STATE OF MAHARASHTRA & ANR.versusGORAKHNATH SITARAM KAMBLE & ORS.

                    [2010] 14 (ADDL.) S.C.R. 752


A             STATE OF MAHARASHTRA & ANR.
                               v.
            GORAKHNATH SITARAM KAMBLE & ORS.
                (Civil Appeal No. 9704 of 2010)
                         NOVEMBER 16, 2010
B
       [DALVEER BHANDARI AND DEEPAK VERMA, JJ.]

         Service Laws:

c        Maharashtra Civil Services (General Conditions) Rules,
    1981 - r.38(2)(f) - Date of birth - Record of, in service book
    at the time of entry into service - Application for correction of
    date of birth at the end of the service career after a lapse of
    twenty six years - Held: Cannot be entertained...: A/so, in view
0   of the Notification dated 24. 12. 2008 and the instructions in the
    Rules, no application for alteration of date of birth after five
    years could be entertained - Thus, order passed by the High
    Court, that date of birth could be permitted to be changed at
    the fag end of the career, not sustainable.

E     In the year 1978, the respondent was appointed as a
  teacher. His date of birth was recorded as 02.06.1949 in
  his service book. The school leaving certificate was
  submitted as the proof for the same. In the year 2004, the
  respondent filed an application before the Education
F Officer seeking correction of his date of birth in the
  service record of the Tehsildar as 03.05.1951. The
  application was rejected. The Head Master, Zilla Parishad
  also rejected the application. The respondent then filed
  a writ petition. The High Court allowed the petition
G holding that the date of birth could be permitted to be
  changed at the fag end of the career of the respondent.
  Therefore, the appellant filed the instant appeal.


                                  752
H
STATE OF MAHARASHTRA & ANR. v. GORAKHNATH 753
             SITARAM KAMBLE
     Allowing the appeal, the Court                            A

    HELD: 1.1 According to the notification dated
24.12.2008, the date of birth of Government servants
cannot be changed after five years, from 16.08.1981.
Assuming the notification is applicable only for               8
employees who joined after 16.08.1981, even then
according to the 'instruction(1 )' of the Maharashtra Civil
Services (General Conditions) Rules, 1981, no application
for alteration of entry regarding date of birth should be
entertained after a period of five years. [Para 11) [758-B-    C
CJ
     1.2 It is well settled that the employees should not be
permitteC: to change the date of birth at the fag end of his
service career. In the instant case, the application of
alteration was filed at the fag end of his service career      D
after a lapse of twenty eight years. The correction at the
fag end would be at the cost of large number of
employees, therefore, any correction at the fag end must
be discouraged by the court. Thus, the approach of the
High Court in re-writing the Rules cannot be approved or       E
sustained. The impugned judgment is set aside. [Paras
12, 19, 20 and 21) [758-F; 761-E-F; 762-E-F]

     Union of India vs. Harnam Singh (1993) 2 SCC 162;
State of Tamil Nandu vs. T. V. Venugopalan (1994) 6 SCC
302; Secretary and Commissioner, Home Department and           F
Ors. vs. R.Kirubakaran (1994) Suppl.(1) SCC 155;
U.P.Madhyamik Shiksha Parishad and Ors. vs. Raj Kumar
Agnihotri (2005) 11 SCC 465; State of Uttaranchal and Ors.
vs. Pitamber Dutt Semwal (2005) 11 SCC 477; Government
of AP.and Anr. vs. M.Hayagreev Sarma (1990) 2 SCC 682;         G
State of Uttar Pradesh and Ors. vs. Gulaichi (Smt.) (2003) 6
SCC 483; Executive Engineer, Bhadrak ( R & BJ Division,
Orissa and Ors. vs. Rangadhar Mallik (1993) Suppl.1 SCC
763 - relied on.
                                                               H
    754    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A                          Case Law Reference:
          (1993) 2 sec 162              Relied on      Para 13
          (1994) 6 sec 302              Relied on      Para 14

B         (1994) Suppl.(1) sec 155 Relied on           Para 15
          (2005) 11 sec 465             Relied on      Para 16
          (2005) 11 sec 477             Relied on      Para 17
          (1990) 2 sec 682 .            Relied on      Para 18
c
          (2003) 6 sec 483              Relied on      Para 18
          (1993) Suppl.1 sec 763        Relied on      Para 18
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.
D 9704 of 2010.

        From the Judgment & Order dated 19.01.2007 of the High
    Court of Judicature at Bombay in Writ Petition No. 6531 of
    2006.

E       Shankar Chilarge (for Asha Gopalan Nair) for the
    Appellants.

          Pravin Satale (for Naresh Kumar) for the Respondents.

