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2015 DIGILAW 937 (GAU)

Kamal Chandra Bora v. State of Assam

2015-07-30

UJJAL BHUYAN

body2015
JUDGMENT Ujjal Bhuyan, J. 1. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of letter dated 11.01.2012, issued by the Divisional Forest Officer, Nagaon Division, informing the petitioner that he would attain the age of superannuation on 31.01.2012, on which date, he would be relieved from the service of the Forest Department, Government of Assam. Case of the petitioner is that he passed HSLC examination (Matriculation) in the year 1969 and as per his matriculation certificate dated 21.06.1969, he was aged about 15 years 1 month as on 01.03.1969. On the basis of petitioner's matriculation certificate, his date of birth is 01.02.1954. Petitioner joined service in the Forest Department, Government of Assam, as a Range Assistant (Lower Division Assistant) on 06.11.1971. In the service roll of the petitioner, his date of birth was entered as 01.02.1952. According to the petitioner, he came to know about the said erroneous entry regarding his date of birth only in the year 2001 while he was preparing relevant papers seeking loan against his provident fund dues. It is stated that immediately after coming to know about the aforesaid distortion in the recording of his date of birth, petitioner submitted application for correct recording of his date of birth as 01.02.1954, instead of 01.02.1952. Divisional Forest Officer, Hamren Division, where the petitioner was then posted, forwarded his representation to the Principal Chief Conservator of Forests, Assam on 19.11.2001. 2. In the course of his service, petitioner came to occupy the office of Head Assistant in the Nagaon Forest Division. In the meanwhile, there was exchange of communications at various levels between the authorities of Forest Department regarding request made by the petitioner for correct recording of his date of birth in his service book. In this connection, it appears that the office of the Principal Chief Conservator of Forests had written to the Secretary, Board of Secondary Education, Assam (SEBA), requesting the latter to authenticate the matriculation certificate furnished by the petitioner. It is stated that SEBA had replied back to the Principal Chief Conservator of Forests, on 15.02.2006 stating that while the matriculation certificate was verified and found to be genuine but the correct age of the petitioner should have been 17 years 1 month as per record. However, by a subsequent letter dated 16.10.2006,. It is stated that SEBA had replied back to the Principal Chief Conservator of Forests, on 15.02.2006 stating that while the matriculation certificate was verified and found to be genuine but the correct age of the petitioner should have been 17 years 1 month as per record. However, by a subsequent letter dated 16.10.2006,. SEBA informed the office of the Principal Chief Conservator of Forests, Assam, that matriculation certificate of the petitioner was genuine and the age of the petitioner was 15 years 1 month as per record. 3. Thereafter, Principal Chief Conservator of Forests, Assam, vide letter dated 31.07.2006, informed the Conservator of Forests, Northern Assam Circle that age of the petitioner as on 01.03.1969 as informed by SEBA was 17 years 1 month, which is to be treated as correct. Conservator of Forests was informed that petitioner may be prosecuted for submitting false certificate. 4. While the matter rested at that, impugned letter dated 11.01.2012 was issued informing the petitioner about his superannuation on 31.1.2012. This letter was issued by treating the petitioner's date of birth as 01.02.1952. 5. Aggrieved, petitioner has approached this Court by filing the present petition. 6. This Court by order dated 30.01.2012, issued notice and observed that retirement date of the petitioner would be subject to the final result of the case. 7. Respondent No. 7 (SEBA) has filed affidavit. Stand taken in the affidavit is that petitioner had appeared in the HSLC examination conducted by SEBA in the year 1969 from Jaluguti High School under Morigaon Centre. As per record in the office of SEBA, age of the petitioner was 17 years 1 month as on 01.03.1969. However, it is admitted that matriculation certificate annexed to the petition by the petitioner appears to be genuine, so also the letter dated 15.02.2006 of SEBA, but the age of the petitioner was wrongly recorded in the matriculation certificate as 15 years 1 month, whereas, as per record it should have been 17 years 1 month But, respondent No. 7 has denied issuance of any letter dated 16.10.2006 from the office of SEBA as claimed by the petitioner and it is contended that the said letter is a fake one. 8. Respondent Nos. 2 to 6 have filed a common affidavit. It is stated that at the time of appointment of the petitioner in the year 1971, his date of birth was recorded as 01.02.1952. 8. Respondent Nos. 2 to 6 have filed a common affidavit. It is stated that at the time of appointment of the petitioner in the year 1971, his date of birth was recorded as 01.02.1952. His service roll was attested by the petitioner himself by putting his thumb impression. Matriculation certificate produced by the petitioner was sent to the office of the SEBA and SEBA has clarified that as per record, the date of birth of the petitioner should be 01.02.1952 and not 01.02.1954. The department has taken serious view of such action of the petitioner seeking to make unlawful gain by trying to alter his date of birth. 