Reg.Gen., High Court Of Madras vs M. Manickam & Ors

HIGH COURT OF MADRAS ....Appellant

VERSUS

M. MANICKAM AND ORS. ....Respondents

JUDGMENT

Dr. MUKUNDAKAM SHARMA, J.

1. Delay condoned.

2. Leave granted.

3. The present appeals are filed against the judgments and orders dated

15.03.2007 and 21.07.2007 in Second Appeal No. 1064 of 2005, and

Review Petition No. 19 of 2007, respectively, passed by the Madras

Page 1 of 25

High Court whereby it dismissed the second appeal and the review

petition filed by the appellant herein accepting the contentions raised

by the Respondent No. 1. By its judgments and orders

aforementioned, the High Court set aside the judgment and decree of

Subordinate Court and restored the judgment and decree of District

Munsif Court dated 09.10.2002.

4. The facts leading to the filing of the present appeals are that the

Respondent No. 1- M. Manickam joined the State Subordinate

Judicial Service as District Munsif-cum-Judicial Magistrate on

04.11.1988, after getting duly selected for the said post by the Tamil

Nadu Public Service Commission. It is alleged by the Respondent No.

1 that in his service records, his date of birth has been entered as

19.03.1947, as found in the S.S.L.C. Book, whereas his actual date

of birth is 24.11.1950 and that due to the wrong entry of his date of

birth in the service records, he would retire from his service 3 years,

8 months and 5 days before his actual date of superannuation.

5. He submitted a letter dated 07.10.1993 to the Chief Judicial

Magistrate, Kanyakumari requesting him for permission to peruse

his service register in which he submitted that his date of birth has

Page 2 of 25

wrongly been submitted. He also requested him for supplying of

requisite proforma for changing his date of birth. Thereafter

Respondent No. 1 submitted an application dated 11.11.1993 to

Registrar, High Court of Madras seeking change of his date of birth.

In response to his application, the Administrative Officer of the High

Court asked for certain particulars and documents in response to

which Respondent No. 1 submitted his reply vide letter dated

27.01.1994.

6. Subsequent thereto Respondent No. 1 filed a Suit before the District

Munsif Court, Karur, which was registered as O.S. No. 549/1995, for

a declaration that his date of birth is 24.11.1950 and for a

mandatory injunction to enter his date of birth in his S.S.L.C. book

and in the Service Records as 24.11.1950, instead of 19.03.1947.

The Munsif Court vide order dated 09.10.2002 decreed the suit in

favour of Respondent No. 1 and against Respondent Nos. 2-4. The

Munsif Court granted mandatory injunction against Respondent Nos.

2-4 to make the change of date of birth in their S.S.L.C. book.

However, mandatory injunction against the present appellant to alter

the date of birth in the service register was not granted.

Page 3 of 25 7. Aggrieved by the decision of the Munsif Court, Respondent Nos. 2-4

filed an appeal before the Sub-Judge, Karur which was allowed by

the Sub-Judge by its judgment and order dated 12.10.2004. Against

the said order of the Sub-Judge, Respondent No. 1 preferred Second

Appeal before the High Court of Madras which was registered as S.A.

No. 1064 of 2005. The High Court vide its judgment and order dated

15.03.2007 allowed the second appeal of the Respondent No. 1 and

restored the judgment and decree of the Trial Court. Review Petition

filed by the appellant herein before the High Court also got dismissed

vide order dated 21.07.2007. Against these orders of the High Court,

viz., 15.03.2007 and 21.07.2007 the appellant has filed the present

appeals, on which we heard learned counsel appearing for the

parties.

