-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO. 1099 OF 2007 Ranjana Lau Salakar ) Alias Sunanda Shantaram Shetye, aged about ) 56 years, residing at 9/249, Lokmanya Nagar, ) Beside Tilak Bhavan, Kakasaheb Gadgil Marg, ) Prabhadevi, Mumbai-400 025. ).. Petitioner versus 1. State of Maharashtra, Mumbai. ) 2. Head Master, Savitribai Jyotirao Phule, ) Girls Night School, Near Shalimar Industry, ) Matunga Labour Camp, Mumbai-400 019 ) 3. Education Inspector, Southern Region, ) B.M.C. Office, Topiwala Lane, BMC School ) Building, Grant Road, Mumbai-400 007 ) 4. Labour Welfare Officer, Block Office, ) Lalit Kala Bhavan, Jambori Maidan, ) Worli, Mumbai-400 018. ) 5. Assistant Welfare Commissioner, ) Mumbai Region Office, Govandaji Keni Road, ) Naigaon, Mumbai-400 014. ) 6. Welfare Commissioner, ) Maharashtra Labour Welfare Commission ) Central Office, Labour Krida Bhavan, ) Senpati Bapat Marg, Elphinston, ) Mumbai-400 013. )..Respondents Mr. V.S. Deokar for the petitioner. Mr. P.M. Mokashi, Assistant Government Pleader, for respondent Nos. 1 -2- and 3. Mr. C.J. Sawant, Senior Advocate, instructed by Mr. V.C. Ghosalkar for respondent Nos. 4 to 6. CORAM: SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J. Judgment reserved on: June 06, 2007 Judgment delivered on: J une 21, 2007 JUDGMENT (Per Swatanter Kumar, C.J.): Rule. By consent of the parties, Rule is taken up forthwith. We have heard the learned counsel for the parties. 2. The Administrative Officer in the Maharashtra Labour Welfare Mandal, vide his letter dated 4th March, 2005, declined to accept the request of the petitioner for change in date of birth in the service record of the petitioner. The petitioner again made an application on 2nd January, 2007, which was also rejected by the Education Officer, respondent No.3, vide order dated 3rd April, 2007. The legality and correctness of both these orders is questioned by the petitioner in the present writ petition on the strength of Rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rule, 1981, hereinafter referred to as “the Rules”. The relevant part of Rules on which the petitioner relies on reads as under:- -3- “38 (2) (f) . When once an entry of age or date of birth has been made in a service book no alteration of the entry should afterwards be allowed, unless it is known, that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error; Instruction:- (1) Normally, no application for alteration of the entry regarding date of birth as recorded in the service book or service roll of a Government servant should be entertained after a period of five years commencing from the date of his entry in Government service. (2) Subject to (1) above, the correct date of birth of a Government servant may be determined, if he furnishes a proof of age in any of the following forms:- (a) His own statement or that of a parent, guardian, friend or relative; (b) School Leaving Certificate, Secondary School Certificate Examination/Matriculation Certificate or University Certificate; ( c) Extract from a birth or baptismal register; (d) Horoscope; (e) Entry in family records or accounts books.” 3. The facts necessary for determining the merit of the contentions raised on behalf of the petitioner are that the petitioner was born in N. Wadia Maternity Hospital on 16th May, 1951 and an entry to that effect was made in the records of the hospital. The petitioner took admission in the School by incorrectly mentioning her date of birth as -4- 18th May, 1949, which entry was carried in the school records of the petitioner. The petitioner joined the services of respondent Nos. 4 to 6 in the year 1972. It is further pleaded by the petitioner that one of the friends of the petitioner who was elder to her was still in service and was still to retire and impressed by this fact, the petitioner made certain enquiries in the year 2004, after the death of her father, from her paternal uncle and then came to know that the petitioner was born in N. Wadia Hospital, Mumbai, in the year 1951 and not in 1949 and resultantly her date of birth was wrongly recorded. Persuaded by this information, the petitioner moved an application on 3rd January, 2005, after receiving the copy of the birth certificate from the record of the hospital. On 25th January, 2005, the petitioner applied for correction of her date of birth in the service record. In support of her claim, the petitioner also filed an affidavit and forwarded the same to the Assistant Welfare Commissioner with recommendation of her department. Though the case of the petitioner was recommended by the department, still the authorities rejected the claim of the petitioner on the ground of limitation stating that after lapse of period of more than five years from the date of joining of service, the date of birth in the records could not be corrected. As already noticed, the petitioner again moved an application but in vain and finally the request was rejected -5- vide order dated 3rd April, 2007. 