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2011 DIGILAW 741 (GAU)

Hatem Ali Sheikh v. State of Assam

2011-09-06

TINLIANTHANG VAIPHEI

body2011
JUDGMENT T. Vaiphei, J. 1. The validity of the order dated 08.03.2011 issued by the Director of Secondary Education, Assam (respondent No.2) determining the date of birth of the petitioner to be 02.09.1948 in terms of the admission register in Class IV and not 02.01.1953 as recorded in his service book, which is based on the date of birth entered in his High School Leaving Certificate Examination and of the consequential order dated 11.03.2011 issued by the Inspector of Schools, Dhubri District Circle (respondent 3) retiring him from service is under challenge in this writ petition. 2. The facts giving rise to this writ petition, as pleaded by the petitioner, are that he passed the HSLC Examination in 1969 with his age recorded as 16 years, 1 month and 29 days as on 01.03.1969. As per this record, his date of birth is 02.01.1953. After obtaining B. A. degree, he was appointed as the founder Headmaster of Salkata Janapriya High School in the year 1979. The school was provincialised in the year 1991. In his service book also, his date of birth was recorded as 02.01.1953. On the basis of this entry, he is due to retire only on 31.01.2013 on superannuation. However, a complaint was lodged by the respondent No.4, due to personal grudge against him, before respondent No.3 claiming that whereas his age was recorded in the M.V. School as 9 years, 4 months and 14 days as on 16.01.1958, his age was recorded as 12 years and 18 days as on 20.01.1965. Respondent No.3, after examining the Certificate of the HSLC Examination and his service book did not find any discrepancy in his age and refused to entertain the complaint. Aggrieved by these findings of the respondent No.3, the respondent No. 4 moved this Court in WP (C) No. 2864/10 for directing the respondent authorities to hold an enquiry with respect to the age of the petitioner. On receipt of notice from this Court, respondent No.3 was alleged to have hurriedly prepared an enquiry report on 14.09.2010 and submitted his report to respondent No. 2. On the basis of this enquiry report, the Court by the order dated 31.01.2011 disposed of the writ petition with a direction to consider the report and pass an appropriate order in accordance with law. 3. On the basis of this enquiry report, the Court by the order dated 31.01.2011 disposed of the writ petition with a direction to consider the report and pass an appropriate order in accordance with law. 3. It is the further case of the petitioner that the respondent No. 2 thereafter, without issuing notice to him and without hearing him, passed an ex-parte order on 08.03.2011 on the basis of the said enquiry report by holding that as his age was actually 9 years, 4 months and 14 days as on 16.01.1958, his date of birth is 02.09.1948 as recorded in the M. V. School and that his date of retirement was, therefore, 31.09.2008. Consequently, respondent No. 2 refused to accept the date of birth of the petitioner entered in the service book and directed respondent No.3 to take action accordingly. This is how the second impugned order of retirement of the petitioner came to be issued by respondent No. 3 releasing him from service with effect from 30.09.2008 and appointing the respondent No.4 to hold the charge of the post of Headmaster. The petitioner immediately filed a representation to the respondent No.2 to recall both the impugned orders as they are illegal, but no action was taken. This prompted him to file this writ petition to seek the interference of this Court as the impugned orders are contrary to the law laid down by the Apex Court in a catena of decisions. 4. The writ petition is opposed by the State-respondents and the respondent No.4, who have filed their respective affidavits-in-opposition. The stance taken by the State-respondents as projected in their affidavit-in-opposition is that the petitioner concealed his age and date of birth by submitting false date of birth as evident from the report of the respondent No. 3. According to the State-respondents, respondent No. 3, in the course of the enquiry, duly heard the petitioner, who refused to offer his views either in writing or verbally. Under the circumstances, respondent No.3 did not think it necessary to hear the petitioner again. Respondent No. 4, however, gave detailed reply to the writ petition in his affidavit-in-opposition. According to the answering respondent, while the petitioner was serving as their Headmaster in the School, he and the teaching staff came to learn that some of the colleagues/classmates of the petitioner had already retired from service on superannuation in 2008. Respondent No. 4, however, gave detailed reply to the writ petition in his affidavit-in-opposition. According to the answering respondent, while the petitioner was serving as their Headmaster in the School, he and the teaching staff came to learn that some of the colleagues/classmates of the petitioner had already retired from service on