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K. Mangalakshmi Vs. The Secretary to Government, Public Welfare and Family Welfare Department, Chennai and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberWrit Petition (MD) No. 665 of 2008
Judge
AppellantK. Mangalakshmi
RespondentThe Secretary to Government, Public Welfare and Family Welfare Department, Chennai and Others
Excerpt:
.....and when he was to retire after his date of superannuation was computed with reference to the birth date given by him, he sought change in the birth date itself. he was certainly a person who had failed to make an application within five years after his entering service with regard to any correction that may have been warranted in his date of birth. he was clearly disentitled from making such application after the end of the five year period. 8. the tribunal has chosen to regard sub-clause (c) of rule 49 as an exception to rule 49(b). that view of the tribunal is patently incorrect. sub-clause (c) refers to applications received five years after entry into service. all such applications are to be summarily rejected. it also refers to applications which are not supported by s.s.l.c.,.....
Judgment:

(Prayer: Petition filed under Article 226 of the Constitution of India, praying for the issuance of a Writ of Certiorarified Mandamus, to call for the records and quash the impugned order issued by the 2nd respondent in Na.Ka.No.264/ep3/07 dated 25.06.2007 and the 3rd respondent's order in Na.Ka.No.260/ep3/07 dated 27.06.2007 and consequently direct the respondents to reinstate the petitioner in service from 01.07.2007.)

1. The petitioner has filed this writ petition for issuance of Writ of Certiorarified Mandamus or any other Writ, or order, or direction, in the nature of a Writ to call for the records and quash the impugned order issued by the 2nd respondent in Na.Ka.No.264/ME.3/07 dated 25.06.2007 and the 3rd respondents order in Na.Ka.No.260/ME.3/07 dated 27.06.2007 and consequently direct the respondents to reinstate the Petitioner in service from 01.07.2007.

2. It is the case of the petitioner is that her husband Kaliyamoorthi had worked in the government hospital at Kumbakonam and he died while he was in service on 18.06.1989. After the death of the petitioner s husband, she applied for government job on compassionate ground. On considering the application of the petitioner, the 1st respondent appointed the petitioner as Sweeper in the government hospital on compassionate ground by appointment order in G.O.(4D).No.10 dated 24.03.1998.

3. It is the further case of the petitioner is that at the time of death of her husband, she was 35 years old and at the time of joining the service she was 44years old. Since the petitioner was as an illiterate, she was unaware of the government service rules, she signed in various papers including the service book as directed by the respondents. The 2nd respondent herein has wrongly fixed her age as 50, as on 19.09.1997 and declared her date of birth as 01.07.1947. Therefore the petitioner made objection to the 2nd respondent regarding her age. On receipt of the objection of the petitioner, the 2nd respondent assured that the petitioner will be examined by a Medical Board, so as to ascertain her age.

4. According to the petitioner, she will have to retire from service only on 30.06.2014, but the 4th respondent informed the petitioner that she has attained the age of superannuation in the month of March 2007 and she was advised to prepare for her retirement. Thereafter only the petitioner learnt that her date of birth is being noted in her service book as 01.07.1947 and as per the same she has completed the age of 60 years on 30.06.2007. Immediately the petitioner made a representation to the respondents 3 and 4. However, the respondents 2 to 4 without considering the representation of the petitioner, send her for Medical Examination to find out her age and the 2nd respondent by his proceedings dated 25.06.2007 passed order of retirement from her service on 30.06.2007. Following the order of the 2nd respondent, the 3rd respondent also passed an order and informed the same to the petitioner. At this factual condition, the petitioner has come forward with this Writ Petition by challenging the orders of the respondent 2 and 3 and sought for direction against the respondents to reinstate the petitioner in service from 01.07.2007.

5. The respondents have filed counter affidavit and contented that the petitioner was appointed as sanitary worker on compassionate ground on the death of her husband. At the time of the petitioner s appointment, she did not produce any evidence to prove her age. However, the petitioner was examined by Medical Board on 19.09.1997 and the Medical Board decided the age of the petitioner is 50 as on 01.07.1997. Since the petitioner has not produced any evidence for her age proof, the age fixed by the Medical Board was taken as the age of the petitioner as per the government rules. The petitioner never objected her age fixed by the Medical Board at any point of time. Further, it is pertinent to note here that as per government rule, a Government servant wants to change the date of birth, he / she should apply for alteration of date of birth to the head office within 5 years from the date of joining into the service. In this case, the petitioner has not submitted any such representation to alter her date of birth within the period of 5 years from the date of joining into her service. As per the opinion of Medical Board, the petitioner s date of birth was fixed as 1.7.1947 and the age of the petitioner at the date of appointment was fixed as 50 years. As per government rules the retirement age for basic servants like sanitary worker is 60 years. Hence the petitioner is retired from her service on 30.06.2007. Therefore, the petitioner is not entitled for the relief mention in her writ petition.

6. I heard Mr.T.Vadivelan, learned counsel appearing for the petitioner and Mr.Aayiram K.Selvakumar, learned Government Advocate appearing for the respondents and perused the relevant records.

