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2004 DIGILAW 976 (PAT)

Vinod Kumar v. Union Of India

2004-09-16

AFTAB ALAM

body2004
Judgment Aftab Alam, J. 1. The petitioner seeks to challenge the panel of short-listed candidates, dated November 7-8, 2001 (Annexure-9) prepared by the Dealer Selection Board for grant of retail out- let dealership of Indian Oil Corporation Limited at Turkauliya in the district of East Champaran, The challenge to the Panel of short listed candidates is in so far as it places respondent No. 6 at serial No. 1 above the petitioner who is put at serial No. 2. The selection of respondent No. 6 as the first candidate is challenged on the ground that he did not fulfill the eligibility criterion of age as laid down in the tender notice and was, therefore, disqualified at the outset. 2. As the facts of the case unfold it becomes clear that respondent No. 6, in fact, did not satisfy the condition relating to age; what is worse is that he himself appears to be fully aware of this position from the beginning and he seems to have tried to cover-up his disqualification by producing before the selection Board got up documents and by withholding relevant materials on the issue of age. 3. A notice inviting applications for grant of the dealership was issued in the daily newspaper Hindustan of 1.9.2000. In the column relating to qualifications/ eligibility it was provided, at serial Kh, that on the date of application the candidate must be over 21 years and under 60 years in age. The last date for submission of application was 16.10.2000. 4. Respondent No. 6 was one of the applicants for grant of the dealership. In the writ petition he is described as the son of Maheshwar Singh, a Samta Party MLA from Harsidhi Assembly Constituency in the district of East Champaran. At the time of making the application he was a student of 1st year M.B.B.S. course at Mala Gujri Memorial Medical College, Kishanganj. Prior to that he was a student of Vidya Niketan (Birla Public School), Pilani (Rajasthan) from where he passed the Class-X and Class XII examinations held by the Central Board of Secondary Education. 5. Along with his application he submitted the certificate of passing Sr. School Certificate Examination, 1997 (Commonly called the Class XII Examination) in support of his educational qualification. 5. Along with his application he submitted the certificate of passing Sr. School Certificate Examination, 1997 (Commonly called the Class XII Examination) in support of his educational qualification. In connection of age, curiously, he did not submit his Class X Certificate that invariably bears the date of birth of the candidate and is generally recognised as the proof of age. Instead, he submitted a copy of the birth certificate taken from the Births and Deaths Registrar maintained by the panchayat and obtained from the panchayat Sewak of Morarpur Gram Panchayat. In this certificate his date of birth was shown as 22.6.1978, the registration of which was shown to have been made on 23.7.1978. But the certificate itself was issued on 17.9.2000 i.e. about a fortnight after the issuance of the tender notice. According to the date of birth shown in the certificate, he was clearly over 21 years of age on 16.10.2000. The Court finds it strange and surprising that it did not occur to anyone in the Dealer Selection Board that a candidate who had passed the plus-two examination from the Central Board of Secondary Education should not produce his Class X certificate as proof of age but instead, submit a birth certificate issued by panchayat sewak. The Dealer Selection Board has sought to explain its position on this issue in its counter affidavit but to that we shall come later on. 6. On the basis of the materials submitted by respondent No. 6 he was selected as the first candidate by the Dealer Selection Board on Nov. 7-8, 2001. The petitioner protested against his selection and when he did not get any favourable response he tiled this writ petition in this Court on 3.1.2002. In the writ petition one of the grounds on which the selection of respondent No. 6 was assailed was that he was under-age and did not fulfill the criterion of age prescribed by the tender notice. 7. On 10.1.2002 a supplementary affidavit was filed on behalf of the petitioner bringing on record a photo-slat copy of the certificate of respondent No. 6 of his passing the Secondary School Examination Board, 1995 (Commonly known as the Class X Examination) held by the C.B.S.E. In this certificate (Annexure-12) the date of birth of respondent No. 6 was recorded in words as Twenty Second December Nineteen Hundred Seventy Nine. At Annexure-13 was the transfer certificate issued from the school Vidya Niketan in which the date of birth of respondent No. 6 was shown as 22nd December, 1979. From the Class X certificate issued by the C.B.S.E. and the transfer certificate issued by his school, it would clearly appear that his date of birth, as recorded in those institutions, was 22.12.1979 and on that basis he was clearly under-age on the last date for submission of application and was, therefore, disqualified for grant or the dealership. 