Keshar Choudhary v. State of Bihar — 1995 DIGILAW 218 (PAT)

JUDGMENT B.N. AGRAWAL, J. 1. This writ application has been filed for quashing communication dated 28.6.1994, issued by the Deputy Commissioner, Commercial Taxes, Bihar Patna, contained in Annexure 11, whereby the petitioner has been intimated that the State Government has rejected his representation filed on 5.2.1994, and that dated 30.6.1994, issued by the same officer, contained in Annexure 12, enclosing thereunder order of the Finance Commissioner, Department of Finance, Government of Bihar, whereby a reasoned order was passed upon the representation filed by the petitioner on 5.2.1994 for making change in date of birth of the petitioner. 2. The short facts are that the petitioner is a Scheduled Caste and in the year 1954 he had appeared in Secondary School Examination from Bihar School Examination Board and after passing the same on 1.12.1954 Matriculation certificate was issued to him, whereunder date of birth of the petitioner has been mentioned as 10th of June, 1937. In the year 1960, when the petitioner applied for appearing in the 9th Combined Competitive Examination he declared his date of birth as 10th of June, 1937 and in support thereof attested copy of matriculation certificate was duly produced by the petitioner. After the petitioner was selected in the written test, at the time of interview he had produced the original certificate for verification of his date of birth by the Bihar Public Service Commission (hereinafter to be referred to as Commission) in proof of his age. After the petitioner competed the Commission recommended the case of the petitioner to the State Government for appointment and in the recommendation of the Commission petitioner's date of birth was 10th of June, 1937. Along with the recommendation the Commission had sent original application submitted by the petitioner for making appointment and attested copy of the matriculation certificate, referred to above, besides medical fitness certificate given by the medical board, wherein also in the column of date of birth it was mentioned as 10th of June, 1937. Under Rule 18 of the Bihar Finance Service Rules (hereinafter to be referred to as 'Rules'), the Commission is under obligation to publish a consolidated result of an examination and in the table of result published in the year 1961 there is one column in relation to age also and according to the age mentioned therein also petitioner's date of birth was 10th of June, 1937. 3. 3. Undisputedly, in the case of non-gazetted officer only service book incorporating therein date of birth duly signed by the Government servant is maintained, but in the case of gazetted officer no such service book is opened and date of birth, which is mentioned in the recommendation of the Commission is forwarded to the Accountant General, who maintains record of service of each and every gazetted officer and in the case of the petitioner also after receipt of recommendation date of birth of the petitioner was recorded by the Accountant General, but it was recorded as 10th of June, 1936 instead of 10th of June, 1937, of which the petitioner had no knowledge at all. According to the petitioner, in the beginning of the month of February, 1994 the dealing clerk made query from him as to why the petitioner had not submitted his pension paper, which he was required to submit within six months before the date of his superannuation. When the petitioner gave reply that question of submission of pension paper did not arise as he was to superannuate on 1.7.1995, the dealing clerk had shown him the register in the Department in which the date of birth of the petitioner was mentioned as 10th of June, 1936. The petitioner having learnt from the dealing clerk for the first time in February, 1994 that his date of birth has been mentioned as 10th of June, 1936 in the register filed a representation on 5.2.1994 for its correction stating therein that earlier he had no knowledge regarding his date of birth being 10th of June, 1936. 4. When no order was passed upon the said representation filed by the petitioner the same necessitated filing of the writ application before this Court, bearing CWJC No. 4578 of 1994, which was disposed of by order dated 19.5.1994, contained in Annexure 7, whereby certain observations were made in favour of the petitioner and the authorities were directed to dispose of the representation of the petitioner. Pursuant to the direction, orders impugned have been passed rejecting the representation of the petitioner on the ground that steps for correcting age have been taken beyond the period of 10 years from the date of entry into service as required under Rule 96 of the Bihar Financial Rules. Hence this writ application. 5. Pursuant to the direction, orders impugned have been passed rejecting the representation of the petitioner on the ground that steps for correcting age have been taken beyond the period of 10 years from the date of entry into service as required under Rule 96 of the Bihar Financial Rules. Hence this writ application. 5. Learned counsel appearing on behalf of the petitioner in support of this application submitted that there was no material either before the State Government or before the Accountant General for recording date of birth of the petitioner as 10th of June. 1936 and it appears that the same has been recorded under confusion as in the matriculation certificate the year of birth was mentioned as 1937 in Hindi, which might have been read as 1936 in Arabic. 