Sisu Ranjan Das v. Commissioner of Police — 1979 DIGILAW 326 (CAL)

JUDGMENT This Rule is directed against an order of the Commissioner of Police dated 16.12.78 wherein he declined to change the order dated 20.7.78 passed by his predecessor the then Police Commissioner S. Basu refusing to correct the age of the petitioner in his service Record according to the Matriculation Certificate. 2. On 11th April, 1940 the petitioner was appointed a Constable in the Bengal Police. On 19th of February, 1944 he was promoted to the Assistant Sub-Inspector of Police. After partition, the petitioner was transferred from Bengal Police to Calcutta Police and Since then he is working in the Calcutta Police. At the time of first entry in the police service, according to the petitioner, his date of birth was wrongly recorded in his service book as 1.1.21 which was not the actual date of birth on the basis of the Matriculation Certificate. At the material time, the petitioner was examined by a Doctor who recorded the age after medical examination. The officer who prepared the service book of the petitioner also filled up the age in the service book taking the age recorded during the medical examination into account for the purpose of recording the data of birth in the service book. It is the case of the petitioner that the said recording was made on mere guess though the petitioner declared that he was a Matriculate. According to the Matriculation Certificate the petitioner's date of birth is 1st April, 1923. In the service book the said date of birth was not verified on the basis of any authentic document. It is stated in the petition that the petitioner's date of birth was wrongly recorded in the service book not on the basis of the Matriculation Certificate but by mere guess. The authorities also never asked the petitioner to produce the Matriculation Certificate though it was incumbent upto them to verify the date of birth on the basis of the Matriculation Certificate and to pass an order fixing the year, month and date or birth. The petitioner came to know from the Calcutta Police Gazette dated 5.1.78 that the date of birth of one Sub-Inspector of Police Sri Sambhu Banerji was corrected on the basis of the Matriculation Certificate as it was wrongly recorded in his service book like that of the petitioner. The petitioner came to know from the Calcutta Police Gazette dated 5.1.78 that the date of birth of one Sub-Inspector of Police Sri Sambhu Banerji was corrected on the basis of the Matriculation Certificate as it was wrongly recorded in his service book like that of the petitioner. On 27th of January, 1978 the petitioner made a representation to the Commissioner of Police, Calcutta praying for the correction of date of birth in terms of the Matriculation Certificate and to pass necessary orders for correction of the date of birth in his service book and other official records. On 28th of March, 1978 the order of the Deputy Commissioner of Police, Head Quarters was conveyed to the petitioner on the representations made by him. The said order reads as follows : "It is evident that at the time of recruitment the S.I., himself had declared his date of birth as 1.1.21. At that time he must have suppressed the Matriculation Certificate as he would have been ineligible for appointment. The tearing off the relevant portion of the Verification Roll form is also significant. The explanation of the officer that he was on deputation to the Home Anti Corruption Deptt., in 1956 for which he was unable to apply for correction of his date of birth is also untenable. The opportunity given by the Govt. in 1956 for reconciliation of discripencies in the recorded date of birth of Govt. servants must have been circulated to all Deptts. and ignorance of the circular cannot be accepted as a valid ground in this case. In the circumstances the prayer of the officer for correction of his date of birth is rejected." 3. Thereafter the petitioner on 23rd of June, 1978 made another representation to the Commissioner of Police wherein he said that he could not produce the Matriculation Certificate from the Calcutta University as he passed the said examination in 1939. He was examined by the Civil Surgeon, Barisal who recorded his age 19 years during his medical examination. On 20.7.78 the then Commissioner of Police, S. Basu passed the following order:- "As he would have been below the age of recruitment according to Matriculation Certificate, it cannot be accepted for verification of age at this stage. Age recorded by him at the time of recruitment has to be accepted." 4. On 20.7.78 the then Commissioner of Police, S. Basu passed the following order:- "As he would have been below the age of recruitment according to Matriculation Certificate, it cannot be accepted for verification of age at this stage. Age recorded by him at the time of recruitment has to be accepted." 