4. The contention of the petitioner is that the respondents have erroneously relied upon old Rule 26.4 of the Secondary School Code and have not correctly applied the provisions of Rule 38 of the Rules. Further, there was sufficient evidence to support the claim of the petitioner and the respondents were obliged to correct the date of birth of the petitioner in her service records. The matter was argued at the admission stage itself. Though the respondents did not file any affidavit-in-reply but it was argued that the petitioner has already put in nearly 35 years of service and the application admittedly was filed by her against the spirit of the Rules and much beyond the period of limitation. It is also contended that the petitioner had enjoyed the benefit of rendering two more years service at the very initiation of her career, even if the argument of the petitioner was to be accepted, and, therefore, no prejudice has been caused to the petitioner by passing of the impugned orders. On the basis of the record before this Court, it cannot be disputed that the petitioner had given her date of birth as 18th May, 1949 and not 16th May, 1951 at the time of her employment. The respondents have produced before us the copy of the service record of the petitioner where she herself had written the date of birth as 18th -6- May, 1949, and has signed the said record which was also verified by the Assistant Welfare Commissioner, Mumbai Division. On the basis of this record, the petitioner was granted appointment vide letter dated 5th July, 1972, with effect from 10th July, 1972. If the petitioner was not born in 1949, in all probability, and, in fact, certainly she could not have been given appointment in the year 1972. In paragraph 8 of the writ petition the petitioner has stated that during discussions in 2004 between the family members and relatives, she came to know that she was born in 1951 and not in 1949 and one of the friends of the petitioner, who was elder to her, was still in service and was still to retire. These facts have persuaded her to correct the documents and accordingly made application to change her date of birth in the year 2005. These averments lack bona fide and cannot be given credence at the fag end of the service career. It may be appropriate for us to refer to a Division Bench decision of this Court in the case of Kakasaheb Shidu Mhaske vs. The Municipal Corporation of Greater Mumbai (Writ Petition No. 391 of 2007) decided on 19th April, 2007 where in somewhat similar circumstances the Court dealt with both the contentions of prejudice as well as undue delay and version put forward by the petitioner in that case being lack of bona fides and held as under:- -7- 6. It is the settled rule of law that correction in date of birth at the fag end of the career cannot be permitted unless and until the Rules give a right to an employee. The documents produced by the petitioner, particularly Exhibit- B, show the date of birth of brother and sisters of the petitioner. It is difficult to believe that date of birth is correctly stated of all the children in those records which also shows the date of birth of the petitioner as 1st June, 1949. The learned counsel appearing for the petitioner relied upon a judgment of the Division Bench of Kerala High Court in the case of Krishnarajan vs. Doraswamy Chettiar and others, AIR 1966 Ker. 305, to contend that the entries in these records are best evidence of the date of birth and can safely be accepted unless they are shown to be wrong. As the entries were altered by the authorities in exercise of their powers, the Corporation should have accepted the same when produced. This argument is without any substance. Firstly, the judgment on facts have no application to the present case. Secondly, the judgment does not provide for an absolute right in favour of an employee to claim alteration of the date of birth in the service records on the basis of such entry. In fact, the Court has specifically used the words and these are relevant but rebuttable that correct age of the petitioner had been shown by him in his service records by an undertaking and furthermore by furnishing documentary evidence. -8- 7. We may also refer to a Division Bench judgment of the Delhi High Court in the case of Brigadier Ashok Kumar Singh vs. Union of India, decided on July 13, 2006, where the Court in somewhat similar circumstances held as under:- “It is difficult even for the Court to believe that the petitioner would have disclosed and written in his own handwriting incorrect date of birth repeatedly at different times i.e. In the year 1971 as well as in 1972. It may also be noticed that in the Indian Military Academy Examination form the petitioner again in column 7 had declared his date of birth as 16.8.51. In fact, the petitioner would be estopped from challenging the correctness of the date of birth as filled in by him at different occasions in his own hands, by his own conduct. Learned counsel appearing for the petitioner heavily relied upon the judgment of the Supreme Court in the case of Union of India vs. C. Rama Swamy and