8. Learned counsel appearing for the appellant submitted that the

application filed by the respondent seeking for change of his date of

birth was filed after the period of limitation contemplated under the

Tamil Nadu State Judicial Service Rules (hereinafter referred to as

"Rules") which is five years and therefore the decree and the

judgment passed by the High Court affirming the decree of the

Munsif is illegal and erroneous. In support of the said contention,

Page 4 of 25

the counsel relied upon the contents of the letter dated 7.10.1993

which was submitted by respondent No. 1 in which for the first time,

he requested for perusal of his service register contending inter alia

that his date of birth appears to be wrongly recorded for which he

contemplated making of an application at a later point of time. It

was submitted that in the said letter, the respondent No. 1 never

made a request for said change of date of birth. According to him,

the formal application was filed by respondent No. 1 only on

11.11.1993 to the Madras High Court requesting for passing suitable

orders directing concerned authorities to change his date of birth as

24.11.1950 instead of 19.3.1947.

9. He further submitted that since representation for change of his date

of birth was submitted after five years, therefore, the same was

required to be rejected summarily in terms of the Rules. So far as

the medical report to which reference was made by the courts below,

it was submitted that the aforesaid medical report was not supported

by any test report and proof of having made any ossification test or

any supporting document like test reports or X-Ray reports and

therefore the said medical report relied upon by respondent No. 1

and done at his instance is of no evidentiary value and is of no

Page 5 of 25

assistance.

10.He also submitted that reliance on the horoscope itself for change of

birth is unfounded as the said horoscope is not only a very weak

piece of evidence but the horoscope on which reliance is placed by

respondent No. 1 is doubtful and appears to have been created for

the purpose of fortifying the claim for change of date of birth.

11.He had also drawn our attention to the copy of the S.S.L.C.

certificate. By way of reference to the said S.S.L.C. certificate, it was

submitted that originally the date of birth of respondent No. 1 was

recorded as 19.3.1947 which appears to have been subsequently

changed in a different handwriting, changing it to 24.11.1950

without indicating as to who had changed the same. There is

neither the identification of the person who corrected the same nor

any seal of the concerned authority permitting and making such

necessary changes.

12.The aforesaid contentions of the counsel appearing for the appellant

were refuted by the counsel appearing for the respondent No. 1 who

submitted that in the present case, the respondent No. 1 has

submitted not only documentary evidence in support of his claim but

Page 6 of 25

such a claim for change of his date of birth was also supported by

medical evidence as also oral evidence. He also submitted that

inadmissibility of the horoscope was not a question raised in the

special leave petition and therefore, the same cannot be gone into

and cannot be made a case to exercise jurisdiction under Article 136

of the Constitution of India. He submitted that the aforesaid change

of date of birth in the S.S.L.C. certificate was made pursuant to an

order made by the competent authority and therefore, there is

nothing wrong in relying on the same by the High Court as also by

the Munsif Court who held in favour of respondent No. 1.

13.We have perused the records very carefully in the light of the

aforesaid submissions. Rule 30 of the then Rules which is the

relevant service Rule for deciding the case provides for the procedure

for alteration of date of birth. Sub-Rule (a) of Rule 30 provides that

if at the time of his appointment in service by direct recruitment, a

candidate claims that his date of birth is different from that entered

in the S.S.L.C. books or Matriculation Register or School Records, he

should make an application through the High Court stating the

evidence on which he relies and stating that how the mistake had

occurred. The said application when received should be forwarded to

Page 7 of 25

the Board of Revenue for report after investigation by an officer not

below the rank of Deputy Collector and on receipt of the report, the

Government should decide as to whether such alteration of date of

birth should be permitted or the application should be rejected. Sub

Rule (b) of Rule 30 provides that after the person has entered the

service by direct recruitment, an application to correct his date of

birth as entered in the official records should normally be

entertained only if such application is made within five years of such

entry into the service and that such application shall be made to the

government through the High Court and should be disposed of in

accordance with the procedure laid down in sub-Rule (a). Sub-Rule

(c) of Rule 30 on the other hand, provides that any application

received after five years of entry into service should be summarily

rejected.