4. On 21st August, 1978, the petitioner sent another representation to the Commissioner of Police wherein he cited similar other instances where the date of birth has been corrected in terms of the Matriculation Certificate subsequently. On 4th October, 1978 the petitioner made another representation to the Commissioner of Police wherein he had given a list of 39 Sub-Inspectors of Police who were also recruited when they were under age on the date of the recruitment. He prayed that in view of Article 14 of the Constitution he should be treated alike and his date of birth according to the Matriculation Certificate should be corrected. Thereafter on the 16th of December, 1978 the petitioner's representation for correcting the date of birth according to the Matriculation Certificate was rejected and the Commissioner of Police passed the following orders :- "The statement of Sub-Inspector Sishu Ranjan Das does not seen to be plausible and I am not inclined to change the order passed by my predecessor on 20.7.78". 5. The petitioner being aggrieved by the said order moved this Court under Article 226 of the Constitution of India and obtained the Rule on 21st December, 1978. 6. An affidavit-in-opposition has been filed on behalf of the respondents and affirmed by Prakash Chandra Bhattacharyya the Commissioner of Police wherein it is stated that the petitioner was aware of the fact that there was anomaly in the date of birth as recorded in his service book which was prepared at the time of his entry in the Police Department. Furthermore, a circular was issued by the Government in 1956 to correct the date of birth finally in accordance with the actual document available concerning the date of birth of the Government servants concerned. Furthermore, a circular was issued by the Government in 1956 to correct the date of birth finally in accordance with the actual document available concerning the date of birth of the Government servants concerned. The petitioner in his explanation in reply to the quiry of the Administrative Officer, Calcutta Police Directorate mentioned that as at the relevant time he was on deputation to Home Anti-Corruption Department and was working mostly in the districts of Midnapore and Bankura, he was not aware of the said circular for which he could not avail himself of the opportunity with regard to the correction of his date of birth as per circular of the Government. If the date of birth is accepted as per Matriculation Certificate the age of the petitioner on the date of entry in the service was 17 years 10 days, which would have fallen short of the required age by 11 months 20 days. The under age appointment had been beneficial to the petitioner at the time of entry in the service. With regard to the consideration of correction of date of birth of other police officers, it may be mentioned here that there cannot be identical facts. It varies from case to case. As such, the precedent cited by the petitioner cannot ip so facto justify his claim of modification of his age. 7. Another affidavit-in-opposition has been filed on 11.5.79 and affirmed by Sudhanshu Kumar Sinha wherein it is stated that all the police personnel whose names have been furnished in Chart No. 1 excepting Shri Kularanjan Mitra being Serial No. 26 and Sri Bimal Behari Chowdhury being Serial No. 28 were appointed by the appropriate authority after giving necessary declaration as to their correct age, though they may be below the required age. The said police personnel excepting the aforesaid two officers being Serial No. 26 and one Serial No. 28 were admitted to the Police Force on the basis of their declaration. It was neither any suppression nor incorrect statement nor any fraud practised upon the authorities by the aforesaid Police Personnel. In any event, the petitioner is estopped from contending otherwise since the petitioner himself has applied for pensionary benefits after the issuance of the notice of retirement. The said application for pensionary benefit was made by the petitioner on 15.5.78 whereas the notice and/or intimation for retirement was sent to the petitioner on 26.7.77. In any event, the petitioner is estopped from contending otherwise since the petitioner himself has applied for pensionary benefits after the issuance of the notice of retirement. The said application for pensionary benefit was made by the petitioner on 15.5.78 whereas the notice and/or intimation for retirement was sent to the petitioner on 26.7.77. 8. Dr. Mukherji, appearing on behalf of the petitioner contended that the impugned order not correcting the date of birth as per Matriculation Certificate is illegal and in violation of Rule 9 of the West Bengal Service Rule, Part-I. 9. It is contended by Mr. Banerji on behalf of the respondents that the petitioner has signed the first page of the service book wherein his date of birth has been recorded. According to Mr. Benerji the signature in the service book is a declaration in terms of Rule 9 of the West Bengal Service Rules, Part-I and as such that declaration so made shall be binding on the petitioner and he shall have no right to revise it subsequently for any reason whatsoever. 10. It is well settled that where the statute directs that certain act shall be done in a specified manner or by certain persona, their performance in any other manner than that specified or by any other persons than any of those named is impliedly prohibited. 