superannuation in 2008. This aroused their suspicion about the age of the petitioner whereupon one Nur Hafijul Islam Ahmed of Borkolia Sharsaw of Dhubri District, Assam filed an application under the Right to Information Act, 2005 to the Headmaster of Fakirganj M. V. School for information on the date of birth of the petitioner. As per the information so furnished, it was revealed that the petitioner was admitted to that school on 16.01.1958 in Class IV from Kalaihowa L.P. School with his age in the admission register shown to be 9 years, 4 months and 14 days as on 16.01.1958 and got transferred from that school on 16.02.1961. His date of birth as per the said admission register is 02.09.1948. The petitioner thereafter got admission at Hamidabad High School (now Higher Secondary School) in Class VI on 21.02.1961 after his transfer from Fakirganj M. V. School where his age was recorded as 12 years, 4 months. He studied there for about 6 months at Hamidabad High School whereafter he was transferred to Bouskata P. B. M. E. School at Class IV. He again returned to Hamidabad High School and was admitted to Class VII on 20.01.1965 showing his age as 12 years and 18 days as on 20.01.1965 which is 4 years and 4 months less than his actual age. 5. It is also the case of the respondent No. 4 that when the petitioner was admitted at Hamidabad High School, he got his name registered as Jel Hoque Miah, which was subsequently corrected by him as Hatem Ali Sheikh. He appeared in the HSLC Examination in the year 1969 in which his age was wrongly recorded in his admit card as 16 years, 1 month and 29 days as on 01.03.1969 which shows that his date of birth is 02.01.1953 i.e., 5 years less than his actual date of birth i.e. 02.09.1948. Due to these discrepancies, the answering respondent filed an application on 22.03.2010 to the respondent No.3 for enquiry into the matter. Due to these discrepancies, the answering respondent filed an application on 22.03.2010 to the respondent No.3 for enquiry into the matter. When no enquiry was made, he filed WP (C) No. 2864 of 2010 before this Court to order an enquiry into the age of the petitioner. The respondent No.2 thereafter directed the respondent No.3 to hold the enquiry. The respondent No.3 accordingly conducted the enquiry on 16.08.2010, heard all interested parties and then submitted his enquiry report to respondent No.2 for necessary action. This Court after hearing the parties by the order dated 31.01.2011 disposed of the writ petition by directing respondent No. 2 to consider the report and pass appropriate orders in accordance with law. The respondent No. 2 thereafter passed the impugned order dated 11.03.2011 holding that the date of birth of the petitioner is 02.09.1948 and that he had already completed 60 years of age on 02.09.2008 and was due for retirement from service as early as 30.09.2008. He accordingly directed the respondent No.3 to take necessary action in the matter. The respondent No.3 then passed the impugned consequential order as noted earlier. It was in terms of the consequential order that the answering respondent has been holding the charge of Headmaster of the school with financial powers with effect from 14.03.2011 till date. These are the sum and substance of the case of the respondent No.4. Contending that the impugned orders do not suffer from any infirmity, he prays for dismissal of the writ petition. 6. The first contention of Mr. P. K. Tiwari, the learned counsel for the petition, is that no notice was given to the petitioner before accepting the enquiry report of respondent No.3 determining that his date of birth recorded in his service book was incorrect: the impugned order was passed by him at the behest of respondent No.4 by ignoring the settled law that the age recorded in the certificate of HSLC Examination is accepted for all purposes. Since the impugned order was passed by the respondent No.2 in violation of the principles of natural justice, contends the learned counsel, the same is bad in law and is liable to be quashed. Since the impugned order was passed by the respondent No.2 in violation of the principles of natural justice, contends the learned counsel, the same is bad in law and is liable to be quashed. According to the learned counsel, the date of birth recorded in the service book at the time of his entry into service, which, in turn, was based in his matriculation certificate, is deemed to be final and cannot be re-opened for fresh scrutiny, more so, on the complaint of a third party after 32 years. He further argues that the respondent No.3 never examined the person who had recorded the age of the petitioner in the admission register for Class IV maintained by Fakirganj M. V. School upon which heavy reliance is placed by the respondents and the respondent authorities cannot alter the age of the petitioner on the basis of presumptions and conjectures. In support of his contentions, the learned counsel relies on the decisions of the Apex Court in Madan Mohan Singh Vs. Rajni Kant : (2010) 9 SCC 209 ; State of M.P. Vs. Mohanlal Sharma : (2002) 7 SCC 719 ; Hari Singh Vs. State of Bihar & Ors. : (2000) 10 SCC 284 ; Devki Nandan Verma Vs. State of Haryana :1995 Supp (3) 43; Birad Mal Singhvi Vs. Anand Purohit : 1988 Supp SCC 604 and Sarjoo Prasad Vs. General Manager & Ors. : (1981) 3 SCC 544 . 