9. Against both the 2 (two) affidavits, petitioner has filed separate rejoinder affidavits. In response to the counter affidavit of respondent No. 7 (SEBA) petitioner has reiterated his reliance on the matriculation certificate and asserts that on the basis of the said certificate, petitioner's date of birth is 01.02.1954. It is also stated that SEBA has not disputed the authenticity of the matriculation certificate. Moreover, contention of SEBA that as per the school record of Jaluguti High School, petitioner was 17 years 1 month as on 01.03.1969, cannot be accepted. In his reply to the affidavit filed by respondent Nos. 2 to 6, petitioner has stated that he is placing reliance only on the matriculation certificate issued by SEBA, which clearly shows that his date of birth is 01.02.1954. If his date of birth is taken as 01.02.1954, petitioner would retire from service on 31.01.2014. But, he was forcefully and unlawfully superannuated on 31.02.2012. Therefore, he is entitled to the benefits of further service on the strength of his correct date of birth. 10. Heard Mr. K.K. Mahanta, learned Senior Counsel for the petitioner, Mr. R K Bora, learned Government Advocate, Assam, who has also produced the record and Mr. T C Chutia, learned Standing Counsel, Board of Secondary Education (SEBA). 11. Mr. Mahanta submits that matriculation certificate is a valid document to ascertain the date of birth of a Government servant. As per the matriculation certificate, petitioner was 15 years 1 month as on 01.03.1969, which makes out his date of birth as 01.02.1954. This fact was not brought to the conscious notice of the petitioner though he had put his thumb impression on his service book, where his date of birth was wrongly recorded as 01.02.1952. As per the matriculation certificate, petitioner was 15 years 1 month as on 01.03.1969, which makes out his date of birth as 01.02.1954. This fact was not brought to the conscious notice of the petitioner though he had put his thumb impression on his service book, where his date of birth was wrongly recorded as 01.02.1952. When he realized the mistake he immediately took steps in the year 2001, for correct recording of his date of birth. Then, as per the date of birth accepted by the respondents petitioner had taken steps for correct recording of his date of birth prior to his superannuation well within time. Therefore, there was no legal bar on the part of the respondents in making the necessary correction. Respondents cannot go beyond the matriculation certificate and make out another date of birth of the petitioner based on school record which is not a public document and to which petitioner is not privy. As such, respondents are debarred from acting upon any other material besides the matriculation certificate to change the date of birth of the petitioner. In so far objection made by SEBA is concerned, learned Senior Counsel submits that SEBA has not disputed the authenticity and genuineness of the matriculation certificate of the petitioner dated 01.03.1969. SEBA has only contended that instead of 15 years 1 month as recorded in the matriculation certificate, petitioner's age should have been recorded as 17 years 1 month, based on school record, which is neither legally acceptable nor tenable. He, therefore submits that based on the matriculation certificate, respondents may be directed to correctly record the date of birth of the petitioner as 01.02.1954 and on that basis, to treat him as in service upto 31.01.2014 and grant all consequential benefits to the petitioner. 12. Mr. Bora, learned State Counsel appearing for the Forest Department, referring to the rejoinder affidavit filed by the petitioner to the counter affidavit of respondent Nos. 2 to 6, submits that in 3 (three) separate communications issued from the office of the Principal Chief Conservator of Forests, Assam, to the office of the Accountant General, date of birth of the petitioner was clearly mentioned as 01.02.1954 and the date of superannuation as on 31.01.2014. 2 to 6, submits that in 3 (three) separate communications issued from the office of the Principal Chief Conservator of Forests, Assam, to the office of the Accountant General, date of birth of the petitioner was clearly mentioned as 01.02.1954 and the date of superannuation as on 31.01.2014. He wondered as to how this could have happened when as per service book, petitioner's date of birth is 01.02.1952 and on that basis, his superannuation date was 31.01.2012. Mr. Bora submits that petitioner had entered Government service on 22.11.1971. If the date of birth as projected by the petitioner is accepted, petitioner would have been less than 18 years on the date of appointment, which would have made him ineligible for Government employment, which coupled with the clarification given by the SEBA authorities that as per record available with SEBA petitioner was 17 years 1 month as on 01.03.1969, it leads to the inescapable conclusion that the exact date of birth of the petitioner is 01.02.1952 and on that basis he was rightly superannuated on 31.01.2012. Referring to the record produced by him, he submits that though there are no materials to nail the petitioner, yet his conduct was found to be suspicious by the authorities of the Forest Department and perhaps that could be a reason why in the matriculation certificate his age was recorded as 15 years 1 month as on 01.03.1969 so also in the 3 (three) communications from the office of the Principal Chief Conservator of Forests. Contention of Mr. Mahanta that even after 01.02.2012, service of the petitioner has been utilized in the office of the Divisional Forest Officer, Nagaon, has been denied and disputed. He submits that challenge made by the petitioner is highly controversial and therefore, this Court may not enter into such controversial and disputed questions of fact. He