Md. Etem Sk. v. STATE OF WEST BENGAL — 1991 DIGILAW 161 (CAL)

JUDGMENT K.M. Ganguli, J. 1. IN the instant application under Article 226 of the Constitution of India, the petitioner challenges an order of suspension dated January 24, 1991 which is Annexure 'C' to the petition and also prays for a writ in the nature of mandamus for directing the respondents to correct the date of birth of the petitioner or in other way to restore the original date of birth recorded in the service book of the petitioner. 2. THE petitioner states that he was born at Hat Lalbagh on July 191 1940. The petitioner further states that he was admitted to Nawab Bahadur's Institution, Murshidabad in Class III and continued his studies upto Class VII and he discontinued his studies with effect from January 17, 1955. The petitioner obtained a certificate from the Headmaster of the said Nawab Bahadur's Institution dated August 22, 1968, a xerox copy of which has been annexed to the petition marked with the letter 'A'. It appears from the said School Leaving Certificate that the date of birth of the petitioner as recorded in the Register of the school is July 19, 1940. It is needless to say that the Nawab Bahadur Institution, Murshidabad is a Government school and the certificate issued by a Government Institution is entitled to command respect. The petitioner was appointed as a Darwan in the Imambara department under the official trustee of West Bengal, Trust Murshidabad Estate since 19631. The petitioner thereafter, was reappointed with effect from July 1, 1965 under section 4(g) of the Murshidabad (Trust) Act, 1963 and his post was ultimately converted into a permanent post with effect from June 1, 1979. 3. ALL of a sudden the petitioner received a memo dated July 26, 1990 issued by the Estate Manager, Murshidabad intimating him that his service were retained for one year more beyond the date he was scheduled to retire. A xerox copy of the said memo has been annexed to the petition marked with the letter 'D'. It transpire from the said annexure that the petitioner was due to retire on August 31, 1990 on attaining the age of 60 years but was given an extension for a year from the aforesaid date being found physically fit and mentally alert by competent medical officer. 4. It transpire from the said annexure that the petitioner was due to retire on August 31, 1990 on attaining the age of 60 years but was given an extension for a year from the aforesaid date being found physically fit and mentally alert by competent medical officer. 4. IMMEDIATELY, the petitioner protested by his letter dated August 12, 1990 pointing out that his date of birth being July 19, 1940, the question of his retirement with effect from August 31, 1990 did not at all arise and as such the question of extension of his service also did not arise. It is stated in paragraph 13 of the petition that no reply was given to the aforesaid representation of the petitioner. It is significant to note that the respondents have not even referred to this paragraph in their affidavit-in-opposition. On the contrary the petitioner received a memo dated January 17, 1991 wherefrom it appears that the petitioner had filed an application for rectification of his date of birth in the service book and the Estate Manager concerned sought instruction from the Asstt. Secretary, Government of West Bengal as to how and on what basis the date of birth would be rectified. A copy of the said memo dated January 17, 1991 has been annexed to the petition marked with the letter 'F'. To top at all the petitioner received another memo dated January 26, 1991 from which it appears that the petitioner would be considered as permanently retired from service on and from January 31, 1991 in terms of Rule 76(b) of the West Bengal Service Rules Part I. A xerox copy of the aforesaid memo also has been annexed to the petition marked with the letter 'C'. It is the strong contention of the petitioner that in the service book his date of birth was originally recorded as July 19, 1940 which tallies with the date of birth that appeared from the School Leaving Certificate which is Annexure 'A' of the petition. The petitioner has annexed a copy of the service book handed over to him marked with the letter 'H'. A very interesting thing is revealed from a study of the said service book. The petitioner has annexed a copy of the service book handed over to him marked with the letter 'H'. A very interesting thing is revealed from a study of the said service book. It appears, from column 7 of the service book that the date of first appointment of the petitioner was December 11, 1986 and that the original date of birth recorded in the said service book was July 19, 1940 which tallies with the date of birth as would appear from the School Leaving Certificate mentioned above but the said entry regarding the date of birth in column 3 of the service book was penned through and in its place and stead the date of birth has been altered to August 1, 1930 within bracket it is written ''as per School Leaving Certificate issued by Kapasdanga Primary School and self declaration." It is the petitioner's strongest contention that he never read in Kapasdanga Primary School in his life and in fact he does not even know where such Kapasdanga Primary School is or was situated. It is more interesting to note that although the respondents relied on such alleged School Leaving Certificate of such Kapasdanga Primary School yet the respondents have chosen not to annex any copy of any such certificate in their affidavit-in-opposition whereas the petitioner has annexed the copy of the School Leaving Certificate of Nawab Bahadur Institution where he prosecuted his studies upto Class VII. As I have already stated that a School Leaving Certificate issued by a Government Institution not only commands respect but is to be given its due place in the matter of determination of the date of birth recorded in such certificate. It is also interesting to note that the respondents do not dispute the genuineness of the certificate issued by the Nawab Bahadur's Institution, Murshidabad. 5. AT the time of the hearing the petitioner handed upto this court the copy of the service book of another person namely, Kasem Sk. In the case of the said Kasem Sk. It is also interesting to note that the respondents do not dispute the genuineness of the certificate issued by the Nawab Bahadur's Institution, Murshidabad. 