Dismissed

Avinash Keshaorao Zade v. Union of India and 2 Ors.

Bombay HC27 Mar 2014WP/883/2014

Case brief

AI extract

What is this about?

This writ petition challenged the rejection by the Central Government of a request by Maharashtra to correct the petitioner's date of birth. The court dismissed the petition, holding that the correction was barred as it was sought after the petitioner had already been promoted, denying a valid claim of clerical error.

What did the court decide?

The writ petition is dismissed; the impugned order rejecting the correction of date of birth is upheld.

Avinash Keshaorao Zade Vs Union of India and… — Pension and Retirement Benefits | Bombay HC (2014)

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WPL/755/2014

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (L) NO.755 OF 2014

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Avinash Keshaorao Zade

…. Petitioner.

V/s

Union of India & Ors

….. Respondents.

Mr. E.P. Bharucha, Senior Counsel with Mr. Sarosh Bharucha & K.G. Mhatre i/b Mhatre & Associates for the Petitioner.

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Mr. Kevic Setalwad Addl. Solicitor General with Mr. Y.S. Bhate, Mr. S.D. Bhosale, Mr. A.A. Ansari and Mr. Mahesh Chheda for Respondent Nos. 1 and 2.

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Mr. U.S. Upadhyay for Respondent No.3.

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CORAM: V. M. KANADE &

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A.K. MENON, JJ.

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DATE: 27TH MARCH, 2014

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P.C.:-

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Heard the learned Senior Counsel appearing on behalf of the Petitioner and the learned Additional Solicitor General appearing on behalf of Respondent Nos. 1 and 2.

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By this Petition which is filed under Article 226 of the Constitution of India, Petitioner is challenging the order dated

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05/03/2014 passed by Director (Services) rejecting the proposal of State Government of Maharashtra for correction in the date of birth of the Petitioner from 30/03/1954 to 30/09/1954.

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According to the Petitioner, he was born on 30/09/1954. However, in his School Enrollment Certificate, his date of birth was wrongly mentioned as 30/03/1954. According to the Petitioner, though he was born on 30/09/1954, his father wrongly mentioned his date of birth as 30/03/1954. Petitioner passed the Maharashtra Civil Services Examination and was appointed on 10/02/1983 as Probationary Deputy Collector. It is his case that within five years from the date of his appointment, he made an application in 1987 seeking change in his date of birth as laid down under Rule 38 of the Maharashtra Civil Services (General Conditions of Service) Rules, 1981. It is his case that despite several representations being made, his application for correction of his date of birth was not decided by the State of Maharashtra. Petitioner, in the meantime, was promoted and became a member of the Indian Administrative Service on 25/04/2003.

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According to the Petitioner, his representation for correction of his date of birth was finally considered by the State of Maharashtra on 28/11/2013 and his service book

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WPL/755/2014

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was accordingly rectified. The State of Maharashtra thereafter wrote a letter to the Central Government asking them to make changes in the service book of the Petitioner as maintained by the Central Government since he was promoted to IAS Cadre. However, by the impugned order dated 05/03/2014, the said application filed by the State of Maharashtra was rejected.

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Mr. Bharucha, the learned Senior Counsel appearing on behalf of the Petitioner submitted that the Petitioner had filed his application for correction of his birth date within five years after he was appointed as contemplated by Rule 38 of the Maharashtra Civil Services (General Conditions of Service) Rules, 1981. It is submitted that the Petitioner could not be faulted for inaction on the part of State of Maharashtra. It is submitted that the State of Maharashtra finally decided his application for correction of his birth date on 28/11/2013. It is submitted that the Central Government, therefore, could not have rejected the request made by the State of Maharashtra which was the parent authority in which the Petitioner had worked after he was appointed in 1983. It is submitted that Respondent No.2 had erred in relying on the judgment of the Apex Court in Union of India vs. C. Rama Swamy and others¹ . It is then submitted that Rule 16-A(3) of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 which has been made applicable to the facts of 1 AIR 1997 SC 2055

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the present case and to the Petitioner in terms mentions that in relation to a person to whom Sub-rule (2) does not apply, the date of birth as recorded in the service book or other similar official document maintained by the concerned Government shall be accepted by the Central Government, as the date of such person. It is submitted that Respondent No.2 had in terms accepted that the said provision viz Rule 16-A(3) was applicable in the facts of the present case. It is submitted that having said so, it was not open for the Central Government to question the correction of birth date of the Petitioner which was given effect to by the State of Maharashtra.

