High Court · 2009

1. The challenge in the present writ petition is against an order dated 4.1 0.2001 by which the writ petitioner had been asked to go on retirement with effe ct from 31.1.2002. The petitioner contends that he is due for retirement on 31.0 1.2012 and, therefore, direction should be issued by the Court to enable him to continue in employment until the said date i.e. 31.01.2002.

2. The brief facts which will be necessary to be noticed for the purpose of the present adjudication may be set out herein below. The petitioner joined service as a Grade-IV employee in Sarukhetri State Dispensary on 18.6.1969. His service was regularized and thereafter he was tran sferred to the post of Vaccinator. The averments made in the writ petition discl ose that the writ petitioner had served as Vaccinator in different centers under the respondents. On 23.12.97 the petitioner was promoted to the higher post of Health Assistant whereafter he continued to serve in the said post. According to the petitioner, on 4th of October 2001 he received a communication from the Joi nt Director of Health Services, Nalbari, to the effect that his superannuation i s due on 31.01.2002 and accordingly he will be superannuated from the said date. On receipt of the aforesaid communication the petitioner submitted a representa tion dated 17.10.2001 to the Joint Director of Health Services enclosing a copy of his school certificate and admit card issued to him by the Board of Secondary Education, Assam in connection with the H.S.L.C. examination of the year 1977. The petitioner further contended that on the basis of the aforesaid documents hi s date of birth is 01.02.1954 and he is entitled to remain in service upto 31.01 .2012.

3. The petitioner has contended that the representation submitted by him di d not evoke any response from the respondent authority and therefore he issued a legal notice which was also followed by a personal appearance before the Joint Director of Health Services, Nalbari on 5.12.2001. According to the petitioner, he had also approached the learned Assam Administrative Tribunal, Guwahati with the grievances noticed above. The learned Administrative Tribunal passed an orde r dated 10.4.2002 which was adverse to the petitioner. The said order, which is enclosed to the writ petition, indicates that the case of the petitioner was rej ected by the learned Tribunal, primarily, on the ground that if his date of birt h is to be accepted as 01.02.1954, in that event, the petitioner must be underst ood to have joined service on 18.6.1969 at the age of 15 years 6 months 17 days whereas the minimum age for joining Government service is 18 years. Aggrieved, b y the aforesaid actions this writ petition has been filed.

4. The respondents have filed an affidavit in the case enclosing the releva nt extract of the Service Book of the petitioner. According to the respondents, the date of birth of the petitioner, as recorded in the Service Book, is 01.02.1 944 on the basis of the Admit Card issued by the Board of Secondary Education, A ssam in the year 1970 which was produced by the petitioner at the time of his en try into service. The respondents also contend that no request for change of dat e of birth was made by the petitioner within three years from the date of actual superannuation as required under S.R. 8(c) of FR/SR and further that if the cla im of the petitioner is to be accepted it would amount to admission of the fact that the petitioner had joined service at the time when he was under-aged and no t eligible for Government service. It is on the aforesaid broad basis that the r espondents contended that the writ petition should be dismissed and no relief sh ould be granted to the petitioner.

5. In the course of the hearing of the case, which had extended for several days, the Court had looked into the relevant documents i.e. the service book of the petitioner as well as the Admit Card issued to the petitioner by the Board of Secondary Education, Assam. In this regard, the Court had passed orders seeki ng clarifications from the concerned authorities with regard to the entries in t he service book of the petitioner as well as the details of the Admit Card issue d by the Board of Secondary Education. In the order dated 2.2.2009 passed by the Court it has already been recorded that the service book of the petitioner, as placed before the Court, discloses several over-writings. In the said order it i s mentioned that the date of birth of the petitioner was initially recorded as 3 1.3.1943. The figure ’4’ appearing in the year 1943 also appeared to the Court t o be by an over-writing. The date 31.3.43, as originally recorded, had been scor ed out and instead the date 01.02.1944 had been recorded in the Service Book. Th e year 1944 was by an over-writing over the figure which appears to the Court to be 1954.