7. Per contra, Mr. J. Abedin, the learned Standing Counsel for the Education Department, supports the impugned orders, which, according to him, are based on the enquiry report made by the respondent No.3 after hearing all the interested persons including the petitioner in which it was found that the petitioner had different dates of birth, but no effort was made by him to reconcile these discrepancies and submits that when the basis of the age entered in the service book of the petitioner was found to be doubtful in view of these discrepancies, no interference is called for in the impugned orders. Heavy reliance is placed by him upon the decision of the Apex Court in State of Punjab Vs. Mohinder Singh (2005) 3 SCC 703 to fortify his submission. Mr. Heavy reliance is placed by him upon the decision of the Apex Court in State of Punjab Vs. Mohinder Singh (2005) 3 SCC 703 to fortify his submission. Mr. B. C. Das, the learned senior counsel for the respondent No.4, submits that though the date of birth entered in the service book of an employee in conformity with his matriculation certificate is not normally subject to alteration, such an alteration can always be made with the sanction of the appointing authority if it is clearly established that a genuine bona fide mistake has occurred or that such entry was subsequently found to be base on false certificates. According to the learned senior counsel, the respondent No.3, in course of enquiry, has detected the correct date of birth of the petitioner to be 02.09.1948 on the basis of the admission register in respect of Class IV maintained by the Fakirganj M. V. School and rightly disbelieved his date of birth to be 02.01.1953 entered in his matriculation certificate. Moreover, contends the learned senior counsel, the case pleaded by the petitioner, in the light of claims and counterclaims of the parties, involves a disputed question of fact, which cannot be decided by this Court in a summary proceeding like Article 226 of the Constitution; he should be relegated to a competent civil of jurisdiction to adjudicate the controversy, the learned senior relies on the following decisions of the Apex Court: (i) State of M. P. Vs R. P. Sharma, (1996) 10 SCC 516 ; (ii) State of Orissa Vs. Dr. Binapani Devi, AIR 1967 SC 1269 and (iii) Mohan Chara Das Vs. The Director, State Transport, AIR 1969 A&N 259, to buttress his contentions. 8. I have duly considered the submissions advanced by the learned counsel appearing for the rival parties. There is no dispute that the date of birth of the petitioner recorded in his service book is based on his date of birth as recorded in his matriculation certificate. There is also no dispute that the certificate in question is a genuine certificate issued by the Board of Secondary Education, Assam before his entry into the service. It is also the common ground between the parties that date of birth of the petitioner i.e. 02.01.1953 as per his matriculation certificate was the basis for recording his date of birth in his service book. It is also the common ground between the parties that date of birth of the petitioner i.e. 02.01.1953 as per his matriculation certificate was the basis for recording his date of birth in his service book. Both the matriculation certificate and the service book of the petitioner were prepared and maintained by public officials in the discharge of their respective official duties. The law is settled that the date of birth recorded at the time of his entry in Government service shall be deemed to be correct and conclusive. The instant case is where the petitioner had declared his date of birth as 02.01.1953 in the High School Leaving Certificate Examination form and the same was entered in the High School Certificate as well as in his service book. It may at this stage be noted that this case is not a case where the petitioner is seeking alteration of his date of birth at the fag end of his career. On the contrary, the controversy about his date of birth arose out of the complaint lodged by a private party: the case was not opened at the initiative of the State respondents. Normally, in public service, with entering into service, even the date of retirement is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the employee concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, and it is necessary to maintain the date of birth in the service records. For an employee seeking alteration of his date of birth maintained in his service book, a period is normally prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules is to discourage application for correction of date of birth after decades, especially on the eve of retirement of such employee. But a new dimension has been added in this case since the representation for correction of date of birth of the petitioner comes from a third party or from the employer. 