54 in the service records of the applicant and thereby allow him to continue in service as per the altered date of birth with all monetary and service benefits. (Amended prayer has been taken on file as per order of the Court III, dated 23.11.2001, in M.A.No.2784 of 1994) https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : M/s. T. Aananthi For Respondents : Mr.T.Seenivasan Additional Government Pleader O R D E R Heard the learned counsel appearing for the petitioner and the learned Additional Government Pleader appearing for the respondents. 2. The petitioner has stated that he was selected for appointment to the post of Art Master, on 10.9.81, in the Government Higher Secondary School, Ayakkaranpulam, and from the date of the said appointment, he has been carrying on his duties, without any blemish. While so, the petitioner had applied for alteration of his date of birth from 5.3.54 to 5.3.55, as his date of birth was wrongly entered in his school and service records, on the basis of the declaration made by his father. The petitioner had forwarded an application for the alteration of his date of birth, in the prescribed format, along with the necessary documents to support his claim. In the birth extract obtained from the records maintained by the Sub Registrar, Vedaraniam, it is clear that the date of birth of the petitioner is 5.3.55. As the birth certificate is a public document, which is unimpeachable, the petitioner had forwarded a succession certificate, dated 28.9.84, issued by the Revenue Divisional Officer, Vedaraniam, to prove that the date of birth of the petitioner is 5.3.55 and not 5.3.54, as shown in the school records. As soon as the petitioner came to know about the actual date of birth, he had submitted an application, along with the necessary documents, in support of his claim. In reply to the application, dated 31.1.94, forwarded by the petitioner, the fourth respondent has passed the impugned order in his proceedings, A.Ti.Mu.No.1508/A4/94, dated 21.4.94, even without conducting an enquiry or directing the revenue authorities to conduct an enquiry to find out the facts, with regard to the merits of the case. The fourth respondent has given an independent finding that the application has not been made within five years, as per the relevant rules applicable to the case. The fourth respondent ought to have gathered the reasons for the delay by giving an opportunity to the petitioner. However, without doing so, he has passed the impugned order, which is arbitrary, ultravires and illegal. 3. In the reply affidavit filed on behalf of the respondents, the allegations made by the petitioner have been denied. It has been stated that the application of the petitioner, dated 31.1.94, seeking alteration of the date of birth in his service register, as 5.3.55, instead of 5.3.54, was received by the Headmaster, on 4.2.94, and it was forwarded to the Chief Educational Officer, who is the appointing authority, for taking necessary action. At the time of his entry into service, the petitioner's date of birth has been recorded as 5.3.54, based on the entry made in the S.S.L.C. book. As per Rule 49(C) of the Tamil Nadu State and Subordinate Service Rules, any application received after five years from the https://hcservices.ecourts.gov.in/hcservices/ date of a person's entry into service shall be summarily rejected. Since the petitioner had submitted his application for alteration of his date of birth beyond the period of limitation, as stated in the said rule, his application was rejected. In fact, the petitioner had submitted his application after 13 years from the date of entry into service. Therefore, the claims made by the petitioner are devoid of merits. 4. In U.P.MADHYAMIK SHIKSHA PARISHAD AND OTHERS Vs. RAJ KUMAR AGNIHOTRI (2006-2-L.W.182), the Supreme Court relying on its earlier decisions in STATE OF U.P. AND OTHERS Vs. GULAICHI (SMT), ((2003) 6 SCC 483), STATE OF UTTARANCHAL AND OTHERS Vs. PITAMBER DUTT SEMWAL (2002) 1 UPLBEC 441 SC, STATE OF T.N. Vs. T.V.VENUGOPALAN (1994) 6 SCC 302=1994 WRIT L.R.831=1995-1-L.W.13 S.N., EXECUTIVE ENGINEER, BHADRAK (R&B) DIVISION, ORISSA AND OTHERS Vs. RANGADHAR MALLIK, 1993 SUPP (1) SCC 763, GOVERNMENT OF ANDHRA PRADESH AND ANOTHER Vs. M.HAYAGREEV SARMA ((1990) 2 SCC 682), UNION OF INDIA Vs. HARNAM SINGH, ((1993) 2 SCC 162), BURN STANDARD CO. LTD. AND OTHERS Vs. DINABANDHU MAJUMDAR AND ANOTHER (AIR 1995 SC 1499) and THE SECRETARY & COMMISSIONER HOME DEPARTMENT & ORS Vs. R.KIRUBAKARAN, (JT 1993 (5) SC 404), had come to the conclusion that the correction in entries made in the Government records, on the basis of which the Government servant got the service, cannot be allowed to be changed just a few years before retirement or at the fag end of his service. 