11. The West Bengal Services Rules, Part-I were framed by the Governor under Article 309 of the Constitution. The said Rules came into force on the 1st October, 1971. These Rules were formerly made under section 241 of the Government of India Act. It is contended by Mr. Banerji that these Rules would be applicable to the petitioner's case. 12. To appreciate the arguments of the parties it is necessary to set out Rule 9. (1) Every applicant for Government service shall at the time of and for the purpose of, entry into Government service submit to the appointing authority a declaration in the form set out in Note 1 below stating the year, month and date of his birth or where the date of birth is not known or both the month and the date of birth are not known, the year and the month, or only the year of birth, as the case may be. The declaration so made shall be binding on the applicant and he shall have no right to revise it subsequently for any reason whatsoever. (2) The applicant shall produce evidence in support of his declaration. If the applicant has passed the Matriculation or the School Final or the Higher Secondary Examination, the certificate of having passed the examination, indicating the applicant's age, granted by the University or Board holding the examination shall be produced. In any other case, the applicant shall produce other reliable evidence of his age. Wherever possible, an extract from the register of birth maintained by a local authority, showing the date of the applicant's birth, shall be produced. (3) The appointing authority shall consider the declaration made by the applicant under sub-rule (1) and the evidence produced in support thereof and pass an order fixing the year, month and date of his birth. In doing so, the appointing authority shall, in the case of an applicant selected by the Public Service Commission, also take into consideration the year, month and date of birth declared by the applicant in the application form submitted by him to the Public Service Commission and accepted by them. (4) Where the appointing authority is not the Government and the year or month or date of birth proposed to be fixed under sub-rule (3) is different from the year or date birth of the applicant recorded in his Matriculation or School Final or Higher Secondary Examination Certificate or recorded in the register of births maintained by any local authority, or accepted by the Public Service Commission, the appointing authority shall submit the case with its recommendation to the Government and thereupon final orders shall be passed by the Government in this behalf. (5) The appointing authority, or, where the final order fixing the year, month and date of birth of a Government servant, has been passed by the Government, the Government, may at any time for sufficient reasons review the order fixing the year, month and date of birth and modify the same provided that the year, month and date of birth shall not be modified to the disadvantage of the Government servant unless he has been given an opportunity of making any representation which he may wish to make against the proposed action, (6) When, under this rule, only the year of birth is declared and accepted, the 1st day of July of that year and where the year and month are declared and accepted, the 16th day of the month in question shall be taken as the date of birth. Note 1.-The declaration under sub-rule (1) shall, as nearly as may be in the following form: (To be used where the year, month and date of birth are known). I.... ... having been selected for appointment in Government service, do hereby declare that I was born at ... ...(birth-place) on ...(date, month and year). I also annex herewith the following documents in support of the statement :- 2. I do further declare that the year, month and date of birth as recorded herein are binding on me and I shall not ask for any modification thereof at any subsequent date. Place... ..... Date .. ...... Signature. Sub-rule (1), (2) and (3) of Rule 9 should be read together. A form of declaration has been set out in Note I and if a declaration has been made in terms of sub-rule (2) and (3) in that case such declaration shall be binding on the applicant and he shall have no right to revise it subsequently for any reason whatsoever. 13. Requirements of a valid declaration under the rules are as follows :- (a) Every applicant at the time of entry into the Government service shall submit a declaration stating the year, month and date of his birth. (b) The applicant shall produce evidence in support of his declaration. If he has passed the Matriculation examination he shall produce the Matriculation Certificate. (b) The applicant shall produce evidence in support of his declaration. If he has passed the Matriculation examination he shall produce the Matriculation Certificate. (c) Thereupon, the appointing authority shall consider the declaration made by the applicant under sub-rule (1) and the evidence produced thereof in sub-rule (2) and pass the order fixing the year, month and date of his birth. These are the requirements of a valid declaration. Such declaration is to be made in accordance with the procedure laid down in sub-rule (2) and (3) of Rule 9, in other words evidence is to be produced in support of the applicant's declaration of his age and a final order is required to be passed by the appointing authority considering the declaration made by the applicant. In the instant case the respondent failed to produce any such declaration. The service book of the petitioner was produced before the Court. A specimen of the first part of the service book is reproduced below :- West Bengal Form No. 5241. Service Roll (Vide Rule 1374-P.R.B, Form 189). 