High Court
Case Details
WP(C) 3491/2012 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Heard Mrs. J.M.Konwar, learned Counsel for the petitioner and Mr . U. Rajbhongsi, learned Standing Counsel, Transport Department assisted by Ms. K. Dutta, learned Counsel for the respondents. 2. By way of this petition under article 226 of the Constitution of India, petitioner seeks quashing of decision of the Government dated 11-07-2012 rejecting petitioner’s prayer for correction of date of birth and also seeks a direction to the respondents to re-instate him in service by correcting his date of birth as 03-11-1954 instead of 01-11-1951. 3. Case of the petitioner is that he joined service in a Grade-IV p ost under the respondent No.1 in the year 1973. He was promoted to the post of L ower Division Assistant in the year 1974. In the year 1994, he was promoted to t he post of Upper Division Assistant. Finally, in May, 2010, petitioner was promo ted to the post of Superintendant, State Transport Authority, Assam. According t o the petitioner, his age as recorded in his admit card for the HSLC examination held in March, 1970 was 18 years and 4 months as on 01-03-1970. Based on that, his date of birth was calculated by the authority as 01-11-1951 which was record ed in the service book. Petitioner contends that his actual date of birth is 03- 11-1954. When he realized that his age was incorrectly recorded in his HSLC admi t card, petitioner applied before the Board of Secondary Education, Assam for ne cessary correction of his age but the said application was not entertained on th e ground that it was made beyond the limitation period of 3 years. 4. Petitioner than submitted a representation dated 02-03-2005 to t he respondent No.2 for correction of his date of birth. It was stated that the a ge of his elder sister Smti. Dipti Lata Konwar who had appeared in the HSLC exam ination in the same year as the petitioner i.e. in the year 1970, was reflected in her HSLC admit card as 18 years and 9 months as on 01-03-1970 whereas, petiti oner age was recorded as 18 years and 4 months as on 01-03-1970. That made the d ifference in the age of the two only 5 months, which is improbable. Petitioner a lso submitted a supporting affidavit stating that his date of birth is 03-11-195 4. 5. Very belatedly, the above representation of the petitioner was f orwarded by the respondent No.2 to the Government. When the Government sought fo r further evidence to support his claim, petitioner submitted his horoscope and primary school certificate to the Government through the respondent No.2. The sc hool certificate was issued by the Head Master of the Haladhibari Balika LP Scho ol which certified petitioner’s age as 8 years 1 month 22 days as on 01-01-1963, making his date of birth 03-11-1954. In the meanwhile, petitioner was informed on 12-10-2011 by the o 6. ffice of the respondent No.2 that he would attain the age of superannuation on 3 1-10-2011 as per his date of birth 01-11-1951 recorded in his service book. Acco rdingly, petitioner was retired from service on 31-10-2011 on superannuation. 7. It appears that respondent No.1 had conducted an enquiry through the Joint Secretary to the Government of Assam, Transport Department into the c laim of the petitioner for correction of his date of birth from 01-11-1951 to 03 -11-1954. The Joint Secretary submitted report dated 06-01-2012 wherein he accep ted the claim of the petitioner that his date of birth is 03-11-1954 and suggest ed to the Government to re-employ the petitioner for a period not exceeding 2 ye ars which would mean that the petitioner would continue in service till superann uation as per the correct date of birth. 8. However, the Government did not accept the prayer of the petitio ner, which was communicated to the respondent No.2 on 11-07-2012, who in turn in formed the petitioner about such decision on 13-07-2012. 9. g the reliefs as indicated above. Aggrieved, petitioner has filed the present writ petition seekin 10. Petitioner’s contention is that the enquiry conducted by a high Government official supported his claim but the Government did not at all consid er the enquiry report. Petitioner was wrongfully and illegally retired from serv ice on the basis of his date of birth which was erroneously recorded in the serv ice book. 11. f the petitioner on 31-10-2011.
Legal Reasoning
The writ petition was filed on 23-07-2012 after the retirement o 12. This Court by order dated 25-07-2012 had issued notice. By a sub sequent order dated 12-12-2012, the learned Standing Counsel was directed to pro duce the relevant file. 13. Respondent No.2 has filed affidavit. Stand taken is that petitio ner’s age as recorded in his HSLC admit card was 18 years and 4 months as on 01- 03-1970 which made his date of birth 01-11-1951 and the same was recorded in the service book. Regarding the delay in forwarding the petitioner’s representation for correction of his date of birth to the Government, respondent No.2 has stat ed that on a query made as to why there was delay, the dealing assistant noted i n the official note sheet that as per request of the petitioner, his prayer was kept pending. It is further stated that horoscope cannot be accepted as a reliab le piece of evidence to ascertain the date of birth. Regarding the primary schoo l certificate, it is stated that it was issued on 03-08-2011 i.e. after almost 4 8 years of the petitioner leaving the said school. Respondent No.2 finally conte nds that the appointing authority had recorded the date of birth of the petition er in the service book on the basis of age recorded in the admit card issued by the Board of Secondary Education and the certificate submitted by the petitioner at the time of his employment.