9. In State of M.P. & Ors. Vs. But a new dimension has been added in this case since the representation for correction of date of birth of the petitioner comes from a third party or from the employer. 9. In State of M.P. & Ors. Vs. Mohanlal Sharma (supra), it has been held by the Apex Court that date of birth recorded in matriculation certificate carried a greater evidential value than that contained in a certificate given by the retired Headmaster of the school or in the horoscope. However, the date of birth entered in the service book, which, in turn, was based on a matriculation certificate cannot be said to be conclusive and is merely a rebuttable presumption. It is always open to the party challenging the correctness of the entry to prove that the entry was wrong or was based on fraud or otherwise, but the burden of proof thrust upon him is indeed heavy. He must come with an irrefutable evidence to disprove the correctness of such entry. In other words, if the respondent No.4 wants to rely on the admission register of Class IV maintained by Fakirganj M. V. School to prove that the date of birth of petitioner is 01.09.1948 and not 02.01.1953 as recorded in the service book of the petitioner, he has to prove its authenticity by examining the person having special means of knowledge of the authenticity of the date mentioned therein. 10. It is against the backdrop of the aforesaid legal principles that I have perused the enquiry report of the respondent No.3, which is annexed at Annexure-2 to the affidavit-in-opposition of the respondent No. 4. From the enquiry report, it is revealed that the Headmaster of Fakirganj M.V. School who had recorded the date of birth of the petitioner in the admission register for Class IV in the year 1958 was not examined by the respondent No. 3. In my opinion, this is the person who had special means to know as to how and on what basis or on whose information the date of birth of the petitioner had been recorded by him. There is no evidence to show that this Headmaster was no longer alive when the enquiry was conducted by respondent No.3. In my opinion, this is the person who had special means to know as to how and on what basis or on whose information the date of birth of the petitioner had been recorded by him. There is no evidence to show that this Headmaster was no longer alive when the enquiry was conducted by respondent No.3. The respondent No. 3 admittedly had examined Shri Abdur Razzaque Mollah, Assistant Teacher of Salkata J. P. High School, Shri Ishak Choudhury, Principal-in-charge (Academic), Shri Abdul Hoque Choudhury, Headmaster, Fakirganj M. V. School, Shri Samsul Hoque, Headmaster of Bauskata P.B.M. E. School and respondent 4, but there is no evidence to show that any of these teachers had personally seen the preparation of, or had prepared, the admission register of Fakirganj M. V. School for Class IV with respect to the petitioner in 1958. The statements of persons who had no means of knowing on what basis the date of birth of the petitioner had been recorded as 01.09.1948 at Fakirganj M. V. School, have been recorded or cross-examined. At any rate, the parents of the petitioner, if any of them is still alive, should have been examined by the respondent No.3 to enlighten him on what basis the date of birth of the petitioner had been recorded as 01.09.1948 in the admission register for Class IV when his date of birth was recorded as 02.01.1953. In his matriculation certificate. As already held by me, the burden of proof is upon the complainant, and not upon the petitioner, to prove that the date of birth of the petitioner is 01.09.1948 and not 02.01.1953 as recorded in the service book, which, in turn, is based on the matriculation certificate. In my opinion, the findings recorded by the respondent No.3 in his enquiry report are based on surmises and conjectures, and cannot be allowed to upset the date of birth of the petitioner already maintained in his service book for the last over 30 years. 11. On the contention that writ petition involves a disputed question of fact, which cannot be decided by a writ Court, the same is answered by the Apex Court in Dr. Binapani Devi case (supra) in para 6 of the judgment, which read thus: 6. 11. On the contention that writ petition involves a disputed question of fact, which cannot be decided by a writ Court, the same is answered by the Apex Court in Dr. Binapani Devi case (supra) in para 6 of the judgment, which read thus: 6. It was the case of the first respondent in her petition before the High Court that the State had arbitrarily fixed her date of birth April 16, 1907, and on that basis had declared her superannuated before she attained the age of 58 years. On behalf of the State it was denied that the true date of birth of the first respondent was April 10, 1910, and that the authorities of the State had arbitrarily and maliciously chosen to refix her date of birth. Under Article 226 of the Constitution, the High Court is not precluded from entering upon a decision on questions of fact raised by the petitioner. Where