@JUDGMENTTAG-ORDER
Bakthavatsalam, J.@mdashThe prayer in the writ petition is as follows:
...to issue a writ of mandamus or any other order or direction in the nature of writ, directing the respondents to accept 9-12-1954 as the
petitioner''s date of birth and accordingly appoint the petitioner as District Munsif cum Judicial Magistrate pursuant to the selection by the
committee....
Though I am of the view that the prayer as asked for cannot be granted at this stage, it can be molded to suit the occasion as per the decisions of
the apex court of the land.
2. The facts which gave rise to the filing of the writ petition are as follows:
The petitioner is a practicing Advocate at Vallioor, Tirunelveli District and when the first respondent called for applications for filling up 83
vacancies in the cadre of District Munsif cum Judicial Magistrate and the Tamil Nadu State Judicial Service by direct recruitment, the petitioner is
one of the candidates who applied for the post. It is to be stated at this stage that the petitioner furnished Xerox copy of the first page of his S.S.L,
C. book in support of his claim regarding the date of birth which showed his date of birth as 29-2-1954. Having scrutinised the applications, the
petitioner was called for an interview by the first respondent and he appeared for the interview before a committee consisting of three members
including a learned Judge of this Court. The results were announced on 1-5-1991 and the register numbers of provisionally selected candidates
were published but the results of three candidates were withheld and amongst them, the petitioner''s is one. When the petitioner was expecting the
selection in his favor, he found that his register No. 1363 was withheld. He made enquiries and found out that when the results were fed into the
computer, the computer had withheld his name on the ground that the date of birth given by the petitioner as 29-2-1954 cannot be a correct date
because the year 1954 is not a leap year. This mistake was not noticed by anybody else, either by the petitioner or his parents or school or college
authorities or even by the Bar Council, Madras or the Tamil Nadu Public Service Commission while it scrutinized the application, but it was
spotted out only by the computer. When he came to know that 29-2-1954 cannot be the correct date of birth, the petitioner made efforts to verify
his correct date of birth and found from the horoscope and baptism certificate that he was born on 9-12-1954 and he was baptized on 24-4-
1955. To get an authenticated proof of the date of birth, the petitioner''s lather filed an application before the Judicial Magistrate, Tiruchendur on
3-5-1991 under the Registration of Births and Deaths Act, 1969 (Central Act 18 of 1969) and an order was passed by the Judicial Magistrate on
8-9-1991 to the effect that the date of birth of the petitioner is 9-12-1954. Before that stage, the petitioner received a communication from the first
respondent on 15-5-1991 informing that the date of birth given by the petitioner as 29-2-1954 was not correct and directing him to state the
correct date of birth and send evidence in original before 3-6-1991. The petitioner submitted his representation on 30-5-1991 enclosing the birth
certificate issued by the Tahsildar, Sathankulam. Later on, the petitioner submitted another representation on 8-8-91 enclosing the order passed by
the Judicial Magistrate, Tiruchendur and since there was no. response from the first respondent, the petitioner sent another reminder on 30-10-
1991 to the first respondent to pass necessary orders for his appointment as District Munsif cum Judicial Magistrate pending approval of the birth
certificate.