8. It is noted above that the writ petition was filed in this Court on 3.1.2002, Shortly after the supplementary affidavit along with Class X certificate and transfer certificate of respondent No. 6 was filed on 17.1.2002, with copies of the affidavit being given to counsel for the Dealer Selection Board on 10.1.2002 and to counsel for respondent No. 7 the Chief Divisional Manager, Indian Oil Corporation on 15.1.2002. Thus it became known on January 10-15, 2002 that the petitioner had in his possession clinching evidence in proof of the date of birth of respondent No. 6 At that stage instead of accepting this position and letting the matter rest at that, he went one step ahead. On 19.1.2002 he filed a suit being T.S. No. 17 of 2002 against the Central Board of Secondary Education seeking a declaration from the Court that his date of birth was 22.6.1978 and not 22.12.1979 as recorded in the Class X certificate. The C.B.S.E. appeared and filed a written statement in the suit, in paragraph 7 of which it is stated as follows : "That the statement made in paragraph 2nd of the plaint is not true rather it is made by the plaintiff after thought for undue advantage. It is false to say that the plaintiff was born on 22.6.1978. Actually the plaintiff Mr. Tarun Vijay was born on 22.12.1979, as per the records maintained in the records of the Board and the school concerned in which he was studying. It is false to say that the plaintiff was born on 22.6.1978. Actually the plaintiff Mr. Tarun Vijay was born on 22.12.1979, as per the records maintained in the records of the Board and the school concerned in which he was studying. As per the record of the school concern at the time of admission of the plaintiff in the school, the plaintiff declared his date of birth as 22.12.1979 and as also at the time of filling form of final examination, the plaintiff filled up his date of birth as 22.12.1979 in his own pen and the Board concerned by his bye-laws given opportunity to rectify or correct the date of birth of the candidates through proper channel but within the time fixed by the bye-laws of the Board concerned. The plaintiff neither approached for correcting the date of birth nor challenged recording entries with respect to the date of birth". 9. In the light of the materials coming to the notice of the Court it is impossible to accept that the date of birth of respondent No. 6 was 22.6.1978 and not 22.12.1979 as recorded in the School Leaving Certificate and his Class X certificate. 10. The Dealer Selection Board justifies its action in accepting the birth certificate issued by the panchayat sewak as sufficient proof of age of respondent No. 6 on the basis of the guide-lines issued by the Ministry. Clause 12 of the guide-lines dealing with proof of age provides as follows : 12. Proof of Age--"Since, as per Ministrys guide-lines, even the affidavit given by the candidate can be taken as a proof of age, birth certificate and LIC policy can also be considered as proof of age". The aforequoted provision in the guide-lines is indeed a very liberal and wholesome provision but an attempt to apply it to the facts of this case appears to be wholly misconceived. It may be noted that the education qualification for the grant of dealership is Matriculation or passing a recognised equivalent examination. Though the matriculation certificate bears the date of birth of the candidate, certificates of many other examinations recognised as equivalent to matriculation may not do so. Further, the candidates for dealership may come from weaker section and rural areas who may find it difficult to obtain a sophisticated proof of age. Though the matriculation certificate bears the date of birth of the candidate, certificates of many other examinations recognised as equivalent to matriculation may not do so. Further, the candidates for dealership may come from weaker section and rural areas who may find it difficult to obtain a sophisticated proof of age. Therefore, taking an over-all view and in the larger interest the provision for proof of age is made appropriately liberal and easy to comply with. But in this case where the candidate had produced his Class XII certificate from C.B.S.E. showing him to be student of Birla Public School, Pilani, it would appear quite unusual that he should not produce his Class X certificate as proof age and instead produce a birth certificate obtained from panchayat sewak. The non-production of the Class X Certificate should have normally aroused same curiosity and the Dealer Selection Board could have at least asked the candidate to also produce his Class X certificate showing his date of birth. 