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Judgment
Honourable Mr. Justice P. Jyothimani
The writ Petitioner is stated to have been employed in the Census scheme from 1981 to 1982 on consolidated pay. However, ultimately by the proceedings of the fourth Respondent, the District Collector, dated12.03.2010, she was appointed as Office Assistant in the third Respondent College which is a Government College and joined in the said capacity on 22.04.2010. According to her, her correct date of birth is 24.02.1953. However, in the Secondary School Leaving Certificate, it is mentioned as 03.05.1951. Therefore, at the time of joining, she has specifically informed that her correct date of birth is24.02.1953 and produced a certificate issued by the Madurai Corporation. It is seen that she has also filed a suit simultaneously in the Madurai Town Music Court, in O.S. No. 890 of 2010 for a declaration that her date of birth is 24.02.1953 and for a mandatory injunction directing the respondents to register her date of birth in the service register. It appears that an exporter decree was passed on28.03.2011 by the Civil Court. However, it is seen that the respondents have filed I.A. No. 249 of 2011 to condone the delay of 32 days in filing an application to set aside the exparte decree dated 30.05.2011 which is still pending. In the meantime, since the impugned order has been passed by the third Respondent in relieving her with effect from31.05.2011 on the basis of her date of birth as 03.05.1951,she has filed the present writ petition challenging the said order and also for a direction against the Respondents3 and 4 to continue her in the post of Office Assistant in the third Respondent college, till 24.02.2013.
It is true that the appointment made in the third Respondent college in respect of the Petitioner by the fourth Respondent in the order, dated 12.03.2010 is a temporary appointment under Rule 10(A)(1).
Rule 49 of the Tamil Nadir State and Subordinate Service Rules, is as follows:
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 Nadir 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 Nadir 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 Nadir the in visitation through the Commissioner of Revenue Administration shall be dispensed with and the Tamil Nadir 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 with in 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 records of local bodies or military discharge certificates, shall be summarily rejected.
d)In considering the question of permitting an alteration on the date of birth as entered in the official records even when such entry is proved to have been due to a bona fide mistake, the Government or the appointing authority shall take into consideration the circumstance whether the applicant would normally be eligible for appointment to the post at the time of entry into service had his age been correctly stated and what would have been its effect on his service and the service conditions of other officers in the service and may permit the alteration subject to such condition as they or it may deem fit to impose.
Provided that the Tamil Nadu Public Service Commission shall be consulted in the case of an applicant who has been initially recruited through the Tamil Nadu Public Service Commission, if it is proposed to accept his request for alteration of date of birth.
e)The Procedure laid down in Sub-rule (a)shall be followed in all cases where alteration of date of birth is proposed suo motu by the Head of Office on the basis of medical opinion, in the absence of any other authoritative records.
Explanation: For the purpose of this sub-rule "authoritative records" are the secondary school leaving certificate or University, College, or School records or Discharge Certificate of Army.
(f)The decision of the Tamil Nadu Public Service Commission, the appointing authority or the Government, as the case may be, shall be final.
Therefore, any application filed before the Government by an employee within five years for the purpose of alteration of date of birth can be entertained, if the same is filed within five years from the date of entry into service and therefore, it is the fourth Respondent who is entitled to consider the said application along with the various certificates which might be produced by the petitioner to substantiate her contention about the date of birth. Mere pendency of a suit filed by the Petitioner will not take away such power and jurisdiction of the District Collector, the fourth Respondent, to consider such application irrespective of the claim made by the petitioner in the civil suit.
In such view of the matter, without going into the legality or otherwise of the impugned order, the petitioner is permitted to make necessary application to the fourth Respondent, within a period of two weeks from the date of receipt of a copy of this order by way of representation as per Rule 49 and in such event, the fourth respondent shall consider the same and pass appropriate orders on merits and in accordance with law without reference to the pendency of the civil suit, within four weeks thereafter.
With the above direction, the writ petition is disposed of. No costs. Consequently, connected miscellaneous petitions are closed.