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2011 DIGILAW 545 (GAU)

Sayed Moktabor Rahman v. Union of India

2011-06-23

A.C.UPADHYAY, AMITAVA ROY

body2011
JUDGMENT and ORDER Amitava Roy, J. 1. The petitioner seeks to invoke the extraordinary jurisdiction of this Court to interfere with the judgment and order dated 08.09.2009 passed by the learned Central Administrative Tribunal, Guwahati Bench, Guwahati (for short, hereafter referred to as the 'Tribunal') in OA No. 94 of 2008 rejecting his prayer for alteration of his date of birth from 01.02.1949 to 01.09.1952 recorded in his Service Book. 2. We have heard Mr. A.S. Choudhury, Senior Advocate assisted by Mr. I.H. Saikia, Advocate, for the petitioner and Mr. A.K. Sarkar, learned Standing Counsel, N.F. Railway (for short, also hereafter referred to as 'Railways/Respondents'). 3. The pleaded versions of the parties would be essential to be outlined in brief, so as to comprehend the contentious arguments better. 4. According to the petitioner, his date of birth is 01.09.1952. He was initially engaged as a Central Labourer in the Bongaigaon Division of the Railways on 20.01.1977 and served in the said capacity upto 19.05.1980 and in his Service Book, his date of birth was recorded as 01.09.1952 after due verification. While serving as a Casual Labourer, he, on 07.09.1977 submitted a representation before the Divisional Engineer/ST Engineer (CTC), Bongaigaon, NF Railway seeking extension of his engagement to which, the said authority by his letter dated 12.05.1978 respondent in the negative. Thereby, the said authority also intimated him that he was not eligible for retrenchment benefit as per the Industrial Disputes Act, 1947 since his service as Casual Labourer was less than one year. The said letter mentioned his date of appointment to be 07.09.1977. 5. Subsequent thereto, he was appointed as a Substitute Khalasi on 19.05.1980 and thereafter as a regular Khalasi with effect from 13.06.1981. According to him, it was thereafter that his date of birth originally recorded as 01.09.1952 was altered to 01.02.1949 without any reference to him. He came to learn about the change for the first time in 1983 and accordingly submitted representations on 01.12.1983 and 09.09.1987 for necessary corrections. Meanwhile, the seniority list of the employees of the Railways amongst others of his rank and grade was published in which, his date of birth was wrongly shown as 01.02.1949 for which, he again submitted a representation on 05.03.1988. Meanwhile, the seniority list of the employees of the Railways amongst others of his rank and grade was published in which, his date of birth was wrongly shown as 01.02.1949 for which, he again submitted a representation on 05.03.1988. The respondent Railways acting on the representations made enquiries into the veracity of his claim based on the Admit Card issued by the Board of Secondary Education, Assam (for short, hereafter referred to as 'SEBA') in the year 1971. SEBA in reply to the queries made, confirmed about the authenticity of the Admit Card vide its letter dated 05.10.2006. According to the petitioner, in terms of the said Admit Card, he was 18 years 6 months as on 01.03.1971 which therefore unmistakably established his claim of date of birth to be 01.09.1952. As inspite of the above testimony of his date of birth as claimed by him, no step was taken by the respondent authorities to make necessary corrections, he approached the learned Tribunal with OA No. 137/2007 which was disposed of on 08.06.2007 with a direction to the respondents therein to decide the representation by a speaking order within the timeframe fixed by it. As the concerned respondent authority by order dated 27.02.2008 declined to accept the petitioner's request, he returned to the Tribunal with OA No. 94/2008 reiterating his prayer whereafter, the impugned judgment and order was rendered. 6. The Railways, in their written statement in the proceeding before the Tribunal pleaded in categorical terms that the petitioner had been engaged as a Casual Labourer on and from 23.02.1968 and after being screened in the year 1981, he was appointed as T/man cum Khalasi in CSI-CTC/BNGN on 11.08.1981 and his date of birth was recorded in his service sheet as 01.02.1949 being endorsed by his left thumb impression. The Railways further pleaded that the same date was also recorded in the Medical examination report which was attested by the petitioner. According to the respondents, the representation filed by him was disposed of on 29.11.1989 taking note of the above recorded facts. They disputed the petitioner's claim of entry of his date of birth as 01.09.1952 in the Service Book on the ground than on the basis thereof, his entry in service on 23.02.1968 was an impossibility as the minimum age required therefor at the relevant point of time was 18 years. They disputed the petitioner's claim of entry of his date of birth as 01.09.1952 in the Service Book on the ground than on the basis thereof, his entry in service on 23.02.1968 was an impossibility as the minimum age required therefor at the relevant point of time was 18 years. The respondents asserted that the petitioner's representations submitted later on were also disposed of in the same lines. They have reiterated the above contentions in their pleadings herein. 