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2007 DIGILAW 621 (GAU)

Ananda Ram Bora v. State of Assam

2007-09-18

BIPLAB KUMAR SHARMA

body2007
JUDGMENT B.K. Sharma, J. 1. The Petitioner has since retired from service as Inspector of Police on attaining the age of superannuation with the raising of retirement age from 58 to 59 years. The Petitioner retired from service on 30.9.2006, which otherwise would have been 30.9.2005. The grievance of the Petitioner is that, because of wrong recording of date of birth in the Service Book, he has been made to retire prematurely. While according to the Petitioner, his date of birth is 1.4.1952, but in the Service Book, his date of birth has been wrongly recorded as 1.10.1947. In support of the claim, he has placed on record the High School Leaving Certificate (HSLC) as well as the Admit Card certifying his date of birth as 15 Years - 11 Months - 1 Day on the 1st day of March, 1968. 2. From the materials on record, it appears that the Petitioner joined the police service as an Assistant Sub-Inspector of Police on 16.7.1971 firstly, as a trainee on 16.7.1971 and thereafter, on successful completion of training against regular post in substantive vacancy. According to the Petitioner, he was not at all aware, as to what date of birth was recorded in his Service Book, but was under the bona fide belief that his date of birth was correctly recorded on the basis of the HSLC Examination certificate. 3. By Annexure-'C' order dated 10.8.2004 issued by the Superintendent of Police notified that the persons named in the order which included the Petitioner as well, would retire from service with effect from the dates indicated therein. In the order, the Petitioner's name appeared at Sl. No. 3 showing his date of birth and date of retirement as 1.10.1947 and 30.9.2005 respectively. 4. On receipt of the copy of the aforesaid order, the Petitioner made Annexure-'D' representation (undated) making a prayer for correction of his date of birth in the Service Book on the basis of the HSLC Examination certificate. Although his representation was forwarded by the controlling authority and he was directed to submit the original HSLC Examination certificate and the Petitioner submitted the same, but his prayer for correction of date of birth in the Service Book was rejected by the impugned communication dated 10.3.2005 issued by the Inspector General of Police (OSD), Assam and addressed to the Superintendent of Police, Dibrugarh, under whose control the Petitioner was serving. 5. 5. Being aggrieved by rejection of the prayer for correction of date of birth in the Service Book, the Petitioner filed the writ petition with the prayer for setting aside and quashing of the impugned order and for a direction to the Respondents to allow the Petitioner to continue in service taking his date of birth as 1.4.1952 instead of 1.10.1947. 6. The plea of the Respondents in their counter affidavit is that the Petitioner has been made to retire from service on attaining the age of superannuation on the basis of the date of birth recorded in the Service Book. The Respondents have contended that since the Petitioner accepted the recorded date of birth in the Service Book by duly signing the same and putting his thumb and fingers impression at the time of initial appointment, he cannot now claim altogether a different date of birth so as to gain some years of service. Referring to S.R.8, the Respondents have contended that the request of the Petitioner for change of date of birth cannot be accepted at this belated stage. In support of the plea of the Respondents, they have annexed the first page of the Service Book bearing the signature and thumb/fingers impression of the Petitioner. 7. Mr. C. Baruah, learned senior Counsel assisted by Mr. T. Baruah, learned Counsel for the Petitioner has argued that when the HSLC Examination certificate speaks of date of birth of the Petitioner as 1.4.1952, the Respondents ought to have accepted the same instead of asking the Petitioner to go on retirement taking his date of birth as 1.10.1947. According to the learned Counsel, never in the service career of the Petitioner, he was shown the Service Book and it was the belief of the Petitioner that his date of birth was correctly recorded on the basis of the HSLC Examination certificate. 8. On the other hand, Ms. R. Chakraborty, learned Addl. Senior. Government Advocate, Assam assisted by Mr. J. Handique, learned State counsel has argued that the Petitioner after accepting the particular date of birth recorded in the Service Book, cannot now turn around the same so as to claim another date of birth to gain some more years of service. 8. On the other hand, Ms. R. Chakraborty, learned Addl. Senior. Government Advocate, Assam assisted by Mr. J. Handique, learned State counsel has argued that the Petitioner after accepting the particular date of birth recorded in the Service Book, cannot now turn around the same so as to claim another date of birth to gain some more years of service. Referring to the provisions of S.R. 8, the learned State counsel has argued that it was the duty of the Petitioner to rectify the mistake, if any, at the earliest opportunity. According to her, the Petitioner cannot claim change of date of birth at the fag - end of his service career. 