          The Judgment of the Court was delivered by
F
         DALVEER BHANDARI, J. 1. Applications for exemption
    from filing Official Translation and certified copy of the impugned
    order are allowed.

G         Leave granted.

          Heard learned counsel for the parties.

      2. This appeal emanates from the judgment of the High
  Court of Judicature at Bombay delivered in Writ Petition
H No.6531 of 2006 dated 19th January, 2007.
STATE OF MAHARASHTRA & ANR. v. GORAKHNATH 755
   SITARAM KAMBLE [DALVEER BHANDARI, J.]

     3. Brief facts which are necessary to dispose of the appteal     A
are recapitulated as under :

     4. Respondent no.1 was appointed as as Assistant
Teacher on 13.02.1978. He filed a Secondary School Leaving
Certificate indicating 02.06.1949 as proof of his date of birth.
                                                                      B
In the service record also consequently the same date of birth
was recorded.

     5. On 23.05.2004, respondent no.1 filed an application to
the Education Officer (Primary), Zilla Parishad, District Sangli
complaining that though in the School Leaving Certificate t1is        C
date of birth is 02.06.1949 whereas, in fact the date of birth in
the record of the Tahsildar is 03.05.1951, so the date of bitrth
be corrected ir, the service record of the respondent accordiing
to the record of the Tahsildar.
                                                                      D
      6. The application, filed by the respondent no.1 was
rejected by the Block Education Officer on the ground that tile
same is time barred and was not filed within five years from
the date of joining i.e. 13.02.1978. He referred to Rule 38(2)(f)
of the Maharashtra Civil Services (General Conditions) Rules,
                                                                      E
1981 (for short 'the Maharashtra Rules, 1981') and tl'le
notification issued by the State. Relevant rule reads as undetr :

    "38(2)(f): When once an entry of age or date of birth has
    been made in a service book no alteration of the entry
    should afterwards be allowed, unless it is known, that the        F
    entry was due to want of care on the part of some person
    other than the individual in question or is an obvious clerical
    error."

    7. Respondent no.1 filed another application to the Head          G
Master, Zilla Parishad primary school, Tujarpur, Taluka Walva,
District Sangli. This application was also rejected on
09.12.2004.

    8. Respondent no.1 again filed an application before the
                                                                      H
    756     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A Education Officer (Primary), Zilla Parishad, Sangli on
  22.07 .2006. When respondent no.1 did not receive any
  satisfactory reply, he filed a Writ Petition No.6531 of 2006
  before the High Court of Judicature at Bombay. The Writ
  Petition filed by the respondent was allowed by the impugned
B judgment dated January 19;2007. The High Court, in paragraph
  2 of the impugned judgment, noted Rule 38(2)(f) of the
  Maharashtra Rules, 1981 but while interpreting the rule, the High
  Court has virtually re-written the rule and in paragraph 5 of the
  impugned judgment, the High Court observed as under :
c         ".... under the instructions issued, it is proved that the entry
          should not be normally changed after a period of five
          years .... "

  The expression "normally" has not been used in the Rules and
D interpretation of this expression has led to an erroneous finding
  in the impugned judgment. In the impugned judgment the High
  Court failed to give any sustainable or acceptable reasons as
  to why the date of birth was permitted to be changed at the fag
  end of the career of respondent no.1.
E
         9. The High Court, in the impugned judgment. has failed
    to notice the settled legal position which is crystallized by a
    series of judgments of this Court. All the judgments have
    consistently taken the view that change in the date of birth
    cannot be permitted at the fag end of the service career. In the
F   instant case, according to the Notification dated 24th
    Dec:ember, 2008, it is made clear that no alteration of the entry
    should be allowed after five years.

       10. The spirit and the intention of this rule is reflected in a
G series of judgments of this Court. After the rules, a notification
  has; been issued by the Government of Maharashtra. The
  relevant part of the notification dated 24th December, 2008
  issued by the Finance Department, Government of
  Malharashtra, is set out as under :
H
STATE OF MAHARASHTRA & ANR. v. GORAKHNATH 757
   SITARAM KAMBLE [DALVEER BHANDARI, J.]
                  " FINANCE DEPARTMENT                               A

   Mantralaya, Mumbai 400032, dated 24th December, 2008

                          NOTIFICATION

   CONSTITUTION OF INDIA                                             B

   No.MCS 1007/C.R.7/07/SER-6-ln exercise of the powers
   conferred by the proviso to article 309 of the Constitution
   of India, the Governor of Maharashtra is hereby pleased
   to make the following rules further to amend the                  C
   Maharashtra Civil Services (General Conditions of
   Services) Rules, 1981, namely:-

   1. These rules may be called the Maharashtra Civil
   Services (General Conditions of Services) (Amendment)
   Rules, 2008.                                                      D

