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Judgment
M. Venugopal, J.—The Petitioner has preferred the instant Writ of Certiorarified Mandamus to call for the impugned order bearing Na. Ka.
No. 8566/04/H-1 dated 25.7.2005 passed by the Third Respondent and to quash the same as illegal, improper and unreasonable one. Further, he
has sought for passing of an order by this Court in directing the Respondents to permit him to continue in service till his attaining the age of
superannuation on 31.7.2010 and to pay him all service and other monetary benefits. The Petitioner joined as Sanitary Worker in the Third
Respondent/Thindivanam Municipality on 01.04.1974. At the time of his joining duty in the Municipality, he was examined by the Doctor to
ascertain his age and his age was fixed by the Doctor as 24 as on 01.04.1974 because of the non-availability of the records on the date of his
joining. It is the case of the Petitioner that the Sanitary Inspector, who worked in the Third Respondent/Municipality, prepared a list of Sanitary
Workers working in the Municipality, their date of birth, date of joining into service, date of retirement and the date of commencement of pension
in regard to the workers. In the list so prepared by the Sanitary Inspector, the Petitioner''s name found place in Serial No. 10 and his P.F. Number
was mentioned as 276. In the list, his date of birth was mentioned as 01.07.1950, date of joining into service as 01.04.1974 and the date of his
retirement was mentioned as 01.07.2010.
Although on the side of the Petitioner, the Learned Junior Counsel on behalf of his Senior, has sought for adjournment of the Writ Petition, this
Court has not acceded to his request, since already on earlier occasion, the Writ Petition was adjourned from 31.7.2013 go 01.8.2013.
The primordial stand taken on behalf of the Petitioner is that he studied upto V Standard at Thiruvellore Uyardhana Primary School,
Kamvambakkam, Thindivanam Taluk and the School issued duplicate record sheet on 22.12.1972 in which, his date of birth was mentioned as
03.07.1950 and as such, his date of birth was wrongly mentioned as 03.10.1942. The Certificate was issued on 24.05.1982. At the time of his
joining service, the Original Certificate issued by the Thiruvellore Uyardhana Primary School, Kamvambakkam, on 22.12.1972 was not available.
As such, the Doctor was perforced to fix the Petitioner''s age as 24 years on 01.04.1974 and his date of birth was determined as 01.07.1950 as
per duplicate Certificate.
To the shock and surprise of the Petitioner, the Third Respondent issued the impugned order to him on 25.07.2005 stating that his date of
retirement was fixed as 31.10.2005 though he was still having another five years of service. The ground of attack projected on behalf of the
Petitioner is that the Third Respondent issued the impugned order on 25.07.2005 without any basis. Also, he could not comprehend on what basis
his date of retirement was determined as 31.10.2005. He submitted a representation to the Third Respondent during the month of August 2005
mentioning that he had another 5 years of service. Once again, on 29.08.2005, narrating all the details, he made a representation stating that the
Third Respondent has mistakenly fixed his date of retirement as 31.10.2005.
In response, the Learned Counsel for the Third Respondent/Municipality submits that the List of all Sanitary Workers, with date of birth and
educational qualifications, who were eligible for promotion to the post of Sanitary Supervisors was prepared and as per seniority list, the Petitioner
was not eligible for promotion to the post of Sanitary Supervisor inasmuch as he crossed the age of 26 years which fact was informed to him
through letter dated Lr. ROC. No. 10642/89/CL dated 03.05.1990 wherein it was indicated that his date of birth was 03.10.1945. If at all the
Petitioner was aggrieved of the said order, he ought to have immediately raised objections or reported the matter to the Department regarding the
dispute of his date of birth. However, he had not resorted to such a course. In fact, the Petitioner''s date of birth was recorded as 03.10.1945 only
in accordance with the Certificate produced by him.
It is brought to the notice of this Court by the Learned Counsel for the Third Respondent/Municipality that the Petitioner was permitted to retire
from service on 03.10.2005 vide the Third Respondent''s office proceedings ROC. No. 8566/04/H1 dated 28.10.2005 as per the Government
letter No. 154/F.S. Dated 24.05.1995. Even as per the ingredients of Rules 49 and 49.A of the Tamil Nadu State and Subordinate Service Rules,
any individual who is aggrieved by the wrong date of birth, should file his objections within five years of his joining the office. The Petitioner at a
belated point of time, especially at his own whims and fancies, cannot approach this Court in seeking the remedy in issue. Continuing further, the
Petitioner got superannuated already and he was given the promotion as per order dated 21.07.2007 in W.P. No. 35568 of 2002. He made use
of the same Educational Certificate for considering his promotion and obtained necessary orders regarding the benefits due to promotion.
