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2009 DIGILAW 381 (GAU)

Ikramul Hussain v. State of Assam

2009-06-03

AMITAVA ROY

body2009
JUDGMENT Amitava Roy, J. 1. The Petitioner seeks judicial intervention against the decision of the Respondent-College retiring him from service w.e.f. 28.02.2007 taking his date of birth to be 01.03.1948. 2. I have heard Mr. D. R. Gogoi, learned Counsel for the Petitioner and Mr. M. K. Misra, learned Standing Counsel, Education Department, Assam. Also heard Mr. S. S. Goswami, learned Counsel for the Respondent Nos. 4 & 5. 3. The abridged version of the Petitioner's pleaded case is that he had passed the Salanta Pariksha (claimed to be equivalent to High School Examination) from the Hindi Vidyapeeth, New Delhi in the year 1968. He, thereafter, joined the Dibru College, Dibrugarh (hereafter for short referred to as the College) as Laboratory Bearer in Botany and was, eventually, regularized against a sanctioned post thereof w.e.f. 01.09.1974, the date on and from which the science section of the College was brought under Deficit Grants-in-Aid System. Subsequent thereto he was promoted to the post of LD Assistant w.e.f. 01.01.1985. In the year 1991 his Provident Fund Accounts was also opened. Though, in terms of the Salanta Examination Certificate issued by the Hindi Vidyapeeth, New Delhi, his date of birth was correctly recorded as 12.11.1951 in his service book, the Petitioner to his shock and surprise on going through the same in the early part of 2006 detected that the same appeared therein as 01.03 .1948. He, thereafter, submitted a representation on 17.03.2006 before the then Principal of the College with a request to correct the mistake on the basis of the Salanta Examination Certificate. The then incumbent of the said office having retired, her successor, however, entertained his request and restored his date of birth to be 11.11.1951 by scoring through the wrong entry i.e. 01.03.1948. As in terms of the correct date of birth, the Petitioner remained under the impression that he would retire from service on 11.11.2010, he was served with a letter dated 25.02.2007 of the Principal of the College intimating him of his date of superannuation to be 28.02.2007. The letter, however, mentioned that the issue with regard to the subsequent entry of his date of birth had been referred to the Governing Body for its decision. The letter, however, mentioned that the issue with regard to the subsequent entry of his date of birth had been referred to the Governing Body for its decision. Bewildered, the Petitioner on the same date submitted a representation before the Principal of the College reiterating his date of birth to be 12.11.1951 with a request to allow him to continue in service till a final decision was taken by the concerned authorities of the institution. According to the Petitioner, on receipt of the said representation, the Principal of the College permitted him to continue in service till a final decision was taken by the Governing Body. The Petitioner has asserted that though, he did so, he was not paid his salary since 01.03.2007. Meanwhile, however, as decided by the Governing Body, an Inquiry Committee was constituted to ascertain the age of the Petitioner, which on the conclusion of its exercise submitted a report on 12.04.2008, leaving a final decision to be taken by it (Governing Body). By a resolution taken in its meeting held on 16.04.2008 the Governing Body, however, resolved to release the Petitioner from service as per his date of birth recorded in the service book at the time of initiating the same. Having come to learn about the above decision, the Petitioner on 18.04.2008 submitted a representation before the President of the Governing Body, which was responded to by the letter dated 03.05.2008 of the Principal-in-Charge reiterating the earlier decision. By additional affidavits, the Petitioner has sought to supplement the above, inter alia, contending that at the time of his entry in service in the College, it was in turmoil faced with a virtual stalemate in the administration thereof. In such a prevailing condition, the Petitioner as sought for, had, as a proof of his age produced the certificate of Salanta Examination contending his date of birth to be 12.11.2005 before the then Head Clerk, Inamul Hussain. According to the Petitioner, he put his signature on a blank service book, whereafter, neither there was any communication from the side of the institution in this regard nor he happened to see the same till the year 2006. The Petitioner reiterated that his date of birth as 11.11.1951 was inserted by the Principal of the College on 01.06.2008. The State Respondents have not filed any affidavit. 4. The Petitioner reiterated that his date of birth as 11.11.1951 was inserted by the Principal of the College on 01.06.2008. The State Respondents have not filed any affidavit. 