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2018 DIGILAW 1072 (GAU)

Madhab Chandra Kalita v. State of Assam

2018-07-20

NELSON SAILO

body2018
JUDGMENT : Nelson Sailo, J. Heard Mr. M. Bhagabati, learned counsel for the writ petitioner and Mr. M.R. Adhikary learned State Counsel appearing for all the respondents. 2. The controversy in the present writ petition is as to whether the date of birth of the petitioner is 31.03.1961 as claimed by him or whether it is 30.06.1958 as maintained by the respondents. 3. Brief facts of the case is that the petitioner was temporarily appointed as Jarikarak in the Nazarat Branch of the Office of the Deputy Commissioner, Kamrup, Guwahati vide order dated 29.02.1980, for a period of about nine months. Thereafter, he was temporarily appointed as peon under the same establishment vide order dated 13.08.1984. The petitioner was regularised in the said post w.e.f. 23.04.1986 vide order dated 07.05.1987. While in service, the petitioner appeared for the High School Leaving Certificate Examination in the year 1989, and was successful in the examination. In the High School Leaving Certificate Examination and admit card issued to him, his date of birth was recorded as 31.03.1961. 4. The petitioner was promoted to the Grade-III post of Lower Division Assistant vide order dated 06.07.1996. In the gradation list of Grade-III employees under the amalgamated establishment of the Deputy Commissioner, Kamrup prepared as on 01.06.2007, the name of the petitioner appeared at serial no. 103 and his date of birth was shown as on 31.03.1961. However, the petitioner on coming to learn that his date of birth in his service book was entered as 30.06.1958 instead of 31.03.1961, submitted representation to the Sub-Divisional Officer (No. 2) Rangia, Rangia Sub-Division on 28.02.2017, requesting the correction of his date of birth in his service book as per the date of birth recorded in his HSLC certificate and admit card. However, vide order dated 24.08.2017, the respondent no. 2 rejected the prayer of the petitioner. 5. The petitioner thereafter, submitted another representation before the respondent no. 2 on 20.10.2017 for correction of his date of birth. However, the same was again rejected by the respondent no. 2 after making an enquiry vide order dated 05.04.2018. Being aggrieved the petitioner is before this Court. 6. Mr. M. Bhagabati, the learned counsel appearing for the petitioner submits that after the petitioner passed the HSLC Examination in the year 1989, he informed the respondent authorities about the same while submitting his HSLC certificate in support thereof. 2 after making an enquiry vide order dated 05.04.2018. Being aggrieved the petitioner is before this Court. 6. Mr. M. Bhagabati, the learned counsel appearing for the petitioner submits that after the petitioner passed the HSLC Examination in the year 1989, he informed the respondent authorities about the same while submitting his HSLC certificate in support thereof. The gradation list of Grade-III employees under the respondent no. 2 prepared as on 01.06.2007 also indicated that the petitioner was born on 31.03.1961 and therefore, the respondent authorities concerned should have made necessary correction in his service book. By referring to the application submitted by the petitioner for considering his promotion to the Grade-III post of L.D Assistant on 21.06.1996 as has been annexed to the affidavit-in-opposition of the respondent no. 2, he submits that it can be clearly seen that the respondent authorities was well aware of the fact that the petitioner passed the HSLC examination in the 1989, where his date of birth was recorded as on 31.03.1961 and therefore, necessary correction in his service book should have been made. He further submits that when the respondent no. 2 had rejected his application for correction of his date of birth, on 24.08.2017, the same authority could not have rejected his second representation on the basis of an enquiry made by the an officer who is subordinate to the respondent no. 2. Lastly, he submits that the School certificate relied upon by the respondents which was issued by the Head Master of Barigog Hajo H.E. School, Kshudradimu, Kamrup cannot be accepted as the basis for determining the date of birth of the petitioner in as much as the same is only a duplicate certificate. The learned counsel submits that on the basis of the date of birth entered in the service book of the petitioner, the petitioner has attained the age of superannuation and is now out of service since June end of 2018. He submits that as the petitioner has clearly shown that his actual date of birth is 31.03.1961, he should be allowed to continue his service after suitable correction is directed to be made in his service book. 7. Mr. M.R. Adhikary, the learned State Counsel appearing for the respondents submits that the date of birth of the petitioner as on 30.06.1958 was entered in his service book as per his own declaration. 7. Mr. M.R. Adhikary, the learned State Counsel appearing for the respondents submits that the date of birth of the petitioner as on 30.06.1958 was entered in his service book as per his own declaration. He submits that in support of his declaration, the petitioner produce the School Certificate issued by the Head Master of Barigog Hajo H.E. School, Kshudradimu, Kamrup before the authority concerned on 19.12.1990 and accordingly, 30.06.1958 was entered as his date of birth in the service book. The same was accepted by the petitioner and he duly subscribed his signature against the same. As per the gradation list prepared in the year 2007, the same was only prepared without consulting the service book of the petitioner and therefore it was only an oversight where the petitioner's date of birth was shown as on 31.03.1961. The petitioner became due for superannuation as 30.06.2018 and therefore, he was released from service on the said date. The petitioner also submitted his application for correction of his date of birth belatedly and at the fag end of his service entertaining of such belated claim is not permissible as per the standing guidelines and instruction issued by the State Government. In this connection, the learned counsel refers to the note below Rule-8 of the Subsidiary Rules and contends that an application for alteration of date of birth submitted prior to three years of retirement from service cannot be entertained. Inspite of that the respondent no. 2 examined his representation and rejected his claim for altering his date of birth after making proper enquiry and after giving the petitioner an opportunity of being heard. Therefore, the petitioner cannot have any grievances against the respondents. The learned counsel in support of his submission has also placed reliance upon the decision of this Court as follows : "(I) Upen Chandra Sarma v. State of Assam and Ors., 2004 (Supple GLT 739) (II) Samir Kr. Mitra v. ASTC and Ors., 2006 (4) GLT 779". 8. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. Mitra v. ASTC and Ors., 2006 (4) GLT 779". 8. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. It may be notice that although the petitioner has claimed that he submitted his HSLC examination certificate before the respondents authority concerned in the year 1989 itself after he passed the examination, there is nothing on record to show that the petitioner sought alteration of his date of birth in his service book prior to 28.02.2017. The representation of the petitioner dated 21.06.1996, seeking the consideration of his promotion from the post of peon to the post of L.D Assistant cannot be accepted as an application or representation for altering his date of birth in his service book. The fact remains that the date of birth of the petitioner as recorded in his service book and as accepted by him by subscribing his signature on 05.09.1990 cannot be altered at the fag end of his service. By taking his date of birth as 30.06.1958, the date of his superannuation from service was 30.06.2018 and therefore, the application for correction of his date of birth submitted by him on 28.02.2017 is only belated. The note below Rule-8 of the Subsidiary Rules clearly prescribes that no application for alteration of date of birth should be entertained three years prior to the superannuation of the employee concerned. This Court in the case of Samir Kumar Mitra (Supra) had clearly held that Subsidiary Rules clearly prohibited entertainment of belated request for change of date of birth. Similar was view taken in the case of Upen Chandra Sarma (Supra) as well. The decisions of the Hon'ble Apex Court in this regard were also referred to in the said two decisions. Therefore, it will not be necessary to reiterate the settle law laid down by the Hon'ble Apex Court in respect of belated request made by employees for altering their date of birth. Upon considering the case in its entirety, I find that the petitioner has not made out any exceptional case for changing his date of birth to 31.03.1961. 9. In the result, there being no merit in the writ petition, the same is dismissed. 10. No cost.