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2021 DIGILAW 60 (GAU)

Nitin Goba v. State Of Arunachal Pradesh

2021-02-02

NANI TAGIA

body2021
JUDGMENT Nani Tagia, J. - Heard Mr. C. Modi, learned counsel for the petitioner and Ms. P. Sangeeta, learned Govt. Advocate representing all the respondents. 2. This writ petition has been directed against the Office Memorandum dated 27.10.2017, issued by the Assistant Inspector General of Police (E), PHQ, Headquarter, Itanagar, Arunachal Pradesh vide No.PHQ/Admn/163/2014, by which order, the petitioner's date of birth has been recorded as 30.12.1959. 3. Assailing the aforesaid impugned O.M. dated 27.10.2017, the petitioner contends that he was appointed as a Constable in the Arunachal Pradesh Police on 19.04.1979. At the time of his appointment, the petitioner had submitted a School Leaving Certificate dated 28.01.1979 from Harmati Govt. Aided High School, P.O. Harmati, North Lakhimpur, (Annexure-II to the writ petition) in support of his age, wherein the age of the petitioner was shown to be 17 years 6 months on the date of leaving the school i.e., on 30.06.1978. On the basis of the certificate submitted by the petitioner, the respondent authorities in the service book of the petitioner entered the date of birth of the petitioner as 30.12.1959, and age on enrolment as 18 years 3 months and 19 days. According to the petitioner, at the time of his appointment, the petitioner was aged 18 years 3 months and 19 days, as highlighted in the "age on enrolment" in the Service Book and accordingly, his date of birth ought to have been recorded as 30.12.1960. However, the respondent authorities instead of reckoning the date of birth of the petitioner as 30.12.1960 for the purpose of retirement from the service has incorrectly reckoned the date of birth of the petitioner as 30.12.1959 and on the basis thereof, the petitioner has been superannuated from the service on and from 30.12.2017. 4. The petitioner contends that reckoning of his date of birth from 30.12.1959 instead of 30.12.1960 have been made, on account of interpolation made with his date of birth in his Service Book maintained by the department, which the petitioner could only come to know some time in the last part of 2016 and 2017 and, thereafter, the petitioner submitted a representation dated 05.04.2017 to the Director General of Police, Govt. of Arunachal Pradesh for rectification of his retirement age. However, the respondent authorities by the impugned O.M dated 27.10.2017 have taken 30.12.1959 as the date on which the petitioner was born instead of 30.12.1960. of Arunachal Pradesh for rectification of his retirement age. However, the respondent authorities by the impugned O.M dated 27.10.2017 have taken 30.12.1959 as the date on which the petitioner was born instead of 30.12.1960. The petitioner contends that his actual date of birth is 30.12.1960 and not 30.12.1959, which has been incorrectly recorded by the respondent authorities by interpolating the Service Book of the petitioner, for which, the petitioner prays for an appropriate direction to be issued to the respondent authorities for correction of his date of birth. 5. The State respondents have filed counter affidavit, wherein it is contended that, at the time of appointment of the writ petitioner, though, in the service book the date of birth of the petitioner was correctly recorded as 30.12.1959, there was an inadvertent error in recording the "age on enrolment" as 18 years 3 months and 19 days, which ought to have been 19 years 3 months and 19 days. Since the "age on enrolment" was incorrectly recorded in the Service Book of the petitioner as 1(one) year lesser than the date of birth of the petitioner, the date of birth of the petitioner was taken as 30.12.1959, which was the correct date of birth of the petitioner, as recorded in the School Leaving Certificate dated 28.01.1979, submitted by the petitioner from Harmati Govt. Aided High School, P.O. Harmati, North Lakhimpur. Therefore, reckoning the date of birth of the petitioner from 30.12.1959, the petitioner was allowed to go on superannuation on 30.12.2017 on attaining the age of the superannuation, which, at the relevant time was 58 years. The respondents in the counter affidavit filed, also contends that the contention of the petitioner that the petitioner came to know about his incorrect recorded date of birth in the Service Book of the petitioner sometime only in the later part of 2016 and in the year 2017 cannot be accepted, as the petitioner who was initially appointed as a Constable had two promotions in his service career; one in the post of Assistant Sub Inspector and the another as Sub Inspector. While the petitioner was serving as