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2015 DIGILAW 1531 (GAU)

Thuleswar Hazarika v. State of Assam

2015-12-15

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. H.G. Baruah, learned counsel for the petitioner and Mr. P.S. Deka, learned Government Advocate, Assam for the respondents. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of retirement notice dated 02.07.2015, issued by the Superintendent of Police, Nagaon, informing the petitioner that he would retire from service w.e.f. 31.01.2016. Further prayer made is to allow the petitioner to continue his service up to 31.01.2017 as per his correct date of birth. 3. Case of the petitioner as projected in the writ petition is that he had passed the High School Leaving Certificate (HSLC) Examination under the Board of Secondary Education, Assam (SEBA) in the year 1976 and as per the HSLC pass certificate dated 12.07.1976, issued by the SEBA, petitioner was 19 years 1 month 11 days as on 01.03.1976. He was appointed as Circle Organizer, Village Defence Organisation, in which capacity he continued to render service. An order dated 10.12.2014 was issued by the Superintendent of Police, Village Defence Organisation, Nagaon, whereby it was stated that in view of the age of the petitioner as per HSLC pass certificate, he would retire on attaining the age of superannuation on 31.01.2017. This was informed by the Superintendent of Police, Village Defence Organisation, Nagaon to the Additional Director General of Police (A), Assam, on 10.12.2014. In the said letter, it was however stated that as per service book of the petitioner his date of retirement is 31.01.2016. On scrutiny of the HSLC pass certificate, it was found that actual date of superannuation of the petitioner would be 31.01.2017 instead of 31.01.2016. It was further stated that at the time of opening of his service book, the date of birth of the petitioner was recorded as 14.01.1956. Accordingly, views of the higher authority were sought for by the Superintendent of Police. 4. Suddenly, impugned retirement notice 02.07.2015 was issued by the Superintendent of Police, informing the petitioner that he would retire from service w.e.f. 31.01.2016 on attaining the age of superannuation as per service record and retirement list received from the office of the Additional Director General of Police. 5. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 6. Respondent No. 6, i.e., Superintendent of Police, District Village Defence Officer, Nagaon, has filed affidavit. 5. Aggrieved, present writ petition has been filed seeking the reliefs as indicated above. 6. Respondent No. 6, i.e., Superintendent of Police, District Village Defence Officer, Nagaon, has filed affidavit. It is stated that presently, petitioner is serving as Circle Organizer, Village Defence Organisation, Hojai district. It is admitted that as per HSLC pass certificate, which has been submitted to the authority after receiving the impugned retirement notice, petitioner's date of birth is 20.01.1957. Though petitioner joined service on 22.11.1985, in his service book, his date of birth is recorded was 14.01.1956 and as per such entry, his date of superannuation is 31.01.2016. While a stand has been taken that request for correction of date of birth cannot be entertained within 3 (three) years from the date of actual superannuation, it is, however, admitted that on scrutiny of HSLC pass certificate, petitioner's date of birth would be 20.01.1957, which has been wrongly mentioned in the service-book as 14..01.1956. However, no attempt was made by the petitioner to correct the record during his service tenure. 7. Similar affidavit has been filed by respondent No. 7, who is the Superintendent of Police, District Village Defence Officer, Hojai. Here also, it is admitted that petitioner's date of birth is 20.01.1957 and not 14.01.1956. However, as per service book, where the date of birth is recorded as 14.01.1956 petitioner would retire from service on 31.01.2016. 8. Petitioner has filed reply affidavit to the affidavit filed by respondent No. 6. Stand taken in the reply affidavit is that it is the duty of the Head of office, in this case, Superintendent of Police, to maintain the service book. Petitioner had no access to the service book. Only when the petitioner came to know about wrong entry of his date of birth in his service book from the impugned retirement notice, he immediately took the proper steps to rectify the error. 9. Mr. Baruah, learned counsel for the petitioner submits that petitioner had submitted the HSLC pass certificate at the time of his initial appointment. It was the mistake of the authority in recording the wrong date of birth of the petitioner in the service book. This was not to the knowledge of the petitioner since he had no access to the service book, which was under the custody of Superintendent of Police. It was the mistake of the authority in recording the wrong date of birth of the petitioner in the service book. This was not to the knowledge of the petitioner since he had no access to the service book, which was under the custody of Superintendent of Police. He came to know about the error in the later part of the year 2014, where after, he took immediate steps to rectify the error. 10. Mr. Deka, learned Government Advocate, Assam, on the other hand, submits that it was the mistake of the petitioner in not submitting the HSLC pass certificate for all these years. Had the HSLC pass certificate been produced before the authority timely, there was no reason why the wrong entry made in the service book would not have been corrected. He further submits that it is too late in the day now to seek correction of date of birth, as under SR-8-(C), correction of date of birth within a period of 3 (three) years from the date of actual superannuation would be impermissible. However, having said that, Mr. Deka fairly submitted that if one goes by the HSLC pass certificate petitioner's date of birth would be 20.01.1957, which would make his date of superannuation 31.01.2017. 11. In his reply submission, Mr. Baruah submits that the stand taken by the respondents regarding non-submission of HSLC pass certificate by the petitioner cannot be accepted because without the HSLC pass certificate, his appointment as Circle Organizer in Village Defence Organisation would not have been possible. Regarding time limit of 3 (three) years, as submitted by Mr. Deka, learned Government Advocate, Mr. Baruah submits that when the error in recording the date of birth in the service book is apparent on the face of the record, such limitation of time would not be applicable. In this connection, he has placed reliance on a decision of the Apex Court in the case of Md Yunus Khan v. U.P. Power Corporation Limited; reported in (2009) 1 SCC 80 . 