7. It is an admitted fact that the petitioner was appointed as Sweeper on compassionate ground. It is also an admitted fact that the petitioner is an illiterate and she posses no school records to show her date of birth. Further, on perusal of the typed set of papers filed by the petitioner, no document is filed to prove her date of birth as claimed by her. Hence, the petitioner was referred to Medical Board to find out her age on 19.09.1997. The Medical Board after examining the petitioner, decided her age as 50 years as on 01.07.1997. Accordingly, the petitioner s date of birth was fixed as 01.07.1947 and the same was entered in her service register. On taking into consideration of the petitioner s date of birth as 01.07.1947 the petitioner s retirement is on 30.06.2007.

8. The case of the petitioner is that she made an objection regarding the wrong fixation of her date of birth, whereas no material document was produced by the petitioner to show such objection. The only representation enclosed in the typed set of the papers is made at the verge of the petitioner s retirement, vide dated 07.05.2007. Even there is no acknowledgement of the said representation.

9. Rule 49 of the Tamil Nadu State and Subordinate Services Rules which deals with alteration of date of birth in Sub Clauses (b) and (c) thereof provide thus:

49(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 S.S.L.C., School, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily rejected.

10. It is clearly stated that the period of limitation for filing an application for correcting an entry with regard to the date of birth shall be made only within a period of five years after a person has entered service is stated not only in the Rule itself, but had been reiterated and the true effect of the Rule stated, in that judgment of the Hon'ble Apex Court. The Hon'ble Apex Court was considered in two cases about the Rule 49 in the following cases:

(1) State of Tamil Nadu v. T.V.Venugopalan, reported in 1994 (6) SCC 302

The object of the rule or statutory instructions issued under proviso to Article 309 or orders issued by the Government under Article 162, for the correction of the date of birth entered in the service record, is that the Government employee, if he has any grievance in respect of any error of entry of date of birth, will have an opportunity, at the earliest, to have it corrected. Its object also is that correction of the date of birth beyond a reasonable time should not be encouraged. Permission to reopen accepted date of birth of an employee, especially on the eve or shortly before the superannuation of the government employee, would be an impetus to produce fabricated record.

(2) Union of India v. Harnam Singh reported in 1993 (2) SCC 162

As held by this Court in Harnam case, 1993 (2) SCC 162, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-service employee should be made within five years from the date when the Rules had come into force, i.e., 1961. If no application is made, after expiry of five years, the government employee loses his right to make an application for correction of his date of birth.

11. Considering the above Rule as well as the judgments cited supra, the Hon'ble Division Bench of this Court has considered the case on hand, there is no material find that the petitioner has made such representation to alter her date of birth in the case of The Government of Tamil Nadu, rep. by its Secretary to Government, Finance (L.F.) Department, Fort St. George, Chennai-600 009 and another v. J.Ramasamy and another reported in 2002 (2) CTC 65 as follows:

7. In this case, the facts stare one in the eye. The official gave his date of birth as 19.4.1942 when he joined service and when he was to retire after his date of superannuation was computed with reference to the birth date given by him, he sought change in the birth date itself. He was certainly a person who had failed to make an application within five years after his entering service with regard to any correction that may have been warranted in his date of birth. He was clearly disentitled from making such application after the end of the five year period.

8. The Tribunal has chosen to regard Sub-clause (c) of Rule 49 as an exception to Rule 49(b). That view of the Tribunal is patently incorrect. Sub-clause (c) refers to applications received five years after entry into service. All such applications are to be summarily rejected. It also refers to applications which are not supported by S.S.L.C., School, College or University records, birth extract from records of local bodies or military discharge certificates. All such applications are also to be summarily rejected. Sub-clause (c), therefore, deals with the applications which are to be summarily rejected. It does not deal with extending the period of limitation. Application which is filed within the period of limitation should be supported by anyone of the documents mentioned in Sub-clause (c). Failure to furnish such documents in support of the application would result in the summary rejection of such application. Applications filed after the period of five years from the date of entry into the service are to be rejected on the sole ground that they have been filed beyond a period of five years. No other reason need be given.

9. The misreading of the Rule by the Tribunal has prompted it to treat the application filed thirty four years after the official had entered into service as a valid application. Surprisingly, it has gone further and has chosen to hold an enquiry into that application and has made an order altering the date of birth. This was clearly an impermissible exercise which the Tribunal should not have indulged in. Counsel for the official submitted that the Tribunal has powers to call for the records. That power is not meant to be used in a case where it's use was not appropriate. Claims such as the one made before the Tribunal which should not have been entertained at all, cannot be given life by summoning documents from the custody of other Government Departments, then hold that contents of those documents justify the claim, and thereafter proceed to alter the date of birth, even when the very application seeking such alteration had been lawfully rejected by the Government in exercise of statutory power properly vested in it. Even if the State had erred in rejecting the application, the Tribunal could only have directed it to entertain the application and hold an enquiry, and no more.

12. Pursuant to the above Rules and Judgments as rightly pointed out by the learned Government Advocate that the Government servant seeking a change of date of birth within a period of 5 years from the date of jointing into the service, in this case, the petitioner has not submitted any such representation to alter the date of birth within a period of 5 years from the date of joining into the service. Therefore, the above said Rule and the Judgments cited supra has squarely applicable in the case on hands.

13. Therefore, in view of the above factual and legal discussions, I do not find any merit in the above writ petition and the same deserves to be dismissed. Since the petitioner has not make out any case and she has not produce any documents to show that she has made representation to alter the date of birth within a period of 5 years from the date of entry into the service, she has chosen to give application at the time of date of retirement.

14. In the result, the writ petition is dismissed. No costs.


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