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2008 DIGILAW 10 (GAU)

Manik Chand Singh v. State of Assam

2008-01-03

AMITAVA ROY

body2008
JUDGMENT Amitava Roy, J. 1. Being aggrieved by the inaction of the State respondents in responding to his request for restoring his date of birth to be 16.6.1953 and the decision to retire him from the services with effect from 31.8.2007, the petitioner seeks to invoke the extra ordinary jurisdiction of this Court for redress. 2. I have heard Mr. K.H. Choudhury, Senior Advocate assisted by Mr. Sk. Muktar, Advocate for the petitioner and Mrs. S. Seal, learned Standing Counsel, Excise Department, Government of Assam. 3. The pleaded versions of the parties would be necessary to comprehend better the issues involved. According to the petitioner, he was appointed as an Excise Constable in the Department of Excise of the State by the Superintendent of Excise, Lakhimpur vide order No. DXE-4/69/81 dated 4.7.1969 initially for a period of 30 days against a leave vacancy. Thereafter, by order dated 11.8.1969 the same authority allowed him to continue in service in the said capacity. In his Service Book that was opened on 11.9.1969, his date of birth was duly recorded as 16.6.1953 and the petitioner, as required, had endorsed the same by putting his signature on its first page on the same day. The Superintendent of Excise, Lakhimpur, Dibrugarh also put his signature and seal thereon. Subsequent thereto, by order dated 16.10.1982 of the Superintendent of Excise, Dibrugarh the services of the petitioner and three others were confirmed in the post of Excise Constable with effect from that date. The petitioner has maintained that, at the time of his appointment in the year 1969 he had submitted his school transfer certificate in original, before the Superintendent of Excise, Dibrugarh which, however, was retained by the said office. He claimed to have read upto Class-VIII in C.K.H.E. School, Anant Kamtaul, Muzaffarpur, Bihar. In the year 2000, while the petitioner was serving as Excise Constable at Tinsukia, the Superintendent of Excise, Tinsukia required him to produce his original school transfer certificate to prove his age/date of birth necessary for processing his case for promotion to the cadre of Excise Head Constable. He responded by contending that his school transfer certificate had been retained by the office of the Superintendent of Excise, Lakhimpur only to be informed that the said document was not traceable. He responded by contending that his school transfer certificate had been retained by the office of the Superintendent of Excise, Lakhimpur only to be informed that the said document was not traceable. He was thereafter intimated that he would be promoted to the post of Excise Head Constable, but would be required to produce the duplicate of the original school transfer certificate immediately. By order dated 1.12.2000 the petitioner along with another were promoted to the post of Excise Head Constable with effect from the date of their joining. He thereafter joined as Excise Head Constable at Dibrugarh on 7.12.2000. The petitioner collected the duplicate school transfer certificate from his school at Muzaffarpur again on 4.12.2001 and submitted the photocopy thereof with the Inspector of Excise, Dibrugarh on 3.10.2002. Subsequent thereto, in the first part of July, 2003 the Superintendent of Excise, Dibrugarh handed over to the petitioner the original copy of the school transfer certificate dated 21.02.1968 submitted at the time of his appointment. On a perusal thereof, it revealed that the year of his birth recorded therein had been struck off, over written and finally altered to 1948 from 1953. Apprehending that some similar manipulations and alterations might have been effected in his Service Book and being alarmed to be informed by some officials of the office that in fact, some corresponding change in his date of birth has been made, he on 29.7.2003, submitted a representation before the Commissioner of Excise, Assam through the Superintendent of Excise, Tinsukia asserting that his date of birth is 16.6.1953. The petitioner has alleged that on 16.8.2003 his service records were forwarded to the office of the Deputy Superintendent of Excise, Margherita from the Tinsukia Head Office for pay establishment and being allowed to see his Service Book, it transpired that his date of birth recorded as 16.6.1953 had been changed to 18.6.1953 and then struck off to be written as 16.8.1958 and altered to 16.8.1948 by overwriting and finally noted as 16.8.48. The alterations and the over writings appeared to had been endorsed by Mr. Prakash Jyoti Sarma, Superintendent of Excise, Dibrugarh who had been the Superintendent of Excise, Dibrugarh in the year 1982. No date or particulars of any order to the above effect was recorded therein. On his application, however, the petitioner was furnished a photocopy of the first page of the Service Book. 4. Prakash Jyoti Sarma, Superintendent of Excise, Dibrugarh who had been the Superintendent of Excise, Dibrugarh in the year 1982. No date or particulars of any order to the above effect was recorded therein. On his application, however, the petitioner was furnished a photocopy of the first page of the Service Book. 4. On 11.11.2003, the petitioner as required by the Superintendent of Excise, Tinsukia submitted the original school transfer certificate dated 21.2.1968, but the latter did not acknowledge the receipt thereof. As a measure of abundant caution again, the petitioner on 