5. In THE SECRETARY & COMMISSIONER Vs. R.KIRUBAKARAN, (1994) Supp (1) SCC 155), the Supreme Court has held as follows: "9. The Tamil Nadu Service Manual contains Rules 49 and 49-A, which are the provisions in respect of alteration and correction of the date of birth. Whenever any application is filed by persons governed by those service rules, procedures prescribed therein have to be strictly followed, including the time-limit prescribed for making such an application. Clause (b) of the aforesaid Rule 49 provides that after a person has entered in 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 in service...." It need not be pointed out that if an application is made for correction of the date of birth mentioned in the service records at an early date or within the time prescribed, the authorities are in a much better position to verify the same. Normally, in most of the services, the date of birth is recorded in the service records on the eve of the appointment with reference to the date of birth mentioned in the Matriculation Certificate, Higher Secondary Education Board Certificate or any other certificate of similar nature produced by the applicant concerned at the time of making application for his appointment. As such whenever https://hcservices.ecourts.gov.in/hcservices/ an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the Court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier. In the facts and circumstances of the case, it is not possible to uphold the finding recorded by the Tribunal." 5.1. In STATE OF T.N. Vs. T.V.VENUGOPALAN (1994) 6 SCC 302, the Supreme Court has held as follows: 7. As held by this Court in Harnam case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force, i.e., 1961. If no application is made, after expiry of five years, the government employee loses his right to make an application for correction of his date of birth. It is seen that the respondent entered into the service on 12.1.1952, and only when he was due for superannuation at the age of 58 years on 31.8.1991, he made the application exactly one year before his superannuation. The Government rejected his claim before he attained the age of superannuation on 30.8.1991. When questioned, the Tribunal, for incorrect reasons, set aside the order and remitted the matter for reconsideration. The Government considered various facts and circumstances in the GOMs No.271 and rejected the claim on 31.3.1993. The evidence is not unimpeachable or irrefutable. The Tribunal in its judicial review is not justified in trenching into the field of appreciation of evidence and circumstances in its evaluation to reach a conclusion on merits as it is not a court of appeal. This Court has, repeatedly, been holding that the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public https://hcservices.ecourts.gov.in/hcservices/ employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs.3000." 5.2. In STATE OF U.P. AND OTHERS Vs. GULAICHI (SMT), ((2003) 6 SCC 483), the Supreme Court has held as follows: 8. Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service-book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. 9. 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 https://hcservices.ecourts.gov.in/hcservices/ after decades, especially on the eve of superannuation of such public servant..." 5.3. In STATE OF PUNJAB Vs. MOHINDER SINGH (2005) 3 SCC 702, the Supreme Court has held as follows: 11. Horoscope is a very weak piece of material to prove age of a person. In most cases, the maker of it may not be available to prove that it was made immediately after the birth. A heavy onus lies on the person who wants to press it into service to prove its authenticity. In fact, a horoscope to be treated as evidence in terms of Section 32 clause (5) must be proved to have been made by a person having special means of knowledge as regards authenticity of a date, time etc. mentioned therein. In that context horoscopes have been held to be inadmissible in proof of age. (see Ramnarain Kallia v. Monee Bibee, Biro v. Atma Ram and Satish Chandra Mukhopadhya v. Mohendra Lal Pathak.) 12. On the contrary, the statement contained in the admission register of the school as to the age of an individual on information supplied to the school authorities by the father, guardian or a close relative is more authentic evidence under Section 32 clause (5) unless it is established by unimpeachable contrary material to show that it is inherently improbable. The time of one's birth relates to the commencement of one's relationship by blood and a statement therefore of one's age made by a person having special means of knowledge, relates to the existence of such relationship as that referred to in Section 32 clause (5). 