4. In his counter, the Principal-in-Charge of the College, representing the Governing Body thereof as well, has maintained that the Petitioner's date of birth was originally recorded as 01.03.1948 in his service, which was duly signed by him being fully aware thereof. Denying the Petitioner's contention of not having seen the service book before 2006, the answering Respondent has pleaded that in terms of his recorded date of birth, his date of retirement is 28.02.2007. The alteration of his date of birth to be 11.11.1951 as made on 01.06.2008 by the then Principal of the College, has been branded as whimsical and without any reference to the Governing Body. The deponent also denied the Petitioner's averment that he had been permitted by the College to continue in service till a decision was taken by the Governing Body. Standing by the impugned decision, the answering Respondent has insisted that the delay on the part of the Petitioner to take steps for getting his already recorded date of birth altered demonstrates his deliberate negligence in the matter and, therefore, he by no means can be allowed to insist for the same at the fag end of his career. 5. Mr. Gogoi, has assiduously urged that the Petitioner's correct date of birth being 12.11.1951 as is testified by the Salanta Certificate issued by the Hindi Vidyapeeth, New Delhi, from which he had passed the Salanta Examination (equivalent to the High School Examination), the decision to retire him from service on and from 28.02.2007 on the basis of his mistaken date of birth i.e. 01.03.1948 is, per se, arbitrary and illegal is liable to be adjudged as such. The Petitioner having been permitted to pursue his higher studies under the Dibrugarh University by acknowledging to be valid, the Salanta Examination Certificate, the same being an irrefutable proof of his date of birth as recorded therein, his forced superannuation w.e.f. 28.02.2007 is grossly unfair, unjust and discriminatory, he urged. Mr. The Petitioner having been permitted to pursue his higher studies under the Dibrugarh University by acknowledging to be valid, the Salanta Examination Certificate, the same being an irrefutable proof of his date of birth as recorded therein, his forced superannuation w.e.f. 28.02.2007 is grossly unfair, unjust and discriminatory, he urged. Mr. Gogoi, argued that the Principal of the College being satisfied about the authenticity of the Petitioner's date of birth as 12.11.1951 as attested by the Salanta Examination Certificate recorded it to be 11.11.1951 and, thus, the decision of the Governing Body to the contrary is, per se, untenable and flawed and is liable to be interfered with in the interest of justice. As the Petitioner could not have had any access to his service book on regular intervals, the same having remained in the exclusive custody of the College authorities, the ground of delay is liable to be rejected as frivolous, he urged. 6. Mr. Misra has submitted that as presently the departmental authorities have no role to discharge qua the issue under adjudication, he would not offer any comment on the debate. 7. Mr. Goswami, representing the Principal of the College and its Governing Body, however, has been severely critical about the delay on the part of the Petitioner in raking up the issue on the verge of his retirement. According to the learned Counsel on this count alone this petition is liable to be dismissed. As it is no longer res integra that any claim for alteration of date of birth, if made for the first time within three years of retirement ought to be negated, the impugned decision cannot be faulted with, he pleaded. While stoutly denying the Petitioner's contention of being ignorant about his date of birth to be 01.03.1948 in his service book till the year 2006, Mr. Goswami, has urged that as he had slept over his right, he is not entitled to any equitable consideration in a writ proceeding. The learned Counsel has asserted that as the Salanta Examination Certificate is not an unimpeachable document, the Petitioner's belated claim for alteration of date of birth has been rightly rejected by the College. Without prejudice to the above, Mr. The learned Counsel has asserted that as the Salanta Examination Certificate is not an unimpeachable document, the Petitioner's belated claim for alteration of date of birth has been rightly rejected by the College. Without prejudice to the above, Mr. Goswami, has pleaded that even if this document deserves the premium, as sought for, the procedure adopted by the then Principal of the College regarding alteration of the Petitioner's date of birth on the basis thereof, being not inconformity with the procedure in vogue, he by no means can claim to secure any benefit therefrom. Referring to Subsidiary Rule 8, the learned Counsel has insisted that in terms thereof, the Petitioner's prayer for alteration of date of birth having been made within three years of his date of retirement, it is clearly not entertainable in law and, therefore, the alteration thereof to be 11.11.1951 is ineffectual null and void. As the issue pertaining to the alteration of date of birth favouring an outgoing incumbent has a decisive bearing on the promotional prospects of others in the queue, the impugned decision taken on the basis of the materials on record, ought not to be lightly interfered, he maintained. To reinforce his arguments, Mr. Goswami, placed reliance on the following decisions: State of Assam v. Daksha Prasad Deka, (1970) 3 SCC 624 ; Union of India v. Harnam Singh (1993) 2 SCC 162 ; State of Gujarat v. Vali Mohmed Dosabhai Sindhi (2006) 6SCC 537; State of U.P. v. Smt. Gulaichi (2003) 6 SCC 483 ; Banani Das Purkayastha v. State of Assam and Ors. (2001 (1) GUT 90 : 2001(1) GLJ 427; Smti. Anna Mahanta v. State of Assam and Ors. (2001 (2) GLT 320: 2001 (3)GLJ 169. 