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1995 DIGILAW 235 (GAU)

Chitta Ranjan Deb v. State of Tripura

1995-11-02

N.G.DAS

body1995
This second appeal is directed against the judgment of the learned District Judge, West Tripura dated 8,11.1990 whereby learned District Judge affirmed the judgment and decree of the trial Court viz Additional Sub-Judge, West Tripura, Agartala dated 20.1.1990 dismissing the suit of the present appellant. 2. I have heard Dr. HK Bhattacharjee, the learned counsel appearing on behalf of the appellant and Mr. UB Saha, the learned Government Advocate appearing for the respondents. 3. The suit out of which this second appeal arises was filed by the present appellant on 19.8.1985 for correction of his date of birth on the ground that at the time of his entry into the service he could not furnish the exact date of birth and as a consequence thereof the date of birth of the appellant was not recorded in his service book. It is further stated that only on 4.3.1961 the department vide its letter No.2309/RSV/61 asked the appellant to furnish his date of birth with documentary evidence. The appellant remained silent for about six months and thereafter he gave reply to that letter stating that excepting the horoscope he got no other documentary proof to show actual date of birth. Therefore, the appellant along with his letter dated 9.8.1961 marked as Ext 6 sent his original horoscope to show his actual date of birth. This letter Ext 6 however, does not indicate what was his date of birth. 4. However, the appellant subsequently obtained a certificate from the school to show that his date of birth was 8.1.1930. The authority did not accept this and hence the appellant filed the suit just a few months prior to his retirement. 5. The suit was resisted by the State of Tripura and other defendants by filing a joint written statement wherein it was contended, inter alia, that the appellant did not give his date of birth at the time of his entry into the service and hence on 4.3.1961 vide letter No.2309/RSV/61 the defendant No.4 i.e. the Reserve Office Inspector, Office of the Inspector General of Police, Tripura asked the appellant to furnish his date of birth with documentary evidence. It was averred that in response to that letter the appellant submitted his original horoscope on 6.3.61 along with a letter quoting his actual date of birth as 8.1.1930. It was denied that the appellant made several correspondences for returning his original horoscope. It was averred that in response to that letter the appellant submitted his original horoscope on 6.3.61 along with a letter quoting his actual date of birth as 8.1.1930. It was denied that the appellant made several correspondences for returning his original horoscope. It was further contended that Gradation/Seniority Lists of ASI and SI were duly circulated from time to time wherein the date of birth of the appellant was shown as 27.1.1928 AD and the appellant as no point of time raised any sort of objection in respect of recording his date of birth as on 27.1.1928. 6. It was further averred that after a few years of his service the appellant changed his surname from 'Dey' to 'Deb' which he did without swearing any sort of affidavit. In view of the facts it was submitted that this suit was speculative, misconceived and liable to be dismissed with costs. 7. Upon the pleadings, the learned trial Court framed as many as eight issues including the issue, namely, whether the plaintiffs date of birth was correctly recorded by the competent authority and whether the plaintiffs date of birth was finally recorded in the service book. 8. The trial Court dealt with all the issues and after elaborate discussion of the evidence on record arrived at the conclusion that the plaintiff/appellant's claim that his date of birth was 8.1.30 was false and with this finding the trial Court dismissed the suit without costs. 9. Aggrieved, the appellant filed an appeal before the learned District Judge, West Tripura District who after elaborate discussion of the evidence on record arrived at the conclusion that the appellant failed to prove that his date of birth fall in the year 1930 and with this finding he upheld the judgment of the trial Court. Hence, this second appeal. 10. Now the first point of criticism advanced by Dr. Bhattacharjee, the learned counsel appearing on behalf of the appellant is that both the Courts below committed error in law and misdirected themselves in appreciating the evidence on record as they did not attach any importance to the School Certificate which was produced by the appellant. It may be advantageous to us to mention it here that in reply to the letter dated 4.3.61 the appellant submitted his horoscope indicating his date of birth. Dr. It may be advantageous to us to mention it here that in reply to the letter dated 4.3.61 the appellant submitted his horoscope indicating his date of birth. Dr. Bhattacharjee has submitted that as per the original horoscope the date of birth of the appellant was in the year 1930. But it is not understandable as to why the original horoscope on the basis of which the appellant claimed his correct date of birth was not produced before the Court. On examination of the records I find that no endeavour, whatsoever, was made by the appellant for production of that original horoscope. Dr. Bhattacharjee has however argued that the original horoscope was not returned by the department. But a bare perusal of the written statement will show that it was specifically contended that the assertion of the appellant that the original horoscope was not returned was absolutely false. In fact of this contention I really fail to understand why the appellant did not file necessary application as per the provisions laid down in the Code of Civil Procedure for production of horoscope. The appellant remained silent and Dr. Bhattacharjee, the learned counsel for the appellant could not give any cogent reply as to why the appellant did not think it worth his while to take steps according to law for production of the original horoscope. In this context, the next question which needs disposal is why the appellant remained silent for six months after getting the letter dated 4.2.1961 marked as Ext 1. It is really, surprising that a Sub-Inspector does not know his date of birth. It may be so that the documentary proof to show the date of birth was not readily available, but what stood in his way for giving actual date of birth seeking time to file documentary proof. But in the instant case he did not do so. The records show that he remained silent for over six months even after getting the communication dated 4.2.1961 marked as Ext 1. No cogent reply has been given. 