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P.S.LOGANATHAN versus THE TAMIL NADU ELECTRICITY BOARD

High Court of Madras

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P.S.Loganathan v. The Tamil Nadu Electricity Board - W.P.No.4260 of 1998 [2003] RD-TN 262 (27 March 2003)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 27/03/2003

CORAM

THE HONOURABLE MR. JUSTICE P.D.DINAKARAN

W.P.No.4260 of 1998

P.S.Loganathan ... Petitioner

-Vs-

1. The Tamil Nadu Electricity Board,

rep. by its Chairman,

800, Anna Salai, Chennai-2.

2. The Chief Engineer (Personnel)

Tamil Nadu Electricity Board,

8th Floor, N.P.K.R.R. Maaligai,

800, Anna Salai, Chennai-2.

3. The Superintending Engineer,

Udumalpet Electricity

Distribution Circle, Udumalpet. ... Respondents. Petition under Article 226 of The Constitution of India for the issue of a Writ of Certiorarified Mandamus as stated therein. For petitioner : Mr. S.Elamurugan

For respondents: Mr. V.Radhakrishnan

:O R D E R



The grievance of the petitioner is that he was born on 02.05.1949, but when he joined as Junior Assistant in the respondent-Board in the year 1973, his date of birth was entered as 05.05.1947, based on the entry in his S.S.L.C. Book. Concededly, the petitioner did not make any application for alteration of date of birth within five years from the date of entry into the service. But, when he made an application on 16.02.1994 seeking alteration of date of birth as 02.05.1949, the Executive Engineer of the respondent-Board, by letter dated 11.05 .1994, returned the application of the petitioner for want of necessary correction in his S.S.L.C. Book and required him to apply afresh. Thereafter, the petitioner filed a civil suit in O.S.No.89 of 1995 on the file of District Munsif, Udumalpet, which was decreed on 12.06.1996 to the effect that the date of birth of the petitioner is 02.05.1949. Based on the decree dated 12.06.1996 made in O.S.No.89 of 1995 on the file of District Munsif, Udumalpet, correction was made in the S.S.L.C. Book of the petitioner that his date of birth is 02.05.194 9. Supported by the decree dated 12.06.1996 made in O.S.No.89 of 199 5 and the consequential correction made in his S.S.L.C. Book, the petitioner, again, on 14.11.1996, applied for alteration of date of birth in his service records. But, the Chief Engineer of the respondent-Board, by proceedings dated 31.12.1997, which is impugned in the above writ petition, quoting Regulation 110(b)(ii) and (vi) of the Tamil Nadu Electricity Board Service Regulations, as well as the decision of a Division Bench of the Apex Court in UNION OF INDIA V. HARNAM SINGH reported in AIR 1993 SC 1367=1993 (2) SCC 162, rejected the application of the petitioner for alteration of date of birth, summarily. Hence, the above writ petition.

2. Mr. S.Elamurugan, learned counsel for the petitioner, assails the impugned order dated 31.12.1997 passed by the Chief Engineer, Tamil Nadu Electricity Board, purely on the ground of jurisdiction, contending that the Chief Engineer is not a competent authority to pass the impugned order on the application made by the petitioner for alteration of date of birth, as the Board alone is empowered to take appropriate decision in the matter, which shall be final, as per Regulation 110(b)(i) of the Tamil Nadu Electricity Board Service Regulations.

3. Per contra, Mr. V.Radhakrishnan, learned Standing counsel appearing for the respondent-Tamil Nadu Electricity Board, invited my attention to Regulation 110(b)(i) and (ii) of the Tamil Nadu Electricity Board Service Regulations, which deal with the change and alteration of date of birth. Regulations 110(b)(i) and (ii) of the Tamil Nadu Electricity Board Service Regulations read as follows:

" Regulation 110(b): Alteration of date of birth: (i) If, at the time of appointment, a candidate claims that his date of birth is different from that entered in the records mentioned in clause (a)(i) above, he shall make an application in the prescribed form to the appointing authority stating the evidence on which he relies and explaining how the mistake occurred. The appointing authority shall cause an enquiry to be made by an Executive Engineer, Operation and Maintenance having jurisdiction over the place of birth of the Board employee concerned. If the employee himself happens to be an Executive Engineer/Operation and Maintenance whose place of birth falls within his own jurisdiction, some other Executive Engineer nominated by the Chief Engineer/Personnel shall be asked to conduct an enquiry. If the employee is a Superintending Engineer/ Operation and Maintenance or Chief Engineer/Distribution having jurisdiction over his place of birth, some other Executive Engineer nominated by the Chief Engineer/Personnel who is not directly under the control of the applicant shall be asked to conduct an enquiry. On receipt of the report of the enquiry, the case shall be submitted to the Board for decision. The decision of the Board shall be final.