8. The pleadings on record and the competing arguments based thereon, have been duly evaluated. There is no wrangle at the Bar that at the time of Petitioner's entry into service, his date of birth had been recorded in his service book as 01.03.1948. According to the Petitioner, he had then signed a blank service book, which along with Salanta Examination Certificate was in the custody of Enamul Hussain, who as is submitted at the Bar is his brother. The parties are also not at issue that the Petitioner's application for alteration of that date had been submitted on 17.03.2006. According to the Petitioner, he had then signed a blank service book, which along with Salanta Examination Certificate was in the custody of Enamul Hussain, who as is submitted at the Bar is his brother. The parties are also not at issue that the Petitioner's application for alteration of that date had been submitted on 17.03.2006. Though the Petitioner has asserted that prior to 2006 he had no knowledge that his date had been wrongly recorded as 01.03.1948 instead of 12.11.1951, the College authorities have disputed the same. Noticeably, however, the Petitioner has not indicated the occasion on which he then had the opportunity of seeing his service book and more particularly his date of birth. His application dated 17.03.2006 (Annexure 4 to the writ petition) also does not correctly mention his date of birth as originally recorded in the service book. The year of his passing the Salanta Examination when compared with the certificate to that effect (Annexure 1 to the writ petition), is also wrongly referred to therein. This signifies, in the estimate of the Court either a speculative endeavour of the Petitioner thereby or his utter casualness in approach. The Petitioner has not denied that his signature appears in the first page of the service book containing the original entry of his date of birth as 01.03.1948. His altered date of birth 11.11.1951 as made on 01.06.2006 by the then Principal of the College, is also not correct the same being 12.11.1951 as claimed by him. It is, therefore, in absence of overwhelming evidence to the contrary impossible to infer the Petitioner's unawareness of the entry of his date of birth as 01.03.1948 at the time of initiation of his service book. Having regard to the Petitioner's academic qualification, his ignorance of this fundamental fact having a decisive bearing on the issue of his superannuation cannot be surmised. 9. Visibly, the Petitioner in support of his assertion of date of birth to be 12.11.1951 has relied on the Salanta Examination Certificate issued by the Hindi Vidyapeeth, New Delhi. Though, it appears from the inquiry report submitted by the Committee constituted by the Governing Body of the College that he had also submitted a school certificate issued by the Headmistress, Tingalibam Garden LP School on 10.04.2008, neither the same has been produced before this Court nor any reference thereof, has been made in course of the arguments. Though, it appears from the inquiry report submitted by the Committee constituted by the Governing Body of the College that he had also submitted a school certificate issued by the Headmistress, Tingalibam Garden LP School on 10.04.2008, neither the same has been produced before this Court nor any reference thereof, has been made in course of the arguments. The certificate dated 12.09.2007 of the Joint Director of Health Services, Dibrugarh per se, in the comprehension of this Court, does not clinch the issue in his favour. Though, the Petitioner on the basis of the letter dated 04.05.1976 (Annexure 7 to the writ petition) of the Assistant Registrar (Administration) Dibrugarh University and his pass certificate of pre-degree examination under the same University has endeavoured to demonstrate that the Salanta Examination Certificate had been recognized by it (University) to permit him to undertake higher studies under it, the same proprio vigore do not unequivocally testify the same. In other words, the documents referred to hereinabove, do not unmistakably establish that either the fact of his passing of Salanta Examination Certificate had been the basis for allowing him to study the pre-degree course under the Dibrugarh University or that the certificate issued by the Hindi Vidyapeeth, New Delhi had been the only document certifying his eligibility to pursue higher studies under it (University). It passes one's comprehension as to how, if at all a document had been submitted with the College by Petitioner at the time of his entry into service, the date of birth mentioned therein, had been overlooked to record it as 01.03.1948. 