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2006 DIGILAW 1163 (JHR)

Md. Liyakat v. State Of Jharkhand

2006-09-07

PERMOD KOHLI

body2006
JUDGMENT Permod Kohli, J. 1. The petitioner joined the Respondent No. 2-Municipality as a Labour/Coolie in the year 1967 as alleged by the petitioner and in the year 1968 as per the Reply filed by the Respondents. His Service Book was prepared in the year 1975, wherein, his date of birth was recorded as 6.10.1945. Petitioner was informed vide letter No. 260 dated 13.02.2003 that he is going to retire on 06th of October, 2003 on attaining 58 years of age. It is alleged that on receipt of the aforesaid letter, petitioner came to know that his date of birth was wrongly recorded in the Service Book, whereas his correct date of birth is 13.02.1952. He made a representation before the Special Officer, Hazaribagh Municipality for correction of the date of birth on the basis of School Transfer Certificate, wherein his date of birth is recorded as 13.02.1952. On this representation, the Special Officer, Hazaribagh Municipality referred the petitioners matter to the Civil Surgeon, Sadar Hospital, Hazaribagh for constitution of the Medical Board for ascertaining the age of the petitioner in view of the dispute raised. The Medical Board after conducting Medical Examination of the petitioner reported vide letter dated 02nd of September, 2003 that the age of the petitioner as on 23rd of August, 2003 i.e. the date of examination was about 53 years. In the meanwhile, petitioner has retired from Service on the basis of the date of birth as recorded in his service Book. Petitioner has filed this writ petition for declaring the action of the Respondents retiring the petitioner as illegal with a further direction to allow the petitioner to work on the basis of the age determined by the Medical Board as 53 years as on 23rd of August, 2000. 2. The claim of the petitioner is being resisted by the Respondents on the ground that as per the Service Book of the petitioner opened in the year 1975, his date of birth recorded is 06th of October, 1945 and it also contains his Thumb impression. It is, accordingly, stated that the date of birth has been rightly recorded. Respondents have also disputed the School Transfer Certificate and it is stated that the same was allegedly issued in the year 1965, whereas petitioners date of birth was recorded in the year 1975 in the service record. It is, accordingly, stated that the date of birth has been rightly recorded. Respondents have also disputed the School Transfer Certificate and it is stated that the same was allegedly issued in the year 1965, whereas petitioners date of birth was recorded in the year 1975 in the service record. This clearly indicates that this Certificate has been managed thereafter. It is further stated that the Certificate is subject to verification. It is astonishing that there is no whisper about the Medical examination of the petitioner, which was conducted at the instance of Respondent-Municipality. It is, therefore, considered that the Respondents have not disputed either the allegation of the petitioner of his Medical examination by the Medical Board or age as determined by the Medical Board. The only plea raised by the Respondents is that under Rule 96 of the Bihar Financial Rules, the date of birth once recorded in the Service Book cannot be altered. It is further stated that no representation for rectification of mistake in the date of birth can be entertained after 10 years of the date of entry into the Government Service. 3. Rule 96 of the Bihar Financial Rules reads as under: 96. Every person newly appointed to a service or post under Government should at the time of the appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certificate, municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. The actual date or, the assumed date determined under rule 97 should be reported in the history of service, service book, or any other record that may be kept in respect of the Government servants service under Government and and once recorded, it cannot be altered, except in the case of a clerical error without the orders of the State Government. Note 1. - No representation for rectification of mistake in the date of birth as entered in the records of service of a Government servant shall be entertained, if it is not submitted within a period of ten years of the date of his entry into Government service. Representations submitted thereafter will be summarily rejected by the authority competent to pass final orders under this rule unless there are very exceptional cases to relax this time-limit. 4. Representations submitted thereafter will be summarily rejected by the authority competent to pass final orders under this rule unless there are very exceptional cases to relax this time-limit. 4. It is not in dispute that 06.10.1945 is the date of birth recorded in the service record of the petitioner at the time of his entry into the service of the Municipality. It is also admitted position that on the representation of the petitioner made in the year 2003, he was referred to the Medical Board by the Special Officer, Hazaribagh Municipality and the Medical Board has determined his age about 53 years as on 23rd of August, 2003. 5. Rule 96 prohibits alteration of the age after it is recorded in the service record. Note-1 appended to Rule 96 further provides that no representation made for rectification of the date of birth as entered in the record of service shall be entertained, if it is not submitted within 10 years. It further provided for the rejection of such representation summarily, if not made within prescribed time. However, the competent authority is empowered to relax the time limit in very exceptional cases. 6. In the case of Union of India v. Ram Suia Sharma reported Honble Supreme Court held that the court or tribunal at the belated stage cannot entertain a claim for correction of the date of birth duly entered in the service records. What has been observed in the aforesaid judgment is noticed hereunder: 2. The controversy raised in this appeal is no longer res integra. In a series of judgments, this Court has held that a court or tribunal at the belated stage cannot entertain a claim for the correction of the date of birth duly entered in the service records. Admittedly, the respondent had joined the service on 16.12.1962. After 25 years, he woke up and claimed that his correct date of birth is 2.1.1939 and not 16.12.1934. That claim was accepted by the Tribunal and it directed the Government to consider the correction. The direction is per se illegal. 3. The appeal is accordingly allowed. No costs. 7. Similar view was taken by the apex Court in the case of Hindustan Lever Ltd. v. S.M. Jadhav and Anr. That claim was accepted by the Tribunal and it directed the Government to consider the correction. The direction is per se illegal. 3. The appeal is accordingly allowed. No costs. 