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2010 DIGILAW 1317 (CAL)

Jabakusum Manna v. STATE OF WEST BENGAL

2010-11-11

DIPANKAR DATTA

body2010
JUDGMENT 1. THE petitioner, daughter of Dhirendra Nath Manna (since deceased), appeared at the School Final Examination (Compartmental) conducted by the West Bengal Board of Secondary Education in December, 1971 and was successful. In the pass certificate, her date of birth was recorded as 25.4.1952. THE petitioner thereafter joined service as an assistant teacher in a secondary school. She has been continuing her service even now. 2. SOMETIME in 2002, the petitioner came to learn from her mother that her actual date of birth of is 8.2.1954. She applied for and obtained certified copy of the contents of the Birth Register maintained by the Record Keeper of the concerned District Record Room and applied before the Board for correction of her date of birth in its records. Since the Board did not take any action on her application, the petitioner had the occasion to approach this Court by filing W.P. No. 12457 (W) of 2003. That was disposed of on 20.8.2003 by Hon'ble Justice Indira Banerjee with a direction upon the Secretary of the Board to consider and dispose of her prayer in accordance with law, within a period of 6 months. 3. THE Secretary of the Board, acting in compliance with the said order, passed an order dated 14.12.2004. He rejected the prayer of the petitioner on the grounds mentioned in the order. 4. THE order of the Secretary was questioned by the petitioner by filing W.P. No. 14606 (W) of 2005. This writ petition was also considered by Her Ladyship. By judgment and order dated 17.8.2009, the writ petition was allowed and the impugned order set aside. THE Secretary of the Board was directed to consider the prayer of the petitioner for rectification of her date of birth afresh in accordance with law and in the light of the observations contained in the said judgment upon giving the petitioner and other parties reasonable opportunity of hearing. THE Secretary was also directed to consider the records/reports/certificates of the concerned registering authority. A decision was directed to be given within 60 days. THE Secretary was also directed to consider the records/reports/certificates of the concerned registering authority. A decision was directed to be given within 60 days. It appears from the judgment and order dated 17.8.2009 that an objection raised on behalf of the Board in relation to maintainability of the writ petition on the ground of delay and laches was rejected in the following words: "Mere delay is no ground to deny relief in the instant case where there is apparently an authentic document in the form of a birth certificate, and the registration of the birth was more or less contemporaneous." 5. IT further appears therefrom that Her Ladyship upon taking into consideration the materials-on-record returned a finding which is relevant for a decision on the present petition. IT is extracted below: "Moreover, pursuant to an application for information, the Officer-in-Charge of the Record Room certified that the baby of Dhirendra Manna, born on 8th February, 1954 was a female child." 6. THE Board did not prefer any appeal against the judgment and order dated 17.8.2009. Accordingly, the same attained finality. The Secretary of the Board, in purported compliance therewith, passed another order dated 26.4.2010. The prayer of the petitioner was again rejected. That order forms the subject-matter of challenge in the present petition. 7. PERUSAL of the impugned order reveals that the petitioner's prayer was rejected on two grounds: (1) Delay; and (2) The certified copy of the birth register on which the petitioner relied does not indicate that the child that was born on 8.2.1954 was indeed a female child. 8. THE Secretary of the Board laid stress on the fact that although the Officer-in-Charge of the Record Room had submitted before Her Ladyship that birth of a male child is denoted by 1-' and that of a female child by '-1', the certified copy provided to the petitioner denotes the sex of the child in Bengali vernacular as 1'. He, therefore, disbelieved the version of the Officer-in-Charge of the Record Room as submitted before Her Ladyship and accepted by her. I have heard Mr. Mukherjee, learned Senior Advocate for the petitioner, Mr. Chatterjee, learned Advocate for the State and Mr. Roy, learned Advocate for the Board. 9. THE claim of Mr. He, therefore, disbelieved the version of the Officer-in-Charge of the Record Room as submitted before Her Ladyship and accepted by her. I have heard Mr. Mukherjee, learned Senior Advocate for the petitioner, Mr. Chatterjee, learned Advocate for the State and Mr. Roy, learned Advocate for the Board. 9. THE claim of Mr. Roy that the prayer of the petitioner being thoroughly belated and, therefore, deserves to be rejected in limine though acceptable ordinarily, is not acceptable here in view of the fact that on the previous occasion Her Ladyship had the occasion to reject the objection regarding maintainability, against which the Board did not prefer any appeal. Mr. Mukherjee has rightly placed reliance on the Division Bench decision of this Court in Indu Bhusan Jana v. Union of India and Ors., reported in 2009 (1) CHN 27 . Paragraphs 11 and 12 of the said decision being relevant are quoted below. "11. Upon an order attaining finality, it matters little as to whether it was erroneous. A party aggrieved by an order has to work out his remedies within the legal framework. If an issue or the entire lis is concluded upon a finding being rendered and such finding remains unchallenged, it is no longer open to the party to undo the effect thereof at any subsequent stage or collaterally unless it is demonstrated that the finding was obtained by fraud or the Court lacked jurisdiction to pass the order. THE hierarchy in the judiciary exists to afford litigants to climb up the ladder in pursuit of justice and to right a wrong committed at a lower level. But if a litigant accepts an order, he does it to his prejudice and binds himself thereby. 12. THE principle of finality or res judicata, is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment become conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. THE principle is rooted to the rationale that the issues decided may not be reopened, and has little to do with the merit of the decision. If it were to be otherwise, no dispute can be resolved or concluded. THE principle is rooted to the rationale that the issues decided may not be reopened, and has little to do with the merit of the decision. If it were to be otherwise, no dispute can be resolved or concluded. THE principles of res judicata and constructive res judicata apply equally to proceedings under Article 226 of the Constitution." 10. ALTHOUGH the Supreme Court has, in a number of decisions, sounded a caution that belated prayers for rectification of date of birth ought not to be entertained after long period of service rendered by the employees, such ground is not available here because the Board accepted the order of Her Ladyship. The contention raised is barred by principles of res judicata. The Secretary of the Board, therefore, committed gross error in declining to allow the prayer of the petitioner on the ground of delay in making the prayer for rectification of the date of birth. So far as the other ground is concerned, the same is equally without merit. The Secretary was duty bound to consider the prayer of the petitioner afresh in the light of the observation contained in the judgment and order dated 17.8.2009. It was recorded therein, upon acceptance of the information provided by the Officer-in-Charge of the Record Room that the child born on 8.2.1954 to Sri Dhirendra Manna was a female child. Once such finding had been given on a question of fact by the Court, the Secretary had no other option but to accept such finding with grace and to effect correction in the records in so far as the date of birth of the petitioner is concerned. By casting doubts about the genuineness of the certified copy of the birth register without accepting the finding of the Court, which is final and binding on the Secretary, gross injustice has been meted out to the petitioner. 11. IN the result, the writ petition succeeds. The order impugned stands set aside. The Secretary of the Board is directed to correct its records by inserting 8.2.1954 as the date of birth of the petitioner instead of 25.4.1952. The petitioner is granted liberty to present her pass certificate before the Secretary along with a copy of this order and the Secretary shall effect necessary correction therein as early possible but not later than a fortnight from date of approach made by the petitioner. 12. The petitioner is granted liberty to present her pass certificate before the Secretary along with a copy of this order and the Secretary shall effect necessary correction therein as early possible but not later than a fortnight from date of approach made by the petitioner. 12. THE writ petition stands allowed without costs. Urgent certified photostat copy of this order if applied for, be supplied to the parties expeditiously.