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Status: Positive or Neutral Judicial Treatment

Vasudha Gorakhnath Mandvilkar v City and Industrial Development Corporation of

Maharashtra Limited

Bombay High Court

17 April 2008

Case Analysis

Bench R.S. Dalvi, R.P. Desai

Where Reported 2008 Indlaw MUM 451; 2008(5) ALL MR 358; 2008 (5) Bom.C.R. 417; 2008
(5) MahLJ 147

Case Digest Subject: Labour & Industrial Law

Summary: Practice & Procedure - Indian Evidence Act,1872, s.35 - Date of

birth - Proof essentially through a Public record - Whether date of birth
certificate issued by Municipal Authority is admissible as an evidence? -
Held, birth certificate is certified copy, can be produced as an evidence -
Proof of date of birth is certified copy of birth certificate issued by relevant
Municipal Authority, ultimate document, presumption under law hold good
until rebutted - Documents from school are private documents carry no
presumption in law - Whenever there is variance between unproved private
document or its copy and certified extract of a public record, latter must
prevail, has more probative value - Certified copies carry presumption as to
their genuineness u/s.79 Evidence Act - Also held, whenever there is
variance in date of birth and school leaving certificate or S.S.C certificate of
an individual, date of birth recorded in birth- death record must be accepted
- Copies of documents of School (School leaving certificate etc) cannot be
taken as authentic unless verified from authenticated public documents
therefore whenever there is a dichotomy or difference between dates of
births of an individual, date of birth reflected in public records i.e municipal
records, would be strongest possible evidence of such date - Date shown in
her birth certificate declared to be petitioner's date of birth for all purposes -
Petition allowed.

Appellate History Bombay High Court

Vasudha Gorakhnath Mandvilkar v City and Industrial Development
Corporation of Maharashtra Limited
2008 Indlaw MUM 451, 2008(5) ALL MR 358, 2008 (5) Bom.C.R. 417, 2008
(5) MahLJ 147

Supreme Court of India

Cidco v Vasudha Gorakhnath Mandevlekar
2009 Indlaw SC 677, (2009) 7 SCC 283, 2009 (4) AWC 3776, 2009 (5)
Bom.C.R. 253, 2009 (121) FLR 991, 2009 (4) JhrCR(SC) 36, 2010 (2) LLJ
674, 2010 (1) MPLJ 55, 2009(8) SCALE 480, [2009] 9 S.C.R. 427, 2009 (8)
SLR 1

All Cases Cited Referred

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Ravinder Singh Gorkhi Vs. State of U.P.2006 (5) SCC 584

Cases Citing this Case Hanumant Sahebrao Patil v Additional Commissioner, Nashik, Division
Nashik
2016 Indlaw MUM 2120, 2017(3) ALL MR 209

Hanumant Sahebrao Patil v Additional Commissioner, Nashik and others

2016 Indlaw MUM 1425

Bhanudas Yeshwant Nagawade v Dhondiba and others

2014 Indlaw MUM 658, 2014(5) ALL MR 263, 2014 (6) MahLJ 238

Legislation Cited Indian Evidence Act, 1872

Indian Evidence Act, 1872 s. 35

Indian Evidence Act, 1872 s. 61

Indian Evidence Act, 1872 s. 63(2)

Indian Evidence Act, 1872 s. 63(3)

Indian Evidence Act, 1872 s. 65

Indian Evidence Act, 1872 s. 77

Indian Evidence Act, 1872 s. 79

Juvenile Justice Act, 1986

© 2019 Thomson Reuters South Asia Private Limited

This database contains editorial enhancements that are not a part of the original material. The database may also have mistakes or omissions. Users are requested to verify the contents with the relevant original text(s) such as, the certified copy of the judgment,
Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy, satisfactory quality or suitability of the content.
29/09/2020 Delivery | Westlaw India Page 4

Status: Positive or Neutral Judicial Treatment

Bombay High Court

17 April 2008

Vasudha Gorakhnath Mandvilkar

v
City and Industrial Development Corporation of Maharashtra Limited

Case No : Civil W.P. No.6962 of 2006

Bench : R.S. Dalvi, R.P. Desai

Citation : 2008 Indlaw MUM 451, 2008(5) ALL MR 358, 2008 (5) Bom.C.R. 417, 2008 (5) MahLJ 147