11. Coming now to the case of respondent No. 6 Mr. P.K. Shahi submitted that the births and deaths register was maintained under the provisions of the Births and Deaths Act, 1969. He strongly argued that the birth certificate submitted by respondent No. 6 was a statutory certificate and, therefore, there was no reason not to give it preference, as evidence of age, over the Class X certificate issued by the C.B.S.E. 12. It is true that sec. 7 of the Births Deaths Act, 1969 provides for appointment of a Register for each local area who under Sub-sec. (2) is obliged to maintain a register for entering informations recording the births and deaths and u/s. 8 of the Act births and deaths are to be reported to the Registrar for registration. But it is well-known that in this State specially in the rural areas the provisions of the Act are mostly followed in breach rather than in observance. It is also not unknown that the register required to be maintained under the Act have not been able to acquire the necessary sanctity and the entries therein are capable of being manipulated without much difficulty. But even disregarding these ground realities the certificate produced by respondent No. 6 does not come up to the statutory standard. It is also not unknown that the register required to be maintained under the Act have not been able to acquire the necessary sanctity and the entries therein are capable of being manipulated without much difficulty. But even disregarding these ground realities the certificate produced by respondent No. 6 does not come up to the statutory standard. Sec. 12 of the Act provides as follows : "Extracts of registration entries to be given to informant.--The Registrar shall, as soon as the registration of a birth or death has been completed give free of charge, to the person who gives information u/s. 8 or Section 9 an extract of the prescribed particulars under his hand from the register relating to such birth or death". In view of the aforesaid provision it is clear that if the birth of respondent No. 6 was in fact recorded on 23.7.1978 as shown in the certificate, then a copy of the certificate should also have been given to this parents or the person reporting his birth at the same time. Therefore, the certificate should have been issued in the year 1978 itself and not on 17.9.2000, a fortnight after the issuance of the tender notice. 13 Moreover, if the action of respondent No. 6 was bona fide he should have submitted this Class X certificate stating that the date of birth recorded there was incorrect and his correct date of birth was 22.6.1978 in support of which he could file the birth certificate, his parents affidavit or any other material. His action in withholding the Class X certificate and submitting the birth certificate obtained from panchayat sewak after the issuance of the tender notice puts the whole matter in a different light and makes his case quite suspicious. 14. Mr. Shahi lastly contended that the suit of respondent No. 6 was pending and the position would materially alter in case the suit was finally decreed in his favour. The simple answer to the submission is that a list has to be decided on the basis of the materials as existing on the date of adjudication and not on any hypothetical assumption. Further, on the basis of the materials on record I see no reason for the petitioner to be too sanguine about the result of the suit. 15. The simple answer to the submission is that a list has to be decided on the basis of the materials as existing on the date of adjudication and not on any hypothetical assumption. Further, on the basis of the materials on record I see no reason for the petitioner to be too sanguine about the result of the suit. 15. On the basis of the materials on record and the sequence of events this Court comes to the inescapable conclusion that the correctly recorded date of birth of respondent No. 6 was 22.12.1979 but for the purpose of getting the dealership he suppressed and withheld the authentic material showing his correct date of birth and after the issuance of the tender notice he obtained a birth certificate and after the institution of this case filed a suit for declaration of his age. The manner in which and the time at which the birth certificate was obtained from the panchayat sewak makes it highly suspicious and it cannot be relied on as showing the correct age of respondent No. 6 in preference to his Class X certificate. 16. Consequently, it is found and held that respondent No. 6 was under-age on the date of application and he was, therefore, disqualified to be considered for grant of the dealership. The concerned respondents are, therefore, directed to strike off his name from the panel of the short-listed candidates and then to proceed in the matter of grant of dealership, in accordance with law. 17. In the result, this writ petition is allowed but with no order as to costs.