18.11.2003, submitted the school transfer certificate dated 4.12.2001 before the said authority. Though the certificate had been submitted along with the applications dated 11.11.2003 and 18.11.2003, the authority concerned did not acknowledge the receipt of the applications or the document. The petitioner however, on 24.8.2004 also submitted an affidavit before the Superintendent of Excise, Tinsukia inter alia to the effect that at the time of entry in service his date of birth was recorded as 16.6.1953 as per the school transfer certificate which was submitted in original and that it was only on 16.8.2003 that he had come to learn of the alteration therein. The petitioner pursued the issue on 6.12.2005, 15.6.2006 and 25.1.2007 by submitting representations to the Commissioner of Excise, Assam through the Superintendent of Excise, Tinsukia all of which remained unresponded. He followed up by visiting the office of the Commissioner of Excise, Assam for more than one occasions, but to no avail. Subsequent thereto, he came across of the provisional gradation list of Excise Head Constables issued by the Commissioner of Excise, Assam wherein his date of birth was shown to be 16.8.1948. He was recorded therein to have been promoted to the post of Excise Head Constable on 1.12.2001 with his date of retirement to be 31.8.2006. His representation dated 18.7.2007 for correction of his date of promotion to be 1.12.2000 and that of his retirement to be 30.6.2010 on the basis of his date of birth as 16.6.1953 also remained unheeded. Instead, by communication dated 30.6.2007 he was intimated of his date of retirement on superannuation to be 31.8.2007 (following increase in the age of retirement from the Government service). The petitioner in these circumstances, has approached this Court. 5. Instead, by communication dated 30.6.2007 he was intimated of his date of retirement on superannuation to be 31.8.2007 (following increase in the age of retirement from the Government service). The petitioner in these circumstances, has approached this Court. 5. The State respondents in their affidavit affirmed by the Commissioner of Excise, Assam have denied that the petitioner's date of birth was correctly and duly recorded as 16.6.1953. To the charge of manipulation in the school transfer certificate dated 21.2.1968 by the office of the Superintendent of Excise, Dibrugarh, they however, conceded that it might have been done by some one somewhere for vested interest. According to the answering respondents, the petitioner's date of birth was recorded to be 16.8.1948 in his Service Book as well as his school transfer certificate which was sought to be altered by over writing. They pleaded that it was evident from the first page of Pt. II of his Service Book wherein the date of birth was recorded as 16.8.1948 duly endorsed by the petitioner and the Superintendent of Excise, Dibrugarh. They therefore, disputed the petitioner's contention that he was unaware till 16.8.2003 that his date of birth had been recorded as 16.8.1948. According to them, the Pt. II of the Service Book was prepared in the year 1983 and therefore though the petitioner was cognizant of the fact in the same year it, remained as such, unobjected by him. They however, admitted that the date of his promotion as Excise Head Constable was wrongly mentioned to be 1.12.2001 in the gradation list instead of 1.12.2000. They asserted that the authorities being satisfied that no action on the petitioner's representations was called for did not accede to his request and that his date of retirement on superannuation was rightly fixed as 31.8.2007. 6. The petitioner in his reply responded by generally reiterating the statements made in the writ petition and asserted that the school transfer certificate was genuine and authentic. He insisted that at the time of submission of the original school transfer certificate dated 21.2.1968 to the Superintendent of Excise, Lakhimpur, Dibrugarh in the year 1969, there was no over writing, manipulation or corrections thereon vis-a-vis his date of birth mentioned therein and that the said document had been manipulated during its custody in the said office. He insisted that at the time of submission of the original school transfer certificate dated 21.2.1968 to the Superintendent of Excise, Lakhimpur, Dibrugarh in the year 1969, there was no over writing, manipulation or corrections thereon vis-a-vis his date of birth mentioned therein and that the said document had been manipulated during its custody in the said office. He categorically denied that the signature appearing to be of Manik Chand Singh in the first page of Pt. II of his Service Book was his and reiterated that he was not aware of the change in the date of birth from 16.6.1953 to 16.8.1948 till 16.8.2003. He also asserted that at no point of time he had been put to any notice about the proposed correction or alteration in the first page of his Service Book. 7. Mr. Choudhury has persuasively argued that the petitioner's date of birth as originally entered in the Service Book as 16.6.1953 having been unilaterally altered by making a wrongful intervention in his school transfer certificate dated 21.2.1968 and his service records, the decision to retire him from service on 31.8.2007 on the basis of a wrong date of birth is patently illegal, arbitrary, discriminatory and malafide. The alteration in his date of birth having been effected without any prior intimation to the petitioner, it is wholly unauthorized and illegal and is liable