14.Counsel appearing for the respondent No. 1 put his emphasis on the

word "normally" in sub-rule (b). This sub-rule (b) is indisputably

applicable to the respondent. However, sub-rule (c) which

immediately follows makes it mandatory that an application which is

received after five years of entry into the service should be summarily

rejected. Therefore, the pre-requisite of filing such an application is

Page 8 of 25

that it must be submitted within five years period and when it is so

submitted the same should be entertained.

15.In this case, the formal application was admittedly filed after expiry

of the period of five years. Sub-Rule (a) of Rule 30 clearly

emphasizes that the application seeking for change of date of birth is

to be made to the government through the High Court. The letter on

which reliance is placed by respondent No. 1 which is dated

11.11.1993 is not addressed to the government but it is addressed to

the Registrar of the High Court and in that application the

respondent No. 1 has formally sought for change of his date of birth

stating the reason as to why such date of birth is called for.

16. In Punjab & Haryana High Court at Chandigarh Vs. Megh Raj

Garg and Another reported in (2010) 6 SCC 482, this Court while

dealing with the issue of limitation in the case of application for

change of date of birth, held as follows:-

"13. If the correct date of birth of Respondent 1 was

27-3-1938 and this was supported by the certificates is-

sued by the schools in which he had studied before ap-

pearing in the matriculation examination, then he would

have immediately after joining the service made an ap-

plication to the University for change of the date of birth

recorded in the matriculation certificate and persuaded

Page 9 of 25

the authority concerned to decide the same so as to en-

able him to move the State Government and the High

Court for making corresponding change in the date of

birth recorded in his service book in terms of Para 1 of

Annexure A to Chapter II of the Punjab Civil Service

Rules, Volume I.....

15. The High Court or for that reason the State Govern-

ment did not have the power, jurisdiction or authority to

entertain the representation made by Respondent 1 af-

ter more than twelve years of his entering into service.

Therefore, neither of them committed any illegality by re-

fusing to accept the prayer made by Respondent 1 on

the basis of change effected by the University in the

date of birth recorded in his matriculation certificate. Un-

fortunately, the trial court, the lower appellate court and

the learned Single Judge of the High Court totally misdi-

rected themselves in appreciating the true scope of the

embargo contained in the relevant rule against the en-

tertaining of an application for correction of the date of

birth after two years of the government servant's entry

into service and all of them committed grave error by

nullifying the decision taken by the State Government in

consultation with the High Court not to accept the repre-

sentation made by Respondent 1 for change of the date

of birth recorded in his service book.

17. This Court has time and again cautioned the civil

courts and the High Courts against entertaining and ac-

cepting the claim made by the employees long after en-

tering into service for correction of the recorded date of

birth. In Union of India v. Harnam Singh this Court con-

sidered the question whether the employer was justified

in declining the respondent's request for correction of the

date of birth made after thirty-five years of his induction

into the service and whether the Central Administrative

Tribunal was justified in allowing the original applica-

Page 10 of 25 tion filed by him. While reversing the order of the Tri-

bunal, this Court observed: (SCC pp. 167-68, para 7)

7. A government servant, after entry into ser-

vice, acquires the right to continue in service till the

age of retirement, as fixed by the State in exercise

of its powers regulating conditions of service, un-

less the services are dispensed with on other

grounds contained in the relevant service rules af-

ter following the procedure prescribed therein. The

date of birth entered in the service records of a civil

servant is, thus of utmost importance for the rea-

son that the right to continue in service stands de-

cided by its entry in the service record. A govern-

ment servant who has declared his age at the ini-

tial stage of the employment is, of course, not pre-

cluded from making a request later on for correct-

ing his age. It is open to a civil servant to claim cor-

rection of his date of birth, if he is in possession of

irrefutable proof relating to his date of birth as dif-

ferent from the one earlier recorded and even if

there is no period of limitation prescribed for seek-

ing correction of date of birth, the government ser-

vant must do so without any unreasonable delay.