5. AT the time of the hearing the petitioner handed upto this court the copy of the service book of another person namely, Kasem Sk. In the case of the said Kasem Sk. also the date of birth was altered from July 18, 1944 to January 1, 1930 and it is also recorded therein that it was done "as per School Leaving Certificate issued by Kapasdanga Primary School and self declaration." It is to be noted that in neither of the cases such alteration was countersigned by the employee concerned although in the signature column the signature of the employee was there but the date of first appointment was December 11, 1986 in both the cases and in the case of the petitioner, the correction of the alleged date of birth was made on March 1989, long after the service book was deemed to have been opened and this was done behind the back of the petitioner without any intimation to him and without giving him the opportunity of stating his case. In of Kasem Sk. although it is stated in the service book while correcting date of birth of Kasem Sk. that he read in Kapasdanga Primary School but it appears that the said Kasem Sk. was not at all a Bengalee and he did not know Bengali language and he signed his service book in Urdu. It is not known how a person who is not a Bengalee and who did not know the Bengali language and signs in Urdu could ever read in a Bengali Primary School. In the case of Kasem Sk. also the alteration was not countersigned by Kasem Sk. and the alteration was made on November 11, 1986 also long after the first appointment of the said Kasem Sk. on December 11, 1986. 6. THERE seems to be no sanction behind such unilateral and ex parte alteration of the date of birth of the employees without any basis at all. This is not all, the respondents came to this court with stranger tales to tell. The respondents in the first instance submits that the application itself is not maintainable either in law or in fact the reasons for such non-maintainability has been spelt out in the affidavit-in-opposition. This is not all, the respondents came to this court with stranger tales to tell. The respondents in the first instance submits that the application itself is not maintainable either in law or in fact the reasons for such non-maintainability has been spelt out in the affidavit-in-opposition. The courts of India including the Supreme Court has gone into the question of correction of age or date of birth on the basis of unimpeachable evidence of record and the courts have never been shut out to investigate even into matters of age in appropriate cases. It may be mentioned here that the respondents in their affidavit-in-opposition have alleged that the petitioner has not produced the original certificate. In the writ petitions, under the appropriate rules of the court, only copies of documents are to be annexed. So there is nothing wrong on that score if the petitioner annexes a copy of a certificate to the petition. At the request of the court the petitioner produced the original certificate issued by Nawab Bahadur's Institution and the same was handled over to the learned advocate of the respondents for his inspection and satisfaction. It is needless to mention that the learned advocate appearing on the behalf of the State could not find anything wrong with the said certificate. 7. THE respondents went to base their case on a still stranger basis. The respondents state that the affidavit portion of the writ petition was affirmed by one Salim Sk. who is the son of the petitioner and is a school teacher and was born on March 13, 1953 according to the Admission Register of Lalbag Singhee High School wherefrom he appeared at the Higher Secondary Examination in 1970. From a calculation of the date of birth of the father and son the respondents seek to establish the date of birth of the petitioner by antidating the date of birth of the petitioner by no less than 10 years. 8. IT is stated in paragraph 14 that while the second copy of service book was handed over to the petitioner there was a mistake in recording the date of birth on such second copy but in the original it was correctly written. 8. IT is stated in paragraph 14 that while the second copy of service book was handed over to the petitioner there was a mistake in recording the date of birth on such second copy but in the original it was correctly written. This is a false statement on the face of it as this court looked into the original service book produced by the respondents and it appears that the same correction was made in the original by same method. This affidavit is totally untrustworthy and the deponent perjured himself deliberately to serve whose purpose it is not known. So far as the father and son episode is concerned from which the respondents want to back calculate the date of birth of the petitioner, it is stated in the affidavit-in-reply that the petitioner married a widow with a son and accepted the son of his wife by her predeceased husband as his own son. So the discrepancy or the difference in age cannot be a criterion for determining the date of birth of the petitioner. In fact, the respondents were totally out of their depth in seeking to establish their case but I have already observed that the case sought to be made out by the respondents is not only totally untrustworthy but is thoroughly false and by practising such falsehood they are seeking to deprive a citizen of 10 precious years of his service life. This is unpardonable. The Government qua Government is expected to act if not generously, but at least truthfully. In the circumstances, I have no hesitation in holding that the date of birth of the petitioner as established from evidence is July 19, 1940. 9. FOR the reasons stated hereinabove, the impugned order which is annexure 'G' to the petition is hereby set aside and quashed. The respondents are directed to correct the date of birth of the petitioner in the service book to be July 19, 1940 and let the petitioner work till he attains the age of 60 years calculated on the basis that his date of birth is July 19, 1940. 10. THE respondents are directed to reinstate the petitioner forthwith in service and permit him to resume his duties at once. 10. THE respondents are directed to reinstate the petitioner forthwith in service and permit him to resume his duties at once. The entire period between February 1, 1991 and the date of resumption of duty by the petitioner shall be treated as the period spent on duty and the respondents are directed to pay all emoluments of the petitioner including all arrears within 4 weeks from the date of communication of this order. In the facts and circumstances of the case and on the footing that this is one of the extreme cases of high handednees and arbitrariness on the part of certain Government officials, I was inclined to award exemplary costs against the Government but the only thought that restrained me from doing so is that in such case it is the Government and not the officer concerned who will have to bear the brunt of such costs. So I restrain myself with an effort from awarding costs. 11. THE application is disposed of as above without any order as to costs. Let a xerox copy of the operative part of this order be supplied to the petitioner on payment of the charges therefore and on the undertaking to obtain a certified copy of the order. Application disposed of.