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2012 DIGILAW 770 (PAT)

URMILA DEVI v. STATE OF BIHAR

2012-05-11

V.N.SINHA

body2012
ORDER Heard learned counsel for the petitioner and the State. 2. Petitioner is the widow of late Ram Nandan Prasad, who was directed to superannuate with effect from 28.02.2002 while serving as Dafadar, Bit No. 3, P.S. Runni Saidpur in the district of Sitamarhi on the basis of his date of birth 3.2.1944 recorded in the Service Book. Aforesaid date of birth, as entered in the Service Book was questioned by the service-holder under representation dated 10.7.2001, 12.8.2001, 1.3.2002, 16.4.2002 addressed to Collector, Sitamarhi, Annexure-A to the counter affidavit and Annexure-6 series to the writ petition. In the light of the request made in representation dated 10.7.2001 instructions were issued from the Collectorate to District Superintendent of Education under letter no.500 dated 31.7.2001 to verify the date of birth of the petitioner as recorded in the school transfer certificate dated 3.9.1991 granted by the Headmaster of Govt. Middle School, Manpur, Ratnawali, P.S. Runni Saidpur, district Sitamarhi. Headmaster, Govt. Middle School under report dated 18.10.2001, Annexure 5/1 confirmed the genuineness of the signature of the Headmaster who issued certificate dated 3.9.1991 with reference to his admitted signature but failed to confirm the other entries of the school transfer certificate as the connected record stood destroyed in subsequent floods. Report of the Headmaster Govt. Middle School was forwarded by the District Superintendent of Education to the Collectorate under letter no.3896 dated 22.10.2001, Annexure-F. Notwithstanding the report dated 18/22.10.2001, Annexure 5/1, F and the observation of the Sub-Divisional Officer, Sitamarhi in his letter no.33 dated 15.1.2002 that the year of birth of the husband of the petitioner recorded in the police record opened at the time of his initial appointment as Dafadar and school transfer certificate is 1954 he was made to retire on 28.2.2002 ten years earlier in the light of his year of birth 1944 recorded in the service book. Even after retirement, the husband of the petitioner continued to represent for correction of his date/year of birth from 1944 to 1954 vide representation dated 1.3.2002, 16.4.2002, Annexure-6 series which could not bear fruit, meanwhile husband of the petitioner left for heavenly abode on 4.4.2005, whereafter petitioner filed representation dated 18.12.2006 before Hon'ble the Chief Minister, Bihar which was also not considered, whereafter instant writ petition was filed on 14.8.2007 stating that husband of the petitioner was appointed as Dafadar, Bit No.3, P.S. Runni Saidpur, district Sitamarhi on 18.11.1983 on the basis of the recommendation of the Panchayat Member bearing no. 377 dated 9.5.1982, contained in Annexure-1, close perusal whereof indicates that the age of the petitioner on the date of recommendation was 28 years, meaning thereby that he was born in 1954. After appointment of the husband of the petitioner as Dafadar his date of birth was entered as 3.9.1954 in the police record by Officer in Charge, Runni Saidpur P.S. 3. It is submitted on behalf of the petitioner that on account of clerical mistake at the time of opening of the Service Book of her husband his date of birth was incorrectly recorded as 3.2.1944. In this connection, it is submitted that the entries recorded in the Service Book 3.2.1944 by the clerk concerned was without taking into account the age of the husband of the petitioner, as mentioned in the recommendation for appointment as Chowkidar dated 9.5.1982, Annexure-1 and police record which was maintained soon after his appointment as Dafadar on 18.11.1983 by Officer in Charge Runni Saidpur whereunder the date of birth of the husband of the petitioner was recorded on 3.9.1954. In this connection, husband of the petitioner made representations before the competent authority for correction of his date of birth from 3.2.1944 to 5.1.1954, which fact would appear from his representation dated 10.7.2001, Letter No. 501 dated 31.7.2001, Letter No. 346 dated 14.8.2001, Letter No. 26 dated 18.10.2001, Letter No. 3896 dated 22.10.2001, as contained in Annexures- A to the counter affidavit and Annexures 3,4,5 series of the writ petition respectively. It is submitted on behalf of the petitioner that aforesaid request was made by her husband to the authorities for correction of his date of birth on the basis of the school records, as would appear from school transfer certificate bearing No. 72 dated 3.9.1991 issued under the signature of Sri Phuldeo Singh, Headmaster, Government Middle School, Madhaul, Post Office- Manpur, Ratnawali, Sitamarhi. The representations of the husband of the petitioner, referred to above was not considered and he was directed to superannuate with effect from 28.2.2002 on the basis of his date of birth recorded in the service book i.e. 3.2.1944 under order bearing Memo No. 7 dated 28.2.2002 contained in Annexure-7 to the writ petition ignoring the finding of the District Superintendent