Kanailal Das v. State — 1985 DIGILAW 206 (CAL)

JUDGMENT 1. THE instant writ application is directed against the memo No. 5832/ro dated 10th June, 1980 by which the Superintendent of Police, 24 Parganas refused to correct the date of birth recorded in the service record on the basis of the Matriculation Certificate produced by the petitioner before the said authority. The petitioner's case is that the petitioner was appointed as a constable in the West Bengal Police Service and was posted at Burdwan District and subsequently he was promoted to the post of Sub Inspector of Police. Before such appointment, the petitioner had to undergo certain medical examination and on the basis of such medical examination, the petitioner was found suitable in the said examination. During such medical examination, the Civil surgeon of Burdwan, Frazer Hospital who examined the petitioner, determined the age of the petitioner on the basis of eye estimation which was not supported by any documentary evidence and which had no scientific basis, and the petitioners age was accordingly recorded in the service record as 23 years on 21.12.1950. The petitioner's further case was that the petitioner passed the matriculation examination held by the east Bengal Secondary Education Board, dacca (now Bangladesh); but the petitioner could not collect the said matriculation certificate from the Education board, Dacca which was under the control of an alien state and which was and is still under the control of an alien state. 2. THE case of the petitioner is that subsequently, the petitioner obtained the said matriculation certificate from the east Bengal Secondary Education Board, dacca and that from the said Matriculation Certificate it was found that the age of the petitioner was recorded as 17 years 5 months on 1st March, 1949 i.e. the petitioner's date of birth was 1st day of October, 1931. According to title said matriculation certificate, the petitioner's age should have been recorded as 19 years 2 months and 21 days on 21.12.1950. But the petitioner's age was wrongly recorded on the basis of such eye estimation made by the Civil Surgeon at Burdwan on 21.12.50 as 23 years. Thus the petitioner's age in the service record was shown about 4 years older than his actual age which is supported by Matriculation Certificate. But the petitioner's age was wrongly recorded on the basis of such eye estimation made by the Civil Surgeon at Burdwan on 21.12.50 as 23 years. Thus the petitioner's age in the service record was shown about 4 years older than his actual age which is supported by Matriculation Certificate. The petitioner's further case is that on 31st July, 1980 after getting the said matriculation certificate from the East Bengal Secondary Education Board, Dacca, the petitioner applied for correction of his age recorded in the service record before the respondent No. 1, Superintendent of Police, 24 Parganas and that the petitioner also filed an affidavit sworn on 15.5.30 stating all facts and circumstances for correcting the age of the petitioner - a copy of such affidavit is annexure 'd' to the petition. A copy of the matriculation certificate is also annexed as Annexure 'b' to the petition. From the said matriculation Certificate, it appears that the petitioner passed the matericulation examination held in the month of April, 11949 and was placed in the third division and that his age as on 1st March, 1949 was 17, years 5 months. The said certificate is dated 15th January, 1. 950. It was further stated in the writ petition that there were instances in which the respondent had corrected the age in the facts and circumstances of the case, but the respondents acted arbitrarily in not correcting the date of birth of the petitioner. It appears that the Superintendent of Police by the Memo No. 5832/ro dated 16.6.80 informed the petitioner that "as there is no scope for verification of the genuineness of the matriculation certificate of Bangladesh, your prayer for correcting the date of birth cannot be accepted. "The petitioner in the writ petition also stated the reason for which the petitioner could not produce the said matriculation certificate and the petitioner's case was that due to misplacement of the said certificate from the custody of the petitioner, the petitioner could not apply for correction of the date of birth earlier. Dr. Monotosh Mukherjee, learned counsel appearing on behalf of the petitioner, contended in the first place that the respondent No. 1 could not reject the application for correction of the date of birth which was made on the basis of the matriculation certificate merely on the ground that there was no scope for verification of the genuineness of the matriculation certificate. Monotosh Mukherjee, learned counsel appearing on behalf of the petitioner, contended in the first place that the respondent No. 1 could not reject the application for correction of the date of birth which was made on the basis of the matriculation certificate merely on the ground that there was no scope for verification of the genuineness of the matriculation certificate. Dr. Mukherjee, submitted that on this ground the respondents could not refuse to correct the date of birth. The respondents were bound to act on the basis of such certificate unless the genuineness of the same could be disproved by the Respondents. Dr. Mukherjee in support of his contention that the respondents were bound to correct the date of birth on the basis of matriculation certificate, relied upon a Division Bench Judgment of this Court in promatha Nath Choudhury v, State of west Bengal reported in 1981 (1) S. L. R. 570 wherein the Division Bench of this court held that the date of birth should be corrected on the basis of the age recorded in the matriculation certificate unless the genuineness of the said certificate could be disproved. In other words, if the respondents could not deny the genuineness of the matriculation certificate the respondents were bound to act on the basis of the said certificate and to correct the date of birth as stated in the matriculation certificate in the records of the service accordingly. In this connection, the petitioner also affirmed an affidavit which is Annexure 'd' to the petition in which it was stated categorically that the age of the petitioner at the time of entry of the service was recorded by the Civil Surgeon merely on eye estimation and that such recording of date of birth was not made on the basis of any records or documents and also stated that the petitioner found on the basis of the matriculation certificate that his date of birth was wrongly recorded. In this connection, it may, be stated that when an affidavit was filed