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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH
Manish Pitale, J.
Mayaram s/o Sahajram Sadhwani – Petitioner
Versus
The Collector, Washim Dist. Washim and ors. – Respondents
Writ Petition No. 1015 of 2018
Decided On : 15-09-2022
Rule - Date of Birth Alteration - Maharashtra Civil Services (General Conditions of Services) Rules, 1981 - Rule 38 - Summary of Acts and Sections: The court discussed the application of Rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981, and relevant Government Circulars in the context of altering the date of birth of an employee towards the end of their service career. The court also considered the legal principles established in the cases of Union of India vs. Harnam Singh 1993 (2) SCC 162 and Shankar Lal vs. Hindustan Copper Ltd. and others (Civil Appeal No. 2808 of 2022) to determine the employer's authority to alter the date of birth of an employee.
Fact of the Case:
The petitioner, an Octroi Inspector with the Municipal Council, challenged the alteration of his date of birth from 14/07/1948 to 14/07/1946, resulting in his retrospective retirement from 31/07/2004. The petitioner argued that the alteration was made at the end of his service career and that the rule allowing alteration within five years of joining service should equally apply to the employer. The petitioner also claimed that the Municipal Council had accepted his explanations about his date of birth throughout his service career.
Finding of the Court:
The court found that the alteration of the petitioner's date of birth was not illegal or unsustainable, given the documents showing his date of birth as 14/07/1946, including school leaving certificates and birth date certificates. The court also noted the petitioner's suppression of vital documents and the suspicious nature of purported note-sheets provided by the petitioner. The court dismissed the writ petition, ruling that the petitioner failed to make a case for interference in the concurrent orders passed by the authorities.
Issues: The issues revolved around the alteration of the petitioner's date of birth, the application of Rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981, and the employer's authority to alter an employee's date of birth towards the end of their service career.
Ratio Decidendi: The court held that the employer's authority to alter an employee's date of birth towards the end of their service career is not precluded by the five-year limitation for alteration specified in Rule 38 of the Maharashtra Civil Services (General Conditions of Services) Rules, 1981. The court also emphasized the significance of documents showing the petitioner's date of birth as 14/07/1946 and the petitioner's suppression of vital documents.
Final Decision: The court dismissed the writ petition, ruling that the petitioner failed to make a case for interference in the concurrent orders passed by the authorities. The Rule was discharged.
JUDGMENT :
Rule. Rule is made returnable forthwith. Heard finally with the consent of learned counsel appearing for rival parties.
2. The petitioner-in-person in the present petition has challenged concurrent orders passed by the respondent No.1 – Collector and the respondent No.4 – Divisional Commissioner, whereby an order passed by the respondent No.2 – Chief Officer, treating the date of birth of the petitioner as 14/07/1948, has been set aside and it has been held that the date of birth of the petitioner was 14/07/1946, thereby, holding that he stood correctly retired w.e.f. 31/07/2004. The principal contention raised by the petitioner is that his date of birth could not have been changed to his detriment at the fag end of his service career and that the rule applying to the employee to seek change in date of birth within five years of joining service, equally applied to the employer.
3. The petitioner was appointed as Octroi Inspector with the respondent No.3 – Municipal Council, Karanja (Lad), District Washim. In the service book, his date of birth was recorded as 14/07/1948. On the basis of the said date of birth, he was supposed to retire from service on 31/07/2006. The Chief Officer of the Municipal Council issued communications dated 26/05/2005, 07/06/2005 and 17/06/2005, to the petitioner to submit cogent proof about his date of birth being 14/07/1948, as doubts arose about the genuineness of the said claim.
4. According to the Municipal Council, when it was found that other than one document, issued by K. N. College, Karanja (Lad), all other documents obtained from the school and institutions attended by the petitioner showed his date of birth as 14/07/1946, the Chief Officer of the Municipal Council issued a letter dated 27/06/2005 to the petitioner stating that he stood retired retrospectively from 31/07/2004 and a direction was also issued for recovery of excess amount paid to the petitioner, beyond the aforesaid date i.e. 31/07/2004.
5. Aggrieved by the aforesaid action of the Municipal Council, the petitioner approached the respondent Commissioner by filing revision under Section 318 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965. The said revision application was allowed by the Additional Commissioner by order dated 07/12/2011, thereby setting aside the aforesaid communication dated 27/06/2005. It was directed that the petitioner shall be deemed to have retired on 31/07/2006, with all benefits including commutation of pension along with 50% back-wages from 01/07/2005 to 31/07/2006 and the order passed by the Municipal Council ordering recovery of amount from the petitioner was also set aside.
6. Aggrieved by the same, the Municipal Council filed Writ Petition No. 2264 of 2012 before this Court. By judgment and order dated 14/10/2013, this Court set aside the order of the Chief Officer of the Municipal Council, as also the order of the Additional Commissioner and remanded the case back to the Chief Officer to pass a fresh order, after giving an opportunity of hearing to the petitioner on the issue of alteration of date of birth. On the question of recovery directed by the Chief Officer of the Municipal Council, it was held that there was no question of recovery of amount from the petitioner, as a consequence of which only the question of alteration of date of birth of the petitioner stood remanded to the Chief Officer.
7. Thereafter, the petitioner submitted a detailed representation before the Chief Officer along with documents. By order dated 29/04/2014, the Chief Officer of Municipal Council held in favour of the petitioner, directing that since there cannot be any alteration of date of birth of an employee as per the relevant Circular and under the Maharashtra Civil Services (General Conditions of Services) Rules, 1981, after five years of entry in service, the date of birth of the petitioner recorded as 14/07/1948 in the service book was confirmed.
8. It appears that the
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