12. Submissions made by learned counsel for the parties have been considered. 13. Village Defence Organisation (VDO) has been constituted in the State of Assam to assist the Police in the maintenance of law and order, peace and tranquility in the State. VDO is constituted under the Assam Village Defence Organisation Act, 1966. 12. Submissions made by learned counsel for the parties have been considered. 13. Village Defence Organisation (VDO) has been constituted in the State of Assam to assist the Police in the maintenance of law and order, peace and tranquility in the State. VDO is constituted under the Assam Village Defence Organisation Act, 1966. In exercise of powers conferred by Section - 8(1) of the Assam Village Defence Organisation Act, 1966, the Assam Village Defence Organisation Rules, 1986, have been framed (hereinafter, referred to as 1986 Rules'). As per the 1986 Rules, District Village Defence Officer would mean Superintendent of Police of the concerned district. 1986 Rules provide that there will be a 3 (three) tier Village Defence Organisation at the district level, at the sub-divisional level and at the thana and village level. For the thana and village level, there shall be a Circle Organizer. As per Rule 11, the appointment of Circle Organizer shall be made by the District Village Defence Officer, i.e., Superintendent of Police of the district, who shall be the appointing and competent authority. Educational qualification for the post of Circle Organizer is matriculate. As per Rule 12, service-book and confidential character roll of Circle Organizer shall be maintained in the office of the District Village Defence Officer. Rule 15 provides that Circle Organizer shall be treated as Grade-III Government employee. 14. Thus, from the above, it is evident that to be appointed as a Circle Organizer of a Village Defence Organisation, one must be a matriculate; whether one is a matriculate or not can only be ascertained from the matriculation certificate. In this case, the competent statutory board is the SEBA. SEBA had issued a certificate way back on 12.07.1976, certifying that petitioner had passed HLSC/matriculation examination in the year 1976 and that as on 01.03.1976, he was 19 years 1 month 11 days. As per the certificate of SEBA, which certifies petitioner's age to be 19 years 1 month 11 days as on 01.03.1976, his date of birth would be 20.01.1957. This position is accepted by both respondent Nos. As per the certificate of SEBA, which certifies petitioner's age to be 19 years 1 month 11 days as on 01.03.1976, his date of birth would be 20.01.1957. This position is accepted by both respondent Nos. 6 and 7 in their respective affidavits, but the only objection taken is that this HSLC pass certificate was not submitted before the authority by the petitioner during his long service career and that correction in the date of birth recorded in the service book of a Government servant cannot be made within 3 (three) years of the date of superannuation as per SR-8(c). 15. Coming to the first objection, as already observed, as the eligibility criteria for appointment of Circle Organizer is matriculation, such eligibility can be judged only from the matriculation certificate issued by the competent authority, in this case, SEBA. Without such certificate, appointment of the petitioner as Circle Organizer would not have been possible. In any case, there is no dispute as to the genuineness of the petitioner's HSLC pass certificate, which was issued on 12.07.1976 immediately after passing of the HSLC examination by the petitioner. It is not a document obtained at the eleventh hour. 16. Therefore, the first objection raised by the respondents does not appear to be justified. 17. It is true that subsidiary rule SR - 8(c) imposes restriction on the authority from entertaining applications from Government servants for correction of date of birth with less than 3 (three) years remaining for superannuation. Question for consideration is, can such a rule be treated to be completely inflexible with no room for relaxation at all. In this connection, the decision of the Apex court in Md. Yunus Khan (supra) may be usefully referred to. That was also a case of correction of date of birth. In that case, the Hon'ble Supreme Court observed that representation for correction of date of birth should be made as expeditiously as possible so as to enable the employer to pass appropriate orders thereupon, but the said principle would have no application in a case where a mistake on the part of the respondents stands admitted. In that case, the Hon'ble Supreme Court observed that representation for correction of date of birth should be made as expeditiously as possible so as to enable the employer to pass appropriate orders thereupon, but the said principle would have no application in a case where a mistake on the part of the respondents stands admitted. The Apex Court went on to hold that even if there is a statutory rule fixing the time frame for filing an application for correction of date of birth in the service record, the same would not be of much significance if the employee had no knowledge about such mistake in the service record at an earlier point of time. An employee may take action as is permissible in law only after coming to know that a mistake has been committed by the employer. In the present case, as per the 1986 Rules, custody of service record of a Circle Organizer is with the District Village Defence Organisation Officer, who is the Superintendent of Police. Therefore, petitioner had no access to the service record and could not have had any occasion to notice the error in recording his date of birth. 18. In the light of the above discussions, Court is of the view that this is a case where there had been an error in recording the date of birth of the petitioner. It is trite that in so far recording of date of birth of a Government servant is concerned, matriculation/HSLC pass certificate is considered to be the primary document. In the case of the petitioner, as per the primary document, his date of birth is 20.01.1957, which makes his date of superannuation as 31.01.2017. This is an error, which is apparent on the face of the record. Such an error cannot be permitted to remain in the official record of the respondents. 19. That being the position, this Court finds sufficient merit in the writ petition. Consequently, impugned retirement notice dated 02.07.2015 is hereby set aside and quashed. Petitioner shall be allowed to continue his service as per his HSLC pass certificate up to 31.01.2017. 20. Writ petition is accordingly allowed. No costs.