In the absence of any provision in the rules for cor-

rection of date of birth, the general principle of re-

fusing relief on grounds of laches or stale claims, is

generally applied by the courts and tribunals. It is

nonetheless competent for the Government to fix a

time-limit, in the service rules, after which no appli-

cation for correction of date of birth of a govern-

ment servant can be entertained. A government

servant who makes an application for correction of

date of birth beyond the time, so fixed, therefore,

cannot claim, as a matter of right, the correction of

his date of birth even if he has good evidence to es-

tablish that the recorded date of birth is clearly er-

roneous. The law of limitation may operate harshly

but it has to be applied with all its rigour and the

courts or tribunals cannot come to the aid of those

who sleep over their rights and allow the period of

Page 11 of 25

limitation to expire. Unless altered, his date of birth

as recorded would determine his date of superan-

nuation even if it amounts to abridging his right to

continue in service on the basis of his actual age."

(emphasis supplied)

Again in Union of India Vs. Harnam Singh reported in (1993) 2 SCC

162, this Court said about limitation in paragraph 7 in the following

manner:-

"7. .......................................... It is nonetheless

competent for the Government to fix a time-limit, in the

service rules, after which no application for correction of

date of birth of a Government servant can be

entertained. A Government servant who makes an

application for correction of date of birth beyond the

time, so fixed, therefore, cannot claim, as a matter of

right, the correction of his date of birth even if he has

good evidence to establish that the recorded date of

birth is clearly erroneous. The law of limitation may

operate harshly but it has to be applied with all its

rigour and the courts or tribunals cannot come to the aid

of those who sleep over their rights and allow the period

of limitation to expire. Unless altered, his date of birth

as recorded would determine his date of

superannuation even if it amounts to abridging his right

to continue in service on the basis of his actual age. ......

.............................................."

17.Therefore, strictly speaking the Respondent while filing the said

application did not follow the mandate and requisites of Rule 30 of

the Rules. The application was not addressed to the State

Page 12 of 25

Government nor the procedure prescribed in sub-Rule (a), which is

applicable even for a case where sub-Rule (b) applies was not

adhered to nor the said application was filed within five years.

Therefore, in terms of sub-rule (c) it was to be summarily rejected.

But, instead of deciding the present appeal only on the aforesaid

ground, we proceed to decide on the other issues also which were

urged before us and which in our considered opinion call for our

decision.

18. So far as the contention with regard to change made in the

S.S.L.C. Certificate is concerned, we have perused the said certificate.

In the said certificate, it was clearly mentioned that his date of birth

was 19.3.1947 which was entered into by the headmaster of the

concerned school. It also contained the declaration of the father of

respondent No. 1. The signature of the father of the respondent No. 1

is clearly visible on the declaration and the signature is distinct, bold

and beautifully written and therefore appears to be that of a man of

letters. The date recorded therein came to be changed to 24.11.1950 by

someone by putting his initials, but the same is also without any date

and no seal also appears to have been appended thereto in support of

such change.

Page 13 of 25 19. Sub-Section(1) of Section 13 of the Registration of Births and

Deaths Act, 1969 provides that any birth or death of which information

is given to the Registrar after expiry of the period specified therein, but

within thirty days of its occurrence, shall be registered on payment of

such late fee as may be prescribed. Sub-section (2) thereof provides

that any birth or death of which delayed information is given to the

Registrar after thirty days but within one year of its occurrence shall be

registered only with the written permission of the prescribed authority

and on payment of the prescribed fee and the production of an affidavit

made before a notary public or any other officer authorized in this

behalf by the State Government. Sub-section (3) of Section 30 which is

relevant for our purpose also 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. There is nothing in the

evidence to indicate that the pre-conditions and the requisites of sub-

section (3) of Section 30 were followed in the instant case by respondent

No. 1. No order of the Magistrate of the first class or Presidency

Magistrate is placed on record to prove and establish that such an

Page 14 of 25

order was passed after verifying the correctness of the birth nor any

other connected document thereof is placed on record and therefore,

the change apparently was not made in terms of the aforesaid mandate

of Section 13 of Registration of Births and Deaths Act, 1969.

