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2002 DIGILAW 84 (GAU)

State of Mizoram and Ors. v. C. Lalkima

2002-02-19

A.K.PATNAIK, J.N.SARMA

body2002
A.K. PATNAIK, J- This is an appeal against the judgment and order dated 11.8.98 passed by the learned Single Judge in Civil Rule No. 65/ 96. 2. The facts briefly are that respondent herein joined Government service under the Government of Mizoram as Gram Sevak on 11.3.58 and his date of birth in the Service book was recorded as 1.3.35. Subsequently, the respondent took the HSLC examination and on the basis of the date of birth given in the HSLC examination pass certificate, the Director of Agriculture, Mizoram, corrected the date of birth of the respondent to 1.3.42. Thereafter notifications were issued showing the list of Group-A and Group-B officers who were to retire and in the said notification the date of birth of the respondent was shown as on 1.3.42. Thereafter an order dated 8.8.96 was passed retiring the respondent on superannuation with effect from 31.5.96. Aggrieved by the said order dated 8.8.96, the appellant filed a writ petition under Article 226 of the Constitution which was registered as Civil Rule No. 65/96. The learned Single Judge after hearing the learned counsel for the parties quashed the impugned order dated 8.8.96 retiring the appellant and directed that the appellant shall be taken back in service with full service benefit. Aggrieved by the said judgment and order dated 11.8.96 of the learned Single Judge, the State of Mizoram has filed this appeal. 3. Mr N. Sailo, learned GA, Mizoram, submitted that under Note-6 to FR-56 which was applicable to the Government service in the State of Mizoram, the date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, is to be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority. He submitted that it appears from the Service Book of the respondent that his date of birth was declared by him to be 1.3.35 at the time of his appointment and the said date of birth was accepted by the appropriate authority at the time of making his appointment. He further argued that such date of birth once accepted by the appropriate authority at the time of making appointment cannot be altered except by sanction from the Government. He further argued that such date of birth once accepted by the appropriate authority at the time of making appointment cannot be altered except by sanction from the Government. But such sanction was not taken by the Director of Agriculture, Mizoram, while altering the date of birth of the respondent in the Service Book from 1.3.35 to 1.3.42. He further submitted that it has been held in Union of India-Vs-C. Rama Swamy, AIR 1997 SC 2055 , that such date of birth of the Government servant as declared by him at the time of appointment and accepted by the appropriate authority cannot be altered under the rules subsequently by taking into account any other material. He further argued that if the date of birth of the respondent is taken to be 1.3.42, as claimed by him, then he would be only 16 years few months when he was appointed to the Government service on 11.3.58 and under the relevant rules in force at the time of appointment, a person was eligible for appointment in Government service only after the age of 18 years, i.e. the age of majority in India. 4. Mr G. Raju, learned counsel for the respondent, on the other hand, did not dispute the position that the rules as they existed at the time of his appointment of the petitioner provided the minimum age of appointment of Government servant as 18 years. But he submitted that in accordance with Rule 79, the date of birth of the respondent was determined by the Director of Agriculture, Government of Mizoram, on the basis of matriculation certificate of the respondent and accordingly the Service Book of the respondent was corrected and this altered date of birth as recorded in the Service Book of the respondent could not be corrected by the authorities without following the principles of natural justice. Mr Raju submitted that in this case after the Director of Agriculture, Mizoram, corrected the date of birth in the Service Book of the respondent from 1.3.35 to 1.3.42, no show cause notice was served on the respondent nor any hearing as given to the respondent before the impugned order dated 8.8.96 was passed retiring the respondent from service with retrospective effect from 31.3.96. Mr Raju further submitted that the impugned order dated 8.8.96 was passed retiring the respondent with retrospective effect from 31.3.96 and this fact was also taken into consideration by the learned Single Judge while quashing impugned order of retirement. 5. The Note-6 to FR 56 on which the learned Govt. Advocate for Mizoram relied on is extracted hereinbelow:- "The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School certificate or extracts from Birth Register. The date of birth so declared by the Government Servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry of Department of the Central Government, or the Comptroller and Auditor-general in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving, if- (a) a request in this regard is made within five years of his entry into Government service; (b) it is clearly established that a genuine bona fide mistake has occurred; and (c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service." The aforesaid Note-6 to FR 56 clearly stipulates that the date of birth at declared by the Government servant at the time of appointment and accepted by the appropriate authority cannot