6. In the above circumstances, the Court had required the learned Standing Counsel, Health Department, to offer appropriate explanations, if any. At the s ame time, in view of the endorsement in the relevant part of the Service Book of the petitioner that the entries therein have been made on the basis of Admit Ca rd No.93080 of the Board of Secondary Education, Assam, 1970, the learned Standi ng Counsel, Health Department, was required to interact through the department w ith the officers of the Board of Secondary Education to obtain necessary clarifi cations with regard to the aforesaid Admit Card.

7. The learned Standing Counsel, Health Department, after interacting with the officers of the department, could not offer any cogent explanation for the o ver-writings that had taken place in the relevant part of the Service Book of th e petitioner. The Board of Secondary Education, however, has placed before the C ourt the particulars of the petitioner as recorded in the Register of candidates who had appeared in the HSLC Examinations of the years 1973, 1975 and 1977 from Tihu Center. The Roll Number of the petitioner in the said examination of the y ear 1977 is 44. This is precisely the date that is mentioned in the Admit Card i ssued by the Board to the petitioner which has been produced before the Court. T he age of the petitioner as recorded in the original record of the Board is 23 y ears 01 month 0 days as on 01.03.1977 which age is also reflected in the Admit C ard issued to the petitioner. The said age, on proper calculation, would indicat e that the date of birth of the petitioner is 01.02.1954. From the above it is abundantly clear that the Admit Card issued to the 8. petitioner by the Board of Secondary Education as placed before the Court is a g enuine document showing his date of birth as 01.02.1954. Documents issued by the Board of Secondary Education, Assam showing the date of birth of any particular person in the absence of any adverse factors can be reasonably considered to be a safe basis for determining the age of such person. What are the circumstances in which the date of birth of the petitioner was recorded as 01.02.1944 in his Service Book by means of an over-writing over the figure 01.02.1954 has not been indicated on behalf of the respondents to the satisfaction of the Court. The se veral other over-writings in the Service Book has also not been explained by the respondents in any manner, whatsoever. The argument advanced on behalf of the respondents and the finding recor 9. ded by the learned Administrative Tribunal to the effect that acceptance of the date of birth of the petitioner would amount to admission of the fact that the p etitioner had entered service at the time when he was under-aged may now be cons idered. The question raised is correct on facts. As to how the petitioner could have entered service when he was under-aged is a fact which was the duty of the respondents to explain. It is not for the Court to speculate the reasons therefo r as suggested by the respondents, namely, that the petitioner may have entered service on the basis of another Admit Card issued by the Board which was false o r fabricated. If any such fact or event had occurred it was really for the respo ndents to establish the same. Merely because the petitioner could have entered s ervice at the time when he was under-aged, cannot be considered to be a conclusi ve fact to come to the conclusion that the date of birth now claimed by him i.e. 01.02.1954 must be necessarily false. As already noticed, the aforesaid date i. e. 01.02.1954 is established to be the correct date of birth of the petitioner o n the basis of the Admit Card issued by the Board of Secondary Education.

10. In the aforesaid circumstances, the Court has no option but to come to t he conclusion that the impugned order dated 4.10.2001 requiring the petitioner t o superannuate with effect from 01.02.2002 discloses patent errors which needs t o be corrected. Accordingly, I deem it appropriate to allow this writ petition, set aside the order dated 4.10.2001 and direct the respondents to allow the peti tioner to continue in service until his date of superannuation which has to be h eld to be 31.1.2012. As, on account of the actions of the respondents which have now been adjudged to be illegal the petitioner was deprived from rendering serv ices and obtaining remuneration therefor the Court is of the view that the petit ioner has to be suitably compensated for the period that he could not render suc h service. The only way in which the situation can be remedied is by directing t he respondents to pay to the petitioner his back wages. However, keeping in mind that the petitioner had not rendered any service, though for no fault of his ow n, the Court is of the view that a direction to the respondents to pay 50% of th e back wages till the petitioner is allowed to resume duties in terms of the pre sent order which will meet the ends of justice. It is, therefore, ordered accord ingly. The writ petition, consequently, is allowed as indicated above.