20. Reliance is placed by respondent No. 1 on the evidence of the

doctor and the medical certificate. PW-2 is Shri Newmen who has

proved the medical certificate stating that he was the Chairman of the

Medical Board and that the medical certificate was given to the

plaintiff/respondent No. 1 by the Medical Board which is Ext. A-12.

He stated in his examination-in-chief that he was the Chief of the Board

formed for issuance of Ex. A-12, which is relied upon by

plaintiff/respondent No. 1 and one doctor in Pathology, one General

Medical Expert and one Radiologist were in that team. He has also

stated that the said medical team generally examined

plaintiff/respondent No. 1 and examined him radiologically and came to

the conclusion as per Ex. A-12. He also stated that what kind of

examination was conducted on plaintiff/respondent No. 1 is noted in

the report of the Medical Board.

21. He has specifically stated in his deposition that he has not

Page 15 of 25

produced the test report or its copy before the Court showing

supporting documents and the tests based on which they had

determined the age of respondent No. 1/plaintiff. It must be indicated

at this stage that respondent No. 1/plaintiff himself went to the Medical

Board and got himself examined and obtained the aforesaid report

which was brought in evidence. At the top of the aforesaid medical

certificate, it is written as "Age Proof Certificate". The said age proof

certificate is signed by the Chairman and also signed by two other

members. What is recorded in the said age proof certificate is

extracted below:-

"This is to certify that MEDICAL BOARD No.

Office at TIRUPUR have carefully examined THIRU

MANICKAM, S/o Thiru V. Muthusamy, Subordinate

Judge, Udumalpet an applicant for Age Certificate. His

identification marks are;

1. A Black mole on the right collar bone.

2. A Black mole on the right hand.

According to my physical examination and personal of

his appearance of the individual, he appears to be about

48 years (Forty Eight years ) according to his own

statement"

22. In our considered opinion, the said medical certificate is very

vague and unreliable. Whether or not any radiological examination

was done and if so, of what nature, and also whether any ossification

Page 16 of 25

test was done or not is not reflected from the said report. It is only

stated in the certificate that on the basis of physical examination and

from his appearance and on the basis of his own statement the age of

the respondent was determined as 48 years.

23. This Court in the case of Ramdeo Chauhan alias Raj Nath v.

State of Assam reported in (2001) 5 SCC 714 while dealing with the

reliability of the ossification test held as follows: -

"21. ........................... An X-ray ossification test may

provide a surer basis for determining the age of an

individual than the opinion of a medical expert but it can

by no means be so infallible and accurate a test as to

indicate the exact date of birth of the person concerned.

Too much of reliance cannot be placed upon textbooks, on

medical jurisprudence and toxicology while determining

the age of an accused. In this vast country with varied

latitudes, heights, environment, vegetation and nutrition,

the height and weight cannot be expected to be uniform."

24. That age proof certificate appears to have been got prepared for

the purpose of adducing evidence at the time of hearing of the suit and

not before. The document is also found to unrealistic and unreliable.

Considering the facts and circumstances of the case, it is very difficult

to place any reliance on the authenticity and validity of the said age

proof certificate. Respondent No. 1 also relied upon the evidence of two

Page 17 of 25

persons in support of his contention that he was born in the year 1950.

Let us now proceed to consider the strength of such oral evidence.

25. PW-3, Murugan who is the elder brother of respondent No. 1

was examined. He had stated that respondent No. 1/plaintiff was born

in the year 1950. He also stated that in their family except respondent

No. 1, nobody studied in school or college which is found to be incorrect

because at a later stage he himself had stated that he had studied upto

2nd or 3rd standard.

