Allowed

P Ettiappan v. the State of Tamilnadu

Madras HC25 Jan 2021WP/20834/2007

Case brief

AI extract

What is this about?

The High Court of Madras, in a writ petition, quashed an administrative order rejecting a petitioner's claim to correct his date of birth in service records. ruling that statutory birth registers prevail over school records, the Court directed respondents to alter the birth date and extend service/superannuation periods for notional pension calculation.

What did the court decide?

Impugned order quashed; date of birth altered in service registers to 03.06.1954; service and superannuation extended notionally for pension calculation and revised pension granted from superannuation

P Ettiappan Vs the State of Tamilnadu — Pension and Retirement Benefits | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 25.01.2021

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CORAM

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THE HONOURABLE MR.JUSTICE R. SURESH KUMAR

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W.P. No. 20834 of 2007

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P. Ettiappan ... Petitioner
-vs-
1.The State of Tamil Nadu,
Represented by its Secretary,
Home (Police) Department,
Fort St.George,
Chennai - 600 009.
2. The Director,
Forensic Sciences Department,
Chennai - 600 004.
3. The Principal Commissioner and
Commissioner for Revenue Administration,
Chepauk, Chennai - 600 005. ... Respondents

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India, praying for issuance of Writ of Certiorarified Mandamus calling for records relating to the third respondent's order made in Na.Ka.Va.Ni.3(3)/51402/98 dated 17.05.1999 and Lr.No.L. Dis. Ra3(3) / 95923/99 dated 29.05.2000 and the consequential order of the second respondent made in No.A4/45205/2006 dated 15.05.2007 to quash the same and consequently direct the respondents to alter the Date of Birth of the petitioner as 03.06.1954 instead of 15.07.1952 wherever it appears in the Service Records and to extend all benefits both service and monetary.

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For Petitioner : Mrs.R.Jasmine Padma For Respondents : Mr.K.Magesh Special Government Pleader

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O R D E R

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The prayer sought for in the Writ Petition is for a Writ of Certiorarified Mandamus calling for records relating to the

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third respondent's order made in Na.Ka.Va.Ni.3(3)/51402/98 dated 17.05.1999 and Lr.No.L.Dis.Ra3(3)/95923/99 dated 29.05.2000 and the consequential order of the second respondent made in No.A4/45205/2006 dated 15.05.2007 and to quash the same and consequently direct the respondents to alter the Date of Birth of the petitioner as 03.06.1954 instead of 15.07.1952 wherever it appears in the Service Records and to extend all benefits both service and monetary.

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2. The case of the petitioner is that, he was born on 03.06.1954 at Chinna Valudalambedu, Gumudipoondi Taluk, the then Chengalpattu District. At the time of admitting the petitioner at the school, his parents / guardian mistakenly has given his Date of Birth as 15.07.1952, because his father was illiterate. This position could not be known to the petitioner and only after he joined service in the second respondent Department, where he worked as Scientific Assistant Grade-II, for which, he joined service initially in the department on 25.03.1981, he came to know that, his Date of Birth was mistakenly given by his father at the time of admitting him in the school.

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3. Accordingly, the petitioner made an attempt to get birth extract which was registered before the concerned authority under the Registration of Births and Deaths Act, 1969.

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4. Accordingly, a certificate to that effect was given by the Sub Registrar concerned under the said Act on 10.02.1981, where, his Date of Birth has been clearly mentioned as 03.06.1954. Based on the said birth register given by the authority concerned, the petitioner made an application on 13.08.1982 to the respondents under the relevant provisions of the service regulation to alter his Date of Birth accordingly. Subsequently also, on two occasions, the petitioner was able to get the birth extract, as per the requirements of the respondents to produce the same before them for consideration, from the authority concerned under the said Act, i.e., on 09.04.1983 and 16.06.1986. With the strength of the birth extract, though the petitioner made an attempt to alter his Date of Birth, for which, he has given an application on 13.8.1982 within five years limitation as prescribed under the relevant rule, the same was not considered positively and it seems that, ultimately, after so many proceedings, the respondents, by impugned order dated 17.05.1999 has rejected the claim of the petitioner for alternation of Date of Birth from 15.07.1952 to 03.06.1954. Challenging the said order dated 17.05.1999, the present Writ Petition has been filed.