to be adjudged as such, he urged. The learned Senior counsel maintained that the alteration in the petitioner's date of birth in his service records by interfering with his original school transfer certificate dated 21.2.1968 is clearly on extraneous considerations to achieve collateral purpose and amounts to colourable exercise of power. The basis of the decision to retire him from service with effect from 31.8.2007 being non est in law, the impugned order to the said effect is liable to be quashed, he pleaded. Mr. Choudhury has argued that in the facts and circumstances of the case, the petitioner is also entitled to a writ of mandamus directing his reinstatement in service following the restoration of his date of birth to be 16.6.1953. On instructions, the learned Senior counsel urged that the signature on the first page of the Pt. Mr. Choudhury has argued that in the facts and circumstances of the case, the petitioner is also entitled to a writ of mandamus directing his reinstatement in service following the restoration of his date of birth to be 16.6.1953. On instructions, the learned Senior counsel urged that the signature on the first page of the Pt. II of the petitioner's Service Book is not his and that therefore, the respondents' plea of imputing his (petitioner) knowledge of incorporation of his date of birth as 16.8.1948 from the year 1983 is frivolous. 8. Mrs. Seal, in reply has contended that it being apparent on the face of the Service Book of the petitioner that his date of birth had been originally recorded as 16.8.48 and reiterated in the first page of the Pt. II thereof duly endorsed by him, there is no scope to contend otherwise. As his date of birth is recorded to be 16.8.48 in the contemporaneous official records, he was rightly adjudged to retire from the service on superannuation with effect from 31.8.2007, she urged. The learned Standing counsel produced the relevant official records along with the petitioner's Service Book for the perusal of the Court. 9. I have extended my cautious consideration to the pleaded facts and the arguments advanced. Whereas, the starting premise of the petitioner's contention is that, his date of birth originally recorded as 16.6.1953 had been unilaterally altered to 16.8.48, the respondents' plea is exactly to the contrary. The fact remains that ultimately the date in the petitioner's Service Book stands as 16.8.48 as on date. The dates of entry in the service and the promotion to the post of Excise Head Constable are not in dispute. Though the original school transfer certificate dated 21.2.68 in the form as it exists at present records a mutilated date i.e. 16.6.1948, it is shown to be 16.6.1953 in the school certificate dated 4.12.2001 issued by the same school. On a plain eye estimation, his year of birth as recorded in the original certificate dated 21.2.1968 appears to be 1953. The over written year 1948 has been struck off and the number 1948 has been written afresh above the over written figure. The correction made in the year does not contain any initial of the maker. 10. On the first page of the Part II of the petitioner's Service Book three dates appear. The over written year 1948 has been struck off and the number 1948 has been written afresh above the over written figure. The correction made in the year does not contain any initial of the maker. 10. On the first page of the Part II of the petitioner's Service Book three dates appear. (i) 16.6.53 over written as 16.8.48 (ii) 13.6.1948 over written as 18.6.1953. (iii) 16.8.1948 (in red ink) with the signature and seal of the Superintendent of Excise, Dibrugarh. Admittedly, the said page contains the signature of the petitioner. The Part I of the Service Book having been exhausted, Part II was opened and on the first page of that part, the petitioner's date of birth is recorded as 16.8.48. This page also contains the signature of Manik Chand Singh which the petitioner was disowned to be his in categorical terms. The opening page of Part III of the Service Book of the petitioner is wholly blank and in Pt. IV thereof, his date of birth is recorded as 3.6.1948. This page does not contain his signature as well. If the date of birth of the petitioner as evident in the Part I of his Service Book had in terms of the procedure in vogue been brought forward to the Pt. II thereof, it was expected that the same date wound have been recorded also in Part III and Part IV. It is evidently not so. The signature of the petitioner does not appear in Part III and Pt. IV as well. 11. As alluded hereinabove, he has disputed the signature appearing on the first page of Pt. II as his. To say the least, the above revelation conclusively demonstrative that the petitioner's Service Book has not been maintained meticulously with care and vigil as required. The recording of the date of birth of the petitioner as 3.6.1948 in Part IV of his Service Book is an unmistaken index of such remiss. The official records being File No. I-53/96-97 deal with the issue from the stage of receipt of the petitioner's representation dated 29.7.2003 asserting his date of birth to be 16.6.1953. Though conflicting notes for and against the petitioner's claim appear therein, no final decision was taken in the matter. The official records being File No. I-53/96-97 deal with the issue from the stage of receipt of the petitioner's representation dated 29.7.2003 asserting his date of birth to be 16.6.1953. Though conflicting notes for and against the petitioner's claim appear therein, no final decision was taken in the matter. The authorities seem to have proceeded on the basis that the petitioner seeks a correction of his date of birth originally recorded in his Service Book at his instance. Be that as it may, the issue remained undecided and eventually the order for his retirement with effect from 31.8.2007 was issued. The records also contain inter alia a representation dated 27.9.2004 of 24 serving employees of the department resisting the petitioner's prayer for restoration of his date of birth as 16.6.1953. Incidentally, one of the office notes also took notice of the said representation. 