26. He also stated that generally when the child is born, the same is

registered with the Village Munsif and that he did not know whether his

father had informed the village Munsif about the birth of respondent

No. 1. He had stated that while his brother was at the age of about

three or four years, to get him admitted in the school, his father had

given innocently his age as about 7 or 8 years and got respondent No. 1

admitted in the school.

27. The only other witness who was examined to prove the age of

respondent No. 1 was Chettiappa Velar, PW-4 who had stated that

respondent No. 1 was born in the year 1950 and that he also got

married in the year 1950. However, in the cross-examination, he could

Page 18 of 25

not say as to what is the date and month in which the respondent No. 1

was born. He also could not give the date and month of his marriage

as well.

28. The aforesaid evidence adduced by respondent No. 1 in support

of his case is most unreliable. Change of date of birth is a very

important responsibility to be discharged for there is a general tendency

amongst the employees to lower their age and change their date of birth

to suit their career and to lengthen their service career. In paragraph 6

of the judgment of this Court in State of U.P. v. Shiv Narayan

Upadhyaya reported in (2005) 6 SCC 49, this Court held thus: -

"6. .........................................But, of late a trend

can be noticed, that many public servants, on the eve of

their retirement waking up from their supine slumber

raise a dispute about their service records, by either

invoking the jurisdiction of the High Court under Article

226 of the Constitution or by filing applications before the

Administrative Tribunals concerned, or even filing suits

for adjudication as to whether the date of birth recorded

is correct or not."

Again in Para 9 of the said judgment it was stated thus: -

"9. ....................................................As such, unless a

clear case on the basis of clinching materials which can

be held to be conclusive in nature, is made out by the

respondent and that too within a reasonable time as

Page 19 of 25

provided in the rules governing the service, the court or

the Tribunal should not issue a direction or make a

declaration on the basis of materials which make such

claim only plausible. Before any such direction is issued

or declaration made, 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....................................................."

29. There must be strong, cogent and reliable evidence in support of

the contention that the date of birth entered in the service records or in

the S.S.L.C. certificate was wrongly entered by a mistake.

30. In State of Punjab Vs. Mohinder Singh reported in (2005) 3

SCC 702, this Court had occasion to deal with the evidentiary value of

horoscope as proof of date of birth. It was held in that decision that a

horoscope is very weak piece of material to prove age of a person and in

most of the cases the maker may not be available to prove that it was

prepared immediately after the birth and therefore a heavy onus lies on

the person who wants to press it to prove its authenticity. It was

further held that in fact a horoscope to be treated as evidence in terms

of Section 32(5) of Evidence Act, 1872, it must be proved to have been

made by a person having special means of knowledge as regards

authenticity of the date, time etc. mentioned therein. In that context

Page 20 of 25

horoscopes have been held to be inadmissible in proof of age.

31. Keeping the aforesaid principles laid down by this Court in our

mind, we proceed to examine the evidentiary value of the horoscope

which is relied upon by the respondent No. 1 in support of his claim.

The aforesaid horoscope is the basis and foundation on which the

respondent No. 1 primarily relies upon. The said horoscope, therefore,

must be shown to have been made by a person who has special

knowledge of making such a horoscope. The creator of the horoscope

or the writer is not examined in the present case as he was stated to be

dead. None of his family members or any of his acquaintances was

examined to prove handwriting. In order to come to a definite decision

about the authenticity and evidentiary value or the reliability of the

document, we have ourselves closely and very minutely considered the

horoscope.

