Gobardhan Singh v. State Of Bihar — 1984 DIGILAW 429 (PAT)

Judgment Uday Sinha and Nazir Ahmad JJ. 1. This is an application under Articles 226 and 227 of the Constitution for issuance of a writ of mandamus directing respondents 1 and 2 not to superannuate the petitioner on the 31st March, 1983 and to correct the petitioners date of birth in the service book as 10th September, 1928. The date of birth recorded in the service book was 12th of March, 1925. The petitioner wants it to be corrected as 10th September, 1928. The application arises in the circumstances mentioned hereinafter. 2. The petitioner was appointed Sub-Inspector of Schools on the 4th October, 1956. His case is that he was appointed to the post on the basis of an affidavit (Annexure 1) sworn by the petitioners father. In the affidavit, it had been declared that the date of birth of the petitioner recorded in the school and in the Matriculation certificate was 12th of March, 1925, but the actual date of birth of the petitioner, Gobardhan Singh, was 10th September, 1928. The petitioners averment is that on the basis of the affidavit, he was appointed. Had the affidavit not been accepted, the petitioner would have been over-age and could not have been appointed. The petitioner passed the Bachelor of Arts Examination in 1951 and Diploma in Education in 1956. The petitioner has also averred that he was working as a teacher in the Karpi High School from January, 1949 to the 30th April 1952. He has not, however, disclosed his date of birth recorded in the, school in which he was serving. 3. The petitioners case is that in 1976, he filed a representation for correction of the date of birth recorded in his service book. The representation has not been produced before us. Our attention has been drawn to Annexure 5 which shows that on the 4th February, 1976 the Deputy Director of Education wrote to the District Education Officer, Palamau, to re-construct the petitioners service book and to inform the directorate about it. There is, however, no order for correction of the date of birth in the service book. It is, therefore, difficult for us to accept that the petitioner had filed any representation in 1976 to correct the date of birth mentioned in his service book. The petitioner woke up for the first time in 1982. There is, however, no order for correction of the date of birth in the service book. It is, therefore, difficult for us to accept that the petitioner had filed any representation in 1976 to correct the date of birth mentioned in his service book. The petitioner woke up for the first time in 1982. In his application (Annexure 6/A) addressed to the Director of Primary Education, the petitioner stated in unmistakable terms that he could not write earlier for correction of his date of birth for the reasons mentioned therein. Be that as it may, the question is whether the petitioner has made out adequate ground for correction of his date of birth. 4. The prayer of the petitioner has been opposed on behalf of the State. No. counter-affidavit has been filed. Even so, learned Counsel for the respondents has contended that there was no case for correction of the date of birth. Alternatively, it was submitted that it was for the State Government to take a decision as to whether a date of birth should be corrected and not for this Court. 5. There can be no doubt that the petitioner has moved for correction of the date of birth rather late. Rule 96 of the Bihar Financial Rules (hereinafter referred to as the Rules) relates to correction of the date of birth of employees, to has been enjoined in that rule that the actual date or the assumed date determined under Rule 97 should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government servants service under Government and once recorded, it cannot be altered, except in the case of a clerical error, without t he orders of the State Government. Note 1 to Rule 96 lays down that no representation for rectification of mistake in the date of birth as entered in the records of service of a Government servant shall be entertained, if it is not submitted within a period of ten years of the date of his entry into Government service. In this case, it is not in controversy that the petitioners date of birth recorded in the service book was 12th March, 1925. In this case, it is not in controversy that the petitioners date of birth recorded in the service book was 12th March, 1925. Despite the fact that that was the date mentioned in the Matriculation certificate and despite the fact that it was known to the petitioner about it, no steps were taken by him for rectification of the alleged mistake in recording the petitioners date of birth within ten years of his joining the service. The Bihar Financial Rules apart, on the 31st October, 1959, the State Government in the Appointment Department issued a circular bearing Memo No. III/R 1-2040/59A-13853 by which Heads of Departments were informed that in spite of the clear provisions in rule 96 of the Rules, the Government had noticed an increasing tendency on the part of the Government servants towards submitting representations at the fag end of their service for correction of their dates of birth entered in their service records on some grounds or the other. The State Government had, therefore, decided that a Government servant, making such a representation, must do so at any time before three years of his superannuation. The petitioner did not do so. He applied for correction of his date of birth only a few months before his superannuation. The law, as it prevailed so long as the petitioner was in service, was rule 96 of the Bihar Financial Rules. The petitioner not having taken any step for correction of the date of birth in the service book, the Government was not obliged to consider the representation of the petitioner filed in that behalf in 1982. 