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1989 DIGILAW 20 (CAL)

Nihar Ranjan Bhowmick v. State of West Bengal

1989-02-02

A.K.SENGUPTA, PRABODH DINKARRAO DESAI

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JUDGMENT Sengupea, J.: 1. On January 30, 1989 we passed the following : "The appeal is taken up for hearing by treating the same as included in the days cause list. Filing of paper book is dispensed with and the undertaking given in that behalf is discharged. For the reasons to be recorded in the judgment which will be pronounced on 2nd February, 1989, the appeal succeeds and is allowed. The impugned Memo No. SBI-313(7)/R.O. 338/88 dated 2nd February, 1988 issued by the Reserve Officer, Special Bench, Calcutta, is quashed and set aside. The respondent authorities are directed to correct the service records of the writ petitioner on the basis of the age mentioned in the certificate of passing of the Matriculation Examination held in the month of May, 1948 and consequently to permit him to continue in service till he attains the age of superannuation on the basis of such corrected records. Since the petitioner joined service while he was still below the minimum age prescribed by the Rules as the relevant time, the period during which he was ineligible to be appointed shall be excluded from his qualifying service for the purpose of pension. The appellant is entitled to the costs of the writ petition as well as of the appeal which are quantified at Rs.750/-. The costs are accordingly awarded and shall be paid to him along with his salary for the month of February payable in the month of March, 1989. All parties to act on the signed copy of the minutes of this order on the usual undertaking.” 2. We now proceed to set out the reasons in support of the aforesaid order. 3. The petitioner, who is now Sub-Inspector of Police, joined as a constable on 1st day of February, 1949. In the year 1961 he was promoted to the rank of Assistant Sub- Inspector of Police and thereafter in 1972 he was further promoted to the post of Sub-Inspector of Police. The date of birth as recorded in the service book is January 19, 1931 on the basis whereof the petitioner was due to retire on January 31, 1989. 4. The case of the petitioner is that he passed the Matriculation Examination in 1948 from the East Bengal Secondary Education Board, Dacca. His date of birth as recorded in the Matriculation on Certificate is October 1, 1933. 4. The case of the petitioner is that he passed the Matriculation Examination in 1948 from the East Bengal Secondary Education Board, Dacca. His date of birth as recorded in the Matriculation on Certificate is October 1, 1933. He is stated to have submitted the Matriculation Certificate for correction of the date of birth as well as for recording the literary qualification in the Service Book. Although the literary qualification was corrected, no correction was made in the date of birth. The case of the petitioner is that the date of birth which was recorded in the Service Book was not on the basis of any supporting document. 5. By the Memo dated February 2, 1988 the petitioner was informed that he would retire from service on superannuation with effect from the afternoon of January 31, 1989. The petitioner made representation for correction of his date of birth. He also submitted that the date of birth of several police personal on the basis of the Matriculation Certificate; Admit Card or other authentic documents had been corrected and there was no reason why his date of birth on the basis of Matriculation Certificate should not be corrected. In spite of such representation the respondents did not correct the date of birth. Under the circumstances the petitioner moved this Court under Article 226 of the Constitution of India. The learned Single Judge by order dated January 13, 1989 dismissed the said application. Hence this appeal. 6. Records have been produced. It appears that when the petitioner had joined the service on February 1, 1949, endorsements were made in the Service Book as follows : "Date of Birth (Christian era) : 19-1-1931 Literary Qualifications : Non-Matric" 7. By letter dated September 4, 1950 the petitioner informed the Deputy Commissioner of Police, N.P. through the Officer-in-Charge, Chitpore Police Station as follows: "With due respect and humble submission, I beg to report that I passed the Matriculation Examination in the year 1948 from Dacca University. When I was appointed in Calcutta Police Department (1949), I could not produce my certificate because at that time I had not received my original certificate and for this It was not noted in my service book. So I therefore, pray that your honour would be kind enough to note the same in my service book and oblige. The original certificate is attached herewith." 8. So I therefore, pray that your honour would be kind enough to note the same in my service book and oblige. The original certificate is attached herewith." 8. In terms of the said letter, against the column "Literary Qualifications", the word "Non-Matric" was penned through and the word "Matric" was inserted. The following order is appended below the column "Literary Qualifications" : "Since produced his matriculation certificate issued on 5.11.49 from East Bengal Secondary Education Board, Dacca that he passed matriculation examination held in May, 1948." 9. However, the date of birth was not corrected. In the said letter the petitioner mentioned that he could not produce any certificate because at the time when he joined the service he had not received the original certificate. It appears from the said endorsement that the certificate was issued on November 5, 1949, long after the petitioner had joined as Constable on February 1, 1949. 