further submits that the SEBA is the main authority to declare the age of the petitioner and as per SEB A's declaration petitioner was 17 years 1 month as on 01.03.1969, which makes his date of birth as 01.02.1952. Therefore, the authority rightly superannuated the petitioner on 31.01.2012. Contending that there is no merit in the writ petition, he seeks dismissal of the same. 13. Mr. Therefore, the authority rightly superannuated the petitioner on 31.01.2012. Contending that there is no merit in the writ petition, he seeks dismissal of the same. 13. Mr. T C Chutia, learned Standing Counsel, SEBA, in his short submission has stated that while the matriculation certificate produced and relied upon by the petitioner appears to be genuine, the fact remains that as per record available with SEBA petitioner was 17 years 1 month as on 01.03.1969. This makes his date of birth 01.02.1952. He has also disputed the genuineness of the second letter dated 16.10.2006 allegedly issued from the office of the SEBA, which has been relied upon by the petitioner and submits that only the petitioner can explain the motive and existence of this letter. He submits that when the author has denied the existence of this letter, the same should not be taken into consideration. SEBA has placed the facts before the Administrative Department and it is for the Administrative Department to take a decision in the matter and beyond this, SEBA has no other role to play in the matter. 14. Submissions made by learned counsel for the parties have received the due consideration of the Court. The record produced has also been perused. 15. Question for consideration is whether the respondents were justified in recording the date of birth of the petitioner as 01.02.1952 and on that basis, superannuating him from service on 31.01.2012? 16. To answer this question it would be apposite to first refer to the provisions of SR-8 (C) of the Fundamental Rules and Subsidiary Rules. SR-8(C) provides that Commissioner and Heads of Departments may alter the recorded date of birth in the case of non-gazetted Government servants provided they are satisfied after enquiry that the previous date was incorrect. As per the note below SR-8(C), the Head of the Office is required to record the date of birth in the service book of a non-gazetted Government servant on his initial appointment with reference to the matriculation certificate or equivalent certificate and shall also record a remark to this effect in the service book. In the absence of matriculation certificate, reference can be made to other documents. However, a note of caution is sounded by saying that no alteration in the date of birth of a Government servant should be allowed except in very rare cases where a manifest mistake has been made. In the absence of matriculation certificate, reference can be made to other documents. However, a note of caution is sounded by saying that no alteration in the date of birth of a Government servant should be allowed except in very rare cases where a manifest mistake has been made. Such mistake should be rectified at the earliest opportunity. In no case, request for change of date of birth of a Government servant made on a date within 3 (three) of the date of his actual superannuation should be entertained. However, it has been clarified that when a request is made for effecting change in the date of birth, which is not time-barred, such request should be supported by satisfactory documentary evidence, such as, matriculation certificate. 17. Law relating to correction of date of birth of a Government servant has by now been settled by a catena of decisions of the Apex Court. While it is not necessary to reproduce the long line of judgments of the Apex Court, suffice it to say that the Apex Court has cautioned about entertaining such pleas at the fag end of the service career of a Government servant This position has been succinctly explained by the Apex Court in the case of Home Department v. R Kirubakaran 1994 Suppl. (1) SCC 155. Apex Court has clarified that the Courts or Tribunals should be slow in granting interim relief for continuation in service unless prima facie evidence of unimpeachable character is produced. Therefore, prayers made for correction of date of birth on the eve of retirement should ordinarily not be entertained. 18. There is no dispute and there can be no dispute to the aforesaid proposition of law laid down by the Apex Court. However, as has been explained by the Apex Court in a recent decision in Bharat Coking Coal Limited v. Chhota Birsa Uranw; reported in 2014 (12) SCC 570 , a wronged employee should not be denied his rights especially when he has adhered to the procedure laid down and had attempted to avoid litigation by resorting to in-house mechanism. In that case, the employee had first raised the dispute almost 2 (two) decades prior to his superannuation when he first came to know about the discrepancy. In that case, the employee had first raised the dispute almost 2 (two) decades prior to his superannuation when he first came to know about the discrepancy. In the circumstances of that case direction given by the High Court for correction of the date of birth of the employee was not interfered with by the Apex Court. 19. In 2012 (1) SCC 674 , High Court of Andhra Pradesh v. N Sanyasi Rao, the Apex Court noticed and highlighted the subtle yet fine distinction between seeking alteration in the date of birth and seeking recording of correct date of birth in the relevant service record. 