Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION (ST.) NO. 99753 OF 2020
PRABHAKAR YASHWANT SALVE
Aged about 54 years, Occupation: Service, R/at: Flat No. 5, 2nd
Floor, Suyog Kunj
Apt., Behind Dhanashri Hospital, S. No. 72, Samarth Nagar, Pune – 411 027.
…Petitioner
Maharashtra State Electricity Transmission
Company Ltd., Having its office at Administrative building, 3rd floor, Block No. 402, Rasta Peth, Pune – 411 011.
…Respondents
2. The Executive Engineer, building, 3rd floor, Block No. 925, Kasba Peth, Juna Bazar Road, 3. Superintendent Engineer building, 3rd floor, Block No. 405, Rasta Peth,
(Through G.P. High Court Bombay)
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Mr. Sagar Kasar - Advocate for the petitioner.
Abhijeet A. Joshi a/w Varsha Sawant – Advocate for the
Respondents 1 to 3.
Shri A. A. Alaspurkar – AGP for the Respondent-State.
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(VACATION COURT)
JUDGMENT
1. Heard. Rule. Rule made returnable forthwith. By the consent of the counsel for the parties, this Petition is being disposed of finally.
2. This Petition has been filed by the Petitioner seeking the following reliefs: (a) Rule be issued; (b) By appropriate writ/order/direction this Hon’ble Court be pleased to direct the Respondents to allow the Petitioner’s proposal dated 03rd April 2020 and further make a correct entry of date of birth of Petitioner as ‘12/03/1966’ and due date of superannuation as ‘31st March 2024’ in their service record;
(c) By appropriate writ/order/direction this Hon’ble
Court be pleased to direct the Respondents to decide the Petitioner’s proposal for correction of his date of birth in his service record forthwith before his superannuation i.e. 31st December 2020;
(d) By appropriate writ/order/direction this Hon’ble
Court be pleased to restrain the Respondents from retiring the Petitioner on 31st December 2020; (e) Pending the hearing and final disposal of this petition, this Hon’ble Court be pleased to restrain the Respondents from retiring the Petitioner on 31st December 2020; (f) Ad-interim in terms of prayer clause (e); (g) Costs be provided; (h) Any other just and equitable reliefs as this Hon’ble Court be deemed fit and proper in the interest of justice may be granted.
3. Petitioner is presently employed as Assistant Accountant with the office of the Maharashtra State Electricity Transmission Company Limited (“MSETCL ”) at their Pune office. Petitioner joined services of Respondent No. 1 on the post of “Tracer” on 03.10.1996. In his service record his date of birth has been recorded as 02.12.1962 on the basis of College Leaving Certificate as well as S.S.C. Board Certificate. Petitioner is due to retire from his service on 31.12.2020.
4. It is the case of the Petitioner that in the year 2018-2019, Petitioner discovered that the date of birth mentioned in his School Leaving Certificate and S.S.C. Board Certificate was not correct. He therefore, made an application before the Gram Panchayat Office Kharpur, Tal. Renapur, District Latur, where upon a certificate of non-availability of birth and death dated 12.10.2020 as well as another certificate dated 31.01.2019 was issued to the Petitioner by Gram Panchayat Office, Dharmapuri, Tal.– Parali-Vajnath, District - Beed. Petitioner then preferred an application by way of a claim under Section 13(3) of Birth and Death Registration Act, 1969 before the Court of J.M.F.C. at Renapur contending the non-availability of his date of birth entry. By an order dated 11.10.2019, the learned CJJD and JMFC, Renapur allowed the application made by the Petitioner stating that the date of birth of the Petitioner is 12.03.1966. Thereafter, Petitioner obtained a birth certificate dated 27.12.2019 bearing Petitioner’s date of birth as 12.03.1966 from Village Development Officer of the Gram Panchayat, Karepur.
5. On 03.04.2020, Petitioner made an application to the office of Respondent No. 1 requesting that based on the order of J.M.F.C., Renapur his correct date of birth be recorded as 12.03.1966 in his service record.
6. Petitioner has submitted that Respondent No. 2 vide his letter dated 30th April 2020 forwarded the Petitioner’s application and documents to the office of the Respondent NO. 3-Superintendent to take appropriate action on the Petitioner’s application. And thereafter, the Respondents have respectively vide letters dated 22.09.2020, 25.09.2020 and 05.10.2020 returned the proposal of the Petitioner for compliance and removal of the defects, which was reiterated by Respondent NO. 2, vide letter dated 18.11.2020/03.12.2020, further stating that if Petitioner fails to comply, Petitioner would be responsible for the same.