by the petitioner before the Respondent No. 1 stating the facts and circumstances under which such correction was needed and also the facts and circumstances under which the petitioner's age was recorded by the Civil Surgeon merely on eye estimation and that in support of his age, the petitioner also stated on affidavit that he has ascertained from his mother who was alive at that time about correct age but also produced a xerox copy of the said matriculation certificate stating the same to be true. It was not open to the Respondent No. 1 to ignore such affidavit altogether and reference may be made in this connection to the decision of the Supreme Court in M/s. Mehta parikh and Company v. Commissioner of income Tax, Bombay and others reported in AIR 1956 S. C. page 554. In that case in an assessment proceeding under the Income Tax Act, the appellants therein were not in a position to give further particulars of one thousand rupees currency notes received by them during the relevant period and as they were not in the habit of nothing these particulars in usual cash debit and therefore relied upon the position as it could be spelt out of the entries in the cash book coupled with some affidavit in order to show the amount of the cash in their hand on a particular date. In that case, the Revenue negatived the appellant's contention. In that connection, the Supreme Court observed as the authorities did not consider it necessary to call for the deponent who filed the said affidavit to cross-examine with reference to the statements made by them in their affidavit, under such circumstances it was not open to the Revenue to challenge the correctness of the cash entries or the statements made by these deponents in their affidavits. The Supreme Court observed that the statements made in the affidavits should be given their face value and could not be ignored. 3. IN the instant case, the Superintendent of Police did not take any notice of the facts stated in the said affidavit and simply rejected the prayer for correction of the date of birth on the basis of the matriculation certificate stating that as there is no scope for verification of the genuineness and or correctness of the matriculation certificate. 3. IN the instant case, the Superintendent of Police did not take any notice of the facts stated in the said affidavit and simply rejected the prayer for correction of the date of birth on the basis of the matriculation certificate stating that as there is no scope for verification of the genuineness and or correctness of the matriculation certificate. Such stand could not be taken by the respondents simply because not only the matriculation certificate was produced, an affidavit was also filed by the petitioner before the respondent which could not be ignored by the respondents at its sweet will. In the instant case no affidavit in opposition was filed by the respondents and the facts stated in the writ petition had not also been controverted. The facts stated in the affidavit filed before the respondents by the petitioner for correction of the date of birth could not be controverted and that the petitioner was not called for cross-examination by the respondents and that it is apparent on the face of the records that the affidavit filed in this behalf was not taken into consideration nor was given its face value. It is also admitted position that at the time of the entry into the service, the petitioner's age was not recorded either on the basis of the declaration made by the petitioner nor on the basis of any records or documents, but admittedly on the basis of some eye estimation made by the Civil Surgeon which was not permissible at all. Such a recording of date of birth in such circumstances cannot be said to be conclusive when matriculation certificate was subsequently produced by the petitioner before the respondents for correction of the date of birth. The stand taken by the Respondent in not correcting the date of birth is arbitrary and not fair. 4. IN this connection reference may be made to the decision of the Supreme court of India in Hindustan Sugar Mills vs. State of Rajasthan reported in air 1981 S. C. 1681, that in a democratic society governed by the Rule of Law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demands. "It was also held by the Supreme Court of India in the case of State of Orissa v. Dr. (Miss) Binapani Dei reported in AIR 1967 S. C. 1269, that the State was undoubtedly not precluded merely because of the acceptance of the date of birth of the first respondent in the service register from holding an enquiry if there existed sufficient grounds for holding such and for refixing her date of birth. But the decision could be based upon the result of an enquiry in a manner consonant with the basic concept of justice. An order by the State to the prejudice of a person in derogation of his vested rights may be made in accordance with the basic rules of justice and fair-play". If the state has power to correct the date of birth to the prejudice of the employee in that event state should be held to "have power to exercise such power of correcting the date of birth of the employee when the same ensured to the benefit of the employee and prejudicial to the state, Accordingly, I hold that the respondent No. 1 was wrong in not correcting the date of birth of the petitioner on the basis of the age appearing in the matriculation certificate. In my view, the date of birth recorded at the time of the entry of the service was patently wrong and that there could not be any reason for not accepting the case of the petitioner that his date of birth as stated in the Matriculation Certificate is correct. Accordingly the petitioner's date of birth should be corrected in the service records of the petitioner treating the same to be 1st of October, 1931 and accordingly, the petitioner should retire on the basis of the said date of birth. In the result, the writ application succeeds. Let a writ in the nature of Mandamus do issue commanding the respondents to correct the date of birth in the petitioner's record of service and to record 1st October, 1931 as the date of birth of the petitioner deleting the date of birth recorded at the time of the entry of service and further directing the respondents not to give any effect or further effect to the order dated 14. 6. 80 communicated by the Memo No. 5832/ro dated 16. 6. 80. 6. 80 communicated by the Memo No. 5832/ro dated 16. 6. 80. Let a writ in the nature of Certiorari do issue directing the respondents to cancel and or withdraw the Memo no. 5832/ro dated 16.6.80 which is Annexure 'e' to the petition. This Rule is made absolute. There will be no order as to costs.