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5. Mrs.R.Jasmine Padma, learned counsel appearing for the petitioner, has taken this Court to the contents made in each of such birth extract certificate issued by the authority concerned under the Act on 10.02.1981, 09.04.1983 and 16.06.1986.

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6. The learned counsel would submit that, however, the respondents in the impugned order has given the reasons that, each of the certificates obtained at various point of time from 1981 to 1986 produced before the respondents have some different contents in respect of the name of the village and full name of the mother of the petitioner and on that ground, since the request of the petitioner was rejected through the impugned order, the learned counsel appearing for the petitioner, in order to meet the said grounds cited in the impugned order, has relied upon the subsequent communication obtained by the petitioner under the Right to Information Act from the very same authority, i.e., the Sub Registrar, Gumudipoondi under the said Act. The information obtained by the petitioner from the said authority dated 23.05.2011 has also been filed before this Court, where, the learned counsel appearing for the petitioner has relied upon the clarification given by them and would submit that, in view of the said clarification given by the Sub Registrar Office, Gumidupoondi, who is the authority concerned under the Births and Deaths Act, 1969 and also on the basis of the exact photo copy of the extract originally recorded in the birth register of the year 1954, which has also been filed before this Court in the additional typed set of papers, the learned counsel appearing for the petitioner submits that, the reasons cited in the impugned order cannot be sustained.

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7. The learned counsel would also submit that, during the pendency of the Writ Petition, the petitioner since was last working as Scientific Assistant Grade-II at the respondents department, since was retired and superannuated in the year 2010, therefore, as of now, based on the alternation of Date of Birth, the petitioner shall be entitled to get notional benefits till his retirement and therefore, based on the service, if it is extended notionally, by taking in to account, the actual Date of Birth as 03.06.1954, he shall be entitled for revised pensionary benefits, only for that purpose, he seeks indulgence of this Court.

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8. However, on the other hand, the learned Special Government Pleader appearing for the respondents would submit that, before passing the impugned order, dated 17.05.1999, the third respondent, who passed the impugned order, obtained the report from the Revenue Divisional Officer, Ponneri, who in turn

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has send the same, only after having obtained the report from the Field Level Officer and has forwarded the same to the respondent who passed the impugned order.

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9. The learned Special Government Pleader would further submit that, when the enquiry was conducted, certain columns in the birth certificate extract submitted by the petitioner has not been filled up also, as to whether any other children, especially male child was born to the parents of the petitioner or not has not been clarified, to establish that, the Date of Birth 03.06.1954 only pertains to the petitioner alone, also, the name of the village has not been properly mentioned or there has been discrepancy in registering the name of the village, where the petitioner as well as the parents of the petitioner belongs.

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10. In view of the discrepancy as pointed out at the report of the Revenue Divisional Officer, the first respondent passed the impugned order rejecting the claim of the petitioner for alternation of Date of Birth. Therefore, the learned Special Government Pleader would submit that, since the Date of Birth namely 15.07.1952 has been entered in to the service register, which is based on the Date of Birth entered in the SSLC book, which is conclusive document filed on behalf of the petitioner at the time of joining the service of the respondents department, that was properly taken care of and accordingly, the service register contained the correct Date of Birth as 15.07.1952. Therefore, absolutely there could be no further reasons for the respondents to accept the plea of the petitioner to alter the Date of Birth from 15.07.1952 to 03.06.1954. Accordingly, the rejection order now made by the first respondent, through the impugned order is fully justifiable. Hence according to the learned Special Government Pleader, it does not require any interference.

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11. I have considered the said submissions made by the learned counsel appearing for the parties and have perused the materials placed before this Court.

