Syed Ibrahim Sha vs The Secretary to Government Revenue Department, The Special Commissioner and Commissioner for Revenue Administration and The District Collector

Vinod K. Sharma, J.—The Petitioner prays for issuance of a Writ in the nature of Certiorari, to quash the order, dated 21.03.2005, passed

by the second Respondent(wrongly mentioned as third Respondent).

The case of the Petitioner is that he was appointed as Typist in Fair Copy Section in the Office of the Collector, Virudhunagar District on

28.11.1995 through Tamil Nadu Public Service Commission. The Petitioner was promoted as Assistant w.e.f.29.12.2001. At the time of entry

into service, the date of birth of the Petitioner was recorded as 26.05.1963, whereas, the actual date of birth of the Petitioner is 29.09.1964.

The basis for claim, is that the marriage of the Petitioner''s parents solemnized only on 08.05.1963, therefore the presumption is to be drawn

that the date of birth of Petitioner cannot be 28.11.1995.

The case of the Petitioner is that his date of birth was wrongly recorded in the School Register, at the time of his admission. The case of the

Petitioner, further is that on 20.05.1999, application was filed for correction of his date of birth. The report was called for from the Revenue

Divisional officer and on the basis of the report, the application was rejected.

The Petitioner preferred an appeal against the order of rejection. Vide impugned order, the appeal of the Petitioner was ordered to be

dismissed, as no appeal was competent.

It is not disputed by the learned Counsel for the Petitioner, that there is no provision for appeal against the order of rejection, therefore, no fault

can be found with the order impugned in this Writ Petition.

The learned Counsel for the Petitioner also challenged the basic order, vide which the application of the Petitioner for change of his date of birth

was rejected. Even though, normally it is not permissible to raise the points at the time of argument, which are not raised in the Writ Petition, and

does not form part of the prayer, since the Writ Petition was admitted in the year 2006, the contention raised by the Petitioner are being

considered on merits.

The basic order rejecting the Petitioner''s claim records that the name of the Petitioner did not find mentioned in the birth register, though the

name of the his other brothers were shown in the birth register maintained under the Tamil Nadu Births and Deaths Registration Act, 1969.

The other ground for rejection is that the application was barred by limitation, as it was filed beyond the period prescribed for change of date of

birth.

The learned Counsel for the Petitioner vehemently contended, that the Petitioner had joined the service on 28.03.1995, whereas, the

application for correction was submitted on 20.05.1999, therefore, it was within the period prescribed under the rules, thus the impugned order

deserves to be set aside, being based on wrong facts.

It is also the contention of the learned Counsel for the Petitioner, that the authorities wrongly rejected the application of the Petitioner, though

the birth certificate issued under the Tamil Nadu Births and Deaths Registration Act, 1969, was produced showing the actual date of birth.

On consideration, I find force in the contentions raised by learned Counsel for the Petitioner.

Section 49(b) of the rules regarding change of date of birth, reads as under:

Altercation of date of birth.--(a) If, at the time of appointment, a candidate claims that the date of his 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 here lies and explaining how the mistake occurred. The application shall be forwarded to the Board of Revenue 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 Commissioner the

appointing authority, as the case may be, shall decide whether the altercation 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 Board of Revenue shall bed is

pended with and the Tamil Nadu Public Service Commissioner 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 altercation 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).

A reading of the impugned order show that the application was filed by the Petitioner on 20.05.1999,whereas Petitioner was appointed on

29.11.1995, the application therefore, was filed within the period of five years. The findings in the impugned order, are perverse and contrary to

the record.

The other reason for rejection of the claim of the Petitioner also cannot be sustained, as it is not disclosed as to how the authorities came to a

conclusion that the name of the Petitioner did not find mention in the birth register, as the Petitioner had placed on record the certificate issued u/s

17 of the Tamil Nadu Births and Deaths Registration Act, 1969. The presumption of truth is attached with the Births and Deaths Register.

The impugned order therefore, suffers from an error apparent, being contrary to the facts brought on record, thus, is arbitrary and outcome of

colorable exercise of power.

Consequently, the Writ Petition is allowed. The order dated 21.03.2005 is set aside, and the case is remitted back to the competent authority,

to consider the application filed by the Petitioner afresh in accordance with law, and pass a, detailed speaking order showing as to how the

application filed by the Petitioner was belated or as to why the certificate issued by the Registrar of Births and Deaths could not be relied upon.

No costs.