an enquiry into complicated questions of fact arises in a position under Article 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined, the High Court may in appropriate cases decline to enter upon that inquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not jurisdiction of the Court. In the present case the question in dispute was about the regularity of the enquiry and the High Court was apparently of the view that the question whether the State acted arbitrarily did not raise any question of investigation into complicated issues of fact. No interference with the exercise of the discretion of the High Court is, therefore, called for. 12. The law is well-settled without reference to cases that Article 226 of the Constitution can be invoked for the purpose of enforcement of an established right and not to establish a right. In the instant case, the petitioner is moving this Court under Article 226 of the Constitution to enforce his right to continue in service till the date of superannuation on the basis of his date of birth maintained in the record prepared and maintained by a public servant in the performance of his official duty, namely, his service book, that too, on the basis of the matriculation certificate issued by another public authority/body. There is presumption of regularity of an official act. There is presumption of regularity of an official act. The petitioner has thus reasonably succeeded in making out strong prima facie that his date of birth is 02.01.1953 and has the right to continue in service till date of his retirement on superannuation computed with effect from 02.01.1953. True, several disputes have been raised by the respondents to question the correctness of this date of birth but they, as found by me, have miserably failed to rebut this prima facie case of the petitioner. The burden of proof thrust upon them by law is indeed heavy and cannot be simply discharged by the evidence produced by them in the course of the said enquiry: something more is required to rebut the presumption in favour of the petitioner. Just because a plea of disputed questions of fact is raised by the other side, that does not mean that the petitioner should be told off at the gate, particularly, when the case can be decided on the basis of unimpeachable official record as is the case here. At this stage, I may refer to Devki Nadan Verma case (supra) where the appellant was working as Superintending Engineer in the Public Works Department in the State of Haryana. His date of birth recorded in the service book was 17.07.1934. He was due to retire on attaining the age of superannuation on 31.07.1992. Before he retired from service, he applied to the State Government for rectification of his date of birth which, according to him, was 14.06.1936. The State Government accepted the appellant's representation by the order dated 18.06.1992 and corrected his date of birth in the official record. The said order was challenged by Shri S. C. Jhari, Respondent No.2 on the ground that the same adversely affected him in the sense that his chance of promotion was considerably postponed. The High Court allowed the writ petition and quashed the order dated 18.06.1992. The special leave petition was allowed by the Apex Court. That is what it said: .........When correction regarding date of birth is made in the service record of a person the State Government is doing what is required under the law. A person has the right to continue in service till he attains the age of superannuation. The special leave petition was allowed by the Apex Court. That is what it said: .........When correction regarding date of birth is made in the service record of a person the State Government is doing what is required under the law. A person has the right to continue in service till he attains the age of superannuation. When wrong date of birth as entered in the service record the right of the person to remain in service till superannuation is obviously infracted. Rectification of the date of birth is a matter between the person concerned and the State Government and nor other person has locus standi to prefer a caveat in such a matter. 13. No other substantial issue survives for consideration. The writ petition, therefore, succeeds. Both the impugned order dated 08.03.2011 issued by the respondent No. 2 and the impugned consequential order dated 11.03.2011 issued by the respondent No.3 cannot be sustained in law and are hereby quashed. The State respondents are accordingly directed to reinstate the petitioner to his former post i.e. Headmaster of Salkata J.P. High School, Dhubri with all consequential service benefits and allow him to continue in service till the date of his retirement on superannuation on the basis of original date of birth recorded in his service book i.e., 01.02.1953 and shall not be ousted from service except in accordance with law. These directions shall be carried out by the respondent authorities without any delay and, in any case, within a period of one month form the date of receipt of this judgment. No order as to costs.