3. The petitioner alleges in the affidavit filed in support of the writ petition that he had obtained high rank and was placed No. 3, and as the first
candidate among Backward Class candidates in the selection list. It is also alleged that the first respondent ought to have accepted the materials
produced by the petitioner and accepted his date of birth as 9-12-1954 and consequently released the results to enable him to get the
appointment. The petitioner alleges that the first respondent having pointed out that the date of birth given by the petitioner as 29-2-1954 cannot
be correct ought to have accepted the records produced by the petitioner and corrected the age as prayed for. The petitioner further alleges that
he had produced his baptism certificate and also an order by the competent judicial authority as required under Central Act 18/1969 registering his
date of birth as 9-12-1954, and the respondents ought to have accepted those documents. It is also alleged that the petitioner had been ranked
No. 3 whereas the other persons, who had obtained lower rankings, are functioning as such from 1-7-1991. It is further alleged that it is not
possible for the petitioner to get the S.S.L.C. book corrected incorporating the correct date of birth as 9-12-1954, instead of 29-2-54 in view of
the order of this Court by a learned single Judge in M. Krishnamurthy v. The Director of Public Instructions, Nungambakkam, Madras-6 1966 1
MLJ 80. It is submitted by the petitioner that the petitioner had not given any wrong date of birth and sought for a correction thereof. It is also
alleged that the petitioner was under the impression that the date of birth as shown was correct and when it turned out to be an incorrect entry and
when he produced relevant materials showing the correct date of birth, the respondents ought to have accepted the same. It is also submitted that
R.49 of the Tamil Nadu State and Subordinate Services Rules does not prohibit the appointment of selected candidate pending such enquiry nor
does it envisage the withholding of the results. With the above allegations, the petitioner is before me for the relief as prayed for in the writ petition.
4. Notice of motion has been ordered by S. Ramalingam, J., on 18-12-1991. Though no counter-affidavit has been filed on behalf of the
respondents. Mr. Meenakshisundareswaran, learned Advocate appears for the first respondent with instructions.
5. The facts are not disputed by the learned Government Advocate. It is stated by the learned Government Advocate on instructions that the
petitioner sent a Xerox copy of his S.S.L.C., and first page in support of his claim regarding the date of birth as 29-2-1954. It is also stated by the
learned Government Advocate that the petitioner was interviewed by the Commission on 12-4-1991 and at the time of the tabulation of the results
it was noticed that there cannot be such date in February, 1954, i.e., 29-2-1954 which is not a leap year. Therefore, it is stated that the result of
the petitioner was withheld pending verification of his correct date of birth and he was directed to state his correct date of birth and to send the
evidence in original therefore. It is further stated by the learned Government Advocate that according to Paragraph 11 of the instructions, etc., of
the first respondent to the candidates, the S.S.L.C. or a certificate from a University or College or school authority showing them. Date of birth will
alone be accepted as evidence of the date of birth and that the certificates of Baptism or extracts from register of births are not accepted, it is
stated that with reference to the memo dated 15-5-91 the petitioner sent a reply dt. 30-5-91 stating that the date of his birth has been entered in
the S.S.L.C. on 19-2-1954 by mistake and claimed his date of birth as 9-12-1954 and he has sent a certificate of birth obtained from the Head
Quarters Deputy Tahsildar, Sathankulam. Which has been issued only on 10-5-1991 and the Government was addressed in the letter dt. 28-8-
1981 of the first respondent for the views of the Government in the matter of determining the date of birth of the petitioner and based on the reply
received from the Government, dt. 28-11-1991, a direction was issued on 23-12-1991 to the petitioner stating that the petitioner should approach
the competent authority to make necessary correction in his S.S.L.C. and in the other relevant school records in respect of his date of birth with
reference to the orders of the Judicial Magistrate, Tiruchendur, dt. 8-5-1991 as the birth certificate was obtained by him in pursuance of S. 13(3)
of the Registration of Births and Deaths Act, 1969 (Central Act 18 of 1969) and that he should report the fact to the first respondent Commission
after the alteration of the date of birth is made in the S.S.L.C. duly enclosing the S.S.L.C. and it is the sole responsibility of the petitioner to satisfy
the first respondent regarding the date of his birth and the respondents are not at all responsible for any incorrect particulars or entries made in the
S.S.L.C. book or college records of the petitioner Learned Government Advocate submits that there is no justification for the relief sought for and
the petitioner should approach the competent authority to make necessary corrections regarding the change in the date of birth in his S.S.L.C. and
other relevant records and the results of the petitioner will be announced after making necessary entries with his correct date of birth in his
S.S.L.C. book by the competent authority.
