Bombay HC Sets Aside Tribunal's Order Directing State To Correct Date Of Birth In Service Record Of ACP 2 Months Before His Retirement

The Bombay High Court has set aside the order of the Tribunal directing the State to correct the date of birth of the Assistant Commissioner of Police (ACP) in his service record two months before his retirement.

A Division Bench of Justice Dhiraj Singh Thakur and Justice Sandeep V. Marne held, “We therefore find the impugned judgment and order of the Tribunal to be indefensible. Judgment and order dated 21 April, 2023 passed by the Tribunal in O.A. No. 280/2023 is therefore set aside and the O.A. filed by the Respondent stands dismissed. Respondent’s pension and pensionary benefits be computed by taking into consideration his date of retirement as 31st May 2023.”

The Bench said that the tribunal ought to have avoided entertaining the ACP’s application for correction of his date of birth in March 2023 when he was slated to retire in May 2023.

“The Tribunal ought not to have entertained the O.A. filed by Respondent two months before his retirement. The objective behind formulating rule/administrative instructions to bar correction of date of birth after five years of entry into service is to give finality and achieve certainty with regard to the rights of the Government Servants”, also held the Court.

AGP B.V. Samant appeared on behalf of the petitioner/State while Advocate Vaishali Jagdale appeared on behalf of the respondent/retired ACP.

Factual Background -

The State had filed a plea challenging the judgment passed by the Maharashtra Administrative Tribunal (MAT) whereby it allowed the application filed by the respondent directing the petitioners to correct his date of birth in service records and to accord necessary consequential service benefits to him. The respondent was appointed as a Police Sub-Inspector in 1992 and at the time of his appointment, he relied upon his School Leaving Certificate which reflected his DOB as May 23, 1965, due to which the same came to be registered in the service records.

Later, the respondent made an application in 1994 for correction of his DOB by relying upon his birth certificate but no action was taken on the same and he did not take any steps for the same and made the next application after ten years in 2004. He made a few more applications during the years 2004 and 2005 and after brief hiatus, resumed making the same in 2011 which continued during 2013 and 2014. He was promoted from time to time and was on the post of ACP during his retirement and finally in March 2023, the Tribunal allowed his application aggrieved by which the State approached the court.

The High Court in the above regard noted, “The three documents relied upon by the Respondent for correction of his date or birth are (i)Certificate dated 27 June 1986 issued by The Bombay Mothers & Children Welfare Society, (ii) Certificate of birth dated 25 July 1986 issued by the M.C.G.M., and (iii) Horoscope. So far as the third document (horoscope) is concerned, no evidentiary value can be attached thereto and therefore the same deserves to be ignored all together. It is a weak piece of evidence.”

The Court said that even if it is assumed that the respondent did make an application for a change of date of birth in 1994, he failed to pursue his remedies in respect of his grievance, immediately thereafter.

“He slept over the matter for ten long years and made the next representation only on 29 January 2004. Respondent thereafter went on making various representations but did not approach the Tribunal for correction of his date of birth. He was due to superannuate on 31 May 2023 on the basis of his date of birth of 23 May 1965 recorded in service. Two months before his retirement, he filed O.A. before the Tribunal in March 2023”, also said the Court.

The Court further noted that the Apex Court has time and again held that the applications for change of DOB at the fag end of service cannot be entertained.

“The Tribunal has also erred in interpreting the provisions of Rule 38 of the Rules of 1981. … So far as the second ground of ‘obvious clerical error’ is concerned, it cannot be stated that there has been any obvious or clerical error in recording Respondent’s date of birth”, observed the Court.

The Court also observed that the issue of correction of DOB cannot be kept pending till the fag end of an employee’s retirement as the same would create uncertainty. It said that the tribunal allowed the plea of the respondent which created confusion.

“An officer may casually make application for change of date of birth within 5 years of his entry in service (so as to meet technical requirement of the rules/administrative instructions) and not pursue the same for years together. He cannot then knock the doors of courts/tribunals at the fag end of service for correction of date of birth. The objective behind prescribing time limit for seeking correction of date of birth is required to be kept in mind”, held the Court.

It concluded that entertaining the respondent’s plea would completely frustrate the objective behind prescribing a time limit for seeking correction in date of birth under Rule 38 of the Maharashtra Civil Services (General Conditions of Service) Rules, 1981.

Accordingly, the Court allowed the plea and set aside the judgment of the Tribunal.

Cause Title- State of Maharashtra & Ors. v. Sudhir Bhagwat Kalekar (Neutral Citation: 2023:BHC-AS:17499-DB)

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