IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.04.2011 CORAM: THE HON’BLE MR. JUSTICE N.PAUL VASANTHAKUMAR W.P.No.4084 of 2009 T.Ravichandran .. Petitioner -vs- 1.Director of School Education Chennai 6. 2.Joint Director of School Education (Personnel) Chennai-6. .. Respondents PRAYER The Writ Petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus to call for the records relating to the order passed by the first respondent in Na.Ka.No.49593/C2/E2/08 dated 19.9.2008, confirming the order passed by the second respondent in Na.Ka.No.98209/C 5/C 19/04 dated 4.7.2006, and quash the same, and direct the respondents to alter the date of birth of the petitioner as 2.3.1959, instead of 11.5.1956 in the Service Register, with a further direction to allow the petitioner in service as per the altered date of birth. For Petitioner : Mr.C.Selvaraju, Sr.Counsel for Mr.S.Mani For Respondent : Mr.K.H.Ravikumar, G.A. O R D E R The prayer in the Writ Petition is to quash the order dated 19.9.2008, passed by the first respondent confirming the order of the second respondent dated 4.7.2006 and direct respondents to alter the date of birth of the petitioner as 2.3.1959, instead of 11.5.1956 in the Service Register. 2.The case of the petitioner is that he was born on 2.3.1959; his father was a Teacher and his father had two elder children, first one https://hcservices.ecourts.gov.in/hcservices/ is a male and the second one is a female. The petitioner claims to be the third child. According to the petitioner, his elder brother was born on 11.10.1950 and his elder sister was born on 22.11.1953. Their dates of birth were also entered in the Birth Registrar maintained by the Erode Municipality. However, the petitioner's date of birth was not registered in that Registrar as he was born in a village. The horoscope was prepared and in the horoscope, the petitioner's date of birth is entered as 2.3.1959, which according to the petitioner is the correct date of birth. The petitioner was admitted in the School in the year 1963 and according to the petitioner, at that time, his elder sister was studying in VI standard. According to the petitioner As the petitioner's father and the Headmaster of the school of the School happened to be the teaching community, the Headmaster entered the petitioner's date of birth as he liked and the petitioner's father also did not verify the entry School Register about the petitioner's date of birth. On completion of 5th standard, when the petitioner's Transfer Certificate was given, petitioner's father noted that the date of birth was entered as 11.5.1956 and immediately he made a representation to the District Educational Officer, Gobichettipalayam, for correction. However, the said representation was not considered. The petitioner's father again submitted a representation to consider the representation to the District Educational Officer, Gobichettipalayam, and prayed for correction of the date of birth of the petitioner. The District Educational Officer has rejected the said request on 24.7.1969 and again on 19.8.1969. The petitioner joined in the Government Higher Secondary School, Gobichetiyapalayam in August, 1969 and according to the petitioner his father was advised to submit an Application for alteration of date of birth through the Headmaster of the said School. Accordingly, the petitioner's father submitted a representation to the District Educational Officer, which was also rejected on 1.11.1973. The petitioner's father thereafter applied to the Revenue Divisional Officer, Gobichettipalayam on 19.3.1974. According to the petitioner, the Revenue Divisional Officer forwarded the papers to the Tahsildar, Tahsildar in turn called for a report from the Revenue Inspector and based on the order passed by the Tahsildar, the petitioner's date of birth was entered in the Birth Register as 2.3.1959. 3.Accoring to the petitioner he was not given with any birth extract. He approached the Director of School Education on 12.7.1976 to correct the entry made in S.S.L.C.Book regarding the date of birth, which was returned on 27.7.1976. After leaving the School, the petitioner joined in the college and attended regular B.A.degree course. After passing B.A., M.A. and M.Ed. Degrees, the petitioner registered his name in the Employment Exchange mentioning the petitioner's date of birth as 11.5.1956. While awaiting for employment opportunity, the Teachers Recruitment Board called for Applications from the 'open market' for the post of B.T.Assistant, selection was made, pursuant to which the petitioner was selected and appointed as https://hcservices.ecourts.gov.in/hcservices/ Block Resources Teacher on 19.7.2002 and thereafter the post was converted as B.T.Assisant in the year 2006. 4.According to the petitioner he applied within five years of entry into Government service, i.e. on 19.4.2004, for alteration of his date of birth. However, the same was returned with a remark to re- submit the same with original of the birth extracts of the petitioner's brother and sister. Thereafter, the petitioner was directed to furnish the details in a format. In the format, the petitioner was asked to mention the names of two elderly persons and also to get statements from them. According to the petitioner the Revenue Department officials however, failed to examine the said two elderly persons and sent a report to the Department recommending for rejection of the petitioner's request. Based on the same, petitioner's request was rejected on 4.7.2006. The petitioner preferred appeal, which was also rejected by the first respondent on 19.9.2008. 5.The said orders are challenged in this Writ Petition on the ground that the Revenue Divisional Officer has not examined the two elderly named persons stated in the format, the report was drawn on the basis of presumption and assumption and the same could not have been relied upon for rejecting the petitioner's request seeking alteration of date of birth. 