of Education, Sitamarhi and Headmaster of the Middle School that signature of the Headmaster who issued school transfer certificate dated 3.9.1991, page 25 of the brief is genuine and observation of the Sub-Divisional Officer in Letter No. 33 dated 15.1.2002, Annexure-I that year of birth of the husband of the petitioner as recorded in school, police record maintained from the time of initial appointment is 1954 which may be further confirmed by obtaining verification of certificate dated 3.9.1991. It may be pointed out that Sub-Divisional Officer while making observation under letter dated 15.1.2002 for verification of certificate dated 3.9.1991 was not aware that certificate dated 3.9.1991 stood already verified by the competent authority Headmaster/District Superintendent of Education under report dated 18/22.10.2001, Annexures 5/1, F. In the light of the direction given by the District Magistrate to the District Superintendent of Education, Sitamarhi conveyed through Deputy Collector Incharge, General Section under letter no.500 dated 31.7.2001, Annexure-B to the counter affidavit to verify the genuineness of the transfer certificate dated 3.9.1991, the District Superintendent of Education submitted report bearing letter no.3896 dated 22.10.2001, Annexure-F enclosing the letter of the present Headmaster of Middle School, Madhaul, Runni Saidpur bearing letter no.26 dated 18.10.2001, Annexure-5/1 certifying the genuineness of the signature of Sri Phuldeo Singh, Headmaster who had issued transfer certificate bearing no.72 dated 3.9.1991 but stated that other entries in the certificate could not be verified as the records of the relevant year has been destroyed in subsequent floods. It is submitted on behalf of the petitioner that genuineness of signature of the Headmaster who issued school transfer certificate no.72 dated 3.9.1991 was verified by the authorities, there is presumption of correctness with regard to the other entries of the certificate even though the same could not be verified as the records stood destroyed in the subsequent floods. In this connection, learned counsel for the petitioner referred to Section 114 of the Indian Evidence Act, Illustration (e). It is submitted that notwithstanding the confirmation made by the authorities about the correctness of the school transfer certificate under letter no.26 dated 18.10.2001 husband of the petitioner was made to superannuate on the basis of reduced date of birth i.e. 3.2.1944 with effect from 28.2.2002 ignoring the instructions of the Sub-Divisional Officer contained in letter no.33 dated 15.1.2002, Annexure-I to the counter affidavit in which the Sub-Divisional Officer had taken note of the date of birth of the husband of the petitioner recorded in the police record maintained from the time of his initial appointment as Dafadar i.e. 3.9.1954 and the school transfer certificate dated 5.1.1954 and the service book dated 3.2.1944 but as the Sub-Divisional Officer was not aware about the enquiry having already been made about the genuineness of the school transfer certificate under letter no.3896 dated 22.10.2001 of the District Superintendent of Education enclosing the letter of the Headmaster bearing no.26 dated 18.10.2001, Sub-Divisional Officer required further verification of the date of birth of the husband of the petitioner from school records as year of birth of the husband of the petitioner was common in both police and school record. 4. It is submitted on behalf the petitioner that in the light of the instructions of the Sub-Divisional Officer dated 15.1.2002 read with letter of the District Superintendent of Education bearing no.3896 dated 22.10.2001 and that of the Headmaster bearing no.26 dated 18.10.2001, Annexures-I, F and 5/1 husband of the petitioner should not have been superannuated with effect from 28.2.2002. In this connection, it is pointed out that close perusal of letter no.33 dated 15.1.2002 of the Sub-Divisional Officer indicates that Sub-Divisional Officer wanted confirmation of the date of birth of the husband of the petitioner and not the year of birth of the husband of the petitioner as year of birth was common in both the school, police record. In this connection, it is pointed out that close perusal of letter no.33 dated 15.1.2002 of the Sub-Divisional Officer indicates that Sub-Divisional Officer wanted confirmation of the date of birth of the husband of the petitioner and not the year of birth of the husband of the petitioner as year of birth was common in both the school, police record. Learned counsel for the petitioner further submitted that embargo raised under Note-1 of Rule 96 of the Bihar Financial Rules, 1950 not to entertain any representation from the Government servant for rectification of mistake in the date of birth as entered in the service records of the Government servant after ten years cannot be applied to the case of the husband of the petitioner, for the reason that when husband of the petitioner entered the service as Dafadar in 1983 his date of birth was entered in the police record as 3.9.1954 but after the post of