a Constable also, a provisional gradation list of Constables was published on 24.08.1994, wherein while showing the seniority position of the petitioner at Serial No.1141, it was indicated that his date of birth is 30.12.1959. While the petitioner was serving as a Constable also, a provisional gradation list of Constables was published on 24.08.1994, wherein while showing the seniority position of the petitioner at Serial No.1141, it was indicated that his date of birth is 30.12.1959. After the writ petitioner was promoted as Assistant Sub Inspector, the provisional seniority list of the Assistant Sub Inspector was also published on 19.04.2002 asking the concerned officers to submit claim and objection, if any, in respect of the seniority position assigned to the officers including the writ petitioner, wherein the petitioner's name was shown at Serial No.178 of the provisional seniority list indicating his date of birth again to be on 30.12.1959. 6. Accordingly, the State respondents in the counter affidavit filed contends that, on both the occasions; in the year 1994, when the provisional seniority list of the Constable was published as well as in the year 2002, when the provisional seniority list of Assistant Sub Inspector was published indicating the date of birth of the petitioner as 30.12.1959, the petitioner never objected to his date of birth being recorded as 30.12.1959. 7. Mr. C. Modi, learned counsel for the petitioner contends that since the petitioner's date of birth has been incorrectly recorded as 30.12.1959 instead of 30.12.1960 by interpolating the record of the Service Book, the petitioner's date of birth is liable to be corrected as 30.12.1960 and the petitioner thereafter, is liable to be superannuated only on 30.12.2018. 8. Ms. Sangeeta, learned Govt. Advocate for the State respondents, on the other hand, submitted that the petitioner have all along in his service career accepted 30.12.1959 as his date of birth and had never objected to his date of birth being recorded as 30.12.1959, the petitioner in his fag end of service career cannot be permitted to make any grievance with regard to the incorrect recording of his date of birth. Ms. Ms. Sangeeta further contends that the seniority list of the Constable as well as the Assistant Sub Inspector of Police was published on 24.08.1994 and 19.04.2002, respectively, indicating in each of the seniority lists the petitioner's date of birth as 30.12.1959, the petitioner was aware of his date of birth recorded in the Service Book as 30.12.1959 from the year 1994, but had never objected to his date of birth being recorded as 30.12.1959, and therefore, the petitioner cannot be permitted to raise any objection at this point of time in respect of his date of birth, recorded in the Service Book. 9. Rival submissions advanced at the Bar have received due consideration of this Court. 10. From the rival pleadings and the contentions of the contesting parties, it is noticed that the petitioner was appointed as a Constable in the Arunachal Pradesh Police on 19.04.1979. On his appointment as a Constable in the Arunachal Pradesh Police, on the basis of the School Leaving Certificate submitted by the petitioner, the date of birth of the petitioner was recorded as 30.12.1959 and the "age on enrolment" as 18 years, 3 months and 19 days. Therefore, there was a discrepancy in the date of birth recorded as well as "age on enrolment" recorded in the Service Book. On perusal of the Service Book of the petitioner (annexed as Annexure-III to the writ petition) as well as the Verification Report (annexed as Annexure-A1 to the counter affidavit filed by the respondents No.1 to 5), it is noticed that though, the date of birth of the petitioner is recorded as 30.12.1959, there is an interpolation/overwriting in both the documents. Nevertheless, the age recorded in both the documents, referred to hereinabove is 30.12.1959. The respondent authorities therefore, have always taken 30.12.1959, as the date of birth of the petitioner. The respondent authorities had also published a seniority list dated 24.08.1994 of the Constables in the Arunachal Pradesh Police, wherein also, the date of birth of the petitioner was indicated as 30.12.1959. On further promotion of the petitioner from Constable to Assistant Sub Inspector, another provisional seniority list of the Assistant Sub Inspector of Police was published on 19.04.2002 (annexed as Annexure-A3 to the counter affidavit filed by the respondents No.1 to 5) indicating the date of birth of the petitioner as 30.12.1959. On further promotion of the petitioner from Constable to Assistant Sub Inspector, another provisional seniority list of the Assistant Sub Inspector of Police was published