IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:23.02.2010 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI WRIT PETITION NO.5380 OF 2008 R.Krishnan .. Petitioner vs. 1.The Special Commissioner cum Commissioner of Revenue Administration Chepauk, Chennai 600 009. 2.The District Collector Villupuram District Villupuram. .. Respondents Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus calling for the records of the 2nd respondent in his proceedings dated 28.2.2007 in Na.Kaa. Aa1/45067/04 and also his consequential proceedings in Na.Kaa. Aa1/2444/2007 dated 28.2.2007 and quash the above proceedings and thereby direct the 2nd respondent herein to reinstate the petitioner in the same position as on 28.2.2007 with all consequential service benefits. For petitioner : Mr.N.Suresh For respondents : Mr.R.Murali Government Advocate ORDER The writ petition is directed against the orders of the second respondent dated 28.2.2007 and also for direction against the second respondent-District Collector to reinstate the petitioner in the same position as on 28.2.2007. 2. The facts leading to the filing of the present writ petition are that the petitioner joined in the Tamil Nadu Ministerial service as Junior Assistant on 2.6.1980 and his date of birth was 10.1.1951 as entered in the Villupuram Municipal records and the said Municipality also issued a birth certificate indicating his date of https://hcservices.ecourts.gov.in/hcservices/ birth as 10.1.1951. His immediate elder brother Regupathy was born on 3.2.1949 and his immediate younger brother Narayanan was born on 19.5.1954 and his youngest sister’s date of birth was 15.7.1964. However, it is the case of the petitioner that in the school records, the date of birth of the petitioner was entered as 5.2.1949, which was reflected in the Service Register of the petitioner also. 2(a). It is stated that within the period as contemplated under Rule 49(b) of the Tamil Nadu State Subordinate Service Rules, the petitioner gave an application to the then District Revenue Officer at Cuddalore through proper channel on 28.3.1984 for alteration of his date of birth from 5.2.1949 to 10.1.1951 enclosing the supporting documents such as, birth extracts issued by the Villupuram Municipality. His application was rejected on 12.4.1986 by the District Collector stating that the date of birth has not been proved as 10.1.1951. 2(b). It is, as against the order of the District Collector, the petitioner filed appeal before the first respondent, the Special Commissioner on 2.7.1989 through the District Collector, Cuddalore. It is stated that on 17.1.1990 the petitioner was directed by the first respondent to contact the District Collector, South Arcot. It is stated that as per direction of the first respondent, the Revenue Divisional Officer, Tirukoilur conducted an enquiry and submitted a report to the first respondent on 4.8.1990 with a recommendation to the first respondent that the correct date of birth of the petitioner should be altered as 10.1.1951. 2(c). It was, based on that recommendation, the first respondent directed the District Collector, Cuddalore to take necessary action to alter the date of birth of the petitioner after consulting the Tamil Nadu Public Service Commission as per Rule 49 of the Tamil Nadu State Subordinate Service Rules. In the meantime, the petitioner was promoted as Deputy Tahsildar and he has been working in Villupuram District after bifurcation of South Arcot District. The records relating to the alteration of date of birth were not maintained by the District Collector, Cuddalore. It is stated that the entire records were destroyed. 2(d). It is stated that even the Tamil Nadu Public Service Commission in the letter dated 3.8.2004 has stated that the District Collector’s Office has not produced the records by properly maintaining the same and therefore, the Service Commission is not able to take any action. It is stated that thereafter, the first respondent wrote to the Government on 15.7.2005 for further course of action to be taken and on 1.2.2007, the Secretary to Government, Revenue Department directed that a decision can be taken at the District Collector level being the appropriate authority as per the provisions of Rule 49(f) of the Tamil Nadu State Subordinate Service Rules. https://hcservices.ecourts.gov.in/hcservices/ 2(e). In the meantime, the petitioner’s retirement fell on 28.2.2007 as per the date of birth entered into the registers and on the said date, the second respondent rejected the request for alteration of date of birth summarily and directed for the petitioner’s retirement on superannuation. The impugned order of the second respondent dated 28.2.2007 is in violation of Rule 49 of the Tamil Nadu State Subordinate Service Rules and against the principles of natural justice. 3. The first reason given in the impugned order is that the birth extract produced is for the child born to the petitioner’s parents on 19.5.1954 and the petitioner was born to them as a third child and there is no record produced in respect of the 4th child, which according to the petitioner is irrelevant. The reasoning given by the second respondent that there is every possibility for the birth of a child in between 5.2.1949 and 19.5.1954 is, according to the petitioner, arbitrary and whimsical. It is stated that without affording opportunity to the petitioner, his application for alteration of date of birth was rejected on 28.2.2007 under the impugned order which is in gross violation of the principles of natural justice and on the same day, under the impugned order, the petitioner was directed to retire on superannuation. 4. In the counter affidavit filed by the second respondent it is stated that the petitioner was selected by the Tamil Nadu Public Service Commission and allotted to the erstwhile composite South Arcot District and he joined as Junior Assistant in the Revenue Department on 2.6.1980 and while he was working as Assistant on 28.3.1984, he made an application for alteration of date of birth in his service register from 5.2.1949 to 10.1.1951 and the said application was filed before the Revenue Divisional Officer, Tirukoilur and the said file is stated to have been destroyed in 1990 as per the entry in the destruction register. 