20. Having noticed the legal position as above, the facts of the present case may now be adverted to. 21. Genuineness of the matriculation certificate dated 21.06.1969, which has been relied upon by the petitioner, has neither been denied nor disputed by the respondents. As per the said matriculation certificate, petitioner was 15 years 1 month as on 01.03.1969 and on that basis, his date of birth is 01.02.1954. That matriculation certificate is not a recent one. It was issued on 21.06.1969. It has neither been cancelled nor has it been disowned by the SEBA. However, SEBA has taken the stand that as per record available with it which it had obtained from the Jaluguti High School where the petitioner had studied, petitioner was 17 years 1 month as on 01.03.1969. Therefore, petitioner's date of birth would be 01.02.1952. I am afraid such a stand cannot be accepted. These are materials which are not reflected in the matriculation certificate. As already noticed above, SEBA has not corrected the matriculation certificate issued to the petitioner by altering the age of the petitioner from 15 years 1 month to 17 years 1 month as on 01.03.1969. Without commenting on the correctness or otherwise of the materials which the SEBA claims to be in its possession, the fact remains that these materials are not reflected in the matriculation certificate issued to the petitioner way back on 21.06.1969. Moreover, petitioner has also not been furnished with any such material nor given any opportunity to controvert the same. Further, it is an accepted proposition that when matriculation certificate is available, date of birth of a Government servant should be recorded in the service record on the basis of the date as recorded in the matriculation certificate. Moreover, petitioner has also not been furnished with any such material nor given any opportunity to controvert the same. Further, it is an accepted proposition that when matriculation certificate is available, date of birth of a Government servant should be recorded in the service record on the basis of the date as recorded in the matriculation certificate. Matriculation certificate is the most reliable and authentic document to determine the age of a Government servant Even as per SR-8 (c), the date of birth of the Government servant has to be recorded with reference to the matriculation certificate. When the genuineness and authenticity of the matriculation certificate has not been doubted or disputed by the issuing authority, i.e. SEBA, the same has to be accepted and relied upon. 22. Moreover, petitioner did not raise the issue of correct recording of his date of birth on the eve of his superannuation. That dispute was raised way back in the year 2001, which is supported by the materials on record. Only when the impugned letter dated 11.01.2012 was issued to the petitioner, he had to approach this Court by filing the present writ petition and as already noticed above, this Court while issuing notice had made the retirement date of the petitioner subject to the final result of the case. 23. On the basis of his matriculation certificate dated 21.06.1969, petitioner had only sought for correct recording of his date of birth much before his superannuation. As pointed out by the Apex Court in High Court of Andhra Pradesh (supra), he had not sought for alteration/correction in his date of birth. All that the petitioner had asked for is correct recording of his date of birth in his service record on the basis of his matriculation certificate, which has remained undisputed. 24. Submission of Mr. Bora that conduct of the petitioner raises suspicion, may be a perception, shared by some officials of the Department but in the absence of any tangible materials, it cannot be taken into consideration by this Court since the same is beyond the record of the case. Moreover, Mr. Bora is unable to explain how in 3 (three) different communications issued from the office of the Principal Chief Conservator of Forests, Assam, at different points of time the date of birth and the date of superannuation of the petitioner had been recorded as 01.02.1954 and 31.01.2014 respectively. Moreover, Mr. Bora is unable to explain how in 3 (three) different communications issued from the office of the Principal Chief Conservator of Forests, Assam, at different points of time the date of birth and the date of superannuation of the petitioner had been recorded as 01.02.1954 and 31.01.2014 respectively. The first communication is dated 29.08.2008, issued by the then Principal Chief Conservator of Forests, Sri S Doley, IFS; the second communication was issued by Sri VK Vishnoi, IFS, on 23.11.2010 and the last communication was issued on 27.09.2011 by Sri D Mathur, IAS, the then Additional Principal Chief Conservator of Forests. Significantly, all the 3 (three) different communications of 3 (three) different incumbents holding the office of the Principal Chief Conservator of Forests, reflect the date of birth of the petitioner as 01.02.1954 which factum is buttressed by the matriculation certificate of the petitioner, genuineness of which has not been doubted. Therefore, Court is of the clear opinion that based on the matriculation certificate and the official documents particularly the 3 (three) communications issued from the office of Principal Chief Conservator of Forests, date of birth of the petitioner is 01.02.1954 and on that basis petitioner should have continued his service till 31.01.2014. 25. Accordingly and in the light of the discussions made above, it is hereby directed that petitioner should be deemed to have continued in service till 31.01.2014 by treating his date of birth as 01.02.1954. Ordered accordingly. Petitioner would be entitled to all consequential benefits as if he was in service till 31.01.2014. Writ petition is accordingly allowed. Record produced by Mr. Borah is returned back.