1. General Number 2. Name (in full) 3. Father's name (in full) 4. Race, Sect and caste... 5. Residence (village with district, Thana, Mauza or Pargana and post- office) 6. Date of birth (by Christian era) 7. Height and chest measurements (in feet and inches) and condonation of deficiency thereof, if any... 8. Marks of identification... 9. Thumb-impression of left-hand. 10. Signature, if literate, otherwise mark or seal... 11. Name and designation of officer by whom, and the date on which the above particulars were furnished "Signature and designation of officer making the appointment (to be added only after personal verification of items 7, 8 and 9), 14. It appears from the service roll that the signature and designation of the officer making the appointment to be made only after personal verification of items, 7, 8, and 9. Item 6 relates to date of birth. So verification of the date of birth should be made in terms of the procedure laid down in Rule 9. Moreover, an order is required to be passed by the appointing authority or the Government in terms of sub-rule (3) of Rule 9. Item 6 relates to date of birth. So verification of the date of birth should be made in terms of the procedure laid down in Rule 9. Moreover, an order is required to be passed by the appointing authority or the Government in terms of sub-rule (3) of Rule 9. Therefore, in my opinion, in the present case, the entry made in the petitioner's service roll cannot be regarded as a declaration under sub-rule (1) of Rule 9 of the Rules and as such it cannot be said that the said declaration shall be binding on the petitioner and he shall have no right to revise it subsequently for any reason whatsoever. 15. A person's age is an objective fact, which can be determined only on evidence and such determination would affect his right to hold a post. Denning L.J. observed in (1) Abbott v. Sullivan, (1952) All ER 226 at 234, that the right of a man to work is as important to him, if not more important, than his rights of property. 16. On 6th August, 1956 the Government of West Bengal Home (Police) Department issued a Notification for information of all concerned. It reads as follows:- "It has been observed that for some time past proposals for alteration of the entries in the Service Books, specially for the alteration of the date of birth of the Police personnel including the clerical and other Staff are being received by Government from the Police Directorates frequently on the eye of the retirement of the Government servant concerned. In most of the cases it has been found that the irregularities were due to the negligence in proper observation of formalities while preparing Service Books as the time of recruitment or in not scrutinising the Service Books from the time to time with regard to such irregular entries therein. It is, therefore, requested that proper steps should be taken to guard against such negligence in future and the provision of Rule 9 of West Bengal Service Rules, Part-I should be impressed on all Government Servants concerned. It is, therefore, requested that proper steps should be taken to guard against such negligence in future and the provision of Rule 9 of West Bengal Service Rules, Part-I should be impressed on all Government Servants concerned. Officers making entries in Service Books particularly in regard to the age of Government servant should satisfy themselves that the age so recorded in the Service Book can be proved to be based on a declaration made by the Government servant concerned on the strength of a horoscope or baptiam certificate or any other reliable documents. It is also requested that all such cases for alterations of the date of birth should now be thoroughly checked and if any irregularity with regard to date of birth is found in any case, proposals may be submitted to Government for orders as early as possible but not latter than 30th September, 1956 which has been fixed as the target date after which no such cases will be entertained by Government. 17. It appears from the notification that it has been found that the irregularities were due to negligence in proper observation of formalities while preparing service books at the time of recruitment or in not scrutinising the service books from time to time. With regard to such irregularities the Government has fixed a date for correcting the irregularities recorded in the service book. 18. Mr. Banerji appearing for the Respondents referred to the decisions, one of Madhya Pradesh High Court and other of Allahabad High Court. 