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2015 DIGILAW 1536 (GAU)

Jogeshwar Baruah v. State of Assam

2015-12-16

UJJAL BHUYAN

body2015
JUDGMENT AND ORDER : Ujjal Bhuyan, J. Heard Mr. K.N. Choudhury, learned Senior Counsel for the petitioner, Mr. H.K. Mahanta, learned Standing Counsel, Personnel Department and Mr. T.C. Chutia, learned Standing Counsel, Board of Secondary Education (SEBA), Assam. 2. This petition has been filed under Article 226 of the Constitution of India, seeking a direction to the respondents to correct the date of birth of the petitioner as 06.03.1957, instead of 01.04.1955 as recorded in the service book of the petitioner and consequently to declare petitioner's date of superannuation as 31.03.2017 instead of 30.04.2015. 3. Case of the petitioner is that he is presently serving as Joint Secretary to the Government of Assam, Sports and Youth Welfare Department. According to him, his date of birth is 06.03.1957 and consequent date of superannuation would be 31.03.2017. 4. However, in the service book, petitioner's date of birth is recorded as 01.04.1955, which would mean his superannuation on 30.04.2015. It is stated that petitioner had submitted an appeal dated 18.03.2014 before the Chairman, SEBA, for correction of his date of birth from 01.04.1955 to 06.03.1957. At that stage, petitioner was serving as Additional Deputy Commissioner, Dibrugarh. Petitioner approached this Court by filing WP(C) No. 417 of 2015, with the grievance that the said appeal was yet to be considered by the Chairman. This Court by order dated 18.03.2015 directed the Chairman, SEBA to consider the appeal/representation in accordance with law within 15 (fifteen) days. Thereafter, Chairman, SEBA passed an order dated 10.04.2015, declaring that age of the petitioner was 15 years 11 months and 25 days as on 01.03.1973 and accordingly, Secretary, SEBA directed to correct the HSLC record of the petitioner. This would mean that 06.03.1957 would be the date of birth of the petitioner. Thereafter, petitioner submitted representation dated 10.04.2015, i.e., on the same day, to the Additional Chief Secretary to the Government of Assam, Personnel (A) Department, requesting the said authority to correct his date of birth as recorded in the service book and to revise his superannuation date from 30.04.2015 to 31.03.2017 by taking his date of birth as 06.03.1957. 5. Since the superannuation of the petitioner was around the corner, i.e., on 30.04.2015, the present writ petition was filed on 22.04.2015, seeking the reliefs as indicated above. . 6. 5. Since the superannuation of the petitioner was around the corner, i.e., on 30.04.2015, the present writ petition was filed on 22.04.2015, seeking the reliefs as indicated above. . 6. This Court by order dated 27.04.2015, while issuing notice passed an interim order directing that service of the petitioner should be continued by taking his date of birth as 06.03.1957. 7. Respondent No. 1 has filed affidavit. Stand taken in the affidavit is that date of birth of the petitioner as per entry made in the record of the Personnel Department is 31.03.1955. This was the date of birth, which the petitioner had himself disclosed in his application form while appearing in the Combined Competitive Examination, 1984, conducted by the Assam Public Service Commission (APSC) for entry into Assam Civil Service (ACS). Matriculation certificate furnished by the petitioner also showed his age as 17 years 11 months as on 01.03.1973, which would mean his date of birth would be 31.03.1955. Accordingly, superannuation date of the petitioner was 30.04.2015. It is further stated that retirement notice was served on the petitioner on 08.12.2014. Further stand taken is that petition submitted by the petitioner before the Additional Chief Secretary for revising the date of superannuation of the petitioner on the basis of duplicate matriculation certificate was duly considered but was rejected in view of the provisions contained in Subsidiary Rule 8(c) of Fundamental Rules and Subsidiary Rules. 8. Petitioner has filed reply affidavit to the counter affidavit filed by respondent No. 1, wherein, it is stated that the order passed by the Chairman, SEBA dated 10.04.2015 cannot be ignored. 9. Mr K.N. Choudhury, learned Senior Counsel appearing for the petitioner, submits that matriculation certificate is the primary document for the purpose of determining the age of a Government servant. In the instant case, the earlier matriculation certificate was revised by the authority, which had issued the same, where after, duplicate matriculation certificate was issued to the petitioner, wherein it is clearly certified that his age as on 01.03.1973 was 15 years 11 months 25 days, which would make his date of birth as 26.03.1957. In that case, petitioner's service would be up to 31.03.2017. Refusal on the part of the Personnel Department to act on the duplicate certificate of SEBA is not justified. In that case, petitioner's service would be up to 31.03.2017. Refusal on the part of the Personnel Department to act on the duplicate certificate of SEBA is not justified. In this connection, learned Senior Counsel has placed reliance on the decisions of the Apex Court in R.S. Kallolimath Vs. State of Mysore; (1977) 3 SCC 425 ; and State of Madhya Pradesh Vs. Premlal Shrivas; (2011) 9 SCC 664 . 