Summary : Practice & Procedure - Indian Evidence Act,1872, s.35 - Date of birth - Proof essentially through a
Public record - Whether date of birth certificate issued by Municipal Authority is admissible as an evidence? -
Held, birth certificate is certified copy, can be produced as an evidence - Proof of date of birth is certified copy of
birth certificate issued by relevant Municipal Authority, ultimate document, presumption under law hold good until
rebutted - Documents from school are private documents carry no presumption in law - Whenever there is
variance between unproved private document or its copy and certified extract of a public record, latter must
prevail, has more probative value - Certified copies carry presumption as to their genuineness u/s.79 Evidence
Act - Also held, whenever there is variance in date of birth and school leaving certificate or S.S.C certificate of an
individual, date of birth recorded in birth- death record must be accepted - Copies of documents of School
(School leaving certificate etc) cannot be taken as authentic unless verified from authenticated public documents
therefore whenever there is a dichotomy or difference between dates of births of an individual, date of birth
reflected in public records i.e municipal records, would be strongest possible evidence of such date - Date shown
in her birth certificate declared to be petitioner's date of birth for all purposes - Petition allowed.

The Judgment was delivered by : HON'BLE JUSTICE ROSHAN DALVI

Rule returnable forthwith, as the affidavit of the Respondents is filed and the copies of documents relied
upon by the Petitioner as well as the Respondents have been produced in Court.

The Petitioner's date of birth is an issue in this Petition. It is contended by her that she was born on 2nd
October 1950. It is contended by the Respondents that she was born on 2nd October 1948. The Petitioner
has produced and the Respondents have considered the documentary evidence with regard to this date.
The Respondents have passed order dated 26th December 2007 with regard to her date of birth which has
been impugned in this Petition.

The Petitioner joined the Respondents' service initially as a Clerk-cum-Typist on 18th January, 1971. She
contends that she informed Respondent No.l at the time of joining her service that she was born on 2nd
October, 1950. She has filled up a form which is a part of her service record. That form shows her date of
birth as 2nd October 1948 corrected to 2nd October 1950. The form is typewritten, correction is handwritten.
It is by way of interpolation in the year. Both the parties have relied upon the same document in support of
their respective contentions.

Consequent upon the said form filled by the Petitioner, which is a part of her service record, her gradation
list, seniority list, retirement list etc came to be prepared. These documents would naturally have the same
date.

It appears that due to the interpolation in the year, the first Respondents called upon the Petitioner to furnish
true copies of the documents to show her date of birth. There has been some correspondence on this
aspect, with which we are not concerned. The Petitioner has to prove her date of birth when called upon.
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She has to essentially prove this through public record. That is the record of births and deaths maintained by
the Municipal Authority within the limits of whose jurisdiction the Petitioner was born i.e. Panvel Nagar
Parishad in the case of the Petitioner. The Petitioner has obtained her birth certificate issued by Panvel
Nagar Parishad. It shows her birth date as recorded in the register of births maintained by the Parishad as
2nd October 1950. The birth certificate is the certified copy of the extract of a public document u/s. 77 of the
Indian Evidence Act, 1872 (Evidence Act). Such certified copy can be produced in proof of the contents of
the public document of which it purports to be a copy. Consequently u/s. 79 of the Evidence Act it carries a
presumption as to its genuineness and is accordingly admissible in evidence. Under Section 79, the Court is
therefore, also required to presume that the Officer by whom such document is purported to be signed as
certified held the official character which is claimed in the document.

It is, therefore, clear that for proof of the date of birth the certified copy of the birth certificate issued by the
relevant Municipal Authority is the ultimate document. The presumption under the law would hold good until
it is rebutted.

The party who seeks to rebut it has the onus to prove that such a document is not genuine. That is what is
sought to be done in this case under the impugned order.