7. Mr. Choudhury has urged that it being more than apparent from the contemporaneous records that the date of birth of the petitioner is 01.09.1952, the plea to the contrary is visibly flawed. The learned Tribunal having fallen in error in rendering the impugned decision by disregarding the same, it ought to be interfered with in the interest of justice. Drawing the attention of this Court amongst others to the Admit Card issued by the SEBA in the year 1971 and also the Identity Card issued to him by the Railways as a record of service as a Casual Labourer, the learned senior counsel has insisted that in no view of the matter, his date of birth can be accepted to be 01.02.1949. Without prejudice to the above, Mr. Choudhury has contended that in absence of the original records in support of the respondents' plea that the petitioner had been engaged as a casual labourer on 23.02.1968 and that his date of birth had been recorded as 01.02.1949, the learned Tribunal also erred in rejecting his prayer for correction thereof to be 01.09.1952. In support of his arguments, Mr. Choudhury has placed reliance on the various decisions of the Apex Court as well as of this Court. To mention a few, 1) Umesh Chandra Vs. State of Rajasthan (1982) 2 SCC 202 ; 2) Prabhu Dayal Sesma Vs. State of Rajasthan and Anr. AIR 1986 SC 1948 ; 3) Mohd. Yunus Khan Vs. UP Power Corporation Limited and Ors. (2009) 1 SCC 80 ; 4) State of Bihar and Ors. Vs. Pandey Jagdishwar Prasad (2009) 3 SCC 111; 5) Gendalal Vs. Union of India and Ors. (2007) 15 SCC 53; 6) Nagendra Nath Lahkar Vs. State of Assam and Ors. 2009 (3) GLT 479; 7) Sh. Chhawntluanga Vs. State of Mizoram and Ors. 2009 (5) GLT 814. 8. Mr. Sarkar, in reply has reiterated the pleaded stand of the Railways. Vs. Pandey Jagdishwar Prasad (2009) 3 SCC 111; 5) Gendalal Vs. Union of India and Ors. (2007) 15 SCC 53; 6) Nagendra Nath Lahkar Vs. State of Assam and Ors. 2009 (3) GLT 479; 7) Sh. Chhawntluanga Vs. State of Mizoram and Ors. 2009 (5) GLT 814. 8. Mr. Sarkar, in reply has reiterated the pleaded stand of the Railways. According to him, the Admit Card issued by SEBA cannot be accepted to be an unimpeachable testimony of the date of birth of the petitioner to be 01.09.1952 in view of the consistent determinations made by the Railways that it was 01.02.1949 as available from his Service Book. Reiterating that with the date of birth as 01.09.1952, he could not had been engaged as a Casual Labourer with the Railways because of underage, the learned Standing Counsel has referred to Rule 225(4), Volume-I of Indian Railways Establishment Code (for short, hereafter referred to as the 'Code') to maintain against the permissibility of alteration of the date of birth at this distant point of time. Mr Sarkar has also offered the available original records pertaining to the service profile of the petitioner for the perusal of this Court. 9. We have carefully considered the pleadings of the parties, the documents available as well as the rival arguments advanced. Whereas, the case of the petitioner is principally based on his claim having been engaged as a Casual labourer with the Railways for the first time on and from 26.01.1977, a plea supported by the Identity Card to that effect issued by the Signal Inspector (CTC), Bongaigaon, NF Railway as well as the Transfer Certificates issued by the school of study and the Admit Card issued by SEBA in the year 1971, the Railways seek demonstrate otherwise based on the event of his engagement as a Casual Labourer with effect from 23.02.1968. According to them, his date of birth on such entry was recorded to be 01.02.1949 which got reflected in his service sheet after he was provided with regular employment as T/man/Khalasi in the year 1981. Though this had been reflected in the letter dated 27.02.2008 of the Divisional Railway Manager (Personnel), Rangia in response to the petitioner's representation dated 12.07.2007, the original records to that effect could not be produced before us by the Railways. Though this had been reflected in the letter dated 27.02.2008 of the Divisional Railway Manager (Personnel), Rangia in response to the petitioner's representation dated 12.07.2007, the original records to that effect could not be produced before us by the Railways. Having regard to the considerable significance of the stand of the Railways to this effect, we granted time to track the availability of the said records for production before this Court for its necessary perusal. Mr Sarkar has returned with the instructions that the same have been destroyed in terms of the relevant norms/guidelines pertaining to "Record Retention Schedule for Records" issued by the Ministry of Personnel and Public Grievances, New Delhi and thus do not exist as on date to be produced. We, thus have to proceed for adjudicating the issues involved in absence of such records. 10. We have perused the relevant records produced before us and have not been able to identify any document to assuredly substantiate the claim of the Railways that the petitioner for the first time had been engaged as a Casual Labourer on 23.02.1968 and that his date of birth had been recorded at that stage to be 01.02.1949. Though amongst others in the order dated 13.02.1990 passed in response to the petitioner's representation for alternation of his date of birth, the Railway, pleaded stand finds reflection therein, in our view, having regard to the nature of the issues to be decided, the same per se cannot tilt the balance in favour of the Railways. 