10. The College, there is no cavil, receives grants-in-aid from the Government and is governed by the Assam Non-Government College Management Rules, 2001 (hereafter for short also referred to as the Rules). This legislation is intended to regulate the management of the Non-Government Colleges in Assam. Rule 3 thereof provides that every Non-Government College affiliated to any Central or State University of Assam and duly concurred by the State Government would be governed by a Governing Body to be constituted by the Director of Higher Education, Assam. The composition of such Governing Body is prescribed by Rule 4. Whereas, the Principal of the College concerned is to be the ex-officio Secretary of the Governing Body, the President thereof has to be nominated by the Director of Higher Education from one of the members as envisaged thereby. The composition of such Governing Body is prescribed by Rule 4. Whereas, the Principal of the College concerned is to be the ex-officio Secretary of the Governing Body, the President thereof has to be nominated by the Director of Higher Education from one of the members as envisaged thereby. Rule 5 stipulates the tenure of such Governing Body to be three years from the date of its Constitution. Rule 18 mandates that the minutes of the proceeding of the Governing Body meetings would have to be sent to the Director of Higher Education, Assam and the concerned affiliating University and that no final decision regarding appointment, promotion, suspension, termination, removal or dismissal of teaching or non-teaching staff including that of the Principal can be taken by the Governing Body without the prior approval of the Director. Such requirement is, however, relaxed in respect of the Non-Government Colleges which are not brought under the Deficit System of Grants-in-Aid. The Director of Higher Education, Assam however has been left at his discretion to call for the proceedings of any meeting of such Governing Body, if any complaint is received against it and any direction issued by him on it shall be final and binding. Rule 19, enumerates the duties of the Governing Body, which inter alia, include appointment of persons in connection with the affairs of the College against the post/posts so sanctioned by the State Government with scrupulous compliance with the University Grants Commission guidelines and the State Government instructions and policies. Rule 21 also entrusts it with the functions amongst others to deal with the discipline and conduct of the teaching and non-teaching staff of the College. The spectrum of duties and functions designed by Rules 19 and 21 of the Rules proclaim an all permeable reach of the Governing Body in matters bearing on the administration of the College as a whole. The Rules do not envision any power, role or function of the Principal of the College in that capacity or as the ex-officio Secretary of the Governing Body to its exclusion or supersession. On a scrutiny of the Scheme of the Rules and the essence thereof, there is no manner of doubt that the Governing Body of the College has been invested thereby with an overriding authority and dominion on issues pertaining to the administration of the College, the Principal being the Ex-Officio Secretary thereof. On a scrutiny of the Scheme of the Rules and the essence thereof, there is no manner of doubt that the Governing Body of the College has been invested thereby with an overriding authority and dominion on issues pertaining to the administration of the College, the Principal being the Ex-Officio Secretary thereof. In other words, having regard to the model of the Rules and the objectives thereof, the Principal of the College though, recognized to be the administrative head, any decision taken by him/her to be effective and implementable in law, unless specifically provided otherwise, has to be essentially ratified by the Governing Body. Any other interpretation acknowledging the exclusive prerogative of the Principal without reference to the Governing Body on issues of general administrative significance, would in the opinion of the Court be subversive of the underlying purpose of the Rules as well as institutional discipline. 11. Judged by the above measure, the alteration of the date of birth of the Petitioner by the Principal of the College without the same being approved by the Governing Body thereof, cannot be sustained. The inquiry report submitted by the Committee constituted by the Governing Body to enquire into the matter, discloses its finding that the initial date of birth of the Petitioner as recorded in the service book had been 01.03.1948. the entry being endorsed by the then Principal of the College. The Committee also recorded that the Petitioner had signed the first page of the service book containing the above date of birth. The report reveals that this was altered by then Principal-in-Charge, Ms. B. Das as 11.11.1951 on 01.06.2006 before less than one year of his retirement as per the original entry. According to the Committee this alteration was effected on the basis of the Salanta Examination Certificate. The resolution dated 16.04.2008 of the Governing Body of the College and the letter dated 03.05.2008 of the Principal-in-Charge thereof project the consistent stand of the institution adhering to the Petitioner's original entry of date of birth as 01.03.1948. To put it differently, the Governing Body has not accepted the alteration thereof to be 11.11.1951 by the Principal. 