Hon'ble Judges/Coram:
R.D. Dhanuka, C.J. and G.S. Kulkarni

ORDER

G.S. Kulkarni, J.

1. The Petitioner who is in employment of the respondents-Maharashtra Jeevan Pradhikaran has approached this Court at the fag end of his service tenure praying for change of his date of birth in the service record from 4 June, 1965 to 26 August, 1966.

2. The petitioner joined the employment of the Respondent No. 1 on 4 January, 1990 declaring his date of birth as recorded by respondent No. 1 as 4 June, 1965, which is stated to be recorded on the basis of the school leaving certificate dated 6 June, 1985, a copy of which is annexed at Exhibit-A to the petition.

3. The case of the petitioner is that on 30 April, 1990 he obtained a domicile certificate from Tahsildar/Executive Magistrate, Motala, District Buldana in which his date of birth was shown as 26th August, 1966. The basis of which the domicile certificate is issued by the Executive Magistrate has not been stated in the petition. The Petitioner has contended that after having obtained the domicile certificate, the Petitioner on 7th May, 1990 made an application to the Petitioner No. 1 for change of date of birth from 4th June, 1965 to 26th August, 1966, a copy of the said application is annexed at Exhibit-D to the petition. Perusal of the said application indicates that such representation was purely based on the domicile certificate and not any certificate. The petitioner having made any such representation/ application dated 7 May 1990 is seriously disputed by the respondents inter alia contending that it is not on record of the respondents.

4. It is quite peculiar that since 7 May, 1990 till the fag-end of his service tenure, the petitioner did not take any steps to pursue the petitioner's case on the purported representation dated 7 May, 1990. It appears that on the eve of his retirement, the petitioner obtained a birth certificate from the Health Department office at Taroda, Taluka Motala, District Buldana, dated 12 January, 2022 indicating the petitioner's date of birth to be 26 August, 1966. It appears from the perusal of the certificate that although the certificate shows the petitioner to have born on 26 August 1966, the registration of the said date of birth was in fact made on 13 December 1993 which is about 27 years after the petitioner's birth and 3 years after he joined the employment with respondent No. 1. Having obtained the birth certificate, the petitioner made a fresh application on 24 February, 2023 to respondent No. 1, requesting that his date of birth in the service record be modified/changed from 4 June, 1965 to 26 August, 1966. On a perusal of the said application, it is seen that again the request of the petitioner was only on the basis of domicile certificate which was issued to the petitioner on 30 April, 1990, as in such application, there is no reference to the birth certificate obtained by the petitioner on 12 January, 2022. This does not appear to be innocuous considering the nature of the birth certificate.

5. As the petitioner's application for change in the date of birth in the service record was not considered/accepted by respondent No. 1, the petitioner has approached this Court by the present proceedings praying for writ of mandamus that respondent nos. 1 and 2 be directed to correct the date of birth of the Petitioner in the service book from 4 June, 1965 to 26 August, 1966 and for a further relief that the respondents be directed not to initiate retirement process to superannuate the Petitioner pending the final disposal of the petition.

6. Mr. Patil, learned counsel for the petitioner has limited submissions. His first submission is to the effect that the petitioner's representation/application for change in the date of birth dated 7 May, 1990 was kept pending by the respondents and the same was not decided and therefore the respondents need to consider the documents as submitted by the petitioner and make appropriate modification in the service record by changing the petitioner's date of birth i.e. from 4 June, 1965 to 26 August, 1966. Mr. Patil's second submission is to the effect that when the petitioner availed the employment, the petitioner did not possess the birth certificate and, therefore, the petitioner had to rely upon school leaving certificate. Now as the birth certificate is available which clearly shows the petitioner's date of birth as 26 August, 1966, the respondents need to accept the same. The third submission of Mr. Patil relying on the decision of a co-ordinate Bench of this Court in Ashok Shankar Kale vs. The State of Maharashtra & Anr. ¹, to contend that in similar circumstances, the prayer of the petitioner therein for change of date of birth was accepted and relief was granted.

7. Mr. Sonawane, learned counsel for respondent nos. 1 and 2 has opposed the petition relying on the reply affidavit filed on behalf of respondent no. 1. He submits that the petitioner could not have invoked jurisdiction of this Court under Article 226 of the Constitution of India praying for change in the date of birth at the fag-end of the service. He submits that on this count itself, the writ petition deserves to be dismissed. The second submission of Mr. Sonawane is that the petition is clearly barred by the principles of delay and laches. In this context he submits that even assuming that in the year 1990 the petitioner had made a representation/application for change in the date of birth the petitioner did not taken steps to get the date of birth corrected from 30 April, 1990 till the petitioner made a fresh application on 24 February, 2023, i.e., for a period of almost 33 years. It is submitted that the petitioner obtaining birth certificate dated 12 January, 2022 itself has been objected by the respondents to be illegal. According to Mr. Sonawane issuance of such certificate after 57 years of his birth is contrary to Section 13(3) of the Registration of Births and Deaths Act, 1969 which provides that any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee. Mr.Sonawane has also drawn the Court's attention to paragraph 5(ii) of the reply affidavit filed on behalf of the respondents, to contend that it is a categorical stand of the respondents that upon enquiry, it was found that no such representation dated 7 May 1990 was on the record of the respondents or of the said authority namely the Executive Engineer who is supposed to have acknowledged such receipt of the petitioner's representation/application, hence, it is not justifiable to accept the contention of the petitioner on the basis of such representation made by him on 7 May 1990. It is therefore his submission that the petition deserves to be rejected by this Court.

