Bombay High Court: In a petition challenging communication dated 1-09-2023 issued by the respondent intimating the petitioner regarding completion of 60 years of age on 29-02-2024 and superannuation from the post of Professor and Head of Department held by him in Shri Ayurved Mahavidyalaya, the Division Bench of Avinash G. Gharote and M.S. Jawalkar, JJ. reiterated that correction of entry in date of birth in service records could not be made at the fag end of the career.
It was contended on behalf of the petitioner that his actual date of birth was 2-02-1966 and not 2-02-1964 as contained in the service record earlier. It was stated that due to petitioner’s father’s illiteracy, the petitioner’s birth was never reported to the authority under the Registration of Birth and Deaths Act, 1969 (‘RBD Act’), and thus, no birth certificate was issued for the petitioner. After knowing about his exact date of birth on 14-02-2019, an application under Section 13(3) of RBD Act was filed before the Judicial Magistrate First Class whose judgment dated 8-03-2019 led to issuance of a direction to the Gram Sachiv to issue a birth certificate to certify the petitioner’s date of birth as 2-02-1966. It was claimed that the said declaration by Magistrate under Section 13(3) of RBD Act was made after recording evidence, was in a judicial enquiry, and was binding upon all.
The certificate was issued on 20-03-2019 based on which, an entry regarding the date of birth of was taken in the school register who thereupon issued a school leaving certificate on 23-03-2019 indicating the petitioner’s date of birth as 2-02-1966. The entry in the service book was accordingly recorded and such change of date was communicated to the Director of Ayurvedic Medicine on 6-07-2022.
Regarding the proposition that a change in entry in the service record ought not to be permitted at the fag end of the career, the Court cited State of T.N. v. T.V. Venugopalan, (1994) 6 SCC 302 and Union of India v. Harnam Singh, (1993) 2 SCC 162. The Court commented that “though these judgments were in light of the rules which provided that a change in the date of birth entry would not be permitted after five years of employment, there is no reason why the same principles cannot be made applicable to the present case too, as it is submitted at the bar that there are no rules governing this aspect, extant, in the instant matter.”
The Court further referred to State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664 wherein the employee submitted class 4 marksheet, class 8 transfer certificate and a certificate from local MLA to support his application for change in date of birth. Adding through catena of cases, the Court reflected towards the consistent view of the Supreme Court and various High Courts to sum up that correction of entry in date of birth could not be made at the fag end of the career. The Court further clarified that “the expression ‘fag end of the career’, has to be construed in light of the length of service being put in by an employee.” It further pointed out that the petitioner joined service in 1992, and the change in date of birth was sought in 2019, 5 years prior to the date of superannuation, which could be said to fall ‘at the fag end of the career’, since it could not be said to mean immediately preceding superannuation.
The Court raised doubts on Magistrate’s judgment dated 8-03-2019 which did not voice anything regarding the source of information on petitioner’s date of birth discovered in 2019, in dearth of any document, etc. Regarding such divination after 27 years of service. The Court reasoned that “change in the date of birth, thus cannot be done, merely for the sake of asking, but will have to be done, on the basis of an adversarial litigation, in which the employer has to be made a party, so that there could be an opportunity for an effective defense and the contest is on merits. This therefore cannot be done, under sec.13(3) of the RBD Act, which merely empowers the Magistrate to verify the correctness of an entry, but has to be done, before the Civil Court, so that the employer would be not only be aware, but also bound by the decision which may be rendered therein.”
The Court cited State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664 wherein, not impleading the employer in civil matter made the decree non-binding upon the employer. Hinting towards the absence of employer as a party in proceedings under Section 13(3) of RBD Act, the Court questioned the default judgment passed in favour of the petitioner and held the same non-binding upon the employer on account of not being a party. The Court pressed upon the mandate under Section 13(3) of the RBD Act for an order only be passed after verification of correctness of birth or death.
To look upon the judicial or administrative role of the Magistrate under Section 13(3) of RBD Act, the Court perused Sections 13 and 15 of the same and referred to Shankarlal Aggarwala v. Shankarlal Poddar, 1963 SCC OnLine SC 80 regarding attributes of a judicial enquiry. The Court commented that “Merely because the verification has to be done by a Magistrate of the First Class, who in terms of Section 3(4)(a) of the CrPC would be a Judicial Magistrate, that by itself would not mean that the process of verifying, is a judicial enquiry.”
The Court concurred with the decision of Division Bench of Madras High Court in P. Duraisamy v. State, 2017 SCC OnLine Mad 1361 wherein, it was held that the order under Section 13(3) of the RBD Act only bound the Registrar and nobody else.
The Court refused to infer that the verification by Magistrate under Section 13(3) could be termed as judicial enquiry, since it only required verification of correctness of claim regarding birth or death. Finding the petition without any merit, the Court dismissed the same.
[Dr. Mohan v. The Principal, Shri Ayurved Mahavidyalaya, 2024 SCC OnLine Bom 719, decided on 1-03-2024]
Advocates who appeared in this case :
For Petitioner: Advocate N.S. Khubalkar
For Respondents: Advocate P.D. Sharma, Assistant Government Pleader S.M. Ghodeswar, Advocate Rohan Deo