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2004 DIGILAW 91 (PAT)

Bishwanath Sharma v. State Of Bihar

2004-01-21

NARAYAN ROY

body2004
Judgment 1. Heard learned counsel for the parties. 2. This writ application is directed against the orders as contained in Annexures 8 and 9 whereby and whereunder the representation filed by the petitioner for correction of his date of birth has been rejected and consequential directions for superannuation of the petitioner have been issued. 3. From the facts enumerated in the writ application, it appears that the petitioner was appointed on the post of a Police Constable on 21.6.1966 where the petitioners age was assessed as 21 years. The petitioner, thereafter, passed his matriculation examination in the year 1970 and his date of birth was recorded as 5.7.1947 in the matriculation certificate. The case of the petitioner thereafter was considered for his absorption on a post of Writer Constable since he was a matriculate and finally he was absorbed on the post of Writer Constable on 31.12.1972. The petitioners case thereafter was again considered for further promotion and he was allowed to officiate as A.S.I. with effect from 18.10.1976 and subsequently he was promoted to the post of Sub Inspector of Police with effect from 13.8.1981 and while he was continuing on the post of Sub Inspector of Police he was confirmed on the post of A.S.I. vide memo no. 856 (100) dated 4.3.83 and during his continuance in service the authorities vide memo no. 4336 dated 28.7.94 asked its employees for submission of their original certificates for verification and the petitioner submitted his matriculation certificate as proof of date of birth immediately thereafter and the date of birth of the petitioner was entered in his service book as 5.7.1947. In the meantime, a memo as contained in Annexure 4 dated 19.9.2002 was issued informing the petitioner that he will superannuate with effect from 30th June, 2003. Pursuant to Annexure 4, the petitioner filed his representation as contained in Annexures 5 and 7 requesting the authorities to re-consider his case in view of the date of birth entered in the service book and also in his matriculation certificate as 5.7.1947. The representations of the petitioner, however, were considered and rejected by the order as contained in Annexure 8 and consequential order was issued vide Annexure 9 reiterating the same stand that petitioner would superannuate with effect from 30th June, 2003. 4. The representations of the petitioner, however, were considered and rejected by the order as contained in Annexure 8 and consequential order was issued vide Annexure 9 reiterating the same stand that petitioner would superannuate with effect from 30th June, 2003. 4. Learned counsel for the petitioner submitted that at the initial stage of appointment of the petitioner on the post of Police Constable his age was assessed to be as 21 years in the year 1966 as by that time he had not passed matriculation examination and no sooner he passed matriculation examination in the year 1970 where his date of birth was mentioned as 5.7.1947 he was considered for appointment as Writer Constable and he was absorbed on that post on 31.12.1972 on the basis of the matriculation certificate. It is further submitted that once the matriculation certificate was submitted by the petitioner and was acknowledged, the same was to be used for collateral purposes; firstly as a token of his qualification and for the date of birth and considering this aspect of the matter, the authorities entered his date of birth in the service book as 5.7.1947 and, therefore, the authorities were not correct in rejecting his representation and the orders impugned in that view of the matter, are wholly without jurisdiction and not sustainable in law. 5. A counter affidavit has been filed on behalf of the State precisely stating therein that since the age of the petitioner was assessed to be as 21 years in the year 1966 at the time of his appointment as Police Constable, the petitioners date of birth was considered to be 1945 and accordingly the communication as contained in Annexure 4 was issued. Learned counsel for the State now submits that in the declaration chart the petitioner has also discfosed his age as 21 years at the time of his initial appointment and the date of birth as entered in the service book showing the same as 5.7.1947 appears to be an interpolation as there is no signature of the authorities nor the same has been countersigned by the petitioner. lt is, therefore, submitted by learned counsel for the State that the representation filed by the petitioner at belated stage was required to be rejected treating his birth of the year 1945. 6. lt is, therefore, submitted by learned counsel for the State that the representation filed by the petitioner at belated stage was required to be rejected treating his birth of the year 1945. 6. In paragraphs 6 to 11 of the writ application, statements have been made by the petitioner in specific term that the petitioner was absorbed as Writer Constable as he was matriculate with effect from 31.12.1972 and thereafter he was promoted as A.S.I. and also as Sub Inspector of Police and the original certificate was submitted by the petitioner for verification as asked for by Annexure 2. The statements made in paragraphs 6 to 11 of the writ application have not been denied rather in paragraph 5 of the counter affidavit it is stated that these statements need no comment. Learned Government Pleader no. 7 very fairly submits that for the post of Writer Constable an employee must be a matriculate. 7. The petitioner was absorbed as a Writer Constable on 31.12.1972 only after passing of his matriculation examination in the year 1970. This itself goes to show that the declaration given by the petitioner that he is a matriculate, was considered and accepted and subsequently on verification the same was also found to be genuine. The entry made in the service book of the petitioner showing his date of birth as 5.7.1947, therefore, cannot be said to be an after thought nor it can be said to be an interpolation rather it appears that no sooner the declaration was given by the petitioner at the time of his absorption as Writer Constable and subsequently for promotion to the higher posts his date of birth as given in the matriculation certificate was endorsed in his service book. The date of birth as shown in the matriculation certificate and as incorporated in the service book of the petitioner, appears to be one and the same i.e. 5.7.1947. There is no discrepancy whatsoever in the date of birth of the petitioner as disclosed thereto. Since the authorities verified the original certificate of the petitioner and others pursuant to a communication as contained in Annexure 2, it would be presumed that the matriculation certificate produced by the petitioner in token of his qualification and. date of birth was accepted to be genuine one and accordingly, the entry was made in the service book. Since the authorities verified the original certificate of the petitioner and others pursuant to a communication as contained in Annexure 2, it would be presumed that the matriculation certificate produced by the petitioner in token of his qualification and. date of birth was accepted to be genuine one and accordingly, the entry was made in the service book. So far last limb of submission of learned Government Pleader no. 7 that since the petitioner filed his representation at belated stage; orders passed thereupon rejecting the same should not be re-considered by this court in its writ jurisdiction is concerned, it will be pertinent to say that the representation was not filed by the petitioner only for correction of his date of birth rather it appears that when he was informed that he would superannuate with effect from 30th June, 2003, he made representation for re-consideration of his case according to the date of birth entered in his service book as also shown in his matriculation certificate and that representation has been rejected by the authorities erroneously. 8. Considering the facts and circumstances of the case and in view of the observations made aforesaid, the orders as contained in Annexures 8 and 9 must be held to be arbitrary, unreasonable and without jurisdiction. It is further held that the date of birth of the petitioner must be accepted to be as 5.7.1947 as disclosed in the matriculation certificate which has been found to be genuine by the authorities. 9. In the result, this application is allowed and the orders as contained in Annexures 8 and 9 are set aside.