(ii) After a person has entered service under the Board, an application to alter the date of birth as entered in the records of the Board shall be entertained only if such application is made within five years of such entry into service. Such an application shall be made in the prescribed form to the authority competent to make an appointment to the post held by the applicant at the time of his application. Such an application, not supported by entries in Secondary School Leaving Certificate, School, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily rejected. The appointing authority shall cause an enquiry to be made by an Executive Engineer/Operation and Maintenance having jurisdiction over the place of birth of the employee concerned. If the employee himself happens to be an Executive Engineer/ Operation and Maintenance whose place of birth falls with in his own jurisdiction, some other Executive Engineer nominated by Chief Engineer/ Personnel shall be asked to conduct the enquiry. If the applicant is a Superintending Engineer/Operation and Maintenance or a Chief Engineer (Distribution) having jurisdiction over his place of birth, some other Executive Engineer nominated by the Chief Engineer/Personnel who is not directly under the control of the applicant shall be asked to conduct the enquiry. Such enquiry reports in respect of Superintending Engineers and above shall be submitted to the Board through the Chief Engineer/ Personnel. The decision of the Board shall be final. "

4. Placing reliance on the decision in UNION OF INDIA V. HARNAM SINGH reported in AIR 1993 SC 1367=1993 (2) SCC 162, and SECRETARY & COMMISSIONER, HOME DEPARTMENT V. R.KIRUBAKARAN reported in AIR 1993 SC 2 647, Mr.V.Radhakrishnan, learned counsel for the respondents contents that the petitioner having made an application for correction of the date of birth beyond the time fixed under the Regulations cannot claim, as a matter of right, the correction of date of birth, even if he has got good evidence to establish that the recorded date of birth is clearly erroneous.

5. I have given careful consideration to the submissions of both sides.

6. The Apex Court in UNION OF INDIA V. HARNAM SINGH reported in AIR 1993 SC 1367=1993 (2) SCC 162, held as follows: "14. In the instant case, the date of birth recorded at the time of entry of the respondent into service as 20th May, 1934 had continued to exist unchallenged between 1056 and September, 1991, for almost three and a half decades. The respondent had the occasion to see his service book on numerous occasions. He signed the service book at different places at different points of time. Never did he object to the recorded entry. The same date of birth was also reflected in the seniority lists of LDC and UDC, which the respondent had admittedly seen, as there is nothing on the record to show that he had no occasion to see the same. He remained silent and did not seek the alteration of the date of birth till September, 1991, just a few months prior to the date of his superannuation. Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him. Even if the respondent had sought correction of the date of birth within five years after 1979, the earlier delay would not have non-suited him but he did not seek correction of the date of birth during the period of five years after the incorporation of note 5 to FR 56 in 1979 either. His inaction for all this period of about thirty five years from the date of joining service, therefore, precludes him from showing that the entry of his date of birth in service record was not correct.

15. In the facts and circumstances of this case, we are not satisfied that the Tribunal was justified in issuing the direction in the manner in which it has been done. The application for correction of date of birth, entered in the service book in 1956, for the first time made in September, 1991, was hopelessly belated and did not merit any consideration. As already noticed, it had not been made even within the period of five years from the date of coming into force of Note 5 to FR 56(m) in 1979. The Tribunal, therefore, fell in error in issuing the direction to correct his date of birth and the impugned order of the Tribunal cannot be sustained."

7. Again, the Apex Court, in SECRETARY & COMMISSIONER, HOME DEPARTMENT V. R.KIRUBAKARAN reported in AIR 1993 SC 2647, has held as follows:

" An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. Any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion forever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature is made out the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the Court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate to his immediate junior. "

8. Similar view was again taken by the Apex Court in STATE OF TAMIL NADU V. T.V.VENUGOPALAN reported in 1994 (6) SCC 302.

9. Following the above ratio of the Apex Court in STATE OF TAMIL NADU V. T.V.VENUGOPALAN reported in 1994 (6) SCC 302, this Court rejected similar prayer in (i) THE GOVERNMENT OF TAMIL NADU V. J.RAMASAMY reported in 2002 (2) CTC 577, and (ii) in order dated 07.03.2003 made in W.P.No.10206 of 1998 (S.RADHAKRISHNAN V. COMMISSIONER, CORPORATION OF MADRAS & ANOTHER).

10. Of course, Mr. Elamurugan, learned counsel for the petitioner would contend that as per Regulation 110(b)(i) of the Tamil Nadu Electricity Board Service Regulations, the Tamil Nadu Electricity Board is the competent authority to take appropriate decision with respect to the alteration of date of birth, but not the Chief Engineer, viz., the second respondent herein, who has passed the impugned order dated 31.12.1997. I am unable to appreciate the above contention because, as per Regulation 110(b)(i) of the Tamil Nadu Electricity Board Service Regulations, the very application for alteration of date of birth is barred by limitation, and therefore, such application need not be considered by the respondent/Board, much less the Chief Engineer.

11. That apart, the letter of rejection dated 11.05.1994 made by the Executive Engineer, returning the application of the petitioner dated 16.02.1994, instructing him to obtain necessary correction in the S.S.L.C. Book and to apply afresh, in my considered opinion, could not, in any way, be construed as a relaxation of the Rules, referred to above, as the said proceedings dated 11.05.1994 itself is contrary to Regulation 110(b)(vi) of the Tamil Nadu Electricity Board Service Regulations. The petitioner, therefore, is not entitled to derive any strength on the letter dated 11.05.1994 to claim that the Executive Engineer, Tamil Nadu Electricity Board, had condoned the delay.

Hence, finding no merits, this writ petition is dismissed. No costs.

Index:Yes

Internet: Yes

ksv/sasi

To

1. The Tamil Nadu Electricity Board,

rep. by its Chairman,

800, Anna Salai, Chennai-2.

2. The Chief Engineer (Personnel)

Tamil Nadu Electricity Board,

8th Floor, N.P.K.R.R. Maaligai,

800, Anna Salai, Chennai-2.

3. The Superintending Engineer,

Udumalpet Electricity

Distribution Circle, Udumalpet.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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