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2019 DIGILAW 113 (ORI)

Paremeswar Jena v. State of Odisha

2019-02-08

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT : J.P. Das, J. This intra-court appeal is directed against the order dated 30.01.2014 passed by the learned single Judge in W.P.(C) No.3291 of 2013 rejecting the same which was filed by the present appellant to correct his date of birth in his Service Roll. 2. The appellant was working as Khalasi under Work Charged Division of Rengali Dam Project. In service roll, his date of birth was originally entered as 01.04.1960. Subsequently, the said entry was corrected and mentioned as 01.04.1950 with the seal and signature of the appointing authority. The signature of the appellant also appeared on the page. Consequently, the appellant was retired from the service on 31.03.2010 on attaining the age of superannuation of sixty years. Therefore, he made a representation before the appointing authority that his actual date of birth was 01.08.1954 and the date mentioned as 01.04.1950 was made behind his back and without his knowledge since because as per School Leaving Certificate his date of birth was 01.08.1954. Since his representation did not yield any result, he approached this Court in W.P.(C) No.3291 of 2013 assailing the said act of the appointing authority in entering the wrong date of birth in his service roll and consequential early retirement. 3. The writ petition has been dismissed by the learned Single Judge with the observation that the page of the Service Roll wherein the date of birth of the appellant-petitioner was corrected from 1960 to 1950, also carried signature of the appellant-petitioner, and further as per the settled position of law as reported in the case of State of Gujarat & Ors v Vali Mohmed Dosabhai Sindhi, (2006) AIR SC 2735 the date of birth entered in the service record cannot be corrected at a belated stage. It has also been observed by the learned Single Judge that although the appellant-petitioner claimed his date of birth to be 01.08.1954 as per his School Leaving Certificate, still he did not raise any objection earlier rather continued in service and made a representation before the concerned authority only after his retirement. 4. It has also been observed by the learned Single Judge that although the appellant-petitioner claimed his date of birth to be 01.08.1954 as per his School Leaving Certificate, still he did not raise any objection earlier rather continued in service and made a representation before the concerned authority only after his retirement. 4. It was contended by the learned counsel for the appellant that the learned Single Judge has failed to appreciate the fact that the actual date of birth of the petitioner was in the year 1954 and the correction in the Service Roll by changing the year from 1960 to 1950 was done by the concerned authority without his knowledge and without any basis. 5. Submitting impugned order to be erroneous, it was further contended that the appellant-petitioner was not at fault in making his prayer for correction of the date of birth since he could only come to know that after his retirement and when his prayer was not considered by the concerned authority, he approached this Court. 6. Per contra, it was submitted on behalf of the respondents that the appellant joined in his service on 10.01.1974 where after his Service Roll was opened and the date of birth was entered as 01.04.1960. Finding that basing on such date, the petitioner was only 13-year-9 month-old by the time of his appointment, the matter was enquired into and on the basis of the date of birth supplied by the appellant, it was corrected to be 01.04.1950. It has also been submitted that even after correction of the said date, the appellant had five years to approach the authority for further correction, but he remained silent and availed all service benefits basing on his date of birth as 01.04.1950 till his retirement. It has also been submitted that the appellant after his retirement claimed his date of birth to be 01.08.1954 on the basis of a photo copy of School Leaving Certificate even without producing the original one. It was further submitted that before one month prior to his retirement on 31.03.2010, the appellant was noticed but did not supply relevant information for preparation of his pension papers and the appellant also did not raise any objection at that point of time before the concerned authority and only more than one year thereafter, he made a representation before the Engineer-in-Chief, Respondent No.1 to correct his date of birth. It has also been submitted in counter affidavit filed on behalf of the respondent that after appointment of the appellant along with others as Work Charged Employees and after their engagement, a common seniority list was prepared and the same was notified on 07.12.1992 giving their respective dates of birth. Even at that time also the appellant had neither raised any objection nor had produced any School Leaving Certificate seeking for correction. It has been submitted that as per the government circular, correction of date of birth is permissible within five years of the entry in the Service Roll. 7. In the case of Executive Engineer, Bhadrak (R & B) Division, Orissa and Ors. v Rangadhar Mallik, (1993) Supp1 SCC 763, Rule 65 of the Orissa General Finance Rules, was examined which provides that representation made for correction of date of birth near about the time of superannuation shall not be entertained. In the said case the Hon'ble Apex Court took note of the delay in representation made by the employee concerned. Similarly, in the cases of State of Tamil Nadu v. T.V. Venugopalan, (1994) 6 SCC 302 and State of Orissa and Ors. v Ramanath Patnaik, (1997) 5 SCC 181 the Hon'ble Apex Court observed that when the entry was made in the service record and when the employee was in service, he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. All these observations of the Hon'ble Apex Court were taken note of and considered in the case of State of Gujarat & Ors. v Vali Mohmed Dosabhai Sindhi (supra) as has been relied upon by the learned Single Judge. 8. In the instant case, the Service Book contained the signature of the appellant where his date of birth was corrected from 01.04.1960 to 01.04.1950. The appellant did not make any representation or effort to further correct such entry during his service tenure. Only after his retirement he made the representation. On the touch stone of the observations of the Hon'ble Apex Court settling the position in this respect, as quoted hereinbefore, we find absolutely no merit in the present appeal so as to interfere with the findings as has been reached by the learned Single Judge. Accordingly, the writ appeal stands dismissed for being devoid of any merit.