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2018 DIGILAW 287 (GAU)

NIRESWAR KALITA v. STATE OF ASSAM

2018-02-15

L.S.JAMIR

body2018
JUDGMENT/ORDER : 1. Heard Mr. K. Paul, learned counsel for the petitioner. Also heard Mr. N. Goswami, learned Government Advocate appearing for the State respondents as well as Ms. B. Bhuyan, learned Standing Counsel, BTC. 2. The present writ petition has been filed challenging the order dated 30-07-2016 pass by the Executive Engineer, PWD Musalpur (R & B) Division, Musalpur by which the petitioner has been released from Government service with effect from 30-07-2016. 3. Mr. K. Paul, learned counsel for the petitioner submits that the petitioner passed the High School Leaving Certificate (HSLC) Examination in the year 1978. In the said HSLC examination pass certificate, the age of the petitioner as on 01-03-1978 is recorded as 20 (twenty) years 2 (two) months and 9 (nine) days. The petitioner was thereafter, appointed as Section Assistant. The petitioner joined as Section Assistant on 10-08-1981 in the PWD (R&B) at Hamren, Diphu. The petitioner also underwent training in the year 1985 and thereafter, he was promoted as Sub-Engineer Grade-II in the year 1987 and was posted at Diphu. The petitioner was again promoted to Sub-Engineer Grade-I in the year 2014 and he joined to the said post on 25-09-2014. While entering service, the date of birth of the petitioner was recorded as 01-07-1956 in his service book. It is submitted that in terms of the age recorded in the HSLC pass certificate, his date of birth should have been recorded as 22-12-1957 and his date of retirement should have been 31-12-2017. It is also submitted that the error that was committed while recording his date of birth in his service book by the respondents was noticed only when the authority concerned asked him to prepare for going on superannuation on 31-07-2016. Therefore, the petitioner immediately brought to the notice of the respondents that he is due to retire on 31-12-2017 and not on 31-07-2016 based on the date of birth recorded in his HSLC pass certificate. 4. Learned counsel for the petitioner also submits that on coming to know of the error and on notifying the concerned authority with regard to such error, the Executive Engineer, PWD, Nalbari Rural Road Division, Nalbari had written a letter dated 17-06-2016 to the respondent No. 4 proposing for correction of date of birth which was wrongly entered in the service roll and service book of the petitioner. Thereafter, the Additional Chief Engineer (Planning) forwarded a proposal for correction of date of birth in respect of the petitioner to the Under Secretary to the Government of Assam, P.W.R Department (Audit) Branch by communication dated 27-06-2016. The respondent No.7 by another letter dated 27-07-2016 wrote to the petitioner stating that if no result is received from the Government prior to the superannuation date, the petitioner shall be released from service on that date i.e. 31-07-2016 positively. It is further submitted that the respondent No. 3 by a letter dated 28-07-2016 had written to the Secretary SEBA, Assam on the subject of verification of genuineness of HSLC pass certificate in respect of the petitioner. Thereafter, the Secretary, SEBA, Assam by letter dated 29-07-2016 had written back to the respondent No. 3 wherein, it was indicated that the date of birth and age in respect of the petitioner as on 01-03-1978 is 20 (twenty) years 2 (two) months and 9 (nine) days. The same would therefore indicate that the HSLC pass certificate which was submitted by the petitioner was a genuine certificate and the age of the petitioner as on 01-03-1978 as recorded in the HSLC pass certificate tallied with the record of the SEBA. He, therefore, contends that when the genuineness of the petitioners age as on 01-03-1978 was verified by the SEBA, it was for the State respondents to have rectified the said error inasmuch as, it was purely a miscalculation of the date of birth and nothing else. Learned counsel for the petitioner also submits that the petitioner is not praying for changing his date of birth but is only trying to rectify the error that had occurred while calculating his date of birth as recorded in the HSLC pass certificate. He submits that as the respondents had themselves initiated the process to verify the date of birth of the petitioner and a conclusion having been arrived with the reply of the SEBA, the respondents are bound to accept the outcome of such process. In that view of the matter, he submits that a direction be issued that the date of birth of the petitioner be taken as 22-12-1957 and his date of retirement be reckoned with effect from 31-12-2017. In that view of the matter, he submits that a direction be issued that the date of birth of the petitioner be taken as 22-12-1957 and his date of retirement be reckoned with effect from 31-12-2017. Learned counsel for the petitioner has placed reliance in the case of Satyen Talukdar vs. State of Assam and Ors, reported in 2014(3) GLT 464 and in the case of Bhabakantaneog vs. Assam State Electricity Board and Ors., reported in 2005 (3) GLT 257. 