The Register of the Parishad shows an entry of the birth of the Petitioner to have been made on the date of
her birth itself. It is reasoned in the impugned order that the handwriting in the register showing her date of
birth on the same date that she was born is different from the handwriting showing her name. It is common
knowledge that names of children are given after birth. Hence in the register despite the fact that an entry of
birth is made, the name may be entered later. Such fact itself cannot rebut the legal presumption. In fact the
challenge is to the original record itself. It is, therefore, not strictly in rebuttal of the legal presumption.

The Petitioner in this case has not only relied upon the birth certificate but also the birth record register in
form specimen No. 14 given by Panvel Nagar Parishad showing the record of her birth as well as the births
of 2 other sisters Shashikala and Sunita, immediately preceding and succeeding her in birth. Consequently
in this case it is seen that the certified copy of the public record tallies with the public records from which the
extract is extracted. Hence, the presumption u/s. 79 of the Evidence Act as to the genuineness of the
certified copies is fortified by the actual public record.

The Petitioner has 7 siblings. The 8 children have been born between 1946 and 1964. The first 4, including
the Petitioner, have been born at a distance of 2 years. The interpolation in the year of the Petitioner's birth
in a form which she submitted at the time she was appointed in service has a bearing on the birth dates of
the 2 sisters preceding and succeeding the Petitioner.

It is an admitted position that the first sister Shashikala is shown to have been born on 25th January, 1946.
The Petitioner is the 2nd child. The 3rd sister Sunita is stated to be born on 2nd June 1950. The 4th sister
Shailaja is born on 5th October 1952. We are not concerned with the births of the later children.

The impugned order shows the Labour Officer of the Corporation having relied upon and produced various
documents from the school records of the Petitioner as well as of her siblings in Primary Kanya Shala No.3
of Panvel Nagar Parishad. These documents include the applications made at the time of the admission to
the school for Petitioner and her sisters, the School Leaving Certificates of the Petitioner and her sisters, the
admission register given by the Head Mistress of the School, a general register of the pupils of the school
from old register indicating the date of birth record of the Petitioner etc. These documents are private
documents. They carry no presumption in law. Certified copies of these documents are not admissible in
evidence. These documents have to be proved by direct evidence as all private documents are required to
be proved. It may be mentioned that the date of birth shown in the application for admission to the school
are what the parents of the students state. They are not accompanied by documentary evidence to
substantiate such dates of birth as correct. The school record would continue to show, until contrary is
shown or proved, the date stated by the parents. The record of the school do not show that these dates have
been verified from authenticated public documents such as the birth certificate or the record of birth
maintained by the Municipal Authorities. Therefore the copies of the documents of the school cannot be
taken as authentic.

It is common knowledge that to secure admission in the school earlier than at the age which the law permits,
an incorrect date of birth may be shown. Unless verified from public records such date may remain in the
record of the school. This cannot be verified except by production of public records. They, therefore, cannot
be authentic dates as would make those documents admissible as evidence with probative value in law.

Consequently whenever there is a variance between an unproved private document or its copy and a
certified extract of a public record, the latter must prevail as it has more probative value, carrying the
presumption as it does u/s. 79 of the Evidence Act. This presumption would continue to hold until it is
rebutted. It can be rebutted only by production of the original public record from which the extract is made
out and certified to be true by the relevant authority. Only if it is so rebutted, such certified copy issued by a
public authority would stand nullified.
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The contents of private documents can be proved by primary or secondary evidence u/ss. 61 to 65 in
Chapter V of the Evidence Act. The proof of the contents of public documents can be by production of their
certified copies u/s. 77 in Chapter VI of the Evidence Act. Since the certified copies carry a presumption as
to their genuineness u/s. 79 of the Evidence Act, they need not be proved in evidence.

It is in this light that the extent of proof of the documents relied upon by the Petitioner and those relied upon
by the Respondents in the detailed impugned order would have to be seen. The birth certificate of the
Petitioner raises the presumption as to its correctness. That is not rebutted. It is in fact reflected in the record
of the Parishad which is the Public Body which gives the extract in the birth certificate from its own records.
The copies of the documents of the school being private documents were required to be proved by direct
evidence. That would be primary or secondary evidence as the certification merited. That has not been
done. The impugned order has simpliciter considered the copies of the documents relied upon by the Labour
Officer of the Respondents. These copies are themselves not admissible in evidence. They require to be
proved by direct evidence. They, per se, do not have the probative value.