9. Although the Respondents have annexed the relevant pages of the Service Book depicting the date of birth of the Petitioner as 1.10.1947, to quell any doubt, I have also verified the original Service Book produced by the learned State counsel. The first page of the Service Book, not only has recorded the date of birth of the Petitioner as 1.10.1947 but has also recorded the age of the Petitioner on the date of enrolment, which is 23 years 11 months. Further, apart from indicating the date of birth as "1.10.1947", the same has also been indicated as "1st October, nineteen forty seven". The particulars of the Petitioner which included the said date of birth and age on the date of enrolment, were duly endorsed by the Superintendent of Police, Special Branch, Assam. The Petitioner also accepted the entries by putting his signature and thumb/finger impressions. Thus, in the normal circumstances, such date of birth recorded in the Service Book, without any timely objection to the same, will have to be accepted. However, it is the case of the Petitioner that he was never aware of the alleged wrong recording of the date of birth in his Service Book till issuance of the aforesaid Annexure-'C' order dated 10.8.2004 notifying the date of retirement of the incumbents named therein. 10. if the Petitioner was unaware of the date of birth recorded in the Service Book, then the question necessarily arises as to why did he then sign and give the thumb and finger impressions, which are to be put by the service holder as a token of acceptance of the entries made there. 10. if the Petitioner was unaware of the date of birth recorded in the Service Book, then the question necessarily arises as to why did he then sign and give the thumb and finger impressions, which are to be put by the service holder as a token of acceptance of the entries made there. It is not the case of the Petitioner that the date of birth was recorded later on, in the Service Book. 11. Annexure-'D' representation of the Petitioner also throws light on the above aspect of the matter. In the representation, the Petitioner never agitated that he was unaware of the recorded date of birth in the Service Book. It was also not his case that in the Service Book, his date of birth was wrongly recorded ignoring the HSLC Examination certificate. His only plea was that as per the HSLC Examination certificate, his age being 15 years 11 months 1 day as on 1st of March, 1968, his date of birth would be on that basis, and not 1.10.1947. With this plea, he simply represented to correct his date of birth. It is in consideration of such plea of the Petitioner, the Respondents have passed the impugned order dated 10.3.2005 rejecting the prayer of the Petitioner for change of date of birth and the same has been done upon a reference to the provisions of S.R.8. 12. As per the provisions of S.R.8(C), no alteration in the date of birth of a Government of servant should be allowed, except, in very rare cases where a manifest mistake has been made. Such mistakes should be rectified at the earliest opportunity but in no case, request for change in the date of birth of a Government servant made on a date within three years of the date of his actual superannuation should be entertained. In the instant case, it was not the pleaded case of the Petitioner in the representation that there was any mistake in recording the date of birth in the Service Book. It was also not his plea that never before he had any occasion to know the recorded date of birth. When SR8(C) mandates that in no case, the request for change of date of Birth made on a date within 3 years of actual superannuation should be entertained, the Respondents rightly rejected the prayer of the Petitioner for change of date of birth. When SR8(C) mandates that in no case, the request for change of date of Birth made on a date within 3 years of actual superannuation should be entertained, the Respondents rightly rejected the prayer of the Petitioner for change of date of birth. It will be pertinent to mention here that in the leave accounts etc. of the Petitioner available on records also indicate the date of birth of the Petitioner as 1.10.1947. 13. The Petitioner entered the police service as an Assistant Sub-Inspector of Police. His recorded date of birth remained in the Service Book all throughout during the service career. It is only when the Annexure-'C' order dated 10.8.2004 was issued, which is after long 27 years of the service of the Petitioner, he for the first time made the prayer for change of date of birth. In the case of State of Tamil Nadu v. T.V. Venugopalan (1994) 6 SCC 302 , the Apex Court held that the delay in seeking correction would be fatal and the Government servant should not be permitted to challenge the recorded date of birth in the service book which has been accepted by countersigning the same at the fag end of his service career. Deprecating the approach of the Tribunal in granting the relief to the applicant the Apex Court held that the Tribunal grossly erred in showing overindulgence in granting the reliefs even trenching beyond its power of allowing the applicant to remain in office for two years after the date of superannuation. The course of action adopted by the Tribunal was held to be the grossest error of law committed by the Tribunal holding the same not be too countenanced and sustained on any ground. 