At this juncture, this Court pertinently points out that Rule 49 of the Tamil Nadu State and Subordinate Service Rules speaks of ''Alteration of
date of birth'' and the relevant portion is extracted as under:
Alteration of date of birth - (a) if, at the time of appointment, a candidate claims that his date of birth is different from that entered in his
S.S.L.C. 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 a 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 scrutinize 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.
(b) After a person has entered service, an application to alter the date of his birth as entered in the official records shall be entertained only if such
an application is made within five years of such entry into service. Such an application shall be made to the authority competent to make an
appointment to the post held by the applicant at the time of his application and shall be disposed of in accordance with the procedure laid down in
sub-rule(a).
(c) Any application received after five years after entry into service or any application, which is not supported by entries in Secondary School
Leaving Certificate, School, College or University records, birth extract from the records of local bodies or military discharge certificates, shall be
summarily rejected.
Also, Rule 49.A(1) of the Tamil Nadu State and Subordinate Service Rules under the caption ''Correction of date of birth'' enjoins as follows:-
49.A.(1) Correction of date of birth - After a person has entered service, if it is found that his date of birth entered in his Service Register is
different from that entered in the Secondary School Leaving Certificate or Military Discharge Certificate, which may be due to some clerical error
or otherwise wrong entries, application for correction of such clerical error or wrong entries, shall be made to the appointing authority. Such
corrections in the Service Register shall be made straightway by the appointing authority. If the date of birth in the Service Register was entered on
the basis of the Secondary School Leaving Certificate, correction of clerical error or wrong entries shall be made only with reference to Secondary
School Leaving Certificate and if the date of birth in the Service Register was entered on the basis of the Military Discharge Certificate, correction
of clerical error or wrong entries shall be made only with reference to the Military Discharge Certificate. Where the Secondary School Leaving
Certificate and the Military Discharge Certificate contain different dates of birth, the date of birth entered in the Secondary School Leaving
Certificate shall be accepted. But the date of birth entered in the Military Discharge Certificate shall be accepted in the absence of the Secondary
School Leaving Certificate.
At this Stage, this Court recalls the decision of the Bombay High Court in Aurangabad District Central Co-operative Bank Ltd. Vs. Damodar
Jadhav, ] wherein at page 1045, it is observed as follows:
The High Court observed that persons holding offices in public employment could not be permitted to seek change in the date of birth at the fag
end of the service career.
Further, this Court aptly points out the decision of the Hon''ble Supreme Court in Director of Technical Education and another Vs. Smt. K.
Sitadevi, wherein it is held that
What is the date of birth is undoubtedly a question of fact and so all kinds of evidence and factors can be looked into for its determination.
As far as the present case is concerned, admittedly, the Petitioner was examined by the Doctor at the time of his joining duty during the year
1974 and his age was fixed as 24 years. However, the Petitioner claims that his date of retirement is 31.07.2010 and his date of birth was fixed as
01.07.1950. Fixing his date of retirement as 31.10.2005, according to the Petitioner, is without any basis.
The Petitioner produced E.S.L.C. School Certificate with Register No. 1725 in the year 2001 in which his date of birth was mentioned as
03.10.1945. The said Certificate was scrutinized and audited by the Local Fund Audit Department. After confirming the correctness of the date of
birth of the Petitioner, the Local Fund Audit Authority recorded the date of birth of the Petitioner as 03.10.1945 instead of 01.07.1950, in his
Service Register. Even in Letter No. Lr. ROC. No. 10642/89/CL dated 03.05.1990, the Third Respondent/Municipality informed the Petitioner
that his date of birth was 03.10.1945. Any alteration of date of birth or correction of date of birth of an employee/individual in service is to be
made through an application within five years of entry into service. If any application is received after five years after entry into service, which is not
supported by entries in Secondary School Leaving Certificate, College or University records, birth extract from records of local bodies, etc. shall
be summarily rejected in terms of Rule 49(c) of the Tamil Nadu State and Subordinate Service Rules. Be that as it may, in view of the fact that the
Petitioner in the instant case, has not made any endeavour to correct his date of birth or to make any alteration as regards his date of birth within a
period of five years of his entry into service in terms of Rule 49 and 49.A of the Tamil Nadu State and Subordinate Service Rules and this Court
taking note of a very vital fact that the Petitioner himself produced E.S.L.C. School Certificate with Register No. 1725 in the year 2001 in which
his date of birth is mentioned as 03.10.1945 and also this Court, taking note of the facts and circumstances of the present case in an attendant
fashion, holds that the Petitioner is not entitled to claim the relief of questioning the notice of retirement dated 25.07.2005 issued by the Third
Respondent, etc. as prayed for in the Writ Petition. Consequently, the Writ Petition fails.
In the result, the Writ Petition is dismissed leaving the parties to bear their own costs.