19. In (2) Bhanwar Singh Bhupsingh Rajput v. State of Madhya Pradesh, AIR 1963 M.P. 335 a Division Bench of the Madhya Pradesh High Court held that where the date of birth of a government servant, mentioned in his service book, is put down, not on the basis of the information supplied by the servant or any scientific basis or tangible material but on the basis of a surmise of a medical officer by only looking at him, and it appears prima facie that his date of birth was later than that recorded in his service book, the retirement of the government servant on the basis of the date of birth mentioned in the service book, on the ground of his having reached the age of superannuation amounts, if his claim about his real date of birth is correct, to punishment or removal from service. It has been further held that no uniform rule either for holding or not holding as inquiry about the correct age of a government servant in cases of such nature can be laid down and it will depend upon the circumstances of a particular case whether the claim as to age is justified or not. 20. In (3) Mewa Ram Ram Charon v. United Provinces, AIR 1955 Allahabad 486, a Division Bench of the Allahabad High Court held that it is not open to the Court to enter into or examine the correctness of the findings arrived at by the Deputy Inspector of Police or the Superintendent of Police in a departmental inquiry conducted against a Sub-Inspector of Police under the Police Act, 1861 and the Regulation thereunder or the merits of the order of dismissal. It is only the breach of any statutory duty or obligation on the part of the authorities dealing with the Sub-Inspector can give him a cause of action. If there has been no breach of any statutory provision the officer would not be entitled to seek relief in a Court of Law against the order of dismissal passed against him by a competent authority. These two decisions in my opinion, have no application to the facts of this case. 21. It is strenuously argued by Mr. Banerji that the petitioner did not take the opportunity of correcting his date of birth in terms of 1956 Notification. Only when the information for his retirement was sent to him on 26th of July, 1977, he made representation. It is further contended by Mr. Banerji that the petitioner is estopped from challenging the correctness of the date of birth recorded in the service book as he himself applied for pensionary benefit on 15.5.78 where the date of birth of the petitioner was given as recorded in his service book. 22. A supplementary affidavit-in-reply was filed by the petitioner wherein he said that he was forced to submit the application for his pensionary benefit under the direction of the Deputy Commissioner of Police (II), Detective Department, Calcutta as he did not submit the same earlier. The Police Authority created pressure upon him several times to submit the said application. The petitioner had to write his date of birth in the application for pensionary benefit as wrongly recorded in his service book. The Police Authority created pressure upon him several times to submit the said application. The petitioner had to write his date of birth in the application for pensionary benefit as wrongly recorded in his service book. It appears from the order of the Commissioner of Police dated May 4, 1978 wherein it is stated that the pension cases of the Government employees should be started well in advance prior to one year from tire date of retirement and sent to the pension section of the Directorate for necessary action. Sub-rule (5) of Rule 9, says that even when the final order fixing the date of birth of a Government servant has been passed by the Government, the Government, may at any time for sufficient reasons review the order fixing the year, month and date of birth and modify the same. 23. So, on time limit has been prescribed for correction of the date of birth under sub-rule (5) of Rule 9. If sufficient reasons have been shown by the Government servant then, even when the final order was passed by the competent authority or the Government recording the date of birth of a Government employee, it can be corrected at any time at any stage. So, in my opinion, it is immaterial that the petitioner made the application for correction of the date of birth on the basis of the Matriculation Certificate after he received the notice of superannuation. Where the birth of a Government employee has not been correctly recorded in accordance with law on the basis of a valid document simply because he wrote the date of his birth which had been wrongly recorded in his service book in his application for pensionary benefit, that would not estop him from challenging the validity or correctness of the same on the basis of an authentic document that the date of birth as recorded in the service book was wrong and incorrect. There could not be any estoppel against the statute. 24. It is contended by Mr. Banerji that if the petitioner's date of birth is corrected in accordance with the Matriculation Certificate then he was under age when he entered in to the Government service. He deliberately suppressed his age in order to get the appointment. According to Mr. There could not be any estoppel against the statute. 