7. Similar view was taken by the apex Court in the case of Hindustan Lever Ltd. v. S.M. Jadhav and Anr. , whereunder it was observed: It is a settled law that at the fag end of the Career, a party cannot be allowed to raise a dispute regarding his date of birth 8. In the case of G.M., Bharat Coking Coal Limited, West Bengal v. Shiv Kr. Dushad and Ors. reported in A.I.R. 2001 SC 72 the Honble apex Court held as under: 21. From the provisions in the instructions referred to above, it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board. Therefore, no fault can be found with the action taken by the appellant to refer the case of the respondent to Medical Board. The Medical Board as laid down in the instructions is to consider the matter on the evidence available with the colliery management and in accordance with the requirement of medical jurisprudence. As noted earlier, in the present case the Medical Board determined the age of the respondent to be 52 years in 1988 and the employer (appellant) accepted such determination. In the circumstances there was hardly any scope for the High Court to interfere with the date of birth as determined by the employer (appellant herein) and issue a writ of Mandamus that the date as claimed by the employee (the respondent herein) should be accepted. 9. In the case of Mogal Sah v. The State of Jharkhand and Ors. reported in 2003 (1) J.L.J.R. 538 under similar circumstances, a coordinate Bench of this Court observed as under: 5. A Counter affidavit on behalf of the Respondent No. 4 states that the Petitioner has manipulated the date of birth in the Service Book for his own benefit and therefore, the Petitioner is not entitled to any relief. reported in 2003 (1) J.L.J.R. 538 under similar circumstances, a coordinate Bench of this Court observed as under: 5. A Counter affidavit on behalf of the Respondent No. 4 states that the Petitioner has manipulated the date of birth in the Service Book for his own benefit and therefore, the Petitioner is not entitled to any relief. However, so far as the statements in relation to Medical Board is concerned, the Respondents have merely stated at paragraph 13 that even the Medical Board should not be taken into consideration in such a case when it is a prima facie case of fraud/fabrication. 6. This Court does not appreciate the stand of the Respondents. If the Petitioner was guilty of fraud, or interpolation or fabrication then the Respondents were bound to have held an inquiry. Surprisingly, they themselves, asked the Civil Surgeon to assess the date of birth of Mogal Sah by a Medical Board by letter dated 15.7.2000 as contained at Annexure 4. When the Medical Board was constituted and a report was received by the Respondents, they cannot turn around and say that even the report of the Medical Board should not be taken into consideration. 10. The Honble Supreme Court has deprecated the practice of entertaining claims for date of birth at the fag end of the service of an employee by the Courts/Tribunals. In the present case, the employer itself entertained the claim for rectification of the date of birth. The petitioners case was referred to the Medical Board and its opinion sought. Employer having accepted the representation of the petitioner for re-examination of the age/date of birth as recorded in the service record cannot be permitted to say that the employee has approached at the fag end of the service for rectification of his date of birth. Even the plea of the Respondents based upon Rule 96 of Bihar Financial Rules also deserves rejection after having entertained the representation of the employee beyond ten years and referring the petitioner for Medical examination. It was open to the Respondents to have rejected the plea of the petitioner for re-examination of the date of birth as recorded in the service record on the basis of School Transfer Certificate produced. It will not be out of context to mention that the petitioner sought rectification of his date of birth on the basis of School Leaving Certificate. It will not be out of context to mention that the petitioner sought rectification of his date of birth on the basis of School Leaving Certificate. The Respondents instead of rejecting his claim on that basis or holding an enquiry into the genuineness of School Leaving Certificate or otherwise choose to refer the petitioner for medical examination. By doing so, the Respondent-Municipality has not only condoned and relaxed the period of ten years prescribed under Rule 96 but also decided to re-determine the age of the petitioner by a Medical Board. After having adopted this recourse, the plea of the Respondents that the employee has approached at the fag end of his service cannot be accepted. The ratio of the judgments of the apex Court in the case of Union of India (Supra) reported in (2996) 7 SCC 421 and in the case of Hindustan Lever Ltd. (Supra) reported in 2001 (4) SCC 52 has no application to the facts of this case. Honble Supreme Court has deprecated the practice of the Courts and Tribunals to entertain the disputes at the fag end of service. But in case where the employer himself entertains such a claim and either holds an enquiry or decides to re determine the age on the basis of Medical evidence, it cannot turn around and reject the claim on the ground of same being belated one. In the case of G.M., Bharat Coking Coal Limited, West Bengal (Supra) reported in AIR 2001 SC 72 , the Honble Supreme Court has clearly ruled that once the age of an employee is got determined through Medical examination, the same is binding both on the employee as also the employer. Similar view was taken by this Court in the case of Mogul Sah (Supra) reported in 2003 (1) J.L.J.R. 538 noticed hereinabove. The Medical Board has already determined the age of the petitioner at 53 years as on 23rd of August, 2003. This is binding upon the Respondents. Petitioner has been retired from service despite determination of his age by the employer through the Medical Board. On the basis of the age determined by the Medical Board, Petitioner is to retire in August, 2008. Under the Medical Jurisprudence, the age determined on the basis of Medical examination also is not the conclusive evidence and there is margin of plus-minus one year. On the basis of the age determined by the Medical Board, Petitioner is to retire in August, 2008. Under the Medical Jurisprudence, the age determined on the basis of Medical examination also is not the conclusive evidence and there is margin of plus-minus one year. In view of the above circumstances, 1 hold that even if this benefit is to be allowed to the employer, petitioner is to retire on 31" of August, 2007. Since petitioner is out of job for the last almost three years, I propose not to order his reinduction into service and allow him the retiral benefits only by treating his date of retirement at 58 years in August, 2007. This writ petition is, accordingly disposed of with a direction to the Respondents-Municipality to determine the retiral benefits payable to the petitioner as if he is to retire on 31st of August, 2007 and pay all his benefits within a period of three months.