5. Mr. N. Goswami, learned Additional Senior Government Advocate, on the other hand, submits that under S.R 8 of F.R & S.R, a request for change in the date of birth of a Government servant can be entertained only within three years from the date of superannuation. However, as the petitioner has made his application for change of his date of birth only before two months and twenty one days of his retirement, the request of the petitioner could not be entertained by the respondents. It is submitted that after the date of birth of the petitioner was recorded as 01-07-1956 in his service roll and service book, the petitioner had appended his signature therein accepting such entry without any complaint. Therefore, the petitioner is barred to make any request for change of date of birth on the eve of his retirement. Learned Additional Senior Government Advocate places reliance in the case of State of Assam vs. Daksha Prasad Deka and Others, reported in 1970 (3) SCC 624 and in the case of Secretary and Commissioner, Home Department and Others vs. R. Kirubakaran, reported in 1994 Supp (1) SCC 155. 6. Ms. B. Bhuyan, learned Standing Counsel, BTC endorses the submissions made by the learned Government Advocate, Assam 7. I have considered the submissions forwarded by the learned counsel for the parties. 8. There is no dispute that the age of the petitioner has been recorded as 20 (twenty) years 2 (two) months and 9 (nine) days in the HSLC pass certificate. From a perusal of the materials available on records, it is seen that when the petitioner was informed by the respondents asking him to prepare for superannuation with effect from 31-07-2016, the petitioner had made an application dated 10-05-2016 praying for rectification of his date of birth. From a perusal of the materials available on records, it is seen that when the petitioner was informed by the respondents asking him to prepare for superannuation with effect from 31-07-2016, the petitioner had made an application dated 10-05-2016 praying for rectification of his date of birth. The respondents had thereafter, initiated a process while the petitioner was still in service to verify the HSLC pass certificate in respect of the petitioner. The Secretary, SEBA, Assam thereafter, had submitted the report on 29-07-2016 to the respondent No.3 stating that the age of the petitioner as on 01-03-1978 is 20 (twenty) years 2 (two) months and 9 (nine) days. The said report was made by the SEBA, Assam to the respondents while the petitioner was still in service. It was therefore, duty bound for the respondents to have accepted the outcome of such process initiated by them. 9. This Court has also considered the submissions of the learned Additional Senior Government Advocate that any change of date of birth can be accepted only if the application is made within three years by the Government servant prior to his retirement in terms of S.R. 8 of F.R & S.R. In the considered opinion of this Court, the present case relates to miscalculation of date of birth of the petitioner inasmuch as, in terms of the entry of the age of the petitioner in the HSLC pass certificate, his date of birth should have been 22-12-1957 and not 01-07-1956. Therefore, this Court is of the considered opinion that it is a case of miscalculation which was wrongly done by the respondents while entering the date of birth of the petitioner and therefore, it cannot be construed that the petitioner is claiming for a different date of birth. The petitioner is only claiming recalculation of his date of birth in terms of the entry made in his HSLC pass certificate. In that view of the matter, the reliance made by the learned Additional Senior Government Advocate is not applicable to the present case in hand. Therefore, it is not change of his date of birth but to compute his correct date of birth on the basis of his HSLC pass certificate which was submitted by the petitioner to the respondents at the time of joining the service. Therefore, it is not change of his date of birth but to compute his correct date of birth on the basis of his HSLC pass certificate which was submitted by the petitioner to the respondents at the time of joining the service. The entry with regard to the age of the petitioner as recorded in his HSLC pass certificate has also been certified to be correct by the SEBA. 10. In view of the discussion made hereinabove, this writ petition succeeds and accordingly, the impugned letter dated 30-07-2016 releasing the petitioner from Government service with effect from 30-07-2016 is set aside and quashed. The date of birth of the petitioner shall be deemed to be 22-12-1957 and his date of retirement from Government service shall be deemed to be 31-07-2017. Consequently, the petitioner shall be entitled to continue in his service taking his date of birth as 22-12-1957 till his date of retirement on 31-07-2017. The arrear pay and allowances for the said period shall be paid to the petitioner within 6 (six) months from today. 11. Writ petition is accordingly allowed. 12. No costs.