14. In the case of Secretary and Commissioner v. R. Kirubakaran 1994 Supp. (1) SCC 155, the Apex Court held that such correction should normally not be allowed. It has been held in that case that the Tribunal or the High Court should not deal with an application for correction of date of birth keeping in view the only public servant concerned. The Apex Court has also emphasized in that case that the court or the Tribunal must be slow in granting any interim relief for continuation in service. The Apex Court has also emphasized in that case that the court or the Tribunal must be slow in granting any interim relief for continuation in service. The Apex Court also pointed out that the chain reaction that follows with the continuation of the services of the incumbent beyond the date superannuation such as adverse effect on promotion prospect of his juniors, etc. Limited scope of judicial review in such matter has also been emphasized by the Apex Court. Same is the view expressed by the Apex Court in the case of State of U.P. v. Gulaichi (2003) 6 SCC 483 . In that case, the Apex Court observed as follows: Normally, in public service, with entering into the service, ever the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raise a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing application before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not. As observed by this Court in State of Tamil Nadu v. T.V. Venugopalan and State of Orissa v. Ramanath Patnaik when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. The view expressed in R. Kirubakaran case as adopted. 15. I may gainfully refer to the decision as reported in Union of India v. C. Rama Swamy (1997) 4 SCC 647 in which the Apex Court held that an appointment, having been secured on the basis of a particular date of birth, it would be against public policy to permit a change in the same to enable a longer benefit and the same would operate as an estoppel. The Supreme Court pointing out that in matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment and one of the relevant circumstances is the age of the person who is sought to be appointed and that although it may not be possible to conclusively prove that an advantage has been gained by representing date of birth which is different than that the one claimed later on. The Apex Court emphasized that it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is relevant factor to assess suitability, elder person is ordinarily considered to be more mature, therefore, more suitable. In such a case, the Apex Court emphasized that it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. In that case, the Apex Court further observed as follows: In such a case, even in the absence of a statutory rule like Rule 16-A, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. If such a decision is challenged the court also ought not to grant any relief even if it is shown that the date of birth, a originally recorded, was incorrect because the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that would be to his advantage. Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent the decision in Manak Chand case does not lay down the correct law. 16. Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent the decision in Manak Chand case does not lay down the correct law. 16. In the aforesaid case of Gulaichi, noticing the trend that many public servants on the eve of their retirement raise a dispute about their records observed that an application for correction of the date of birth should not be dealt with by the courts, Tribunal or the High Court keeping in view only the public servant concerned. 17. As observed by the Apex Court in the case of T.V. Venugopalan (supra) and State of Orissa v. Ramanath Patnaik (1997) 5 SCC 181 , when the entry was made in the service record and when the employee was in service he did not make any at attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. The Apex Court adopted the view expressed in R. Kirubakran (supra). 18. The Division Bench of this Court in the case of Abdul Khalique Laskar v. All Assam Public Health Employees Association (2003) 2 GLT 241, referring to the aforesaid provisions of S.R.8 as per which no request for change of date of birth is to be entertained within 3 years preceding the original date of superannuation, held that the change made to be illegal and affirmed the judgment of the learned Single Judge. In the case of State of Assam v. Daksha Prasad Deka (1970) 3 SCC 624 , the Apex Court held that the compulsory retirement under F.R.56 must be determined on the basis of the service record and not on what the Respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. 19. In the instant case, the relevant rule referred to above clearly indicate the permissible area for correction of date of birth. In view of the specific bar, it was not permissible to affect any change. There is nothing wrong on the part of the Respondents to act according to the rules. The Petitioner himself accepted the entry relating to date of birth in the Service Book putting his signature and thumb/fingers impressions. In view of the specific bar, it was not permissible to affect any change. There is nothing wrong on the part of the Respondents to act according to the rules. The Petitioner himself accepted the entry relating to date of birth in the Service Book putting his signature and thumb/fingers impressions. Entries have also been duly endorsed by the controlling authority. 20. The above being factual and legal position, the conclusion is inevitable that the Respondents are justified in their conclusion to the effect that the date of birth of the Petitioner recorded in the Service Book will hold the field and that the prayer of the Petitioner for change of date of birth cannot be accepted. 21. Writ petition is dismissed. There shall be no order as to costs. Petition dismissed