6. Mr. N.R. Chandran, learned senior counsel appearing for the petitioner contends that the first respondent is not correct in asking the petitioner
to go before the authorities and ask for the correction of the S.S.L.C. which, in law, cannot be done in view of the judgment of a learned judge of
this Court in M. Krishnamurthy v The Director of Public Instructions, Nungambakkam, Madras-6 1966-1-MLJ 80, and contends ""run the
petitioner cannot go before the Directed of School Education and ask for a corrector of the S.S.L,C. learned senior counsel points out that once a
student leaves the school, the authorities have no jurisdiction to touch the certificate and make a corrector of that. Learned senior counsel
submitted that when once the first respondent Commission has accepted the application of the petitioner after scrutiny and having allowed the
petitioner to appear for the interview and having selected the petitioner provisionally, it is not open to the first respondent to insist upon a correction
at this stage to be made in the S.S.L.C., which is not possible in law. According to the learned senior counsel, registration of births and deaths can
be made under Central Act 18 of 1969 and the provisions of the said Act provide for such a course and the petitioner having obtained a
declaration under the said Act, the respondents ought to have accepted it as a public document under the provisions of the Evidence Act. Learned
senior counsel states that a reading of the provisions of the Central Act 18 of 1969 and the Evidence Act clearly shows that the certificate issued
by a Magistrate is a public document and it has to be accepted by the first respondent and argues that R. 49(a) of the Tamil Nadu State and
Subordinate Services Rules (Tamil Nadu Services Manual Volume I) provides for such contingencies and a reading of the said rule shows that if,
at the time of appointment, a claim is made with regard to a change in the date of birth, an enquiry can be made through the Board of Revenue and
on receipt of the report the first respondent shall decide whether the alteration of date of birth may be permitted or the application may be rejected.
In view of this provision, learned senior counsel contends that there is no justification at any rate for the first respondent to withhold the result of the
petitioner.
7. Per contra, learned Government Advocate appearing for the first respondent, contends that in paragraph 11 of the Commission''s instructions it
is made clear that the certificate of Baptism or extracts from register of births and deaths are not accepted as the date of birth and the only
evidence is school or college records, and as such, it is for the petitioner to make the correction in the school or college records and approach the
first respondent asking for the publication of the results. According to the learned Government Advocate having accepted the conditions and
appeared for the interview, it is not open to the petitioner to turn round and contend that the result has to be published even without the production
of a correct date of birth.
8. I have considered the arguments of Mr. N.R. C hand ran, learned senior counsel, appearing for the petitioner and Mr.
Meenakshisundareswaran, learned Government Advocate, appearing for the first respondent. Here is a case where the date of birth of the
petitioner is given as 29-2-1954 in the S.S.L.C. certificate. He is a practicing advocate, and on the basis of this date of birth, when the Tamil Nadu
Public Service Commission, the first respondent herein, called for applications for the posts of District Munsif cum Judicial Magistrate in the Tamil
Nadu State Judicial Service to be made by direct recruitment, the petitioner applied for the same. The first respondent has accepted the application
of the petitioner, called the petitioner for interview and he has been interviewed by a committee including a learned Judge of this Court and the
petitioner was selected as No. 3 in the list and he is first so far as the Backward Community quota is concerned. The mistake in the date of his
birth has been found out only by the computer and not by any human agency like the school authorities, college authorities, Bar Council or even the
Public Service Commission when scrutinizing the application first respondent. That apart, even the first respondent when it scrutinized the
application of the petitioner has not scrutinized it properly and allowed the petitioner to appear for the interview. Having accepted application of
the petitioner and having allowed the petitioner to appear for the interview and made the petitioner to believe that he can get an appointment if he
fares well in the interview it is not open to the respondents to deny the publication of the results. In my view, the principle of promissory estoppel
can also apply to the facts of this case in so far as the petitioner has been made to believe that he can appear for interview and get an appointment
if he fares well in the interview and actually the petitioner has well done in the interview by obtaining third rank in the selection and the first among
the backward community candidates. When such is the case, I do not see why the respondents should insist upon on the technicality of correcting
the S.S.L.C. when the first respondent itself has not scrutinized the application of the petitioner carefully and allowed the petitioner to appear for
the interview. I think it is too late in the day for the first respondent to contend that paragraph 11 of the instructions given by the first respondent to
the candidates ought to have been followed by the petitioner.