6.The respondents have filed a counter affidavit stating that the petitioner was appointed as Training Officer in S.S.A. Project Office at Erode District on 1.7.2002 and he was transferred as B.T.Assistant to Government High School, Kurumbapalayam, Erode District in the year 2006. The petitioner's father who was working as a Teacher, would have known about the Rules and Regulations with regard to the admission of the children to the Schools and with full knowledge he gave the petitioner's date of birth as 11.5.1956, at the time of admission in the School which was also entered in the School Records. It is to be noted that the School Records have not been corrected till date and based on the entry made in the School Records, his date of birth was entered in his Service Register. As the Application for alteration of date of birth having been made within the period of five years of the petitioner's entry into Government service, the said Application was considered and order was passed based on the report received from the Revenue Divisional Officer. It is also stated in the counter affidavit that at the time of admission of the petitioner in the first standard, his date of birth was entered as 11.5.1956 and the said entry was made on 12.6.1963, the date of admission. If the date of birth is to be altered as 2.3.1959, at the time of admission i.e. on 12.6.1963, the petitioner would be aged only four years and three months, which is not the eligible age for admission in the first standard and as per Tamil Nadu Education Rules. According to the said Rule, one should have completed five years of age as on 1st July of the academic year. The Revenue Divisional Officer having conducted enquiry which is a https://hcservices.ecourts.gov.in/hcservices/ mandatory requirement under the Rules, the Application seeking to alter the date of birth as per the provisions contained under Rule 49 of the Tamil Nadu State and Subordinate Service Rules and passed orders, which is just and proper. The Appellate Authority also considered the said issue and rejected the plea for alteration of date of birth. 7.Heard the learned counsel for the petitioner and the learned Government Advocate for the respondents. 8.For satisfaction, this Court called for a report submitted by the Revenue Divisional Officer dated 12.4.2006, which was the basis for rejecting the claim of the petitioner. In the said report, it is stated that the petitioner's elder brother Somasundaram was born on 11.10.1950 and his date of birth was entered in the Birth and Death Register of the Erode Municipality. Similarly the petitioner's elder sister's date of birth was also entered in the Birth and Death Register as 22.11.1953, however petitioner's father's name was entered as Dhakshinamurthy, which was subsequently changed as P.S.Thandavamurthy. Further, in the S.S.L.C. certificate of the petitioner's elder brother, the date birth entry is mentioned as 01.09.1950 and he was serving in the Agricultural Department as Assistant Director. In the S.S.L.C. Book of the petitioner's sister Tmt.Chitra, her date of birth is mentioned as 01.01.1953. and the petitioner's date of birth was entered as 11.5.1956 in the S.S.L.C. certificate which was also furnished by the petitioner's father who was a teacher. 9.In the light of the said report as well as the finding that if 11.5.1956 was taken as the date of birth of the petitioner, he should have been within the age of 16 years, at the time when he appeared for the 11th standard S.S.L.C.Examination, which is not permissible. The date of birth entry made in the Birth Register after 16 years also causes suspicion which is stated by the Revenue Divisional Officer in his report. 10.Thus, the petitioner has not shown any unimpeachable evidence much less acceptable evidence to correct his date of birth. The Supreme Court in the decision reported in (1993) 2 SCC 162 [UNION OF INDIA Vs. HARNAN SINGH] considered the similar issue and in paragraph 7, it is held as follows: "7. A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A https://hcservices.ecourts.gov.in/hcservices/ Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied to by the courts and tribunals. It is nonetheless competent for the Government to fix a time limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam v. Daksha Prasad Deka MANU/SC/0490/1970 : (1971) ILLJ554SC , a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. This court said : para 4 of AIR: The date of compulsory retirement under F.R. 56(a) 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 consistent with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record, and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record." 11.Again in the decision reported in 1994 Supp (1) SCC 155 https://hcservices.ecourts.gov.in/hcservices/ [SECRETARY AND COMMISSIONER, HOME DEPARTMENT AND OTHERS Vs R.KIRUBAKARAN], wherein in paragraph No.7, it has been held as follows: "7.An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in officer, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, than such application must be filed within the time, which can be held to be reasonable. The application has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus in on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, https://hcservices.ecourts.gov.in/hcservices/ he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior." 12.Similar is the view taken by the Supreme Court in the 0decision reported in (1997) 4 SCC 647 [ UNION OF INDIA Vs. C.RAMA SWAMY AND OTHERS] and in paragraph No.25, it has been held as follows: "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, an older person is ordinarily 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 relevant consideration to assess his suitability." 13.All the aforesaid decisions were followed by the Hon'ble Supreme Court in the decision reported in (2010) 6 SCC 482 [PUNJAB & HARYANA HIGH COURT AT CHANDIGARH Vs MEGH RAG GARG AND ANOTHER]. The evidenciary value of the entry made in S.S.L.C.Book with regard to the date of birth is also considered by the Supreme Court in the decision STATE OF M.P. v. MOHANLAL SHARMA (2002) 7 SCC 719. A similar case as to whether such records can be discarded while considering the date of birth of a Government servant was considered in the decision reported in (2005) 3 SCC 702 [STATE OF PUNJAB Vs. MOHINDER SINGH] and in paragraph Nos. 12 and 13 it has been observed as follows: "12.On the contrary, the statement contained in the admission register of the school as to the age of an https://hcservices.ecourts.gov.in/hcservices/ 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 need 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 case the entries in the school register were made ante litem modam." 13.As there is no unimpeachable evidence available in support of the petitioner and the claim of the petitioner seeking correction of the date of birth which is not the date of birth mentioned in the S.S.L.C.Book is unsustainable. Applying the said Judgments to the facts of this case, no case is made out to interfere with the order impugned in this Writ Petition. 14.Accordingly, the Writ Petition fails and the same is dismissed. However, there will be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rpa https://hcservices.ecourts.gov.in/hcservices/ TO 1.Director of School Education Chennai 6. 2.The Joint Director of School Education (Personnel) Chennai-6. +1cc to Mr.S.Mani, Advocate Sr 26360 +1cc to Govt. Pleader Sr 26110 KJI(CO) km/18.5. W.P.No.4084 of 2009 https://hcservices.ecourts.gov.in/hcservices/