11. The photocopy of the Identity Card issued to the petitioner on 05.12.1979 by the Signal Inspector (CTO), Bongaigaon, NF Railway clearly reveals his date of birth to be 01.09.1952 for the period of his employment in that capacity commencing from 21.01.1977. It passes our comprehension as to how, if in fact, the petitioner had been engaged as a Casual Labourer on 23.02.1968 and his date of birth was recorded to be 01.02.1949, a different date could be recorded in his Identity card. Interestingly, the first page of the Service Book of the petitioner mentions his date of birth to be 01.02.1949. Though the said page does not contain any date of such entry, a persual of the other pages thereof seems to suggest that it was on 27.07.1981 after being provided with regular employment as T/man cum Khalasi. Interestingly, the first page of the Service Book of the petitioner mentions his date of birth to be 01.02.1949. Though the said page does not contain any date of such entry, a persual of the other pages thereof seems to suggest that it was on 27.07.1981 after being provided with regular employment as T/man cum Khalasi. It is significant to note that in case the Railways had made entry of the petitioner's date of birth to be 01.02.1949 at the time of his appointment as Casual labourer on 23.02.1968, there ought to have been some reference thereof in the Service Book, but there is none. 12. Regulation 225(1) of the Code prescribes that every person, on entering railway service, shall declared his date of birth which shall not differ from any declaration expressed or implied for any public purpose before entering railway service. In the case of literate staff, the date of birth shall be entered in the record of service in the railway servant's own handwriting. In the case of the illiterate staff, the declared date of birth shall be recorded by a senior railway servant and witnessed by another railway servant. 13. On being queried by us, it has been submitted at the Bar that at the relevant time, the petitioner was under matric. Be that as it may, the first page of the petitioner's Service Book sans, the date of birth 01.02.1949 and except some thumb impressions contain, no other entry either in his hand or in the hand of the concerned railway authority. We, therefore are of the prima facie opinion that the Service Book of the petitioner as produced before us had not been prepared in terms of the enjoinment of Rule 225 of the Code. 14. In this view of the matter, the petitioner's date of birth as 01.02.1949 reflected in the seniority list and other records according to us is of no significance whatsoever for the purpose of adjudication. 15. On the other hand, the School transfer certificate dated 03.01.1965 issued by the Headmaster, Udiana ME School, Rangia records that as per the Admission register of the institution on 31.12.1964 he was aged 12 years 3 months. The Transfer certificate dated 05.10.1989 issued by the Superintendent, Rangia High Madrassa registered his age to be 18 years 6 months as per the Admission register as on 31.12.1970. The Transfer certificate dated 05.10.1989 issued by the Superintendent, Rangia High Madrassa registered his age to be 18 years 6 months as per the Admission register as on 31.12.1970. In the Admit Card issued by SEBA, his age was mentioned to be 18 years 6 months as on 29.03.1971. The authenticity and/or genuineness of this Admit Card stands proved by the letter of the Registrar, SEBA under Memo No. SEBA/TECH/VERI/1/95/120 dated 10.10.2006 addressed to the APO/1/RNY, office of the Divisional Manager (P). Thus, the documents produced by the petitioner in support of his claim with regard to his date of birth to be 01.09.1952 are overwhelmingly preponderant over the documentary evidence sought to be produced by the Railway to suggest otherwise. 16. In the above view of the matter, we feel inclined to accept the petitioner's plea that his date of birth is 01.09.1952 and not 01.02.1949 as contended by the respondent Railway. The learned Tribunal in our view, was thus not right in rejecting his prayer for alteration of his date of birth from 01.02.1949 to 01.09.1952. Though, in terms of Rule 225(4) of the Code, the date of birth recorded in accordance therewith ought not to be ordinarily altered, in the singular facts and circumstances of the case, it having been held that entry of the petitioner date of birth to be 01.02.1949 was made in contravention of the procedure prescribed thereby, we do not feel persuaded by the plea raised by the Railways in this regard. In view of this determination, we are of the unhesitant opinion that the petitioner is entitled to a direction for correction of his date of birth from 01.02.1949 to 01.09.1952 in his Service Book with the Railways. Ordered accordingly. Resultantly, he would be entitled to all consequential service benefits till his age of superannuation on the basis of his date of birth as 01.09.1952. The impugned judgment and order is set aside. 17. The petition stands allowed. No costs. Petition allowed