ors. 1997 Vol. 4 SCC 647 to contend that the respondents ought to take into consideration the corrected date of birth of the petitioner in furtherance to the certificate issued by the Secondary Board. This contention is void of any substance firstly because C. Ramaswamy was a member of the IPS and was governed by the relevant rules applicable to the Indian Administrative Services. Rule 16-A provides for determination of date of birth and sub-Rule 4 (a) indicates that every member of the service holding office immediately before the commencement of the All India Services Commencement Rules, 1971, shall within three months from such declaration make a declaration as to the date of birth. Such a chance was given for correcting the date of birth on the amendment of the said rules. The Supreme Court also held that sub- Rule 4 is related to correction in date of birth in the service record of the officer resulting from a bona -9- fide clerical mistake in acceptance of date of birth. The facts and question of law before the Supreme Court was distinct and different than in the present case. In the present case not only that the petitioner has repeatedly disclosed his date of birth as 15.8.51 but had acted thereupon even by taking the subsequent examinations. In other words, not only that the respondents had accepted the date of birth declared by the petitioner which was supported at the relevant time by a certificate issued by the Secondary school, but even the petitioner himself accepted and acted upon the fact that his date of birth was 15.8.51. The subsequent conduct of the parties to the event, is a relevant consideration before the Court and can tilt equities between the parties. 8. It is difficult to provide a straight-jacket formula which would be uniformally applicable to the cases without reference to peculiar facts and circumstances of each case. Whenever a person joins service and makes declaration of his date of birth in his own handwriting, normally he cannot go back from such an admission unless there were exceptional and compelling circumstances of a bona fide mistake. In the case of Harchand Singh v. Punjab State , 2004 (4) SLR (Pb. And Hr.) 349, the court dismissed the petition on the ground that the application for correction had been made after 20 years and the claim of the petitioner was belied to his own earlier documents and in fact, he took two years advantage in entering the Government service as he could not enter the service unless he was 18 years old. In the case of P.S. Bheemeswara Rao v. Regional Joint Director of Intermediate Education, 2004 (3) SLR (Andhra Pradesh) 347, the court also stated the principle that a party at the fag end of his career cannot seek correction of entries in the service record as entry regarding date of birth in service record is final. Of course, it may have some exceptions. -10- 9. Latches has been a very material factor in accepting or denying a relief to the petitioner raising such a claim. In the case of Sheo Pujan Lal v. State of Bihar, 2004 (1) SLR (Patna) (DB) 593, the court held that a petitioner, who had declared his age in the matriculation certificate and such a date was entered in the service record, later on, cannot be heard to argue that there was a different date of birth more advantageous to the petitioner and he had not declared correct date of birth in his certificate. The Supreme Court in the case of State of Punjab v. S.C. Chadha, 2004 (2) SLR (SC) 741 held as under. “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 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 had 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 the case of State of Assam vs. Daksha Prasad Deka, 1970 (3) SCC F 624 : (1971) (2) SLR 14 (SC),this Court said that the date of the compulsory retirement must in our judgment, be determined on the basis of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure.” -11- In the case of Government of Andhra Pradesh vs. M. Hayagreev Sarma, 1990 (2) SCC 682 : (1990) (2) SLR 742 (SC) the A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 were considered. The public servant concerned had claimed correction of his date of birth with reference to the births and deaths register maintained under the Births,Deaths and Marriages Registration Act, 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth as claimed by the petitioner before the Tribunal, in view of the entry in the births and deaths register ignoring the rules framed by the State Government referred to above. It was, inter alia, observed by this Court : “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 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.” As observed by this Court in State of Tamil Nadu vs. T.V. Venugopalan, 1994 (6) SCC 302: (1994) (4) SLR 626 (SC) and State of Orissa and others v. Ramanath Patnaik, 1997 (5) SCC 181: (1997) (2) SLR 799 (SC) when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. The view expressed in R. Nirubakaran's case (supra) was adopted. In view of the aforesaid, the inevitable