1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4170 OF 2009 Mr.Bhausaheb Govind Mane .. Petitioner V/s The Welfare Commissioner, Maharashtra Labour Welfare Board & Anr. .. Respondents Mr.Kishore R.Jagdale for the Petitioner. Mr.Vishal C.Ghosalkar for Respondent No.1. CORAM: A.V.NIRGUDE & R.G.KETKAR,JJ. DATE: 19th May, 2009. ORDER: 1. This matter was heard by us on 19th May, 2009 (during vacation) and for the reasons to be recorded separately, petition was dismissed. When the Petitioner’s Advocate did not get the detailed order in the matter, he addressed a letter dated 22nd June, 2010 to the Registrar (Judicial-I) with a request to provide a detailed order. Advocate for the petitioner also appeared before one of us (R.G.Ketkar, J.) in July-2010 and requested for a detailed order. In the meantime, the Registrar (Judicial-I) has also brought this fact of non-availability of a detailed order to the notice of one of us (R.G.Ketkar, J.). Immediately thereafter the Paper and Proceedings of the petition were called for, and the Registrar (Judicial-I) was 2 directed to submit a report. Papers & Proceedings were thereafter placed before one of us (R.G.Ketkar, J.) alongwith the report submitted by the Registrar (Judicial-I) on 2nd August, 2010. After perusal of the report it appears that on the relevant date operative part of the order was transcribed by the Personal Assistant Ms.Sneha Dixit. After signing the operative part of the order, papers & proceedings were sent by her to Mr.S.V.Kolhapure, Sheristedar of the Court, and the concerned Sheristedar of the Court sent the same to the Decree Department on 3rd June, 2009. The papers and proceedings were thereafter sent to Book Binding (admission) on 9th June, 2009. Ultimately, the papers were sent to Record Section on 16th January, 2010. Considering the lapses on the part of the officials handling this matter, an action on the administrative side will have to be taken and for that purpose the papers and proceedings may be placed before the appropriate authority. Be that as it may, we proceed to give the reasons in support of the order dated 19th May, 2009. 2. We have heard Mr.Kishore Jagadale, learned counsel for the petitioner and Mr.Vishal C.Ghosalkar, learned counsel for Respondent No.1 at length. By this petition, filed under Article 226 of the Constitution of India, the petitioner has challenged the order dated 6th January, 2009 passed by the Respondent No.2, the Administrative 3 Officer, Maharashtra Labour Welfare Board (for short Board) as also the order dated 5th March, 2009 passed by the Welfare Commissioner of the Board. By these orders, the petitioner’s date of birth was maintained as 1st June, 1951 instead of 2nd September, 1952 and on that basis, he stood retired from the services of the Board from 31st May, 2009 on attaining the age of 58 years. The petitioner has sought declaration that his date of birth should be declared as 2nd September, 1952 and on that basis he should be permitted to continue on the post of Senior Deputy Commissioner up to the age of superannuation. The facts and circumstances, leading to the filing of the present writ petition, briefly stated are as under. 3. The petitioner was appointed as Assistant Welfare Commissioner at Mumbai on 21st May, 1982. He was promoted as Deputy Welfare Commissioner on 24th December, 1994 and was thereafter promoted as Senior Deputy Commissioner on 24th August, 2008. It is his case that his date of birth was wrongly recorded as 1st June, 1951. As per the provisions of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981 (for short “Rules”) he made an application on 20th October, 1986 alongwith the birth extract dated 19th September, 1986 issued by the Karmala Nagar Parishad, as also the affidavit executed before the Executive Magistrate, Karmala for correcting the date of his birth from 1st June, 1951 to 2nd 4 September, 1952. Thus, he had submitted application for change in birth date within 5 years from joining the service on 21st May, 1982. 4. Pursuant to the application made by him, on 24th June, 1987 the Welfare Commissioner changed the date of birth from 1st June, 1951 to 2nd September, 1952. Accordingly the entry in the service record of the petitioner was corrected. However, after 20 years, by order dated 15th December, 2007 the Respondent No.2 cancelled the date of birth of 2nd September, 1952 and restored the earlier date of birth of 1st June, 1951. He submitted that the 2nd Respondent was not authorised to cancel his correct date of birth of 2nd September, 1952 and to restore the earlier date of birth 1st June, 1951 which was wrongly entered. Being aggrieved by the decision dated 15th December, 2007 the petitioner made various representations on 25th January, 2008, 22nd February, 2008, 4th March, 2008, 15th March, 2008, 3rd April, 2008 and 23rd July, 2008. 