   2. In rule 38 of the Maharashtra Civil Services (General
   Conditions of Services) Rules, 1981, (hereinafter referred
   to as "the principal Rules"), in sub-rule (2), under the
   heading Instruction,-                                             E

   (a) for Instruction No.(1) and (2), the following Instructions
   shall be substituted, namely:-

   "(1) No application for alteration of the entry regarding date
   of birth as recorded in the service book or service roll of       F
   a Government servant, who has entered into the
   Government service on or after the 16th August 1981, shall
   be entertained after a period of five years commencing
   from the date of his entry in Government service.
                                                                     G
   (2) Subject to Instruction (1) above, the correct date of birth
   of a Government servant may be determined, if he
   produces the attested xerox copy of the concerned page
   of the original birth register where his name and date of
   birth has been entered as per the rules for the time being
                                                                     H
    758    SUPREME COURT REPORTS (2010] 14 (JliDDL.) S.C.R.

A         in force regarding the registration of birth, and maintained
          at the place where the Government servant is born, such
          proof should be considered as an unquestionable proof for
          change of date of birth in service record ..... "

                                                [Emphasis supplied]
B
       11. According to the notification, from 16.08.1981 the date
  of birth of Government servants cannot be changed after five
  years from 16.08.1981. Assuming this notification is applicable
  only for employees who joined after 16.08.1981, even then
C according to the 'instruction(1 )' of the Maharashtra Rules, 1981
  that no application for alteration of entry regarding date of birth
  should be entertained after a period of five years.

          The said instruction is reproduced as under :
D
          "(1 )Normally, no application for alteration of the entry
          regarding date of birth as recorded in the service book or
          service roll of a Government servant should be entertained
          after a period of five years commencing from the date of
          his entry in Government service ........ "
E
         12. Apart from the notification and the said instruction this
    Court in a series of cases have categorically laid down that the
    employees should not be permitted to change the date of birth
    at the fag end of his service career. In the instant case the
F   application of alteration has been filed at the fag end of his
    service career after a lapse of twenty eight years.

        13. In Union of India Vs. Hamam Singh, (1993) 2 SCC
    162, this Court was confronted with almost similar facts. The
    Court laid down as under :-
G
          "In the instant case, the date of birth recorded at the time
          of entry of the respondent into service as May 20, 1934
          had continued to exist, unchallenged between 1956 and
          September 1991, for almost three and a half decades. The
H         respondent had the occasion to see his service-book on
STATE OF MAHARASHTRA & ANR. v. GORAKHNATH 759
   SITARAM KAMBLE [DALVEER BHANDARI, J.]
    numerous occasions. He signed the service-book at                A
    different places at different points of time. Never did he
    object to the recorded entry. The same date of birth was
    also reflected in the seniority lists of LDC and UDC, which
    the respondent had admittedly seen, as there is nothing
    on the record to show that he had no occasion to see the         B
    same. He remained silent and did not seek the alteration
    of the date of birth till September 1991, just a few months
    prior to the date of his superannuation. Inordinate and
    unexplained delay or laches on the part of the respondent
    to seek the necessary correction would in any case have          c
    justified the refusal of relief to him. Even if the respondent
    had sought correction of the date of birth within five years
    after 1979, the earlier delay would not have non-suited him
    but he did not seek correction of the date of birth during
    the period of five years after the incorporation of Note 5       D
    to FR 56 in 1979 either. His inaction for all this period of
    about thirty-five year from the date of joining service,
    therefore precludes him from showing that the entry of his
    date of birth in service record was not correct."

      14. In State of Tamil Nandu Vs. T. V. Venugopalan, (1994)      E
6 sec p.302, this court was clearly of the opinion that the
government servant should not be permitted to correct the date
of birth at the fag end of his service career. The Court, in very        --·
strong terms, observed as under :-
                                                                     F
    ''. .... The government servant having declared his date of
    birth as entered in the service register to be correct, would
    not be permitted at the fag end of his service career to
    raise a dispute as regards the correctness of the entries
    in the service register. It is common phenomenon that just       G
    before superannuation, an application would be made to
    the Tribunal or Court just to gain time to continue in service
    and the Tribunal or courts are unfortunately unduly liberal
    in entertaining and allowing the government employees or
    public employees to remain in office, which is adding an
                                                                     H
    760     SUPREME COURT REPORTS [2010) 14 (ADDL.) S.C.R.


