High Court · 2012

Heard Mr. S. Chakraborty, learned counsel for the petitioner. Al so heard Mr. S. Borah, learned Standing Counsel, Guwahati Municipal Corporation (GMC), appearing for respondent Nos. 1, 2 & 3 and Ms. H. M. Phukan, learned Gove rnment Advocate appearing for respondent No. 4.

2. Facts of the case may be briefly noted.

3. Petitioner is serving as regular Mazdoor in GMC. He was appointed as such in the year 1980. At the time of entry into service, his date of birth was wrongly recorded by the GMC in his service book as 06.01.1953. According to the petitioner, his date of birth is 01.07.1962. Being an illiterate person and he being a Mazdoor, he was not aware of the wrong recording of his date of birth . It was only in the year 2009, he came to know that his date of birth was wrong ly recorded as 06.01.1953.

4. Petitioner submitted a representation before the Chairman, GMC. The aut horities of GMC decided to refer the petitioner to the State Standing Medical Bo ard for medical examination to ascertain his age. In this connection, a letter d ated 30.06.2009 was issued by the Commissioner, GMC to the Chairman, State Stand ing Medical Board for medical examination of the petitioner.

5. Petitioner appeared before the Medical Board on 03.08.2009. On examinat ion, the Medical Board opined that the age of the petitioner would be above 45 y ears but below 50 years. Despite report of the Medical Board, GMC authorities de clined to rectify the date of birth of the petitioner, which was recorded in the service book. By letter dated 15.02.2010 issued by the Municipal Secretary, GMC , petitioner was informed that his application for correction of date of birth s ubmitted after more than 25 years of his service in GMC cannot be considered.

6. Aggrieved, petitioner has filed the present writ petition seeking a dire ction to the respondents to correct his date of birth recorded in his service bo ok in terms of findings of the State Standing Medical Board and to allow him to continue his service on the basis of his corrected age.

7. Respondent Nos. 1, 2 & 3 have filed a common affidavit-in-opposition. T he stand taken in the said affidavit is that petitioner was appointed as regular Mazdoor in GMC on 01.08.1980. Service book of the petitioner was opened on 08.0 7.1983. As per the service book, petitioner’s permanent address has been recorde d as village-Agroyarama, PO-Wadadi, PS-Marghulu, Dist-Ishagapatanam, Andhra Prad esh. At the time of opening of the service book, which was duly endorsed by the petitioner, date of birth of the petitioner was recorded as 06.01.1953. Petition er never complained about wrong recording of his date of birth for 29 years. Pet itioner has now requested for change of date of birth towards the end of his ser vice career, which cannot be accepted.

8. Mr. S. Chakraborty, learned counsel for the petitioner submits that peti tioner is a Mazdoor/Sweeper serving in GMC. He is an illiterate person and he is unaware of wrong recording of his date of birth in his service book as well as the consequences thereof. He came to know that his date of birth was wrongly rec orded as 06.01.1953 instead of 01.07.1962, only in the year 2009. Immediately, h e approached the GMC Commissioner. Since GMC authorities themselves decided to h old medical examination of the petitioner to ascertain his age, to which the pet itioner agreed, they should accept the opinion of the Medical Board, which opine d that the age of the petitioner would be above 45 years and below 50 years on t he date of medical examination. He submits that in the case of another Mazdoor, namely, Sri Vijay Shah, who had also filed a writ petition before this Court mak ing similar grievance, being WP(C) No. 2355/2011, his date of birth recorded in his service book has been corrected following findings given by the Forensic Sci ence Laboratory and State Standing Medical Board. He has also referred to an unr eported judgment of this Court dated 23.04.2002 passed in WP(C) No. 6666/2000 (S ri Samudram Vs GMC & Ors.) wherein a Single Bench of this Court had directed the GMC authorities to allow the petitioner to assume duties based on the findings given by State Standing Medical Board. He, therefore, prays for a positive inter vention by this Court.

9. Per contra, Mr. S. Borah, learned Standing Counsel, GMC submits that bel ated approach by the petitioner for correction of his date of birth in the servi ce book was rightly not accepted by the authority. As per present recorded date of birth of the petitioner i.e., 06.01.1953, petitioner would retire on superann uation on 06.01.2013. Application for correction of date of birth was made only in the year 2009. He submits that action of the respondents declining to conside r the request of the petitioner for correction of his date of birth after 25 yea rs of service cannot be said to be arbitrary, unreasonable or irrational. He sub mits that a large number of applications are pending before the GMC authorities for correction of date of birth and allowing the petition may open the flood-gat es. While producing the relevant record, learned Standing Counsel has placed rel iance on the following decisions:- 1. 5 SC 1499). 2. 35). 3. State of Gujarat and Ors. Vs Vali Mohmed Dosabhai Sindhi (AIR 2006 SC 27 Umesh Debnath Vs State of Arunachal Pradesh and Ors. [2008 (4) GLT 579]. Burn Standard Co. Ltd. and Ors Vs Dinabandhu Majumdar and Anr (AIR 199