11. The next question which poses for consideration is why the appellant did not raise any sort of objection in respect of the Gradation List/Seniority List which contained his date of birth. Admittedly, the appellant got two successive promotions. It cannot be denied that there was Gradation List and Seniority List containing the date of birth. 11. The next question which poses for consideration is why the appellant did not raise any sort of objection in respect of the Gradation List/Seniority List which contained his date of birth. Admittedly, the appellant got two successive promotions. It cannot be denied that there was Gradation List and Seniority List containing the date of birth. The respondents specifically asserted that the Gradation List and Seniority List contained the date of birth and it was circulated. But in spite of this circulation the appellant did not take any steps for correction of his date of birth in the Gradation List/Seniority List. Dr. Bhattacharjee, the learned counsel for the appellant could not show me any proof that the appellant raised any sort of objection in respect of the Gradation List/Seniority List indicating his date of birth. He however submitted that the 'Gradation List was not brought to the notice of the appellant. I am however, not prepared to accept this contention in face of the fact that the appellant got two successive promotions. One cannot imagine that a Government officer who got two successive promotions was not aware of the Gradation List and Seniority List. 12. Apart from all these things, if the date of birth as furnished by the appellant is taken to be true then it will appear that in the year 1946 he was only 16 years old. How a body of 16 years can enter into the Government service is not at all clear to me. Dr. Bhattacharjee has, however, urged that there was 'Boy service' and appellant entered into the service as 'Boy service'. I am really at a loss to understand how it is termed as boy service as it was pleaded that the appellant joined in the service in the year 1946 as Constable. 1 13. On perusal of the judgment of thelearned trial Court as well as learned appellate Court I find that learned Courts below elaborately discussed the evidence on record and made the finding that the date of birth of the appellant on 8.1.1930 was false. 14. Dr. Bhattacharjee has, however, argued that respondents did not adduce evidence in support of the fact that date of birth of the appellant was in the year 1928. Hie position of law is that the plaintiff is to prove his case and he cannot take advantage of die weakness of his adversaries. 14. Dr. Bhattacharjee has, however, argued that respondents did not adduce evidence in support of the fact that date of birth of the appellant was in the year 1928. Hie position of law is that the plaintiff is to prove his case and he cannot take advantage of die weakness of his adversaries. In this context, I may refer to a decision of the Supreme Court rendered in the case of Secretary and Commissioner, Home Department & others vs. R. Kirubakaran reported in AIR 1993 SC 2647 wherein their Lordships observed as follows: "The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, m his service/book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By mis process, even if ultimately their applications are dismissed by virtue of interim orders, they continue for months, after the date of superannuation, stow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced." In the case of Union of India vs. Hamam Singh, reported in AIR 1993 SC 1367 their Lordships under para 14 of the judgment made the following observation: "Where the date of birth recorded at the time of entry of the servant into service before 79 had continued to exist, unchallenged for almost three and a half decades and the servant had the occasion to see his service book on numerous occasions and he signed the service book at different places at different points of time but never did he object to the recorded date and the same date of birth was also reflected in the seniority lists which the servant had admittedly seen, and yet he remained silent and did not seek the alteration of the date of birth till just a few months prior to the date of his superannuation, inordinate and unexplained delay or laches on the part of Ac servant to seek the necessary correction would in any case justify the refusal of relief to him." 15. In the instant case it has already been stated 'above that successive Gradation List and Seniority List were circulated and the appellant also got two successive promotions. But in spite of the circulation of those Gradation List and Seniority List containing the date of birth the appellant did not raise any sort of objection until 1985 i.e. a few months prior to his date of retirement 16. In the case of Chief Medical Officer vs. Khadder Khadri, reported in (1995) 2 SCC 82 it was observed by their Lordships that when the petitioner got opportunity but did not avail the opportunity his belated attempt for correction of the records cannot be a bonafide. 17. For all the foregoing reasons I see no merit in this second appeal which is accordingly dismissed. 17. For all the foregoing reasons I see no merit in this second appeal which is accordingly dismissed. But under the circumstances, there would be no order as to costs.