6. On behalf of the State as well as Accountant General, Bihar, counter affidavits have been separately filed, wherein it has nowhere been stated that there was any material either before the State Government or before the Accountant General for recording his date of birth as 10th of June, 1936. The fact that in the application submitted by the petitioner seeking employment, petitioner's date of birth was 1937 and medical certificate by the Medical Board and attested copy of the matriculation certificate also disclose the same date of birth has not been denied by the State. It has not been disputed by the respondents that these papers were not forwarded by the Commission. It has also not been disputed that neither these papers were there before the State Government nor before the Accountant General when entry was made regarding date of birth at the time when the petitioner entered service. Their ground of objection is that in the civil list date of birth of the petitioner was mentioned as 10th of June, 1936, as such, the petitioner shall be deemed to have knowledge that his date of birth is 10th of June, 1936 as recorded in the service record. According to the petitioner, as a matter of fact, the document aforesaid is not a. civil list, but is a distribution list and the same was neither published nor the petitioner was ever communicated with its copy. Since the list in question was never published the petitioner cannot be deemed to have even constructive notice regarding his date of birth mentioned in the said list. Since the list in question was never published the petitioner cannot be deemed to have even constructive notice regarding his date of birth mentioned in the said list. In view of the fact that copy of the said distribution list was, undisputedly, not circulated to the petitioner at any point of time, I do not find any substance in the objection raised on behalf of the respondents. 7. Next objection of learned counsel appearing on behalf of the respondents is that a tentative gradation list was published in the year 1987, wherein also date of birth of the petitioner was mentioned as 10th of June, 1936, but the petitioner did not file any objection to the gradation list. Petitioner's reply to this is that since there was nothing wrong in his placement in the tentative gradation list he did not file any objection thereto. It has, however, been stated that so far date of birth mentioned in the said tentative gradation list is concerned, the petitioner missed to take notice of the same. It has been also submitted that the said gradation list is only tentative and has not been finalised as yet. According to the petitioner, he learnt for the first time in the month of February, 1994 regarding his date of birth as 10th of June, 1936 and immediately thereafter in the same very month he filed a representation on 5.2.1994 for its correction. In this view of the matter, I do not find any substance in the second objection also raised on behalf of the respondents. 8. Learned Additional Standing Counsel, appearing on behalf of the Accountant General, placed reliance upon a decision of the Supreme Court in the case of State of Tamil Nadu vs. T.V. Venugopalan, (1994 Labour & Industrial Cases, 2498) wherein the Apex Court was dealing with the case for correction of date of birth in relation to Government servant of other State. In this case law was laid down that ordinarily, prayer of a Government servant for making change in the date of birth declared by him at the time of entry into service cannot be allowed at the fag end when he is going to superannuate. In this case law was laid down that ordinarily, prayer of a Government servant for making change in the date of birth declared by him at the time of entry into service cannot be allowed at the fag end when he is going to superannuate. In the present case, the ratio laid down in the aforesaid case is not applicable as in that case a Government servant wanted to change his date of birth at the fag end of his service contrary to the declaration made by him at the time of entry into service. But, in the present case, the petitioner does not want to make any change in the date of birth declared by him at the time of entry into his service. The petitioner wants to correct his date of birth in the record, which was, it appears, under some confusion or inadvertence made in the service record contrary to the declaration made by the petitioner at the time of entry into service and records submitted by him were before the Commission and were forwarded to the State Government and subsequently to the Accountant General. It appears to me in this case the mistake has been committed by the respondents inadvertantly in recording the date of birth of the petitioner as 10th of June, 1936 because in the matriculation certificate the year of birth was mentioned in Hindi as 1937, which can be read as 1936 in Arabic. It is not known what was the practice in the year 1954 when the matriculation certificate was issued for mentioning figures in a Hindi certificate but at present practice is to mention the figures in Arabic in Hindi certificate or in any other document, which is issued in Devanagari script. Therefore, in my view, date of birth of the petitioner has been mentioned inadvertantly in the service record as 10th of June, 1936. From the aforesaid facts it becomes clear that the petitioner had no knowledge prior to February 1994 that his date of birth was mentioned as 10th of June, 1936 in the service record. This being the position, I am clearly of the view that the authorities were not justified in rejecting the representation filed on behalf of the petitioner for correcting his date of birth. 9. This being the position, I am clearly of the view that the authorities were not justified in rejecting the representation filed on behalf of the petitioner for correcting his date of birth. 9. For the foregoing reasons this writ application is allowed orders contained in Annexure 11 and 12 are quashed and the respondents are directed to correct date of birth of the petitioner in the service record as 10th of June, 1937, meaning thereby he will superannuate on 1st of July, 1995. Since the petitioner could not discharge his function with effect from 1st of July, 1994 because of no fault on his part, but because of erroneous order passed by the authorities upon his representation regarding his date of birth, I direct the respondents to make payment of salary of the petitioner from 1st of July, 1994 till this date within a period of two months from the date of receipt/production of a copy of this order and if the petitioner submits his joining, the same shall be accepted forthwith. This application is, accordingly, allowed.