10. It has been contended on behalf of the respondents that if the date of birth as recorded in the Matriculation Certificate is taken to be correct, then the petitioner was born on October 1, 1933 and accordingly at the time of his appointment he was a minor and not eligible for the Government service. He, therefore, made a false declaration suppressing his correct date of birth only to get the employment. This is precisely the reason why the date of birth was not corrected. If his date of birth according to the Matriculation Certificate is taken to be correct, he is liable to be proceeded departmentally for making false declaration regarding his date of birth at the time of his appointment. 11. We are, however, not impressed by this contention. It cannot be disputed that the petitioner did not have the original Matriculation Certificate who he joined the service. It is not known on what basis the date of birth was recorded as January 19, 1931 in the Service Book. It does not appear from the records that the petitioner made any such declaration before the authorities. And or about September, 1950 the petitioner forwarded the Matriculation Certificate to the Deputy Commissioner of .Police who only corrected the literary qualification of the petitioner but not the date of birth. It does not appear from the records that the petitioner made any such declaration before the authorities. And or about September, 1950 the petitioner forwarded the Matriculation Certificate to the Deputy Commissioner of .Police who only corrected the literary qualification of the petitioner but not the date of birth. The authorities were fully aware at least from September 4, 1950 that there was discrepancy in the date of birth as recorded in the Service Book and the date of birth recorded in the Matriculation Certificate. Had they made a little arithmetic, it would have been known to them that If the date of birth recorded in the Matriculation Certificate reflected the correct age of the petitioner, in that case the petitioner did not attain the age of 18 when be was appointed as a Police Constable. Even then no proceedings had been initiated against the petitioner for making any allegedly false declaration. On the contrary, acting on the Matriculation Certificate and accepting it to be correct, the literary qualification of the petitioner was amended. it is unfortunate that the respondents had acted partly on the basis of the Matriculation Certificate in so far as the literary qualification of the petitioner was concerned. No reason has been assigned why the date of birth of the petitioner was not corrected in accordance with the Matriculation Certificate. It is not, nor can it be, the case of the respondents that the Matriculation Certificate was not genuine or fabricated. Our attention has not been drawn to material, if any, which could justify the recording of the date of birth in the Service Book as "19-1-1931". It is incumbent on the respondents so indicate the material which formed the basis of recording of the date of birth in the Service Book. Mere self-serving declaration of a recruit, in particular, in public employment, can never be the proof of age of the declarant. Ordinarily the oral statement can hardly be useful to determine the correct age of a person. The question, therefore, largely depends on the documents and the nature of their authenticity. Entries in the School register and Admission Form regarding the date of birth, on the basis whereof the age is recorded in the Matriculation Certificate constitute a good proof of age. The question, therefore, largely depends on the documents and the nature of their authenticity. Entries in the School register and Admission Form regarding the date of birth, on the basis whereof the age is recorded in the Matriculation Certificate constitute a good proof of age. If it is the case of the respondents that the statement of the petitioner is the material on the basis whereof such recording was made, in that event, any candidate for employment could easily manipulate his date of birth as his statement once made could not be challenged subsequently by the appointing authority. The real contention, as we have understood, is that if the date of birth of the petitioner as recorded in the Matriculation Certificate is accepted, in that case, he was a minor on the date of his appointment. There is no such rule that a minor can never be appointed in Government service. Rules are always relaxable. Fundamental rules provide how the "boy-service", that is, service during the period of minority of an incumbent, has to be regularised. The period of "boy-service" is never taken into account for computing the qualifying service for pension. In our view, therefore, when the genuineness or authenticity of the Matriculation Certificate is not disputed or challenged the date of birth as recorded in such certificate must be taken to be correct. That apart, the respondents had accepted and acted on the basis of the certificate by amending the literary qualification. The question of initiation of any disciplinary proceedings at this stage cannot arise at all as the respondents, for the last 39 years, since the submission of the Matriculation Certificate, did not take any steps against the petitioner. This conduct would only demonstrate that appointment of a person below the age of 18, at the material time immediately after the partition, was neither unusual nor illegal. 12. There is another aspect of the matter. It has not been disputed that in several cases the Authorities themselves have corrected the date(s) of birth on the basis of the Matriculation Certificate (s), although upon such correction it was found that the concerned incumbents were minor at the respective date (s) of their appointment. There is no reason why the petitioner should be discriminated against. The respondents should act fairly and reasonably and not arbitrarily. There is no reason why the petitioner should be discriminated against. The respondents should act fairly and reasonably and not arbitrarily. We do not find any basis for such discrimination which is violative of Articles 14 and 16 of the Constitution For the reasons aforesaid, the appeal is allowed. Desai, C.J.: I agree.