13. As observed by this Court in Umesh Chandra v. State of Rajasthan ordinarily oral evidence can hardly be useful to determine the correct age of a person, and the question, therefore, would largely depend on the documents and the nature of their authenticity. Oral evidence may have utility if no documentary evidence is forthcoming. Even the horoscope cannot be reliable because it can be prepared at any time to suit the needs of a particular situation. Entries in the school register and admission form regarding date of birth constitute good proof of age. There is no legal requirement that the public or other official book should be kept only by a public officer and all that is required under Section 35 of the Evidence Act is that it should be regularly kept in discharge of official duty. In the instant https://hcservices.ecourts.gov.in/hcservices/ case the entries in the school register were made ante litem motam." 6. At the stage of the hearing of the writ petition, an unreported decision of this Court, dated 27.6.2008, in A.RAJAGOPALAN Vs. THE REGISTRAR, UNIVERSITY OF MADRAS, CHEPAUK, CHENNAI, (W.P.No.13000 of 2008) had also been placed before this Court for consideration. Referring to the various decisions of the Supreme Court reported in STATE OF ORISSA Vs. BRAHAMARBAR SENAPATHI (1994) 2 SCC 491, UNION OF INDIA Vs. RAM SUIA SHARMA ((1996) 7 SCC 421), G.M.BHARAT COKING COAL LTD., Vs. SHIB KUMAR DUSHAD ((2000) 8 SCC 696), STATE OF PUNJAB Vs. S.C.CHADHA ((2004) 3 SCC 394), STATE OF U.P. Vs. SHIV NARAIN UPADHAYA ((2005) 6 SCC 49), U.P.MADHYAMIK SHIKSHA PARISHAD Vs. RAJ KUMAR AGNIHOTRI (2005-11-SCC.465), STATE OF UTTARANCHAL Vs. PITAMBER DUTT SEMWAL ((2005) 11 SCC 477), COAL INDIA LTD. Vs. ARDHENDU BIKAS BHATTACHARJEE ((2005) 12 SCC 201), STATE OF GUJARAT Vs. VALI MOHD. DOSABHAI SINDHI ((2006) 6 SCC 537), the learned Single Judge of this Court had dismissed the writ petition filed by the petitioner, requesting for alteration of his date of birth, holding that the petitioner is not entitled to the reliefs prayed for in the writ petition as he could not show that his request was in accordance with the relevant rules applicable to the case. 7. On a perusal of the records available before this Court, it is seen that in the Government order G.O.Ms.No.103, Public (Services), dated 24.1.1961, instructions had been issued prescribing the procedure to be followed in dealing with the applications for alteration of date of birth from persons in service and from candidates applying for appointment to the services under the state. In the Government Order G.O.Ms.No.1166, Public (Services- A), dated 7.7.1961, rules had been framed to give statutory effect to the instructions. Pursuant to the Government Order G.O.Ms.No.1166, Public (Services-A), dated 7.7.1961, an amendment had been made to the general rules of the Madras state and subordinate services rules, in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, by adding Rule 49, regarding alteration of date of birth, which reads as follows: "AMENDMENT In the said rules, after rule 48, the following rule shall be added, namely:- "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 S.S.L.C. or Matriculation Register or school records, he shall make an application to the Madras 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 relied and explaining how the mistake occurred. The application shall be forwarded to https://hcservices.ecourts.gov.in/hcservices/ the Board of Revenue for report after investigation by an officer not below the rank of a Deputy Collector and on receipt of the report, the Madras 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. (b) After a person has entered service, an application to correct the date of his birth as entered in the official records shall normally 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 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 shall be summarily rejected unless the applicant gives adequate explanation for making such belated application to the authority competent to deal with it. If the application is entertained, the authority concerned shall, after following the procedure as to enquiry laid down in sub-rule (a) submit the case to the Government with its recommendation and the Government shall, after consulting the Madras Public Service Commission, pass orders thereon. (d) In considering the question of permitting an alteration in the date of birth as entered in the official records even when such entry is proved to have been due to a bona fide 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 conditions as they or it may deem fit to impose. (e) The procedure laid down in sub-rules (a) to (d) shall be followed also in 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. https://hcservices.ecourts.gov.in/hcservices/ (f) The decision of the Madras Public Service Commission, the appointing authority or the Government as the case may be, shall be final." 