conclusion is that the High Court was not justified in interfering with the orders of the Government and directing correction of the date of birth in the service records of the respondent as now claimed by him. The appeal is allowed but without any order as to costs. -12- 10. The above enunciated principles clearly demonstrate that a discretion is vested in the appropriate authorities of the respondents to accept or decline the request of the petitioner for change of date of birth. Unless the discretion is exercised arbitrarily or offends specific rules which are to the benefit of the employee, the court would not normally disturb such discretion. In the present case, the petitioner is a senior officer and was expected to act with greater care in regard to the matter of his service record. The petitioner consistently accepted and acted upon his date of birth being 16.8.51 by his declaration in writing and otherwise. We are unable to see any patent error in exercise of discretion by the respondents and particularly in face of instruction dated 21.4.64 issued by the Government.” 8. Similar view was taken by the Jammu and Kashmir High Court in the case of Abdul Rashid Sogami vs. State of Jammu & Kashmir, decided on 28th September, 2000, where the Court clearly stated the principle that a date of birth which has been authenticated by the employee himself in his service record cannot be corrected at the fag end of the service and the Court held as under: “The plea of learned counsel for the petitioner that he came to know about the wrong date of birth recorded in the service record in November, 1999 is misplaced as the petitioner has signed the service book when it was prepared at commencement of the service and signed the relevant column of the service book in token of the correctness of the entry recorded in the service book. The petitioner is a qualified person and he cannot take shelter that he was not aware of the date of birth recorded in the service record. Supreme Court in Union of India v. Saroj Bala, 1996 SC 1000 has held that candidate belonging to -13- educated family entering service after competing in All India Service Examination and remaining in Service for 18 years is not entitled to seek correction of date of birth. It is settled proposition of law that the public servant who approaches the court, like the petitioner, at the fag end of service isn't entitled to seek correction of the date of birth as pronounced by the Supreme Court in Burn Standard Co. vs. Dinabandhu Majundar, AIR 1995 SC 1500, holding that: “The fact that an employee of Govt. or its instrumentality who will be in service for over decades, with no objections whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his service record, the very conduct of non-raising of an objection in the matter by the employee in our view should be a sufficient reason for the High Court not to entertain such applications on grounds of acquiescence undue delay and laches. Moreover discretionary jurisdiction of the High Court can refer be said to have been reasonable and judicially exercised if it entertains such writ petition, for no employee, who had grievance as to his date of birth “service and leave record” could have genuinely waited till the fag end of his service career to get it corrected by availing of the extra-ordinary jurisdiction of a High Court. Therefore, we have no hesitation in holding that ordinarily High Court should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality towards the fag end of his -14- service, seeking correction of his date of birth entered in his “Service and Leave record or Service Register with an avowed object of continuing in service beyond the normal period of his retirement.” The date of birth of the petitioner supplied by him to the respondents has been recorded in the service record of the petitioner at the commencement of the employment. Till 1999 the petitioner has not challenged the recorded date of birth in the service book which has been also in the notice of the petitioner as he has also put his signatures on the relevant page on the service book wherein the date of birth of the petitioner has been recorded. In such a situation the principle of Estoppel applies that the petitioner cannot seek change of Date of Birth in view of the law laid down by the Supreme Court in 1997 in case Union of India vs. Rama Swami reported in 1997 SC page 2057, para 25 and 26 which are extracted below:- “25. In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, and older person is ordinarily -15- considered to be more mature and therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned, this being so we find it difficult to accept the broad proposition that the principle of Estoppel would not apply in such a case where the age of person who is sought to be appointed may be a relevant consideration to assess his suitability.” 5. In the light of the above principles, we may refer to the provisions of Rule 38 of the Rules. It is obligatory upon the department to correctly record the date of