8. We have perused the pleadings of the parties as also the documents as placed on record. We have also heard learned counsel for the parties at length. At the outset we may observe that the petitioner has filed the present petition after delay of almost 33 years, even assuming that an application was made by the petitioner on 7 May, 1990 for change of his date of birth on the basis of domicile certificate. The petitioner did not take any steps to pursue such application for such inordinately long period of almost 33 years. It appears that on the eve of his retirement, the petitioner has woken up from deep slumber and reapplied for correction of the date of birth in the service record, by his application dated 24 February, 2023. A person cannot be permitted to sleep over his rights. In these circumstances in our opinion, only on the ground of delay and latches, the petition ought not to be entertained.

9. Insofar as Mr.Patil's submissions are concerned, we are not inclined to accept any of these submissions, for more than one reason. The State Government has a policy which is reflected in the circular dated 27 September, 1994 as annexed to the petition, of which the petitioner at all material times was well aware which is to the effect that once an employee was permitted to set out the date of birth on the basis of school leaving certificate due to non-availability of birth certificate issued by the appropriate authority, such employee is subsequently precluded from seeking change in the date of birth so recorded. Such bar is specifically stated in paragraph (2) of the said circular which is not the subject matter of challenge by the petitioner.

10. We are even otherwise not inclined to exercise our extra ordinary jurisdiction under Article 226 of the Constitution of India in the present facts as we find much substance in the contentions as urged on behalf of the respondents. The respondents have seriously disputed the petitioner making an application dated 7 May 1990 for change of date of birth on the basis of domicile certificate. Such document is not on record of the respondents, which itself is a disputed question of fact, which certainly cannot be gone into in the exercise of the writ jurisdiction of this Court. Thus, once the case of the petitioner on the basis of his representation/application dated 7 May 1990 cannot be accepted, then the petitioner's case is rested merely on the fresh application filed by the petitioner on 24 February 2023, on the basis of which the petitioner has knocked the doors of this Court to seek change in the date of birth after having joined services with respondents on 4 January 1990. Such course of action is certainly not available to the petitioner considering the principles of law as laid down in several decisions.

11. It is a settled position in law that the employee cannot approach the employer at the fag end of his employment seeking a change in the date of birth. In such context, we note the legal position as reflected in the decisions of the Supreme Court. We refer to some of the decisions. In State Of Maharashtra & Anr vs Gorakhnath Sitaram Kamble & Ors. MANU/SC/1141/2010 : (2010) 14 SC 423 the Supreme Court taking a review of the law on the issue, has held that correction in the date of birth at the fag end of the career is impermissible. Considering the provisions of the Maharashtra Civil Services (General Conditions of Service) Rules, 1981, it was inter alia held that no application for alteration of date of birth could be permitted at the fag end of the career and accordingly, set aside the orders passed by the High Court. The Supreme Court observed that the High Court had failed to notice the settled legal position which was crystallized in series of judgments of the Supreme Court, which had consistently taken the view that change in the date of birth cannot be permitted at the fag end of the service career. The Supreme Court also referring to the decision in Union of India Vs. Harnam Singh MANU/SC/0216/1993 : (1993) 2 SCC 162, observed that the respondent therein had occasion to see his service book on numerous occasions and that he had remained silent and did not seek alteration in the said case for a period of 28 years, and hence, the inaction on the part of the respondent for such a long period from the date of joining of service precluded him from showing that the entry of his date of birth in the service record, is not correct. A similar view has been taken in the recent decision of the Supreme Court in the case of Karnataka Rural Infrastructure Development Ltd. Vs. T. P. Nataraja & Ors. MANU/SC/0680/2021 : (2021) 12 SCC 27 In this decision, the Supreme Court referring to the settled principles of law as laid down in catena of judgments, has reiterated the legal position that it is not permissible for an employee to seek any change in the date of birth at the fag end of his service.

12. Also a Division Bench of this Court in Hemantkumar Pandurang Rane Vs. Municipal Corporation of Gr. Mumbai & Ors. 2020 SCC OnLine Bom 9710, following the decision of the Supreme Court in Burn Standard Co. Ltd. Vs. Shri. Dinabandhu Majumdar MANU/SC/0713/1995 : (1995) 4 SCC 172, did not accept the plea of the petitioner therein to accept change in the date of birth on the eve of the petitioner's retirement. The contentions as urged on behalf of the petitioner are in the teeth of these settled principles of law.

13. Insofar as the reliance placed by the learned Counsel for Petitioner on the decision of Ashok Shankar Kale vs. State of Maharashtra (supra) is concerned, in our opinion, the same is not well founded in the facts of the present case. We are bound by the law as laid down by the Supreme Court as noted by us above. In any event, Mr.Patil would concede that the decision in Ashok Shankar Kale does not take into consideration any of the settled principles of law as laid down by the Supreme Court in the several decisions, to which we have made a reference in the foregoing paragraphs.

14. In the light of the above discussion, we are not inclined to entertain this Writ Petition. The Petition is accordingly dismissed. No order as to costs.

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