The School records therefore, cannot override the public records.

In the case of Ravinder Singh Gorkhi Vs. State of U.P. (2006)5 Supreme Court Cases, 584 the proof as well
as probative value of the birth certificate and a school leaving certificate have been considered. That was the
case of the accused claiming juvenility under the Juvenile Justice Act. It was for him to prove his age. He
sought to prove it by a copy of his school leaving certificate. It was sought to be proved through the
Headmaster of the school who issued it. The certificate was not issued in the ordinary course of business of
the school. It was a copy issued after 26 years of the student leaving the school. The Headmaster who
issued it gave evidence that he had no personal knowledge regarding the date of birth of the student since
he was not in school when the student was admitted. The Headmaster did not depose that it was a true copy
of the original certificate also. The register maintained by the school, from which the certificate could have
been issued after 26 years of the student leaving school, was not produced. It was held that the accused
could not rely upon such a document to prove his juvenility or his date of birth.

It may be mentioned that the copy of this certificate, which is produced and sought to be relied upon or
sought to be proved, is by secondary evidence. For a copy of a document to be relied upon, evidence about
how the copy was made from the original or how it was compared with the original must be shown as stated
in S. 63(2) and (3) of the Evidence Act. Evidence about why the original is not produced must further be led.

If a school leaving certificate is produced, evidence must be led as to how the contents of the certificate
came to be incorporated by the person issuing the certificate. This can be extracted only from the original
record maintained by the school. Such record, therefore, would have to be produced before the Court to
show how the copies of the certificates were made from the original under S. 63(3) of the Evidence Act.
Unless the original record is produced, a certificate is of no probative value. The judgment in the case of
Gorkhi (supra) held that a school leaving certificate purported to have been issued by the school authorities
is a relevant fact u/s. 35 of the Evidence Act. The Supreme Court considered the evidence of the
Headmaster with regard to the production of the school leaving certificate. As in all such cases, his evidence
was that the date of birth of the student might have been disclosed by him at the time of the admission. He
did not have any personal knowledge with regard to date. No inquiry was made as regards to the age of the
student at the time of his admission. The witness admitted that it was quite possible that the age disclosed
by the guardian may be more or less. The student was admitted in 1967. His name was struck off the Roll of
the institution in 1972. The school leaving certificate was issued in 1998. That was, therefore, not in the
ordinary course of business of the school, further there was nothing to show that the date of birth recorded in
the register was in terms of the requirement u/s. 35 of the Evidence Act. No proof with regard to the date of
birth given to the school at the time of admission was submitted to the school. Even before the entries were
made in the certificate, the age was not verified. In that case even the register maintained by the school
which would have been in the regular course of business of the school was not produced. All these
observations with regard to those facts have been made in paragraphs 16 and 17 of the judgment (supra).
Of course in that case the second copy of the school leaving certificate was produced without showing the
date of its issue and the fact that the Headmaster who issued it did not certify it to be a true copy and did not
produce the register of admission, which created grave doubt and suspicion as to its contents. In this case
the impugned order shows that copies of the records maintained by the school including a "very old register"
were relied upon by the Respondents in the inquiry with regard to the date of birth of the Petitioner resulting
in the impugned order passed by the Manager (Labour Officer) of the respondents. Nevertheless the fact
remains that these private documents have not been proved as required under the Evidence Act.

We may go a little further assuming that the dates of births of Petitioner and her siblings in the school
records were indeed as is stated in the impugned order. Yet, there is nothing to show that those dates of
birth were verified by the school authorities before they came to be so maintained. The verification could
have been only from the records of the Parishad. Consequently it can be seen that it is only those public
records which are municipal records maintained in the normal course of the conduct of the Municipality. that
would ultimately determine the correct date of birth of a given applicant. Consequently whenever there is a
dichotomy or difference between the dates of births of an individual, the date of birth reflected in the public
 29/09/2020 Delivery | Westlaw India Page 7

records, which is the municipal records, would be the strongest possible evidence of such date. School
records, which are not verified, and which are maintained upon what is stated by the student and/or the
guardian cannot over ride what is stated in the public records.