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12. It is no doubt that, in the SSLC book, which is the basic Educational Document of the petitioner, the Date of Birth of the petitioner has been entered as 15.07.1952, probably on that basis only, the Date of Birth of the petitioner could have been entered in the service register of the petitioner at the time the petitioner joined in the respondents department.

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13. Subsequently, the petitioner came to know that, his original Date of Birth was 03.06.1954 and this has been revealed in the birth extract taken from the birth register, where, the birth of the petitioner has been registered before the concerned authority under the provisions of Births and Deaths Act, 1969.

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14. On coming to know the correct Date of Birth, the petitioner made an application on 13.08.1982, i.e., well within five years limitation, for making such application, as the petitioner joined in service only on 25.03.1981. Therefore, the first hurdle insofar as the period of limitation to make such application for alteration of Date of Birth has been crossed by the petitioner, as the application filed by the petitioner was in time. Then, on the merits of the claim made by the petitioner, it is the case of the respondents, as stated in the impugned order that, some columns have not been filled up in the birth extract produced by the petitioner. The other reason is that, the native village of the petitioner has not been properly mentioned. Therefore, there is a discrepancy mentioned in the name of the native village in the birth extract, which, three times the petitioner obtained and produced. Moreover, the name of the petitioner's mother has been shown as different name or version as has been shown or entered in the said birth extract and also there was no witnesses to establish or documents to say that, the parents of the petitioner have not given birth to any male child, apart from the petitioner. These are all the reasons given by the respondents in the impugned order.

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15. In this context, it is to be noted that, the birth extract which was obtained and produced by the petitioner on 10.02.1981 is having the following informations:

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1. Name : vl ; oag ; gd

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2. Sex : Mz 3. Date of Birth : 03.06.1954 ($Pd khjk ; ; K : d ; whk ; njjp) 4. Place of Birth : rpd ; d tGjpyk ; ngL

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5. Registration No.

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: 9

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6. Date of Registration : 06.06.1954

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7. Name of Father / Mother: bghddg ; ; g bul ; o j-

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bg/bkhl ; ilbul ; o. jdk ; khs ; /

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8. Nationality : ,e ; J td ; dpah 9. Permanent Address : rpd ; d tGjpyk ; ngL

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Seal : Fk ; kpog ; g{z ; o

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Date : 10.02.1981

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16. The second copy of the extract of the birth certificate, dated 09.04.1983, on perusal, discloses that, even in that second copy also, the same informations have been stated, where,

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the name of the petitioner's mother has been stated only as Dhanammal and the name of the village of the petitioner has been stated as Chinna Valudalambedu. Only in the third copy of the extract dated 16.06.1986, in the column, the permanent address has been made as Valudalambedu instead of Chinna Valudalambedu. The name of the petitioner's mother has not been mentioned in the third copy of the extract.

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17. Therefore, only this has been shown as the discrepancy according to the respondents, which has been mainly pointed out in the impugned order. Yet another copy of the extract has been produced by the petitioner, which is dated 12.03.1992, where also, the permanent address of the petitioner is shown as Valudalambedu. However, in all these certificates, the Date of Birth of the child concerned has been mentioned as 03.06.1954, that was the male child also and the name of the child also is shown as Ettiappan.

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18. Whether the birth extract submitted by the petitioner will prevail over the date mentioned in the school certificate, especially SSLC certificate, is no more res integra, as claimed by the petitioner's counsel, since she relied upon a decision of the Hon'ble Supreme Court reported in (2009) 7 SCC 283 in the matter of CIDCO vs. Vasudha Gorakhnath Mandevlekar.

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19. In that case, the Hon'ble Supreme Court of India, after having considered the facts of the said case has held the proposition, as to whether, the deaths and births register maintained by the statutory authority would prevail over an entry made in the school register certificate, in the following paras :

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"20. The Deaths and Births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent."

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20. Hence, the legal position is that, normal presumption of correctness insofar as the birth certificate being maintained by the statutory authorities under Births and Deaths Act, 1969 is concerned, its correctness could not be doubted, as such entries made in the statutory Registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act. Moreover, the entry made in the birth register would prevail over the entry made in the school register.