32. Having gone through the same, we find that although it is stated

to be a notebook containing the horoscopes of all the sons and

daughters of the father of Respondent No. 1 made at different points of

time, but a bare perusal of the document would indicate that all the

horoscopes are made at one point of time by the same person at one go

Page 21 of 25

and not on different dates as sought to be claimed. The book allegedly

containing horoscopes of all persons was shown to be maintained from

1939 to 1953. For all the horoscopes written between a period of 14

years the same ink was used by the same writer. First horoscope was of

1939 and written in that year in a note book distributed and published

from Trichy-2. At that time, i.e., before independence there was no

postal zone. As per materials available the Indian Postal Service which

was constituted after Independence has introduced a PIN code system

"the Postal Index Number Code System" in India on 15.08.1972. The

objective of introduction of the said Code was to simplify the sorting of

mails and thus speed up their transmission and delivery. Since this

system came in 1972 the note book has to be of a period after 1972

and, therefore, the contention that immediately on birth of a member in

the family, the date of birth was entered in the note book has been

falsified. Therefore, it reinforces the findings of this Court that the

Respondent No. 1 has incorrectly stated the year of preparation of

horoscope. It could be deduced from the materials on record that

somewhere around 1993 this document was got prepared. If such a

notebook was available, nothing is stated as to why the same could not

have been looked at and produced at the time of his admission in the

Page 22 of 25

school or at the time of his admission in the college or even at the time

when he was entering into the service. From the signature appearing

on the school leaving certificate, we find that the father of respondent

No. 1 was a man of letters and there was no reason as to why he would

subscribe to a wrong age as alleged and that too in his S.S.L.C.

Certificate.

33. The aforesaid S.S.L.C. certificate with the date 19.3.1947 was

produced by him at the time of his entry into the college as also in entry

into the service knowing fully well that, that particular age is factually

recorded. The said notebook allegedly contained the horoscopes of all

the persons prepared at different points of time and therefore the said

date of birth was known to the family and therefore, if it existed at that

point of time, it would have definitely been placed at the time of his

entry to the school or admission in the college or the same would have

been relied upon at least at the time of his entry to the service. We

reiterate the proposition of law laid down by this Court in the aforesaid

decision that horoscope is a very weak piece of material to prove age of

a person and that heavy onus lies on a person who wants to press it

into service to prove its authenticity.

Page 23 of 25 34. We are of a firm opinion that respondent No. 1 has failed to

discharge his onus in proving the authenticity of the aforesaid

horoscope on which reliance is placed. Since the aforesaid horoscope

is a primary document on which reliance is placed for change of his

date of birth, therefore, the same is required to be looked into very

carefully and minutely so as to ascertain the genuineness of the claim

of respondent No. 1. There cannot be any bar to examine the

authenticity and evidentiary value of the same while exercising the

power under Article 136 of the Constitution of India. Power under

Article 136 of the Constitution of India permit such a scrutiny

particularly when it relates to the change of date of birth of a person

who seeks to get an advantage to his benefit to which he otherwise may

not be entitled to. In the decision of this Court in Ramakant Rai v.

Madan Rai and Others reported in (2003) 12 SCC 395, the ambit and

scope of power of Article 136 is stated thus: -

"14. ............................In express terms, Article 136 does

not confer a right of appeal on a party as such but it

confers a wide discretionary power on this Court to

interfere in suitable cases. The discretionary dimension is

considerable but that relates to the power of the Court.

Article 136 is a special jurisdiction. It is residuary power; it

is extraordinary in its amplitude, its limits, when it chases

injustice, is the sky itself. This Court functionally fulfils

itself by reaching out to injustice wherever it is and this

Page 24 of 25

power is largely derived in the common run of cases from

Article 136. ...................................."

The difference of age in the present case is also considerable, as it is 3

years, 8 months and 5 days.

35. When we look into the dispute and the matter from any angle,

we find that the judgment and the decree passed by the Munsif Court

which is affirmed by the High Court cannot be sustained and is liable to

be set aside. We hereby set aside the judgment and decree of the High

Court and hold that respondent No. 1 has failed to prove that any

change of date of birth is called for in the present case. The appeals are

allowed and the suit stands dismissed, leaving the parties to bear their

own costs.

............................................J

[Dr. Mukundakam Sharma]

............................................J

[Anil R. Dave]

New Delhi

August 17, 2011

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