be altered subsequently without this sanction of the authorities mentioned therein. In the present case, it is not disputed that at the time of appointment the respondent declared his date of birth to be 1.3.35 and the said date of birth was accepted by the appropriate authority at the time of his appointment. In the present case, it is not disputed that at the time of appointment the respondent declared his date of birth to be 1.3.35 and the said date of birth was accepted by the appropriate authority at the time of his appointment. The specific cases in which the date of birth so declared and accepted by the appropriate authority can be altered have been given in paragraphs (a), (b) and (c) of Note-6 to FR 56 and it appears in this case the date of birth of the respondent was altered from 1.3.35 to 1.3:42 on the request of the appellant under paragraph (a) in the aforesaid Note-6 to FR 56. But paragraph(a) clearly indicates that a request for change of date of birth can be made by the Government servant only within five years of the entry of the Government servant in the Government service. In this case the respondent entered into Government service on 11.3.58 whereas the Director of Agriculture, Govt. of Mizoram, altered the date of birth the respondent on 3.10.77, on a request made beyond the five years period stipulated in paragraph (a) in Note-6 to FR 56 quoted above. Hence such an alteration made by the Director of Agriculture, Govt. of Mizoram, was not authorised by the aforesaid Note-6 to FR-56 and was a nullity in law. 6. Coming to the submission of Mr G. Raju that once the director of Agriculture, Govt. of Mizoram, altered the date of birth of the respondent from 1.3.35 for 1.3.42 in the Service Book of the respondent, the altered date of birth could not further be altered without following the principle of natural justice, we are of the view that the principle of natural justice will apply only where the original date of birth as entered at the time of appointment on the basis of declaration of the Government servant is sought to be altered by the competent authority subsequently. This is because the date of birth so declared by the Government servant and accepted by the appropriate authority becomes the date of birth for the purpose of determination of the age of superannuation of the Government servant and any alteration in the said date of birth will affect the Government servant and will have civil consequences for him. It is for this reason, the Supreme Court in State of Orissa-vs-Dr. It is for this reason, the Supreme Court in State of Orissa-vs-Dr. (Miss) Binapani Dei and others, AIR 1967 SC 1269 , held that the order determining the date of birth is administrative in character, but even an administrative order which involves civil consequences must be made consistently with the rules of natural justice after informing the parties affected by the order, the evidence in support thereof and giving an opportunity to such party of being heard and of meeting or explaining the evidence. In that case, the date of birth of the Government servant as recorded in the Service Book at the time of her appointment in the year 1938 and the said order was sought to be altered by an administrative order and the Supreme Court upheld the judgment of the High Court quashing the said order on the ground that the said administrative order was passed contrary to the principle of natural justice. But in the present case as discussed above, the date of birth as originally recorded was 1.3.35 and by the impugned order dated 8.8.96, the respondent was sought to be retired from service determining his age of superannuation on the basis of the said date of birth as 1.3.35 as originally recorded in his Service Book at the time of his appointment. This is not a case where the date of birth of the respondent as was declared and accepted by the appropriate authority at the time of his appointment was sought to be changed by the impugned order dated 8.8.96. 7. That apart, in case we accept the case of the respondent that his date of birth was I.3.42, then he would be only 16 years and few days at the time when he was appointed to Government service on II.3.58. Under the relevant rules applicable at the time of appointment of the respondent to Government service only persons above 18 years of age could be appointed to the Government service. Perhaps of this reason, the respondent declared his date of birth as 1.3.35 and obtained appointment to Government service on 11.3.58. At a later stage, the respondent cannot be allowed to claim that his date of birth was not actually 1.3.35 but 1.3.42 and continue in service on the basis of such altered date of birth. 8. Perhaps of this reason, the respondent declared his date of birth as 1.3.35 and obtained appointment to Government service on 11.3.58. At a later stage, the respondent cannot be allowed to claim that his date of birth was not actually 1.3.35 but 1.3.42 and continue in service on the basis of such altered date of birth. 8. For the aforesaid reasons, we allow the appeal and set aside the impugned judgment dated 11.8.96 of the learned Single Judge in Civil Rule No. 65/96 but we make it clear that since the respondent has worked upto 8.8.96, salary and allowances will be paid to the respondent for the period upto 8.8.96 but for the purpose of pensionary and other terminal benefits, his date of retirement will be determined on the basis of his date of birth as on 1.3.35. Considering facts and circumstances of the case, the parties shall bear their own cost.