We may mention that in this case there are as many as 8 children of the parents who have sought admission
from time to time in the Municipal School. From its very numbers, an error in their dates of birth cannot be
ruled out. A further reason to admit the children earlier than required by law must also be considered for
giving erroneous birth dates in the school records which would remain for the future. The impugned order
has exceedingly well considered the various changes in the dates and the interpolations in the records. The
impugned order has considered in great detail certain anomalies in the dates of birth of the other
sister/sisters of the Petitioner also. The order shows that in respect of several siblings of the Petitioner there
is a discrepancy in the dates of birth shown in the birth register and in the school register. However, once
these anomalies are noticed, it is only the date mentioned in the public records that must prevail.

The impugned order takes exception to the fact that the register maintained by the public authority shows
different handwritings in the date of the birth and the name of the child born. This shows not only that the
public record is maintained in the normal course, but that it is produced and seen by the officer of the
Respondent passing the impugned order. That difference in the handwriting can be explained as stated
hereinabove. That does not make the record, suspicious or fabricated.

The impugned order has further considered the age of the Petitioner and her siblings at the time of
admission to the school. The admission of student in 1st standard, the age of child is required to be of 5
years or more. The Petitioner's date of admission is not shown at page 15 of the order which deals with her
siblings' date of admission. That may have clinched the issue further. However, since there is discrepancy in
the dates of other sisters who precede and succeed the Petitioner it is sought to be shown that since the
year of date of birth recorded of another sister is incorrect, the Petitioner's year of birth does not fall place
since 2 sisters cannot be born in one single year. We may mention that such exercise is not required to be
carried out to determine and accept the date of birth of an individual; more so when the Municipal records
can be produced or is produced as in this case. We may also mention that rejection of public records on the
ground of it having different handwritings in the dates and names, is incorrect. The presumption of the
certified copy of such public record cannot be rebutted by such conjunctures. The presumption that the
father would have mentioned the correct dates of birth in school records is neither seen to be factually in
accordance with the course of human conduct, nor drawn under the law of Evidence. Such presumption
cannot be drawn and if drawn cannot be accepted by the Court. Further the conclusion that the school
records cannot be wrong in the face of the public records produced by the Petitioner also cannot be
accepted as a correct conclusion.

It appears that the Petitioner has relied upon a circular dated 3rd March, 1998 of the General Administration
Department of the Government of Maharashtra stating that whenever there is a variance in the date of birth
and the school leaving certificate or the S.S.C certificate of an individual, the date of birth recorded in birth-
death record must be accepted. It is contended on behalf of the Respondents that, that circular is not
applicable to them. Even if the circular is not applicable, the circular merely recites the correct position in law
as aforesaid. It is merely clarificatory. It would remove doubts and can be used as a matter of convenience.
It enunciates the correct position for law. It is not contrary to the position in law under the Evidence Act with
regard to the proof of public and private documents and the legal presumptions which are available only to
public documents.

Though therefore, the impugned order is a very detailed and reasoned order, the noteworthy effort that has
gone into impugned order is seen to be not correct with regard to the law relating to the documents that are
considered in the order.

In the result the Petition succeeds. The letter dated 4th October 2006 Exhibit-H to the Petition and the
impugned order dated 26th December, 2007 Exhibit-J to the Petition are set aside. The Petitioner's date of
birth for all purposes is declared to be the date shown in her birth certificate which is 2nd October 1950. This
date alone shall be considered for all purposes including the Petitioner's retiral benefits.

Rule made absolute accordingly.

© 2019 Thomson Reuters South Asia Private Limited

This database contains editorial enhancements that are not a part of the original material. The database may also have mistakes or omissions. Users are requested to verify the contents with the relevant original text(s) such as, the certified copy of the judgment,
Government Gazettes, etc. Thomson Reuters bears no liability whatsoever for the adequacy, accuracy, satisfactory quality or suitability of the content.