on 19.04.2002 (annexed as Annexure-A3 to the counter affidavit filed by the respondents No.1 to 5) indicating the date of birth of the petitioner as 30.12.1959. The petitioner, however, did not raise any objection to his date of birth being recorded as 30.12.1959 until he made a representation dated 05.04.2017 to the Director General of Police, Itanagar. Though, the petitioner by filing an affidavit-in-reply contends that he was unaware of his date of birth being recorded as 30.12.1959 until it came to his knowledge sometime in the last part of the year 2016, this contention of the petitioner is unacceptable for the reason that the seniority list is always finalized after a provisional gradation list is circulated to the employees inviting claims and objections in respect of the position assigned to the employees in the gradation list. In the instant case also, on two occasions; in the year 1994 (Constable gradation list) and in the year 2002 (Assistant Sub Inspector of Police gradation list) were finalized after being circulated or notified inviting claims and objections from each of the employees in respect of the position they are placed in the gradation list, wherein the date of birth of each of the employees was also indicated and in the case of the petitioner, the date of birth was clearly mentioned as 30.12.1959. Accordingly, it must be held that the petitioner had the knowledge with regard to his date of birth being recorded as 30.12.1959 all throughout his service career; or at least on and from 1994, which is the year the gradation list of the Constables was notified indicating the date of birth of the petitioner as 30.12.2019. 11. Be that as it may, having noticed that there is an overwriting/interpolation in the date of birth of the petitioner in his Service Book (annexed as Annexure-III to the writ petition) as well as in the Verification Roll (annexed as Annexure-A1 to the counter affidavit filed by the respondents No. 1 to 5), the question to be answered is, should this Court make any direction to reopen the correctness of the date of birth of the petitioner recorded as 30.12.1959 in the Service Book. 12. 12. The law with regard to the correction of date of birth is well settled. If a particular date of birth is entered in the Service Register, a change sought cannot be entertained at the fag end of service after accepting the same to be correct during the entire service. The reason for not permitting the date of birth recorded in the Service Book to be corrected at the fag end of service career has been explained by the Hon'ble Supreme Court in a decision rendered in the Secretary and Commissioner, Home Department Vs. R. Kirubakaran,1994 Suppl 1 SCC 155, the paragraph No.7 which is of relevance, has been reproduced hereinbelow: "...7. An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the Court or the Tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. Before any such direction is issued, the court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, than such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus in on the applicant, to prove the wrong recording of his date of birth, in his service book .." 13. In the instant case, though the petitioner was aware of his date of birth being recorded as 30.12.1959 on and from the year 1994 have never raised any objection to his date of birth being recorded, as above, for the past more than two decades. The delay of over two decades for correction of the date of birth is ex-facie fatal to the case of the petitioner, for the reason as explained by the Hon'ble Supreme Court in the case of Home Department (Supra) that, if such a request is entertained at the fag end of the service career of an employee, the same has the potential of having a chain reaction amongst the rest of the employees as some of the employees may suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the concerned employee continues in office, in some cases for years, within which time many employees who are below him in seniority waiting for their promotion, may lose their promotion for ever etc. 14. For the reasons discussed hereinabove, since the petitioner had submitted his representation for correction of his date of birth barely about 7 months before his date of retirement, I am not inclined to interfere with the impugned O.M. dated 27.10.2017, issued by the Assistant Inspector General of Police (E), PHQ, Headquarter, Itanagar, Arunachal Pradesh vide No.PHQ/Admn/163/2014 and further direct in any manner to the respondents to correct the date of birth of the petitioner at this stage, who had already retired from the service on 30.1.2017. 15. 15. Resultantly, the writ petition being devoid of merit stands dismissed.