4(a). It is stated that the Revenue Divisional Officer made an enquiry based on the said application and submitted a report to the District Collector, South Arcot, who in his letter dated 12.04.1986 rejected the request of the petitioner on the ground that it is not found proved and on appeal, the Special Commissioner, remanded the matter to the Revenue Divisional Officer for fresh enquiry and submission of report to the first respondent and accordingly, the Revenue Divisional Officer conducted fresh enquiry and submitted a report dated 04.08.1990 and 04.10.1990 and after perusing the report of the Revenue Divisional Officer, Tirukoilur, the Special Commissioner in his letter dated 23.01.1991, instructed the District Collector to pass final orders to alter the date of birth of the petitioner after consulting the Tamil Nadu Public Service Commission. https://hcservices.ecourts.gov.in/hcservices/ 4(b). When the Tamil Nadu Public Service Commission was addressed, it was informed by the Commission by its letter dated 03.08.2004 that the records relating to the point in issue were destroyed due to efflux of time and therefore, the Service Commission replied that it is not in a position to decide the matter and suggested to approach the Government and the Government, in turn, instructed that the appointing authority himself may examine the matter where the date of birth is sought to be altered to a later date and pass orders under Rule 49 of the Tamil Nadu State and Subordinate Services Rules. 4(c). It is stated that the second respondent being the appointing authority, passed the order observing that the petitioner claimed that his brother born on 19.5.1954 was the 4th child to his parents, whereas the child born on 19.5.1954 was registered as 5th child to the parents of the petitioner and there is no confirmation as to whether any child was born to the parents in the gap of four years. It is also stated that the date of birth of the petitioner's elder brother R.Raghupathy, who was working in the Southern Railway has been recorded as 03.02.1948 in his office records, whereas there is no registration of birth in the birth register for the year 1948 and there is no evidence to show that the date ‘3.2.1949’ is available as date of birth in the birth register of his elder brother Regupathy and the date of birth of the petitioner is 05.02.1949. 4(d). It is stated that in the absence of any evidence beyond doubt to show that 5.2.1949 is not the date of birth of the petitioner, the second respondent rejected the claim of the petitioner for alteration and based on the same, the petitioner was permitted to retire on the afternoon of 28.2.2007. It is the case of the respondents that the petitioner has not proved his correct date of birth as 10.01.1951. It is stated that the petitioner has availed the opportunity and made representation to the District Collector and there is no violation of the principles of natural justice, especially when the petitioner has put forth a false claim that he gave a representation for review to the Secretary to the Revenue Administration. 5. The contention of the learned counsel for the petitioner is that since the records relating to the application made by the petitioner are not available and the same are said to have been destroyed, the second respondent, as per the direction of the Service Commission, passed the impugned order hurriedly without going into the proper details and without giving proper opportunity to the petitioner. It is his submission that when the petitioner has produced the municipal certificate to show his date of birth as 10.1.1951, there is no reason for the second respondent to reject the same, especially when the application has been filed within five years from the date of entry into the service. https://hcservices.ecourts.gov.in/hcservices/ 6. On the other hand, it is the contention of the learned Government Advocate that the second respondent has conducted a detailed enquiry by referring to the certificates of various brothers and sisters of the petitioner and on merit, has come to the conclusion that the petitioner has not substantiated his claim that his date of birth was 10.1.1951 and there is no illegality or perversity in the order of the second respondent. 7. Rule 49 of the Tamil Nadu State Subordinate Services Rules, in its terms, enables a Government servant to approach his appointing authority for alteration of date of birth within a period of five years from the entry into service. The procedure contemplated under Rule 49(a) is that if the appointment of such Government servant was made after consultation with the Tamil Nadu Public Service Commission, the application has to be made to the Tamil Nadu Public Service Commission and in other cases, the application has to be made to the appointing authority and on forwarding the same to the Commissioner of Revenue Administration and on receipt of report from an officer not below the rank of Deputy Collector, the Service Commission or the appointing authority has to decide whether the alteration of date of birth has to be permitted or rejected and the relevant rule is as follows: “Rule 49. Alteration of Date of Birth. (a) If, at the time of appointment, 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 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 scrutinise 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.” https://hcservices.ecourts.gov.in/hcservices/ 8. In this case, it is not in dispute that the petitioner who entered into service on 2.6.1980 made the application for alteration on 28.3.1984 and the application was made in time as per the said rule. It is true that originally the said application was rejected by the District Collector and on appeal to the Special Commissioner, the matter was remitted back to the Revenue Divisional Officer, Thirukoilur, with direction to conduct enquiry and submit a report and in the meantime, certain records are stated to have been destroyed and thereafter, as per the direction of the Government, the matter was directed to be decided by the second respondent who is, admittedly, the appointing authority and the second respondent conducted an enquiry while deciding the claim of the petitioner under rule 49(a) of the Rules. Now, the decision has been taken ultimately by the second respondent who is the appointing authority which cannot be stated to be against the rule 49(f). 