Dafadar became a civil post under circular dated 17.1.1990 with effect from 1.1.1990 and the service book of the husband of the petitioner was opened the same date 3.9.1954 should have been incorporated in the service book. From perusal of service book of the husband of the petitioner, copy whereof has been annexed with the writ petition, it appears the service book was opened on 9th of May but the year in which the book was opened has not been mentioned by the officer who opened the book on 9th of May. The post of Dafadar became civil post under circular dated 17.1.1990 with effect from 1.1.1990, as such, the service book of the petitioner may have been opened any time after 17.1.1990, may be in the year 1991. The husband of the petitioner submitted first representation for correction of his date of birth on 10.7.2001 which may be treated to be within 10 years of the occasion arising for the husband of the petitioner to request the authorities for correction of his date/year of birth in the service book from 1944 to 1954. Even otherwise, Division Bench of this Court in the case of Murli Manohar Tiwary Vs. Even otherwise, Division Bench of this Court in the case of Murli Manohar Tiwary Vs. The State of Bihar and others, reported in 1986 PLJR 1180 held that the period mentioned in Note-1 of Rule 96 of the Bihar Financial Rules for seeking rectification of mistake in the date of birth as recorded in the service book is not mandatory. In the case of Ram Sobbhit Roy Vs. The State of Bihar and others, reported in 1989 BBCC 141 learned Single Judge held that person concerned who has put his signature over the service book containing incorrect date of birth may be allowed to correct the same on the basis of entries in the school certificate. In the instant case, genuineness of the school transfer certificate bearing no.72 dated 3.9.1991 has already been verified by the District Superintendent of Education who confirmed that the certificate was issued by the then Headmaster of the school Sri Phuldev Singh. Genuineness of the certificate having been confirmed, it goes without saying that the entries contained in the certificate are also to be accepted as genuine notwithstanding the fact that the records to confirm the entries have been lost in subsequent floods. 5. Before parting with this order, I may also consider the submission of learned counsel for the State with reference to the judgment of the Hon'ble Supreme Court in the case of Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, reported in 1994 Supp(1) Supreme Court Cases 155 that unless a clear case on the basis of materials which can be held to be conclusive in nature is made out by the applicant for correction of the entries made in the service record, the same should not be entertained by the High Court. R. Kirubakaran, reported in 1994 Supp(1) Supreme Court Cases 155 that unless a clear case on the basis of materials which can be held to be conclusive in nature is made out by the applicant for correction of the entries made in the service record, the same should not be entertained by the High Court. In this connection, I may point out that husband of the petitioner was seeking correction in the year of birth as entered in the service book on the basis of the year of birth entered in the service record when he was appointed as Dafadar on 18.11.1983 on the basis of recommendation dated 9.5.1982 when the post of Dafadar was not a Government post, which is also corroborated by his date of birth entered in the school records, as is evident from the school transfer certificate dated 3.9.1991 duly verified by the Headmaster/District Superintendent of Education under letter no.26 dated 18.10.2001, 3896 dated 22.10.2001, Annexures 5/1, F. The Sub-Divisional Officer while writing letter dated 15.1.2002, Annexure-I was not aware about the verification made in connection with school certificate and directed for fresh verification of the school certificate and could not issue positive direction in favour of husband of the petitioner in the light of the verification already made under letter no.26 dated 18.10.2001 of the Headmaster of the Middle School, Annexure-5/1 and letter no.3896 dated 22.10.2001 of the District Superintendent of Education, Sitamarhi, Annexure-F . 6. In the light of my observations above, I direct the Sub-Divisional Officer, Sitamarhi, respondent no.7 to pass appropriate order in the matter as early as possible, in any case within two months from the date of receipt/production of a copy of this order before respondent no.7. It goes without saying that once the year of birth of the husband of the petitioner is corrected in the service record as per the year of birth of the husband of the petitioner entered in the police record which was created at the time of his initial appointment as Dafadar when the said post was not even civil/ Government post, the same year of birth should be entered in the service book of the husband of the petitioner and once it is made, necessary consequential benefit be allowed to the petitioner. 7. The writ application is, accordingly, disposed of.