9. Apart from that I am of the view R. 49 of the Tamil Nadu State and Subordinate Services Rules provides for such a contingency. R. 49 (a)
reads thus:
49. Alteration of Date of Birth.-(a) If at the time of appointment a candidate claims that the date of his birth is different from that entered in his
S.S.L.C. or Matriculation Register or school records, he shall make an application to the Tamil Nadu Public Service Commission in cases where
the appointment is made in consultation with the commission and in other cases to the appointing authority stating the evidence on which he relies
and explaining how the mistake occurred. The application shall be forwarded to the Board of Revenue for report after investigation by an offer not
below the rank of a Deputy Collector and on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority, as the
case may be, shall decide whether the alteration of date of birth may be permitted or the application may be rejected....
So, here is a case where the computer has found out that the age of the petitioner is different and the petitioner has made certain representations
with certain records which, according to him, show the correct date of birth. As such, it is up to the first respondent to make investigation with
regard to the date of birth and this is provided for, in my view, in R. 49(a) of the Tamil Nadu State and Subordinate Services Rules and the first
respondent has failed in its duty to apply R. 49(a) to the facts of this case and instead, insisted upon the petitioner to give his correct date of birth
by correcting the S.S.L.C. certificate which is not possible in law. It is true that it may be possible to file a suit for declaration regarding the correct
date of the birth of the petitioner; but it cannot be disputed that it is a time consuming factor. The petitioner having been selected a year ago, his
result has not been published and it is not correct either in equity or fair. It is not necessary for this Court to drive the petitioner at this -stage to file
a suit for declaration. It is true that the petitioner may have to file at a later stage a suit for such a declaration, if necessary, but surely not before the
publication of the results; the occasion arises only at the stage of appointment.
10. Mr. N.R. Chandran, learned senior counsel, appearing for the petitioner relics upon the decision of a learned single Judge of this Court
reported in The Director of Public Instruction v. N. Mohandas 1955 I MLJ 488. And contends that the petitioner cannot go before the Director of
School Education and ask for a correction of the S.S.L.C. as the petitioner has come out of the school. I am not able to agree with the learned
senior counsel on this aspect. In the decision reported in The Director of Public Instruction v. N. Mohandas, a definite answer was given by a
Division Bench of this Court to a question how and when the date of birth entry in the S.S.L,C. can be changed. In that case, two Government
orders G.O. Ms. No. 954, Education, dated 23rd June 1941 and G.O. Ms. No. 39 dated 12th January 1944 are referred to. The Division Bench
held that the only course open to the Director of Public Instruction is on an application for alteration of the entry relating to the date of birth; if it is
made after the applicant has appeared for the S.S.L.C. Public Examination, is to decide whether there has been an obviously absurd entry, which
needs correction. The Division Bench further held that he has no power to direct the applicant to obtain from the civil court an order directing the
correction- The Division Bench further held that in any event in an application under S. 45 of the Specific Relief Act the civil court cannot go into
the merits of the application and determine the correct date of birth of the applicant and it can only direct the Director of Public Instruction to deal
with the application himself. The Division Bench explained the scope of R.5 of the Rules framed by the S.S.L.C. Board and upheld the relevant
government orders cited supra. Jagadeesan, J., in Second Appeal No. 108 of 1958 held that the plaintiff in the suit was not entitled to a
declaration under S. 42 of the Specific Relief Act and the plaintiff had no cause of action at all against the Director of Public Instruction. That was a
case where the plaintiff was serving in the Corporation of Madras and the Corporation of Madras was made a party in the Second Appeal for the
first time. Further, at the time when the question came up for decision, the employee concerned had reached the age of superannuation and any