A         impetus to resort to the fabrication of the record and place
          reliance thereon and seek the authority to correct it. When
          rejected, on grounds of technicalities, question them and
          remain in office till the period claimed for, gets expired.
          This case is one such stark instance. Accordingly, in our
B         view, the Tribunal has grossly erred in showing
          overindulgence in granting the reliefs even trenching
          beyond its powers of allowing him to remain in office for
          two years after his date of superannuation even as per his
          own case and given all conceivable directions beneficial
c         to the employee. It is, therefore, a case of the grossest
          error of law committed by the Tribunal which cannot be
          countenanced and cannot be sustained on any ground ..... "

       15. In Secretary and Commissioner, Home Department ,
  and others Vs. R.Kirubakaran, (1994)' Suppl.(1) SCC 155, the
D Court again reiterated the legal position that the courts have
  to be extremely careful when application for alteration of the
  date of birth is filed on the eve of superannuation or near-about
  that time. The court observed as under :-

E         "....... As such whenever an application for alteration of the
          date of birth is made on the eve of superannuation or near
          about that time, the court or the tribunal concerned should
          be more cautious because of the growing tendency
          amongst a section of public servants to raise such a
F         dispute without explaining as to why this question was not
          raised earlier....... "

       16. Learned counsel for the respondent has placed
  reliance on the judgment of this Court in U.P.Madhyamik
  Shiksha Parishad & Ors. Vs. Raj Kumar Agnihotri, (2005) 11
G SCC p.465. In this case, this Court has considered number of
  judgments of this Court and observed that the grievance as to
  the date of birth in the service record should not be permitted
  at the fag end of the service career.

H         17. In another judgment in State of Uttaranchal & Ors. Vs.
STATE OF MAHARASHTRA & ANR. v. GORAKHNATH 761
   SITARAM KAMBLE [DALVEER BHANDARI, J.]
Pitamber Dutt Semwal, (2005) 11 SCC p.477, the relief was             A
denied to the government employee on the ground that he
sought correction in the service record after nearly 30 years of
service. While setting aside the judgment of the High Court, this
Court observed that the High Court ought not to have interfered
with the decision after almost three decades.                         B

     18. Two decades ago this Court in Government of A.P.&
Anr. Vs. M.Hayagreev Sarma, (1990) 2 SCC p.682, has held
that subsequent claim for alteration after commencement of the
rules even on the basis of extracts of entry contained in births      C
and deaths register maintained under the Births, Deaths and
Marriages Registration Act, 1886, was not open. Reliance was
also placed on State of Uttar Pradesh & Ors. Vs. Gulaichi
(Smt.), (2003) 6 SCC p.483, State of Tamil Nadu Vs.
TV. Venugopalan, (supra), Executive Engineer, Bhadrak ( R
& 8) Division, Orissa & Ors. Vs. Rangadhar Mallik, (1993)             D
Suppl.1 SCC p. 763, Union of India Vs. Harnam Singh, (supra)
and Secretary and Commissioner, Home Department & Ors.
Vs. R.Kribakaran, (surpa).

    19. These decisions lead to a different dimension of the          E
case that correction at the fag end would be at the cost of large
number of employees, therefore, any correction at the fag end
must be discouraged by the Court. The relevant portion of the
judgment in Secretary and Commissioner, Home Department
& Ors. Vs. R.Kribakaran, (surpa) reads as under :                     F

    "An application for correction of the date of birth by a public
    servant cannot be entertained at the fag end of his service.
    It need not be pointed out that any such direction for
    correction of the date of birth of the public servant
    concerned has a chain reaction, inasmuch as others                G
    waiting for years, below him for their respective promotions
    are affected in this process. Some are likely to suffer
    irreparable injury, inasmuch as, because of the correction
    of the date of birth, the officer concerned, continues in
    office, in .some cases for years, within which time many          H
    762     SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A          officers who are below him in seniority waiting for their
           promotion, may lose the promotion forever. According to
           us, this is an important aspect, which cannot be lost sight
           of by the court or the tribunal while examining the
           grievance of a public servant in respect of correction of his
B          date of birth. As such, unless a clear case on the basis of
           materials which can be held to be conclusive in nature, is
           made out by the respondent, the court or the tribunal should
           not issue a direction, on the basis of materials which make
           such claim only plausible and before any such direction is
c          issued, the court must be fully satisfied that there has been
           real injustice to the person concerned and his claim for
           correction of date of birth has been made in accordance
           with the procedure prescribed, and within time fixed by any
           rule or order. The onus is on the applicant to prove about
           the wrong recording of his date of birth in his service-
D
           book."

       20. In view of the consistent legal position, the impugned
  judgment cannot be sustained and even on a plain reading of
  the Notification and the instructions set out in the preceding
E paragraphs leads to the con:lusion that no application for
  alteration of date of birth after five years should have been
  entertained.

        21. The approach of the High Court in re-writing the rules
F cannot be approved or sustained. Consequently, the appeal
  filed by the State of Maharashtra is allowed and the impugned
  judgment is set aside, leaving the parties to bear their own
  costs.

    N.J.                                              Appeal allowed.