8. The said amendment was deemed to have come into force on 24.1.1961, which is the date when the Government Order G.O.Ms.No.103, Public (Services), dated 24.1.1961, had come into force. 9. It has also been pointed out that in a case relating to a claim for alteration of date of birth made by a Government servant, who was in service prior to 24.1.1961, and when such a claim had been made after the lapse of five years from the date of his entry into service, the Tamil Nadu administrative tribunal had ordered that a specific provision should have been made under Rule 49, regulating the procedure for those in service on the date of introduction of the rule. As no such intention has been indicated at the time of its introduction, Rule 49, as it stood, will not debar the applicant from making an application for alteration of his date of birth. Accordingly, the Government of Tamil Nadu, in letter Ms.No.380, Personnel and Administrative Reforms (Per.S) Department, dated 22.8.1990, had issued a clarification stating that in future the applications to be received for the alteration of date of birth from members who were appointed prior to the introduction of the rule, i.e. prior to 22.6.1961, may be entertained and examined on merits following the procedure laid down in General Rule 49. 10. Since a large number of requests were being received from the Government servants for alteration of their date of birth, the Government of Tamil Nadu had issued a Government Order in G.O.Ms.No.395, Personnel and Administrative Reforms (Personnel-S), Department, dated 15.12.1992, stating that the Government, after careful examination, had decided to prescribe a time limit for submitting such applications. Therefore, it was decided that the Government servants, who had entered into Government service prior to 24.1.1961 and who wish to apply for alteration of the date of their birth, should do so atleast one year before the date of their retirement. Therefore, an amendment had been made in sub Rule (c) in Rule 49 of the General Rules for the Tamil Nadu state and Subordinate Services, by adding a proviso thereto, which reads as follows: AMENDMENT In the said Rules, in rule 49, in sub-rule (c) the following proviso shall be added, namely: "Provided that the application for alteration of date of birth of a person who entered into service prior to the 24th January, 1961 shall be submitted atleast one year before the date of his retirement reckoned with reference to the official records". https://hcservices.ecourts.gov.in/hcservices/ 11. It was decided that the said amendment shall come into force on 15.12.1992. While so, in a case relating to the claim of alteration of date of birth, the Supreme Court of India in C.A.No.5422 of 1994, had observed that Rule 49 of the General Rules for the Tamil Nadu state and Subordinate Services, introduced in the year 1961, is to be harmoniously interpreted. Accordingly, applications for correction of the date of birth of an in-service employee should be made within five years from the date when the rules had come into force. If no application is made after the expiry of five years, the Government employee looses his right to make an application for the correction of date of birth. Based on the decision of the Supreme Court, the Government of Tamil Nadu had issued a Letter Ms.No.154, Personnel and Administrative Reforms (S) Department, dated 24.5.1995. It was proposed to omit the proviso of sub rule (c) in Rule 49 of the General Rules for Tamil Nadu state and Subordinate Services, retrospectively, with effect from 3.8.1994, which is the date of the order of the Supreme Court. Thereafter, a Government order had been issued in G.O.Ms.No.380, Personnel and Administrative Reforms (S) Department, dated 27.12.1995, amending Rule 49 of the General Rules, by omitting the proviso to sub Rule (c) of Rule 49. 12. In G.O.Ms.No.2052, Public (C) Department, dated 12.8.1972, an amendment had been issued to the General Rule 49 (C) to the effect that "Any application received after five years after entry into service shall be summarily rejected". The said provision had come into effect on and from 19.8.1970. Since the said date has been erroneously