12. In the above conspectus of recorded facts, the school transfer certificate dated 4.12.2001 recording the petitioner's date of birth to be 16.6.53 is of some significance. It is not conceivable that the said date could be altered by the petitioner to his prejudice to be 16.8.1948. There is prima facie no material on record to suggest that the school transfer certificates are forged or unauthentic. As observed hereinabove, the alterations made in the petitioner's date of birth appearing in the first page of his Service Book containing his endorsement do not accompany the date(s) thereof. The Superintendent of Excise, Dibrugarh whose seal and signature appear beneath the date of birth as 16.6.1948 also does not mention any date. The petitioner's endorsement thereof also does not exist. It is not the case of the respondents either that the petitioner was notified of any change of his date of birth. There being clear evidence of profuse alterations in the petitioner's date of birth in the first page of the Pt. I of the Service Book of his, the prayer for restoration of his date of birth to be 16.6.1953 in the facts and circumstances of the case cannot be over simplified to be one for correction of his said date simpliciter by an incumbent facing retirement. In any case, on records, the petitioner's representation therefore had been before three years of his date of retirement i.e. 31.8.2006 which stood extended to 31.8.2007 in view of the policy decision of the government. In any case, on records, the petitioner's representation therefore had been before three years of his date of retirement i.e. 31.8.2006 which stood extended to 31.8.2007 in view of the policy decision of the government. The maintenance of his Service Book as noted hereinabove leaves much to be desired. 13. The above notwithstanding, in the considered opinion of this Court, discernment of some important facts is indispensably essential to correctly ascertain the sequence of events culminating in recording the petitioner's date of birth to be 16.8.1948. This would demand an investigate exercise into the obscure facts to be conducted with scientific skill, precision and expertise. Any decision without resorting to such fact finding process, having regard to the nature of the controversy raised, may defeat the cause of justice. 14. In the above view of the matter, this petition stands disposed with the following directions: (i) The State respondents, more particularly, the Commissioner & Secretary to the Govt. of Assam, Excise Department, Assam, Guwahati would cause the Service Book (all parts) of the petitioner along with the school transfer certificates dated 21.2.1968 and 4.12.2001 to be examined by a government recognized hand writing expert to ascertain the following: (a) The original date of birth as recorded in the school transfer certificate dated 21.2.1968 and the first page of Pt. I of the Service Book of the petitioner. (b) The sequence and nature of corrections sought to be made to the said date. (c) If the signature of Manik Chand Singh appearing on the first page of Part II of the petitioner's Service Book is in his (petitioner) hand. (ii) The petitioner within a month herefrom would appear before the Commissioner & Secretary to the Govt. of Assam, Excise Department, Dispur, Guwahati or any other authority deputed by him and would furnish to him his signature for being forwarded to the appointed hand writing expert for facilitating the probe in terms of the directions contained hereinabove. On receipt of such signature, the Commissioner & Secretary, Excise Department, Assam, Guwahati would along with the Service Book of the petitioner and the school transfer certificates forthwith forward the same to the said hand writing expert. (iii) The petitioner would be provided with all reasonable opportunities in the process as permissible in law. (iv) The petitioner would cooperate with the process as ordered. (v) The Commissioner and Secretary to the Govt. (iii) The petitioner would be provided with all reasonable opportunities in the process as permissible in law. (iv) The petitioner would cooperate with the process as ordered. (v) The Commissioner and Secretary to the Govt. of Assam, Excise Department, Assam would on receipt of this order ensure compliance of the same so as to complete the exercise within a period of three months therefrom. (vi) The verification ordered would be executed being uninfluenced by any observation made hereinabove. 15. If the investigation reveals that the petitioner's date of birth was originally recorded in the school transfer certificate dated 21.2.1968 and on the first page of Part II of the Service Book to be 16.6.1953 and the signature appearing on the first page of Part II of his Service Book not to be his, his date of birth would be construed to be 16.6.1953 and he should be reinstated in service immediately with all consequential benefits. No costs.