10. The submissions made have been considered.

11. The record produced by Mr. Borah contains the service book of the petiti oner. It is seen therefrom that petitioner was examined by a Medical Board on 06 .01.1983. Date of birth has been recorded therein as 06.01.1953, according to me dical certificate. Though copy of medical certificate is stated to have been enc losed therein, the same was however not found on record. The record discloses th at petitioner had submitted an application before the Commissioner, GMC on 23.02 .2009 stating that his actual date of birth is 01.07.1962 which has been wrongly entered in the service book as 06.01.1953. In support of his contention, petiti oner had submitted a birth certificate of the local area authority of his perman ent place of residence. A supporting affidavit sworn by the petitioner on 19.02. 2009 was also annexed. It appears that case of the petitioner was forwarded by t he GMC authorities to the State Standing Medical Board on 30.06.2009. Petitioner was examined by the State Standing Medical Board on 03.08.2009 for determinatio n of age. The report of State Standing Medical Board dated 15.09.2009 indicates that as per report of Assistant Professor, Department of Forensic Medicine, Gauh ati Medical College Hospital, Guwahati, age of petitioner would be above 45 year s and below 50 years. By the impugned order dated 15.02.2010, petitioner was inf ormed that his application for correction of date of birth could not be consider ed. There is no reference to the report of the State Standing Medical Board in t he said order. The record also does not disclose that GMC authorities had consid ered the report of the State Standing Medical Board before taking the impugned d ecision.

12. The law relating to correction of date of birth in the service record o f a Government servant or an employee of a state instrumentality is well settled and needs no re-statement. It is a settled proposition of law that prayer for c orrection of date of birth should not ordinarily be entertained towards the fag end of service. There is therefore no dispute to the proposition of law laid dow n in the judgments referred to by learned Standing Counsel, GMC.

13. SR-8 of Fundamental Rules and Subsidiary Rules lays down the procedure f or determining the date of birth of a Government servant when there is a dispute . SR 8(c) provides that Commissioner and Heads of Department may alter the recorded date of birth in the case of non-gazetted Government servants provided after enquiry it is found that the previous date was incorrect. As per note bel ow SR 8 (c), it is provided that in no case request for change in the date of bi rth of a Government servant made on a date within 3 years of the date of his act ual superannuation should be entertained.

14. As seen from the record, the application for correction of date of birth was made by the petitioner on 23.02.2009. Petitioner’s date of superannuation o n the basis of existing date of birth is 06.01.2013. Therefore, technically, suc h application was made before the period of 3 years. Since in this case, the GMC authorities had themselves decided that the petitioner should be subjected to a medical examination and accordingly he was so subjected, fairness demands that the result of the said examination should have been considered before taking the impugned decision. As adverted to above, from a reading of the impugned order d ated 15.02.2010 it does not appear that the authority had considered the report of the Medical Board.

15. The State Standing Medical Board comprises of high level health officia ls of the Government of Assam headed by the Additional Director of Health Servic es as its Chairman. Petitioner was examined by an expert of Forensic Medicine De partment, Gauhati Medical College Hospital. There is no reason to believe that s uch a high level expert body will give a report without fair and proper assessme nt. It is an independent body. When its opinion was sought for, it is only reaso nable that the same should be given due consideration. As pointed out by learned counsel for the petitioner, in an earlier case of one Shri Vijay Shah, his date of birth was corrected in his service book on the basis of the findings of Stat e Standing Medical Board. Learned Standing Counsel, GMC has not been able to sho w any distinguishing feature in the present case for adopting a different approa ch.

16. The apprehension expressed by Mr. Borah, learned Standing Counsel that a ny decision in this case will open the flood gates, does not merit much consider ation as the Court is only concerned with the merit of the case which is before it. Each case will have to be decided as per its own merit.

17. As the report of the State Standing Medical Board which had determined t he age of the petitioner as above 45 years of age and below 50 years of age as o n 03.08.2009 has not been considered by the authority, the Court is of the view that the matter requires re-consideration by the GMC authorities. Accordingly, the impugned order dated 15.02.2010 is set aside and quashe 18. d. Matter is remanded back to the respondent No. 2 who shall take a fresh decisi on on the claim of the petitioner by taking into consideration all relevant fact ors, including the certificate issued by the State Standing Medical Board.

19. the date of receipt of a certified copy of this order. Such decision shall be taken within a period of 15 (fifteen) days from

20. o order as to cost. Writ petition accordingly stands disposed of. However, there shall be n