5. It is his further case that the issue about the date of birth of the petitioner was discussed on 11th September, 2008 in the departmental meeting of the Respondent No.1. Pursuant to that meeting, the order was passed on 23rd December, 2008 cancelling the order dated 15th December, 2007 and restoring the date of birth of the petitioner as 2nd September, 1952. On 30th December, 2008 the Respondent No.1 issued notice to the 2nd Respondent calling 5 upon him why the appropriate action should not be taken against him for not disclosing the order of the Welfare Commissioner to the Chairman of the Board. It is his case that in view of this development, the 2nd Respondent issued impugned order on 6th January, 2009 again restoring the date of birth of the petitioner as 1st June, 1951 instead of 2nd September, 1952. Pursuant to this order on 6th January, 2009 the 1st Respondent issued order on 5th March, 2009 setting out therein that the petitioner will stand retired on 31st May, 2009 on attaining the age of 58 years as per Rule 9(1) of the Maharashtra Labour Welfare Board Employees Service Condition Rules, 1961. The petitioner has challenged these orders by filing the present petition. 6. On behalf of Respondent No.1, Mohan Dhotre, Welfare Commissioner of the Board made an affidavit. It was submitted that the petitioner was initially appointed as a clerk with the office of the Superintendent of Post, Ahmednagar with effect from 14th August, 1973. He secured that employment claiming that he belongs to Mahadeo Koli. While he was working with the post office, Ahmednagar, he applied for the post of Government Labour Officer to the Maharashtra Public Service Commission (for short MPSC). In the application he mentioned his date of birth as 1st June, 1951. The petitioner applied for post of Assistant Welfare Commissioner to the 6 Board wherein also he mentioned his date of birth as 1st June, 1951. In the cast certificate dated 1st February, 1980 issued by the Tahasildar and Executive Magistrate, Ahmednagar, his date of birth is recorded as 1st June, 1951. In the certificate of age, national domicile etc.dated 5th October, 1977 issued by the Tahasildar and the Executive Magistrate, Ahmednagar, the date of birth of the petitioner is recorded as 1st June, 1951. 7. It was further submitted that when the petitioner joined the Board with effect from 5th June, 1982 he had filled in the service book mentioning the date of birth as 1st June, 1951. On 20th October, 1986 the petitioner made an application for correcting his date of birth. It was submitted that the petitioner joined services of postal department on 14th August, 1973 and he ought to have applied within five years from the said date for correcting his date of birth. It was therefore submitted that having regard to Rule 38(2)(f) of the Rules, there is bar for changing the entry of age in the service book. It was therefore submitted that the petition being devoid of substance, deserves to be dismissed. 8. After hearing learned counsel for the parties, and after going through the material on record, we are satisfied that the petition is devoid of any substance. The petition challenges the orders dated 6th January, 2009 and 5th March, 2009. It was submitted that the petitioner 7 joined Board on 2nd June, 1982 pursuant to the appointment order dated 21st May, 1982. Within five years from the date of entry he made an application for correcting the date of birth on 20th October, 1986. Alongwith the application he had submitted the extract of birth as also the affidavit of the Executive Magistrate. By order dated 24th June, 1987, the birth date was corrected. However, after nerely 20 years i.e.on 15th December, 2007 the correct date of birth of 2nd September, 1952 was cancelled and the earlier date of birth dated 1st June, 1951 was recorded. The petitioner made representations and the Chairman of the Board, after satisfying the genuineness of the claim of the petitioner, ordered to record his birth date as 2nd September, 1952. To that effect the order was passed on 23rd December, 2008. He therefore submitted that the impugned orders are liable to be quashed and set aside thereby declaring that the petitioner’s correct date of birth as 2nd September, 1952. On the other hand, from the affidavit made on behalf of the 1st Respondent, it is abundantly clear that consistently, the petitioner had mentioned his date of birth as 1st June, 1951. Assuming there was mistake in recording the date of birth, the petitioner ought to have made application for correcting this date of birth within five years from his initial entry on 14th August, 1973. When the petitioner joined the services of the Board in 1982 the petitioner had filled in his service 8 book, wherein also he mentioned his date of birth as 1st June, 1951. Even the extract of birth register relied upon by the petitioner does not pertain to him. It mentions the name of person as Subhash @ Popat. The name of the petitioner is Bhausaheb. 9. After hearing the learned counsel for the parties, and after going through the material on record, we are more than satisfied that the date of birth of the petitioner is 1st June, 1951 and not 2nd September, 1952. The impugned decisions cannot be faulted with. In the result, petition being devoid of substance, deserves to he rejected and is accordingly dismissed. (A.V.NIRGUDE,J.) (R.G.KETKAR, J.)