9. A reference to the impugned order shows that an elaborate enquiry has been conducted by the second respondent and during the course of enquiry the sister of the petitioner and the petitioner have been examined and the petitioner has not produced the birth certificates relating to them. It is stated that as per the service records of his elder brother, Regupathy who worked in the Southern Railway, his date of birth was entered as 3.2.1948 and therefore, the petitioner was directed to produce his birth certificate which was not produced on the ground that the said certificate is not available. However, it is stated that the petitioner has provided the particulars regarding the dates of birth of his sisters and brothers, and the particulars given are as follows: Name Date of birth Mahalakshmi (sister) 17.8.1946 Regupathy (brother) 3.2.1949 Krishnan (petitioner) 10.1.1951 Narayanan (brother) 19.5.1954 Amudha (sister) 16.7.1964 10. Based on the above said particulars furnished by the petitioner, the records of the Municipality were verified and it was found that the petitioner’s father and mother had given birth to various children viz., a girl child on 17.8.1946; a boy on 3.2.1949; a boy on 10.1.1951; and a boy on 19.5.1954. However, the register does not contain the name of 5th female child Amudha stated to have been born on 16.7.1964. 11. The second respondent has found that in the birth register in respect of child born on 19.5.1954 it is referred to as 5th child while the petitioner has stated that the said male child was born on 19.5.1954 as 4th child and therefore, there was some doubt and the said doubt has not been clarified as to whether there was a 4th child https://hcservices.ecourts.gov.in/hcservices/ born to the petitioner’s parents. The authority, the second respondent, has also found that in respect of male child which is said to have been born on 3.2.1949, while it is the case of the petitioner that it relates to his elder brother, Regupathy, the records of the said Regupathy viz., his service register with the Southern Railway show that his date of birth was entered as 3.2.1948, and the second respondent has found that the entry that a male child was born to the parents of the petitioner on 3.2.1949 stated to relate to the petitioner’s elder brother, has not been proved by the petitioner and in the absence of such proof and in the circumstance that as per the school certificates which are the earliest documents, the date of birth of the petitioner is stated 5.2.1949, the second respondent has come to a conclusion that the petitioner has not proved beyond doubt that the date of birth, 3.2.1949 is not relating to the petitioner and it is in that view of the matter, the claim of the petitioner came to be rejected. 12. On the facts and circumstances of the case, I do not see any discrepancy in the order of the second respondent. When the rule contemplates that the petitioner should file such an application within five years from the date of entry into service, such requirement, of course, has been complied with. But, that does not mean that the alteration should be made automatically. The authority who is entitled to either accept or reject the claim has to decide on merit and it goes without saying that when the petitioner has come forward with a case that his correct date of birth is 10.1.1951 and not 5.2.1949, it is for him not only to prove that his date of birth is 10.1.1951 which of course finds place in the municipal certificate, but he has also to prove that 5.2.1949 could not be his date of birth. 13. As correctly found by the second respondent, when there are records to show that the petitioner’s elder brother Regupathy was born on 3.2.1948, the petitioner has not proved that the date of birth of his elder brother is 5.2.1949 so as to come to a conclusion that the parents had furnished his elder brother’s date of birth erroneously. In any event, these are the decisions taken on a complete scrutiny and after thorough enquiry and it is the factual finding given by the second respondent who is the competent authority as per the Rules, and there is absolutely no reason to interfere with the same. Further, it cannot be said that the petitioner was not given opportunity. In fact, in the elaborate enquiry, the petitioner had participated and therefore, the contention of the learned counsel for the petitioner that the principles of natural justice have been violated is not sustainable. 14. In cases of alteration of date of birth, when the fact finding authority gives a decision on factual issue, it is not for this Court under Article 226 of the Constitution of India to convert the factual decision and come to a different conclusion. Moreover, https://hcservices.ecourts.gov.in/hcservices/ the decision of the authority under rule 49(a) either rejecting or allowing such a claim can be interfered with by this Court exercising the powers under the writ jurisdiction only if it is shown that either the finding has been arrived at perversely or in total defiance of the principles of law or in violation of the principles of natural justice. In the absence of any of these legal infirmities, it is not possible to accept the contention of the learned counsel for the petitioner and therefore, the petition deserves to be dismissed and accordingly, the same is dismissed. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. Kh To 1.The Special Commissioner cum Commissioner of Revenue Administration Chepauk, Chennai 600 009. 2.The District Collector Villupuram District Villupuram. + 1 CC TO The Govt., Pleader Sr 12331 + 1 cc to Mr.N.Suresh Advocate Sr 12062 Order in W.P.No.5380 of 2008 PA (CO) RH (3.3.10) https://hcservices.ecourts.gov.in/hcservices/