7. Petitioner submits that he has given explanations dated 16.12.2020 and 17.12.2020 to the office of the Respondents alongwith relevant documents in support of his claim, though admittedly at the fag end of his service. However, since there has been long delay at the instance of the Respondents in deciding the application, therefore this Petition.
8. Mr. Sagar Kasar, the learned counsel for the Petitioner submits that the date of birth in the service record i.e. 02.12.1962 which was entered in the Petitioner’s school admission record by his teacher or his Parents was without reference to any documentary evidence. He submits that the said date of birth of 02.12.1962 which was continued through out Petitioner’s service record and other documents because of which the date of his Superannuation in the service record has been mentioned as 31.12.2020. He further submits that considering the date of birth as 12.03.1966, the Petitioner’s due date of Superannuation ought to be 31.03.2024. He therefore urges that this Court be pleased to issue a Writ directing the Respondents to change the entry of date of birth and Superannuation in the service record of the Petitioner.
9. Per contra Mr. Abhijeet Joshi, learned counsel appearing for the Respondent-MSETCL submits that the issue involved in the Petitioner’s case is squarely covered by the decision of the Supreme Court in the case of Bharat Coking Coal Ltd & Ors. V/s. Shyam Kishore Singh reported in 2020 (3) SCC 411 and would submit that therefore the Writ Petition deserves to be dismissed.
10. We have heard the learned counsel for the parties, perused the papers and proceedings and also the decision of the Supreme Court in the case of Bharat Coking Coal Ltd (Supra).
11. Before we deal with the facts of this case, we draw our attention to the decision of the Supreme Court in the case of Bharat Coking Coal Ltd (Supra), where while dealing with a case of an employee, who in the year 2009, sought to change his date of birth entered in the service records just prior to his retirement from service on 31.12.2010 based on verification by the employer of the proposed date of birth of the employee as per claim accepted by the Bihar School of Examination Board, the Supreme Court observed as under: “9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble & Ors. (2010) 14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:
10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as hereunder; (SCC pp. 667 & 669, paraas 8 & 12) “8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he 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. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh
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12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book.”
12. In the facts of this case also, it is undisputed that Petitioner’s date of birth is recorded as 02.12.1962 in the service book and has remained so from the date of his appointment on 03.10.1996. Even the School Admission Register of ZP Central Primary School, Karapur, SSC Certificate, the School Leaving Certificate which form the basis of the Petitioner’s appointment to the employment contain the date of birth as 02.12.1962. Based on this, his date of retirement is mentioned as 31.12.2020 as entered in the service record. Just prior to his retirement, in April 2020, Petitioner had filed an application/proposal with the Respondent No. 1 seeking change in his date of birth as 12.03.1966. In our view the same is not appropriate as more than 23 years had elapsed from the date of employment and it is settled law that if a particular date of birth is entered in the service register, a change cannot be entertained at the fag end of service after accepting the same to be correct during this entire period.
13. Though Petitioner relies on the order passed by the Learned CCJD and JMFC, Renapur allowing the claim of the Petitioner made under Section 13(3) of the Birth and Death Registration Act, 1969 and consequent birth certificate dated 27.12.2019 for change of date of birth to 12.03.1966, there is no material on record to indicate that the said document had been produced before the employer at the time of joining employment. In that background, the service record maintained by Respondent No. 1 discloses that the date of birth indicated in the document is 02.12.1962 which has been furnished by the Petitioner himself.
14. Therefore, in accordance with the decision of the Supreme Court in the Bharat Coking Coal Ltd. case (supra), Petitioner’s prayer for change in date of birth in the service register and consequential change of date of retirement cannot be entertained at the fag end of service after accepting the same to be correct during the entire service. Also, merely because an order has been passed by the Ld. CCJD and JMFC, Renapur allowing the application of the Petitioner made by way of a claim under Section 13(3) of the Birth and Death Registration Act, 1969 for change of date of birth to 12.03.1966, such change at this stage is impermissible. Moreover, the Petitioner’s counsel has not brought to the notice of this Court the relevant provision which enables JMFC to entertain the proceedings which were initiated by the Petitioner.
15. In this view of the matter, we do not find any merit in the contentions raised in the Petition. Writ Petition is accordingly dismissed. Rule is discharged. There will however, be no order as to costs.
16. This order will be of this Court. All concerned will act on production by fax or e- [ABHAY AHUJA, J.] [S. S. SHINDE, J.] Smita