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Judgment
Honourable Mr. Justice Vinod K. Sharma
On the oral request of the petitioner, the State of Tamil Nadu through its Principal Secretary, Higher Education Department, is impleaded as
party to this writ petition. The petitioner has approached this Court, with a prayer for issuance of a writ in the nature of Mandamus, directing
respondents to rectify the error in the date of birth of the petitioner, which was wrongly entered in her service register and other relevant records as
28.09.1954 instead of 02.07.1956.
The petitioner submits that she was born on 02.07.1956 at Ponkurichi Kallupatti Village, Rasipuram Taluk, Namakkal District. The date of birth
registered with the Registrar of Birth and Death, is 05.07.1956. However, at the time of her admission to elementary school, her date of birth was
wrongly entered as 28.09.1954. This date of birth was thereafter recorded in the SSLC certificate and all other documents.
The petitioner joined as Lecturer in the Government Arts College for Men at Namakkal on 26.03.1993 through the Teaching Recruitment
Board. She was thereafter transferred to Thiruvalluvar Government Arts College for Men, Rasipuram, where she is working till date.
The case of the petitioner is that on coming to know about the actual date of birth, she issued a legal notice through counsel for correction of her
date of birth. In response to the legal notice, the petitioner was informed to proceed in accordance with Rule 49 of the Tamil Nadu State
Subordinate Service Rules.
Rule 49 of the Tamil Nadu State Subordinate Service Rules reads as under:
Alternation 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 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 bonafide 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.
The petitioner, instead of availing remedy under Rule 49, filed O.S. No. 18 of 1998 in the Court of District Munsiff Court, Rasipuram, which ws
decreed exparte. On an application filed by the defendant in the suit, the exparte decree was set aside.
In view of the objection by the defendants about maintainability of the suit, the petitioner withdrew the suit with liberty to file fresh one on the
same cause of action.
The case of the petitioner is that within 5 years of joining service, the petitioner moved an application under Rule 49 of the Tamil Nadu State
Subordinate Service Rules, but till date no action has been taken thereon.
Learned Counsel for the petitioner vehemently contends that the reading of Rule 49 of the Tamil Nadu State Subordinate Service Rules shows,
that it is statutory obligation of the respondents to consider the request made by the petitioner, by following the procedure laid down under Rule 49
of the Tamil Nadu State Subordinate Service Rules, which has not been done.
In the counter, the stand taken by the respondents is that the application of the petitioner along with enclosures, has been forwarded to the
Commissioner of Revenue Administration, vide letter R.C. No. 71314/D2/2000 dated 24.06.2011 for verification, and the report of the
Commissioner of Revenue Administration is awaited. As and when it is received, it will be forwarded to appointing authority for necessary action in
this regard.
In view of the stand taken by the respondents in their counter, this writ petition is disposed of by directing respondents to take a final decision
on the application made by the petitioner within a period of two months of the receipt of certified copy of this order. It is made clear that the
decision be positively taken within a period of two months, as the petitioner is retiring from service in the month of September, 2012. No costs.