24. It is contended by Mr. Banerji that if the petitioner's date of birth is corrected in accordance with the Matriculation Certificate then he was under age when he entered in to the Government service. He deliberately suppressed his age in order to get the appointment. According to Mr. Banerji when the petitioner by practicing fraud got that appointment when he was under age, on the verge of his retirement be should not be allowed to correct the wrong which he intentionally did for getting some advantage by suppressing his correct age. 25. In my opinion, this argument is not well founded. If there has been a deliberate suppression or if it is found that the petitioner has practised fraud upon the Government by intentionally suppressing his actual date of birth for the purpose of getting an appointment at an early age, in that case, there should have been a departmental proceeding against the petitioner and he should be punished if he is found guilty. But that could not be a material factor to be considered in disposing of the petitioner's representation for correction of age in accordance with the Matriculation Certificate. 26. In (4) Mir Ahmed v. State of Jammu and Kashmir, reported in 1971(1) S.L.R. 495, a Single Judge of the Jammu & Kashmir High Court observed that it is not correct to hold that age once declared by a Government servant cannot be corrected by the competent authority because he himself declared it so at the initial stage. May be that such Government servant halt inadvertently or wrongly not knowing true state of facts declared his age at the time of his appointment and if he is in possession of an irrefutable proof relating to his age, he can legitimately approach the competent authority and ask for its correction. This right cannot be denied to him. As the law is that if he furnished an authenticated proof of his date of birth there was no bar for the competent authority to order its correction in the light of the unimpeachable evidence notwithstanding such earlier declaration even if recorded after making inquiry from the office. This right cannot be denied to him. As the law is that if he furnished an authenticated proof of his date of birth there was no bar for the competent authority to order its correction in the light of the unimpeachable evidence notwithstanding such earlier declaration even if recorded after making inquiry from the office. If the same was not done and this was denied to him, his retirement before he actually reached the age of superannuation would be violative of Section 126 of the Constitution of Jammu and Kashmir similar to Article 311(2) of the Constitution. 27. Dr. Mookerjee, appearing for the petitioner produced a chart showing that the correction of the date of birth has been made by the Police Commissioner in case of S.I. Lalit Mohan Bhattacharji, S.I. Hemendra Nath Bhattacharji and Constable Balaram Chatterji. The date of birth of Lalit Mohan Bhattacharji was corrected 38 years 3 months after his appointment, one month 19 days before the date of his retirement with respect to Hemendra Nath Bhattacharji and Constable Balaram Chatterji's date of birth was corrected 4 months 27 days after his retirement. It is urged by Dr. Mookerjee that there has been a discrimination with respect to the petitioner's case inasmuch as the dates of birth of the; persons similarly situated have already been corrected by the competent authorities whereas in case of the petitioner that has been refused. 28. I have carefully gone through the chart, the contents of which have not been denied by the respondents. It has been established from the chart produced before this court that even after 1965 Notification, the date of birth of the Government servants have been corrected inasmuch as there is no bar for such correction in terms of sub-rule (5) of Rule 9 of the Service Rules. In the supplementary affidavit filed by the respondents it has not been disclosed that the case of those persons whose ages had been corrected were not similar to that of the petitioner or their circumstances are different than that of the petitioner. It is true that each case has to be determined on its own merits and there could not be two cases equal in all respects. This much has been proved by the chart that the date of birth could be corrected even after the date of retirement if there are sufficient reasons for such correction. It is true that each case has to be determined on its own merits and there could not be two cases equal in all respects. This much has been proved by the chart that the date of birth could be corrected even after the date of retirement if there are sufficient reasons for such correction. Even after 38 years from the date of appointment of an A.S.I. his date of birth has been corrected. Under these circumstances, in my view, there is no reason why the date of birth of the petitioner should also not be corrected in terms of the authenticated document viz. the Matriculation Certificate. In the result, this Rule is made absolute. The impugned order is quashed. Let a Writ of Mandamus be issued commanding the respondents to correct the date of the petitioner's age in accordance with the Matriculation Certificate. There will be no order as to costs.