6. Learned Counsel for the petitioner submitted that in terms of paragraph No. 841 of the Bihar Education Code, the maximum age of entry of any trained candidate was 27 years. If the department had acted on the basis of the age as recorded in the Matriculation certificate, the petitioner could not have been appointed as he would have been already over 27 years of age at that time. He, therefore, contended that the petitioner was appointed on the basis of the affidavit of the petitioners father, and, therefore, that having been accepted, the State Government had no jurisdiction to enter 12th of March, 1925 as the date of birth of the petitioner. The submission, in our view, is entirely fallacious. He, therefore, contended that the petitioner was appointed on the basis of the affidavit of the petitioners father, and, therefore, that having been accepted, the State Government had no jurisdiction to enter 12th of March, 1925 as the date of birth of the petitioner. The submission, in our view, is entirely fallacious. In paragraph No. 841 itself, it has been mentioned that the sanction of the Director is necessary for the appointment of a person whose age exceeds the limit prescribed. In bur view, therefore, the petitioner may have been appointed even though he was above 27 years of age with the sanction of the Director. It is true that the petitioner has denied that there was any condonation of his age at the time of his appointment in service and there is no counter-affidavit to deny it. Yet, the very fact that the petitioners service book contained 12th of March, 1925 as the petitioners date of birth, it is patent that he was not appointed on the basis of the affidavit sworn by the petitioners father. It is, therefore, idle to contend that he could not have been appointed at the age at which was appointed. If what the petitioner contends is true, then it is difficult to appreciate how 12th of March, 1925 had been entered as his date of birth. The entries in regard to the date of birth, parentage and the particulars regarding residence are signed by the officer concerned. In that view of the matter, it is difficult for us to accept that the petitioner was appointed on the basis of the affidavit and that 10th of September, 1928 was accepted as his date of birth. This submission, therefore, urged on behalf of the petitioner has no force and must be rejected. 7. learned Counsel for the petitioner submitted that the petitioner was put through a medical examination. In the medical certificate (Annexure-7), the Civil Surgeon opined that the petitioner was between 54 and 56 years of age on the basis of the medical certificate. Learned Counsel for the petitioner submitted that the State Government was obliged to accept the petitioners statement in regard to his age and date of birth. Reliance was placed upon a decision of the Supreme Court in Jiwan Kishore V/s. Delhi Transport Corporation and Anr. Learned Counsel for the petitioner submitted that the State Government was obliged to accept the petitioners statement in regard to his age and date of birth. Reliance was placed upon a decision of the Supreme Court in Jiwan Kishore V/s. Delhi Transport Corporation and Anr. -- In our view, the Supreme Court case can be of no assistance to the petitioner. The Civil Surgeon who issued the certificate (Annexure-7) just stated in a bald manner that the petitioners age would be 54 to 56 years. He did not give any date for forming the conclusion that he did. There is no scientific data on the basis of which be formed his conclusion. He has not mentioned in Annexure-7 that and x-ray or ossification test was gone through. We have looked into the Modi Medical Jurisprudence (15th edition revised). At pages 33 to 36, a detailed chart has been given for ascertaining the approximate age of individuals. A look at the chart shows that it is well nigh impossible to state clinically what can be the age of a person near about 50 years of age. In that view of the matter, we are unable to put any reliance upon the medical certificate (Annexure-7). The Supreme Court case was one where definite scientific data had been given and, in those circumstances, the Supreme Court observed that it found no reason to ignore the scientific fixation of age when the records were flagrantly conflicting. In the instant case, the record is consistent, namely, that the petitioners date of birth was March, 1925. No reasonable scientific datum has been given in this case. The Supreme Court case is, therefore, of no avail to the petitioner. 8. learned Counsel for the petitioner also placed before us a decision of U. N. Sinha and Kanhaiyaji, JJ. in Civil Writ jurisdiction Case No. 462 of 1962, Shri S.K. Bhattacharya V/s. The State of Bihar and Ors. disposed of on the 24th April, 1970. That case, however, was decided on its own facts. That was a case where conflicting dates of birth were recorded in the Government records themselves. In the instant case, the Government records are consistent. In that view of the matter we see no substance in the submission urged on behalf of the petitioner. 9. For the reasons stated above, we find no merit in this application. It is, accordingly, dismissed. In the instant case, the Government records are consistent. In that view of the matter we see no substance in the submission urged on behalf of the petitioner. 9. For the reasons stated above, we find no merit in this application. It is, accordingly, dismissed. There shall however be no order as to costs.