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Jharkhand High Court · body

2008 DIGILAW 128 (JHR)

Suresh Paswan v. State of Jharkhand

2008-02-06

N.N.TIWARI

body2008
ORDER Narendra Nath Tiwari, J. 1. Learned Counsel for the petitioner is permitted to make necessary correction in paragraph 1 of the writ petition. 2. In this writ petition the petitioner has prayed for quashing Gumla District Order No. 164/04 dated 3.3.2004 (Annexure-3) and also the order contained in Memo No. 3058 dated 23.9,2004 (Annexure-6) issued from the office of the Deputy Inspector General of Police, Head Qrs, Jharkhand, Ranchi whereby the petitioner's year of birth has been fixed as 1947 in place of 1949, and the representation filed by him protesting against the said alteration has been rejected. 3. It has been stated that the petitioner had appeared in the Matriculation Examination and Admit Card was issued to him in which his date of birth was mentioned as 5.5.1949. The petitioner was appointed as Constable on 9.7.1969 in the District of Bhagalpur and on the date of his appointment, his year of birth was recorded as 1949. 4. The petitioner being Matriculate was subsequently absorbed as literate Constable w.e.f. 31.1.1972. The petitioner was given promotion to the post of Assistant Sub-Inspector of Police w.e.f. 1.6.1983 and to the post of Sub-Inspector of police w.e.f. 15.3.1990. 5. In the year 2004, while the petitioner was posted in the Special Branch, he was served with Memo No. 200 dated 3.3.2004 issued under the signature of the Superintendent of Police, Gumla wherein it was mentioned that his year of birth is 1947 and not 1949 as his age was recorded as 22 years on the date of his appointment le. 9.7.1969. 6. The petitioner filed his representation annexing his matriculation certificate and stating, inter alia, that his year of birth was recorded as 1949 in the service book on the basis of the educational record and the same has been allowed to continue for about 35 years and at the fag end of service the same cannot be changed. 7. The petitioner's contentions have been rejected by the concerned authorities by the impugned orders contained in Annexures 3 and 6. The petitioner submitted that the said altercation in the year of birth has been made unilaterally by the respondents without giving any notice and opportunity of hearing to the petitioner and by the said alteration the petitioner's service tenure has been reduced by two years, causing him loss and injuries for his no fault. 8. The petitioner submitted that the said altercation in the year of birth has been made unilaterally by the respondents without giving any notice and opportunity of hearing to the petitioner and by the said alteration the petitioner's service tenure has been reduced by two years, causing him loss and injuries for his no fault. 8. A counter-affidavit has been filed by the respondents contesting the writ petition. It has been, inter alia, stated that in the service book, though the year of birth has been recorded as 1949, yet the age was mentioned as 22 years. For the said reason, a report was called for from the Superintendent of Police, Bhagalpur. He has opined that if 22 years is counted from the date of appointment, the year birth comes to 1947. On the basis of the said report, the impugned orders have been issued and the petitioner's date of retirement was communicated to him treating his date of birth as 5.5.1947. The impugned orders are based on the said enquiry report. Since in the service book the age as well as the year of birth were clearly mentioned, no notice was required to be served on the petitioner. Rather the petitioner should have taken steps for correction of his date of birth earlier. He cannot be allowed to agitate the said matter after 35 years of entry of his year of birth in the service record. 9. I have heard learned Counsel for the parties and perused and considered the materials brought on record. On perusal of the service book, it is evident that both in figure and words, the year of birth of the petitioner has been mentioned as 1949, though his age has been mentioned as 22 years. The petitioner has brought on record the Admit Card as Annexure-1 and the Matriculation Certificate as Annexure-2. In the said educational records the date of birth of the petitioner has been clearly mentioned as 5.5.1949. The service book also shows the year 1949, though exact date has not been recorded. The said entry of the year 1949 remained recorded in the service book of the petitioner for about 35 years. Suddenly the respondents have raised the issue that there is discrepancy in the year of birth and the age mentioned in the service book of the petitioner. The said entry of the year 1949 remained recorded in the service book of the petitioner for about 35 years. Suddenly the respondents have raised the issue that there is discrepancy in the year of birth and the age mentioned in the service book of the petitioner. The respondent on the alleged discrepancy, silently, sought opinion of the Superintendent of Police, Bhagalpur, who opined that since the age on the date of appointment was mentioned as 22 years, the year of birth comes to 1947. On the said basis the petitioner's date of retirement was unilaterally fixed as 1.7.2007. 10. During the pendency of the writ petition the petitioner has been also made to retire by letter dated 2.1.2007 (Annexure-8) by shifting the date of retirement on that basis. The petitioner prayed for an amendment in the writ petition to bring the said subsequent event on record and also for quashing Annexure-8 which was allowed. 11. It is admitted that before reducing the petitioner's age and making correction in the year of birth, no notice or opportunity of hearing was given to the petitioner. But the said alteration in the year of birth the petitioner's service tenure has been reduced by two years. The said reduction in the service tenure is prejudicial to the interest of the petitioner and visits him with civil consequences. 12. It is well established that any order affecting a person adversely and with civil consequences cannot be passed without following the principles of natural justice and without giving the petitioner any opportunity of hearing. 13. Even on the basis of the admitted record, if the entry of the petitioner's year of birth, in the service book, as 1949 is not without basis only because the age of the petitioner was recorded as 22 years on the date of his appointment. The year of birth clearly recorded in the service book cannot be altered unilaterally and surprisingly without giving any opportunity of hearing to the petitioner. 14. The year of birth clearly recorded in the service book cannot be altered unilaterally and surprisingly without giving any opportunity of hearing to the petitioner. 14. In view of the above discussions, I find that the order contained in Gumla District order No. 164/04 dated 3.3.2004 (Annexure-3) as well as the order rejecting the petitioner's representation against the said alteration being Memo No. 3058 dated 23.9.2004 (Annexure-6) as also the order of the petitioner's retirement w.e.f. 1.7.2007 (Annexure-8) are wholly arbitrary, unfounded, illegal and violative of the principles of natural justice and the same are unsustainable. 15. The said impugned orders as contained in Annexures 3, 6 and 8 are, hereby, quashed. The petitioner stands reinstated with all consequential benefits in order to remain in service till he attains the age of superannuation on the basis of the entry of his year of birth in the service record. 16. There shall be no order as to costs.