10. On the other hand, Mr. Mahanta, learned Standing Counsel, Personnel Department, submits that SR-8(c) imposes a complete bar on entertaining request for correction of date of birth if less than 3 years remain for superannuation. Petitioner is not a lowly ranked Government servant. He is holding a senior post in the State Government. As per his own statement, he made effort to change his date of birth only in the year 2014, i.e., within 1 year of superannuation. No such request can, therefore, be considered as per law. Though SEBA might have corrected the record and had issued duplicate matriculate certificate, nonetheless, the Personnel Department is not bound to act on the said certificate issued on the eve of petitioner's superannuation since petitioner had already reached the superannuation date as per the date of birth recorded in the service-book. In this connection, learned Standing Counsel has placed reliance in State of Assam Vs. Daksha Prasad Deka; (1970) 3 SCC 624 ; Coal India Limited Vs. Ardhendu Bikas Bhattacharjee; (2005) 12 SCC 201 and Abdul Khalique Laskar Vs. All Assam Public Health Employees Association; 2003 (2) GLT 241. 11. Mr T.C. Chutia, learned Standing Counsel, SEBA, submits that in so far SEBA is concerned, it has made necessary correction in the matriculation certificate of the petitioner. Beyond that, it has no role to play in the claim of the petitioner. 12. Submissions made by learned counsel for the parties have been considered. 13. Short point for consideration is whether petitioner's request for change in the date of birth recorded in the service book on the eve of his superannuation is justified or not. 14. From the documents placed on record, it is evident that petitioner had appeared in the HSLC examination conducted by SEBA in the year 1973. As per the matriculation certificate issued by SEBA, his age was 17 years 11 months as on 01.03.1973, which meant that his date of birth was 31.03.1955. 14. From the documents placed on record, it is evident that petitioner had appeared in the HSLC examination conducted by SEBA in the year 1973. As per the matriculation certificate issued by SEBA, his age was 17 years 11 months as on 01.03.1973, which meant that his date of birth was 31.03.1955. When the petitioner submitted application before the APSC in the Combined Competitive Examination, 1984, he disclosed his date of birth as 31.03.1955, which was as per the matriculation certificate of SEBA. Consequently, when he entered Government service his date of birth was recorded as 31.03.1955. Even as late as on 06.09.2014, Secretary, SEBA had informed the Personnel Department, Government of Assam that as per SEBA record, petitioner's age as on 01.03.1973 was 17 years 11 months. It appears that the Chairman, SEBA passed order dated 10.04.2015, declaring that age of the petitioner as on 01.03.1973 was 15 years 11 months and 25 days, instead of 17 years 11 months as certified earlier. Accordingly, he directed correction of entry in the SEBA record of the petitioner. Consequently, duplicate matriculation certificate was issued in favour of the petitioner on 17.04.2015, wherein age of the petitioner as on 01.03.1973 has been declared to be 15 years 11 months 25 days. 15. From the materials on record, it is seen that petitioner had made a request for correction of date of birth sometime in April 2014, which was rejected on 23.04.2014. SR-8(C) makes it abundantly clear that request for correction in the date of birth of a Government servant should not be entertained within 3 (three) years of superannuation. Though this may not be an inflexible rule without any relaxation, the facts of the case as noticed above do not justify intervention by the Court, that too at this belated stage. Law on this point is well settled that the Court should be careful while considering the prayer for correction of date of birth, more so when such prayer is made on the eve of superannuation. Petitioner's age as per initial matriculation certificate clearly showed that he was 17 years 11 months on 01.03.1973. For long 40 years, petitioner did not take any steps to get the matriculation certificate corrected, if it indeed required correction. Petitioner is not an illiterate or lowly ranked Government employee. Petitioner's age as per initial matriculation certificate clearly showed that he was 17 years 11 months on 01.03.1973. For long 40 years, petitioner did not take any steps to get the matriculation certificate corrected, if it indeed required correction. Petitioner is not an illiterate or lowly ranked Government employee. He is an officer belonging to ACS and held responsible offices, such as, Additional Deputy Commissioner and Joint Secretary. It is also not a case that a request was made before the Personnel Department for correction of date of birth much before 3 (three) years of superannuation. In fact, entry made in the record of the Personnel Department was based on the matriculation certificate of the petitioner. Matriculation record of the petitioner was corrected on orders of the Chairman on 10.04.2015, 42 years after the petitioner had passed the matriculation examination. As noticed above, petitioner's date of superannuation as per the official record was 30.04.2015. Therefore, on the basis of such altered record of SEBA, Personnel Department could not have changed the service record of the petitioner. As a matter of fact, even as on date, service record has not been changed, as per which, petitioner's date of superannuation was 30.04.2015. No change in the date of birth in the service record of the petitioner is possible or permissible at this belated stage. 16. That being the position, this Court finds no good ground to accede to the prayer made by the petitioner. However, since the petitioner had continued service beyond 30.04.2015, as per interim order of this Court dated 27.04.2015, it would neither be fair nor just to deny him salary for this period, which he has received. Therefore, respondents may not initiate steps for recovery of the said salary released to the petitioner beyond 30.04.2015. 17. Subject to the above, writ petition is dismissed. No costs.