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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
AVINASH G. GHAROTE, M.S. JAWALKAR, JJ.
Mohan S/o Bhauraoji Yeole – Petitioner
Versus
The Principal, Shri Ayurved Mahavidyalaya, Nagpur – Respondent
Writ Petition No. 7571 of 2023
Decided On : 01-03-2024
RBD Act - Change of Date of Birth - Section 13(3) - Summary of Acts and Sections: The court discussed the provisions of Section 13(3) of the Registration of Birth and Deaths Act, 1969 (RBD Act) and its interpretation. The court emphasized that the power of the Magistrate under Section 13(3) of the RBD Act is limited to verification of the correctness of the claim regarding the occurrence of birth or death. The court held that the order by the Magistrate under Section 13(3) of the RBD Act binds only the Registrar under the RBD Act and nobody else. The court also highlighted the requirement for an adversarial litigation in the Civil Court for any change in the date of birth, emphasizing the need for an opportunity for an effective defense and a contest on merits.
Fact of the Case:
The petitioner challenged a communication from the respondent No. 1 intimating his superannuation based on his date of birth. The petitioner claimed that his actual date of birth was 02/02/1966 and not 02/02/1964 as recorded earlier. He relied on a judgment by the Magistrate under Section 13(3) of the RBD Act, which directed the issuance of a birth certificate certifying his date of birth as 02/02/1966.
Finding of the Court:
The court found that the order by the Magistrate under Section 13(3) of the RBD Act binds only the Registrar under the RBD Act and nobody else. The court dismissed the petition, stating that the claim for change of the date of birth was made at the fag end of the service, after 27 years of service, and the order by the Magistrate under Section 13(3) of the RBD Act was not based upon any verification but was merely for the sake of asking.
Issues: The issues revolved around the interpretation of Section 13(3) of the RBD Act, the binding nature of the Magistrate's order, and the requirement for an adversarial litigation in the Civil Court for any change in the date of birth.
Ratio Decidendi: The court held that the power of the Magistrate under Section 13(3) of the RBD Act is limited to verification of the correctness of the claim regarding the occurrence of birth or death. The court emphasized the need for an adversarial litigation in the Civil Court for any change in the date of birth, ensuring an opportunity for an effective defense and a contest on merits.
Final Decision: The petition was dismissed, and the court held that the order by the Magistrate under Section 13(3) of the RBD Act binds only the Registrar under the RBD Act and nobody else. The court found that the claim for change of the date of birth was made at the fag end of the service, after 27 years of service, and the order by the Magistrate under Section 13(3) of the RBD Act was not based upon any verification but was merely for the sake of asking.
JUDGMENT :
AVINASH G. GHAROTE, J.
1. Heard. Rule. Rule made returnable forthwith. The petition is heard finally with the consent of the learned counsel for the parties.
2. Heard Mr. Khubalkar, learned counsel for the petitioner, Mr. Sharma, learned counsel for the respondent Nos. 1 and 4, Mr. S.M. Ghodeswar, learned Assistant Government Pleader for respondent Nos. 2 and 3 and Mr. Rohan Deo, learned counsel, who was asked to assist the Court.
3. The petition questions the communication dated 01/09/2023 (Page 56) issued by the respondent No. 1, intimating to the petitioner that he would be completing 60 years of age on 29/02/2024 and therefore, would be superannuating from the post of Professor and Head of Department held by him in Shri Ayurved Mahavidyalalya, Hanuman Nagar, Nagpur run by the respondent No. 4.
4. The contentions of Mr. Khubalkar, learned counsel for the petitioner, are as under:
4.2. Since the father of the petitioner was illiterate the birth of the petitioner was never reported to the authority under the Registration of Birth and Deaths Act, 1969 (hereinafter referred to as “RBD Act”) and therefore, there was no birth certificate issued under the RBD Act to the petitioner.
4.3. It is only on 14/02/2019, the petitioner came to know about his exact date of birth, which he claimed to be 02/02/1966 that an application under Section 13(3) of the RBD Act, came to be filed by him before the Judicial Magistrate First Class, Umrer, which came to be registered as Misc. Criminal Application No. 43/2019 in which on 08/03/2019, by a judgment, a direction was issued to the Gram Sachiv, Grampanchayat, Sirsi, who was the non-applicant therein, to issue a birth certificate certifying that the date of birth of the petitioner was 02/02/1966 (Page 39).
4.4. This declaration by the Magistrate under Section 13(3) of the RBD Act, was upon recording the evidence and, therefore, was in a judicial enquiry and was binding on all.
4.5. On the basis of the judgment by the learned Magistrate and according certificate, came to be issued to the petitioner under the RBD Act on 20/03/2019, certifying the date of birth of the petitioner as 02/02/1966 (Page 40).
4.6. Thereafter, an entry regarding the date of birth of the petitioner was taken in the school register of Loksewa Primary School, Sirsi (Page 41), who thereupon issued a school leaving certificate on 23/03/2019 indicating that the date of birth of the petitioner was 02/02/1966.
4.7. On the basis of this school leaving certificate, recording the date of birth as 02/02/1966 an entry in the service book came to be recorded (Page 82).
4.8. Though the date on which such correction is made in the service book (Page 82) is not clear, it is by the management, which is indicated by a communication by the Secretary of the respondent No. 4 dated 27/06/2022 indicating that such an entry has been taken (Page 43).
4.9. The respondent No. 4 had also thereafter by its communication dated 06/07/2022 intimated the change of date to the Director of Ayurvedic Medicine (Page 44).
4.10. It is in this background that the impugned communication dated 01/09/2023 indicating the superannuation of the petitioner on 29/02/2024, is being questioned.
4.11. Mr. Khubalkar, learned counsel for the petitioner by relying upon Sudarshan B. Biradar vs. State of Karnataka, AIR 2023 Karnataka 274 (Para-12), B.G. Gangadharappa vs. Tahsildar Soraba Taluk Soraba, 1995 Cri. L.J. 2820 (Para 12), Dr. Bhatindra Nath Mukhopadhyay vs. Kolkata Municipal Corporation, AIR 2007 Calcutta 116 (Paras 8 & 9) and Md. Liyakat vs. State of Jharkhand and Others, 2006 SCC Online Jhar 1142 (Paras 9 and 10) contends, that the power of the Magistrate under Section 13(3) of the RBD Act is a judicial power and therefore, the judgment of the Magistrate would be binding on all and the respondents therefore, would equally be bound by the sa
AI
The main legal point established in the judgment is that the power of the Magistrate under Section 13(3) of the RBD Act is limited to verification of the correctness of the claim regarding the occurr....
Applications for change of date of birth in service records must comply with procedural rules and be made within five years of joining service; failure to do so results in denial.
Applications for correction of date of birth in service records must be timely; delay can invalidate claims, even with evidence.
The date of birth declared by the government servant and accepted by the appointing authority is unalterable except in the case of a clerical error, and there are limitations for seeking rectificatio....
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