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https://hcservices.ecourts.gov.in/hcservices/

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21. Herein the case in hand, no doubt, in the school register, the Date of Birth of the petitioner has been mentioned as 15.07.1952, whereas, in the birth register, the date of birth of the petitioner has been mentioned as 03.06.1954.

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22. However, insofar as the discrepancy pointed out by the respondents through the impugned order is concerned, in order to meet out the same, the learned counsel appearing for the petitioner has relied upon the information, dated 23.05.2011, he obtained from the Sub Registrar concerned under the said Act, which has been a complete answer to the doubt raised by the respondents, in the impugned order. In order to ascertain the same, the informations furnished under Right to Information Act by the Sub Registrar concerned is extracted hereunder:

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"kDjhuu ; jpU/vl ; oag ; gd ; nfhwpapUe ; jthW. tGjyk ; ngL fpuhkk ; . 1954k ; Mz ; od ; gpwg ; g [ gjpntl ; oy ; jpU/vl ; oag ; gd ; j-bg/ bghd ; dg ; gbul ; o. rpd ; d tGjykngL fpuhkk ; ; mtu ; fspd ; gpwg ; g [ gjpag ; gl ; l gf ; fj ; jpd ; efy tH' ; fg ; gLfpwJ/

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nkY kDjhuUf ; F. Vw ; bfdnt K : d ; W btt ; ntW njjpfspy tH' ; fg ; gl ; l gpwg ; g [ rhd ; wpjH ; fspy ; rpy Kuz ; ghLfs ; ,Ug ; gjhf Rl ; of ; fhl ; o. mtuJ gpwe ; j njjp khw ; wk ; nfhup rku ; gpjj tpz ; ; zg ; gk ; epuhfupf ; fg ; gl ; ljhft [ k. mJ rk ; ; ge ; jkhd rupahd jfty ; fs ; nfhwpapUe ; jhu ; . ,JFwpjJ 1954k ; tUl tGjyk ; ngL fpuhk gpwg ; g [ gjpntl ; od ; go fPH ; fz ; l jfty ; fs mspf ; fg ; gLfpwJ/

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1/ gpwg ; g [ gjpe ; j 1954k ; Mz ; L nkw ; fz ; l fpuhkk ; br' ; fy ; gl ; L khtl ; lk ; . bghd ; ndup tl ; lj ; jpw ; Fl ; gl ; ljhft [ k ; . gpwg ; g [ rhdwpjH ; ; tH' ; fpa Mz ; oy ; mJ jpUts ; S : u ; khtl ; lk ; Fk ; kpog ; g{z ; o tl ; lj ; jpw ; Fl ; gl ; ljhft [ k cs ; sJ/

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2/ 1954k ; Mz ; L tGjyk ; ngL fpuhk gpwg ; g [ gjpntl ; oy ; kDjhuuJ jfg ; gdhu ; bgau ; bghddg ; ; gbul ; o j-bg/bkhl ; ilbul ; o. vd ; Wk ; jhau ; bgau jdk ; khs ; vd ; Wk ; ,Ug ; gplk ; rpd ; d tGjyngL vd ; Wk ; cs ; sJ/ tGjyk ; ngL vd ; gJ tUtha ; fpuhk bgauhFk ; /"

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23. Therefore, it has been clarified that, the name Valudalambedu of the village concerned is a revenue village, therefore, the name Chinna Valudalambedu, where the petitioner's father one Ponnappareddy, S/o.Mottaireddy and mother Dhanammal, who were residing, comes under revenue village of Valudalambedu, but exact place, where they belonging to is Chinna Valudalambedu. Therefore, there could be no discrepancy in mentioning either Chinna Valudalambedu or Valudalambedu.