12. This Court in Smti. To put it differently, the Governing Body has not accepted the alteration thereof to be 11.11.1951 by the Principal. 12. This Court in Smti. Anna Mahanta (supra), was seised with a situation where the Governing Body of the College involved, on the basis of the date of superannuation of the Petitioner as per its records, did not approve the action of the Principal allowing her to rejoin the College on the request of the Director of Higher Education, Assam. While negating the Petitioner's contention that prior approval under Rule 18 of the Assam Aided College Management Rules, 1976 of the Director of Higher Education, Assam, was required before releasing her on superannuation, this Court with reference to the Rule 11 of the Assam Aided College Employees Rules, 1960, acknowledged the exclusive authority of the Governing Body of a College to extend the service of an employee beyond the prescribed age of retirement to be approved by the Director. It was held that the employee, if aggrieved by any decision of the Governing Body, retiring him in terms of Rule 11 at the age of 60 years as mandated, could prefer an appeal as provided therein and that no scope for reference of a dispute between the Governing Body and the said employee to the Government or the Director relating to the date of birth or retirement, had been conceived of by the said Rules. 13. On a conjoint reading of the Assam Non-Government College Management Rules, 2001 and the Assam Aided College Employees Rule 1960, the same view, so far it sustains the ultimate prerogative of the Governing Body of the College in the matter of date of birth and superannuation of its employee commends for acceptance. 14. Though, considerable emphasis has been laid on behalf of the College on the Subsidiary Rule 8, as is applicable to a Government servant of the State, Mr. Goswami inspite of queries made by this Court has not been able to establish that the same has been adopted by the College. This provision of the subsidiary rules assumes importance in view of the embargo against entertainment of any request by a Government servant for alteration of his date of birth, if made within three years of his actual superannuation. This provision of the subsidiary rules assumes importance in view of the embargo against entertainment of any request by a Government servant for alteration of his date of birth, if made within three years of his actual superannuation. The Apex Court in a catena of decisions has discountenanced the last minute endeavours of a Government employee to effect an alteration in his date of birth. 15. The Apex Court in Union of India v. Harnam Singh (supra), in particular, held that a Government servant, who makes an application for correction of date of birth beyond the time, so fixed, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. It was propounded that the law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Their Lordships underlined that it is the duty of the courts and tribunals to promote such a restriction codified by the Rules by an intelligible and harmonious interpretation thereof, realizing that it could not be the intention of the Rule making authority to provide unlimited time to seek a correction of the date of birth. 16. The Apex Court in State of Gujarat v. Vali Mohmed Dosabhai Sindhi (supra), ruled that even if there is no period of limitation prescribed for seeking correction of date of birth in a particular service, the Government servant must do so without unreasonable delay. 17. In the conspectus of fact as noticed hereinabove, the alteration of the date of birth of the Petitioner from 01.03.1948 to 11.11.1951 by the then Principal-in-Charge of the College cannot be approved being against the letter and spirit of the Assam Non-Government College Management Rules, 2001. The Salanta Examination Certificate judged by the pleadings and the documents on record, cannot be accepted to be an irrefutable proof of the Petitioner's date of birth to be 12.11.1951. The Petitioner's plea of his belated knowledge of the entry of his date of birth as 01.03.1948 in the background of the premise, in which the same came to be recorded as per his version, also does not inspire confidence. The Petitioner's plea of his belated knowledge of the entry of his date of birth as 01.03.1948 in the background of the premise, in which the same came to be recorded as per his version, also does not inspire confidence. The impugned decision of the Governing Body, having regard to the nature and purport of the 2001 Rules and the role attributed to it thereby, thus cannot denounced to be illegal arbitrary, unfair or discriminatory. In the exercise of the power of judicial review, this Court is not inclined to interfere therewith. The petition, therefore, lacks in merit, and is accordingly dismissed. No costs. Petition dismissed