Bombay High Court Sets Aside Tribunal Order Asking State To ‘Correct’ ACP’s DoB Two Months Before His Retirement

A division bench of Justice Dhiraj Singh Thakur and Justice Sandeep V Marne observed that cases for change in date of birth filed just before retirement in order to extend service lead to chaos in the administration.

“The anticipated vacancy created due to retirement is taken into consideration for various purposes like effecting promotions, effecting transfers, etc. Sometimes date of birth becomes a relevant factor for determining seniority of officers appointed/promoted on same day. In such circumstances, entertaining litigation filed couple of months before the date of retirement with the sole objective of seeking extension of tenure of service, would lead to uncertainty and chaos in the administration,” the court observed.

The court set aside Maharashtra Administrative Tribunal’s order allowing former ACP (Traffic) of South Mumbai Sudhir Kalekar’s plea for changing his date of birth filed only two months before his scheduled retirement.

Kalekar was appointed as a police sub inspector on August 17, 1992. At the time of his appointment, his date of birth record was recorded as May 23, 1965 based on his school leaving certificate and matriculation certificate. On July 22, 1994 he sought his date of birth to be corrected to November 23, 1965 on the basis of birth certificate issued by BMC. No action was taken on this application and he did not take any further steps till 2004. In 2004 and 2005 he again filed application for correction of birth certificate and then again in 2011. He continued making such applications in 2013 and 2014 as well.

He was promoted from time to time and was Assistant Commissioner of Police (Traffic) at the time of his retirement on May 31, 2023. On July 22, 2022, he again made application for correction of date of birth which was rejected on March 1, 2023. Thus, he filed an Original Application for correction of his date of birth before the tribunal. On April 21, 2023, the tribunal directed the state government to correct his date of birth to November 23, 1965 and grant consequential service benefits. However, the state government filed the writ petition challenging the tribunal’s order.

Rule 38 of Maharashtra Civil Services (General Conditions of Service) Rules, 1981 provides that an application for change of date of birth can be entertained only within five years from the date of appointment.

The court noted that Kalekar did not make any attempt to get his date of birth corrected in his school/college records and his matriculation certificate. The school/college records and the matriculation certificate continue to show May 23, 1965 as his date of birth, and permitting him to change it in the service record would result in an incongruous situation, the court opined.

Kalekar relied on certificate by Bombay Mother’s and Children Welfare Society, birth certificate issued by the BMC, and his horoscope. The court ignored the horoscope observing that no evidentiary value can be attached to it.

The court further noted that Kalekar gave no explanation for not relying on the birth certificate as well as the certificate issued by Bombay Mothers and Children Welfare Society at the time of his entry into service.

The court said that after the application of July 1994, Kalekar slept on the matter for 10 long years and then kept filing more applications instead of approaching the tribunal. He approached the tribunal only two month before his retirement, the court noted.

Kalekar himself produced the school leaving certificate and the matriculation certificate based on which his date of birth was recorded. Thus, he cannot blame any other person for the alleged error, the court said. The court further held that there was no clerical error in recording his date of birth as it was based on documents Kalekar himself produced, which still show May 23, 1965 as his date of birth.

The court noted that a government servant may casually apply for change of date of birth within five years without pursuing it for years together. After that he cannot approach the courts and tribunals at the fag and of his service for correction of date of birth, the court held. The objective for the time limit is to “achieve clarity and prevent uncertainty not only about the officer’s career but also in the area of administrative management”, the court said.

If an application for correction of date of birth is made within five years of entry into service and is not acted upon, the government servant must exercise remedy against such inaction in a timely manner, the court observed.

“Mere rejection of request for change of date of birth by the employer before date of retirement would not revive the cause which got time barred by officer’s failure to exercise remedies in a timely manner,” the court held.

Thus, the court allowed the State’s writ petition and directed Kalekar’s pension and pensionary benefits to be calculated considering his date of retirement as May 31, 2023.

Case no. – Writ Petition No. 6976 of 2023

Case Title – State of Maharashtra and Ors. v. Sudhir Bhagwat Kalekar

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