question of correcting his date of birth had become academic at the time. In the view that the Director of Public Instruction was not in any way
interested in denying the correct date of birth, the plaintiff was not entitled to a declaration under S. 42 of the Specific Relief Act. The suit was
dismissed on the ground that the plaintiff there asked for a declaration of his correct date of birth as against the Director of Public Instruction who
was absolutely unconcerned and disinterested in the matter and that the plaintiff had no cause of action at all against the Director of Public
Instruction. In S.A. No. 309 of 1965 an unreported judgment dated 14-11-1966, a learned single Judge of this Court dealt with all aspects of the
question of correction of age and held that up to 1955 the law was uncertain as to the procedure by which an employee of the educational
institution to get correction or alteration of his date of birth in his S.S.L.C. or service register. In S.A. No. 309 of 1965, it is made clear that the
alteration in the date of birth can be asked for on the basis of some evidence and that the same will have to be established in a civil court and it will
not be proper for the Director of Public Institution or the Government to conduct investigation and order the correction. So it is not as if the
Director of Public Instruction has no jurisdiction to alter the date of birth in the S.S.L.C. Hence, it is open to the petitioner to approach the
educational authorities who can decide the only question whether such an entry is obviously absurd entry which needs correction. It is true that a
learned single Judge of this Court in.V. Krishnamurthy v. The Director of Public Instruction, Nungambakkam, Madras 6 1966-I-MLJ 80. Has
held that no mandamus could be issued against the educational authorities to correct the date of birth after a person goes out of the school. But that
does not mean that the relief simplicities, viz., the correct date of birth should be declared in the presence of the affected authorities, namely, the
school authorities only in a suit. As such, the petitioner can also go before the civil forum and obtain declaration even if he does not obtain it as
contended by the learned senior counsel. In Umesh Chandra Vs. State of Rajasthan, . The apex Court of the land, which has approved a judgment
of the Kerala High Court in Abdul Majeed (Meera Sahib) Vs. Bhargavan (Krishnan) Member, Legislative Assembly and Others, . While dealing
with the date of birth of a child given by her father, observed thus at page 1061:
...Here also, we think the High Court has taken a most artificial and technical view of the matter. In our country, it is not uncommon for parents
sometimes to change the age of their children in order to get some material benefit either for appearing in examination or for entering a particular
service which would be denied to a children as under the original date of birth he would be either under aged or ineligible.
The Division Bench in the above case came to the conclusion that the entries in the birth register furnish the best evidence of the date of birth and
can safely be accepted unless they are shown to be wrong. In view of this decision, I do not know why the first respondent should insist upon the
correction of the S.S.L.C. certificates of the petitioner.
11. That apart, an enactment has been passed by the Parliament viz, Central Act 18 of 1969 regarding the registration of births and deaths. Sub-S.
(3) of S. 13 provides for a birth to be registered after orders made by a Magistrate verifying the correctness of the birth if it has not been registered
within one year of its occurrence. In this ease, the petitioner has got a declaration from the Magistrate regarding his date of birth under the
enactment. Under Sub-S. (2) of S. 17, all extracts given shall be certified by the Registrar or any other officer authorized by the Registrar or any
other officer authorized by the State Government. The enactment enables the registration of such certificate issued either by the Registrar or by the
Magistrate and accepts it as admissible in evidence for all practical purposes. So I do not see any meaning in the objection taken by the first
respondent that the petitioner has to get a correction of the S.S.L.C. alone at this stage. Though the prayer as asked for by the petitioner cannot be
granted straightway it can be molded to suit the occasion and as such, instead of the writ asked for by the petitioner, a direction will issue to the
first respondent to publish the results of the petitioner on or before 21st April, 1992. The writ petition is ordered accordingly. No costs.