Decision
14. In his reply affidavit, petitioner reiterated the statements mad e in the writ petition. He asserts that the age recorded in the admit card was i ncorrect which resulted in a wrong entry of his date of birth in the service boo k. He has stated that he had submitted the representation seeking correction of his date of birth on 02-03-2005 which was much before 3 years of his superannuat ion. School certificate was issued on the basis of admission register maintained by the school. Therefore, the school certificate could not have been so lightly brushed aside. Petitioner has denied that he had requested the dealing assistan t or any one else to keep his prayer pending. Learned Counsel for the petitioner submits that the approach of 15. the respondents was wrong. Petitioner submitted representation for correction of his date of birth much before the period of 3 years from his date of retirement as per SR 8(c). Delay in processing his prayer is attributable to the responden ts. The enquiry conducted by an officer of the rank of Joint Secretary found the claim of the petitioner to be genuine but for no justifiable reason, the Govern ment did not accept the findings of the enquiry officer. She submits that petiti oner was prematurely made to retire before 3 years of his actual date of superan nuation, thereby causing serious prejudice to him. 16. Learned Standing Counsel, Transport Department has however oppos ed the submissions made by learned Counsel for the petitioner. He has also produ ced the relevant personnel file of the petitioner which contains the service boo k. He submits that petitioner had put his left hand impression on the service bo ok wherein his date of birth was recorded as 01-11-1991 (in words as 1st Novembe r, 1951), which was also signed by him. Learned Standing Counsel has referred to and relied upon a decision of this Court in the case of Md. Sagir Ahmed -V s- Chairman, ASEB and others reported in 1996(2) GLT 420 to contend that when a person had signed in the service book it cannot be believed that he did not know what was written in the service book or that he did not know that his date of b irth was wrongly recorded. He submits that the claim of the petitioner is wholly untenable and should be rejected. 17. In her reply, learned Counsel for the petitioner submits that th rough the respondents had forcibly retired the petitioner, his retiral dues have not been released till date, causing serious prejudice to him. 18. Submissions made have been considered. 19. At the outset, it may be noticed that the petitioner is not an i lliterate person. He retired as Superintendent in the Transport Department. On a perusal of the service book it is seen that petitioner had put his left hand im pression thereon and had also put his signature. Date of birth was recorded as 0 1-11-1951 both in figure and in words above his signature. The date of birth so recorded was on the basis of the petitioner’s HSLC admit card furnished by the p etitioner himself at the time of his appointment. It cannot be accepted that pet itioner did not know what was written or recorded in the service book when he ha d put his signature and also his left hand impression. The Hon’ble Supreme Court in the case of Visakhapatnam Dock Labo 20. ur Board -Vs- E.Atchanna and others reported in (1996) 2 SCC 484 observed that m erely because the employees are illiterate and had affixed their thumb impressio ns in the service records it is not possible to believe that they did not know w hat was recorded therein with respect to their dates of birth. This judgment was referred to by this Court in Md. Sagir Ahmed (supra). In the present case, the petitioner is not an illiterate person but a literate person. 21. The enquiry report relied upon by the petitioner placed reliance on the school certificate and took the view that the prayer of the petitioner w as genuine. The Government did not accept the said report and rejected the claim of the petitioner for correction of his date of birth due to lack of genuine an d reliable documents. The Government did not give credence to the primary school certificate, horoscope and affidavit subsequently furnished by the petitioner i n the face of the HSLC admit card submitted by the petitioner himself at the tim e of appointment. No fault can be found with the said decision of the Government . The enquiry report came after the superannuation of the petitioner. As already noticed, the writ petition was filed on 23-07-2012, after the petitioner had re tired on superannuation on 31-10-2011. The Apex Court in the case of State of Or issa and others -Vs- Ramanath Patnaik reported in (1997) 5 SCC 181 has held that correction of date of birth is not permissible after retirement. 22. In view of above, this Court finds no merit in the writ petition , which is accordingly dismissed. Since petitioner has already superannuated, re spondents may release the admissible retirement dues of the petitioner. 23. back to him. The record produced by the learned Standing Counsel is returned