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24. Insofar as the reason that, there has been no witnesses to state that, the parents of the petitioner have not given birth to any other male child other than the petitioner is

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concerned, that kind of presumptive issues raised by the respondents could not be answered by the petitioner, as it is for the respondents to have any enquiry, like local enquiry through the Revenue Officer concerned, to verify, whether the parents of the petitioner have given birth to any male child other than the petitioner and if so, the details of such birth and in that case, if the respondents were able to establish that, there was a male child, which was given birth to by the parents of the petitioner two years after the birth of the petitioner, then there could be some acceptable case on the part of the respondents, however no such issues were raised by the respondents in the enquiry conducted by them, which was concluded and based on which only, the RDO concerned has send a report, which is the basis for passing the impugned order by the respondents.

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25. Therefore, none of the reasons cited in the impugned order would be sustainable or would prevail over any of the proof and documents filed by the petitioner in this behalf before the respondents and also before this Court.

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26. Moreover, the law has been settled that, if a particular thing has to be done in a particular manner, as has been provided or mandated under the statute, the same shall be done only in that manner. In this context, the birth of the child shall be registered under the provisions of the Births and Deaths Act, 1969, accordingly, the registration has been taken place and the birth extract has been properly given by the authorities, which has been produced more than once before the respondents for consideration and now, the petitioner is able to establish before this Court, that, the clarification sought for also has been given by the authorities under the Births and Deaths Act and the photo copy of the exact entry made in the birth register of the year 1954 has already been obtained and produced before this Court. Therefore, in respect of such documents, genuinity of which, cannot be doubted by the respondents.

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27. Moreover, insofar as the Date of Birth entry entered in the school register, especially in the SSLC book is concerned, it is based on the record of Date of Birth of the school register at the time of admission in the first standard, where, the information with regard to the Date of Birth would have been supplied orally either by the parents or the guardian, who brought the child to the school for admission. Therefore, such oral submission only would have been entered in the school register. Therefore, the Date of Birth, based on the school

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register cannot prevail over the recorded Date of Birth of the register maintained by the authority concerned under the Births and Deaths Act, 1969 and therefore, such a conclusive proof cannot be easily brushed aside by the respondents.

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28. Therefore, this Court feels that, the reasons stated in the impugned order are unsustainable and unacceptable, hence the impugned order is liable to be interfered with.

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29. In the result, this Writ Petition is disposed of with the following orders:

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"i) That the impugned order is quashed, consequently the respondents are directed to alter the Date of Birth of the petitioner from 15.07.1952 to 03.06.1954 in the relevant service register.

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(ii) As a sequel, the petitioner service period and superannuation date would be extended accordingly.

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(iii) Since in the year 2010, the petitioner based on the Date of Birth as 15.07.1952 retired from service on superannuation and subsequently, the extended period up to 2012 also, since has lapsed already, where the petitioner has no remedy, he is not entitled to get any monetary benefits, till such extend superannuated period, all such benefit shall be calculated notionally.

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(iv) Further, based on the extended period of superannuation, the petitioner's service shall be calculated and accordingly based on the extended period of service, the petitioner's pensionary benefits shall be revised and such revised pension shall be paid to the petitioner from the date of his superannuation as per the extended period and accordingly, the different of pensionary benefits shall also be calculated and be paid and the revised pensionary benefits shall be continued to be paid to the petitioner till his life time."

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30. With these directions and orders, the Writ Petition is ordered accordingly. However, there shall be no order as to costs.

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Sd/-

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Assistant Registrar(CS III)

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//True Copy//

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Sub Assistant Registrar
vji
To
1.The Secretary,
The State of Tamil Nadu,
Home (Police) Department,
Fort St.George,
Chennai - 600 009.
2. The Director,
Forensic Sciences Department,
Chennai - 600 004.
3. The Principal Commissioner and
Commissioner for Revenue Administration,
Chepauk, Chennai - 600 005.
+1cc to Mr.L.Chandrakumar, Advocate Sr.3966
+1cc to the Government pleader Sr.4230
W.P. No. 20834 of 2007
gsm[co]
srg 13/07/2021

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P Ettiappan v. the State of Tamilnadu

Case brief

What is this about?

What did the court decide?

P Ettiappan v. the State of Tamilnadu

Case brief

What is this about?

What did the court decide?

What the court decided

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