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The learned Senior Counsel appearing on behalf of the Petitioner also invited our attention to paras 18, 19, 20 and 21 of the said Judgment of the Apex Court in Union of India vs. C. Rama Swamy and others¹ and submitted that Respondent No.2 had incorrectly interpreted the ratio of the said judgment laid down by the Apex Court.

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After having heard the learned Senior Counsel appearing on behalf of the Petitioner, we are of the view that submissions made by the learned Senior Counsel cannot be accepted. It is well settled position in law that for making a change in the date of birth, the application has to be filed within five years from the date of recruitment. In the present

1 AIR 1997 SC 2055

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case, even assuming for the sake of arguments, that the Petitioner had filed an application before the State Government within five years from his date of recruitment, the fact remains that the said application was not decided before he was promoted to the IAS Cadre. It is also not in dispute that when the Petitioner was promoted in 2003, his date of birth was shown as 30/03/1954 and on the date of his promotion the said date of birth was not corrected by the State of Maharashtra. Petitioner having been promoted in 2003 and at that stage his date of birth being showing as 30/03/1954, the State of Maharashtra, in our view, could not have changed the said date of birth in 2013. Respondent No.2 while deciding the request made by the State of Maharashtra by their letter has considered all these aspects and has, thereafter, rightly come to the conclusion that such change at such a belated stage could not be given effect to.

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The Apex Court had an occasion to consider Rule 16A of the said Rules in Union of India vs. C. Rama Swamy and others¹ and the Apex Court has clearly observed in para 18 as under:-

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“Sub-rule (1) of Rule 16-A states that for the determination of the date of superannuation the date is to be calculated with reference to the date of birth as accepted by the Central Government under this Rule. The use of the

1 AIR 1997 SC 2055

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word “accepted” in sub-rule (1) is indicative of the fact that except in a case where there may be a correction on account of bona fide clerical mistake having occurred the Central Government accepts, and does not determine, the date of birth in the manner specified in sub-rule (2) and sub-rule (3). Sub-rule (2) is applicable to a person appointed after commencement of the All India Services (Death-cum-retirement Benefits) Amendment Rules 1971. According to this the date of birth of the appointees as declared in their applications for recruitment shall be accepted by the Central Government as the date of birth of such persons. The effect of this is that at least as far as 4^th December, 1971 appointees are concerned the question of the Central Government accepting any date of birth other than that indicated in the application for recruitment to the service does not arise. The implication of this clearly is that with the insertion of new Rule 16-A(2) there would be no occasion for the Central Government to even entertain an application for alteration in the date of birth, as the Government is enjoined to accept only

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that date which is declared by such person in his application for recruitment. This of course is subject to the limited circumstances under which correction can be effected under sub-rule (4) of Rule 16-A, namely, in cases where a bona fide clerical mistake had occurred in accepting the date of birth under sub-rule (2) or sub-rule (3).”

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In our view, Respondent No.2 has, therefore, correctly relied on the ratio of the said judgment which is clearly applicable to the facts of the present case. It is not the Petitioner's case that there was a clerical error or bona fide mistake committed by the Central Government. It is not in dispute that when the application was made by the Petitioner when he joined Civil Services in Maharashtra, his death of birth was mentioned as 30/03/1954. That being the position, correction could be effected only in case where bona fide clerical mistake had occurred in accepting the date of birth under sub-rule (2) or sub-rule (3). When the Petitioner was promoted to the Indian Administrative Service in 2003, on that date the record as maintained by the State of Maharashtra indicated that the Petitioner's date of birth was 30/03/1954 and, therefore, Respondent No.2 was justified in not accepting the correction of date by the State of Maharashtra in service book in 2013.

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Under these circumstances, we decline to interfere with the impugned order passed by Respondent No.2 while exercising our writ jurisdiction under Article 226 of the Constitution of India. Petition is, therefore, dismissed.

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(A.K. MENON, J. ) (V.M. KANADE, J.)

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BDPPS

Avinash Keshaorao Zade v. Union of India and 2 Ors.

Case brief

What is this about?

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Avinash Keshaorao Zade v. Union of India and 2 Ors.

Case brief

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