High Court · 2012

This appeal has been preferred against order of learned Single Judge all owing the writ petition of the Respondent No.1 and quashing the order dated 8.3. 2011 passed by the Director of Secondary Education, Assam changing the date of b irth of the writ petitioner-Respondent No.1 from 2.1.1953 to 2.9.1948 and on tha t basis retiring him from service. Case of the writ petitioner is that he was appointed as Headmaster of th e School in question in the year 1979 and as per service book, his date of birth is 2.1.1953 and he was to retire from service on 31.1.2013. The appellant made a complaint on account of personal grudge to have the date of birth proponed and for having him retired prematurely. Acting on the said complaint, the writ peti tioner was ordered to be retired. Aggrieved thereby, the writ petitioner approached this Court under Artic le 226 of the Constitution by submitting that before passing the impugned order on the basis of an inquiry report at the instance of the appellant, he was not g iven an opportunity of hearing. Date of birth as recorded in the service book at the time of entry into service based on matriculation certificate could not hav e been challenged at the instance of a third party without tangible basis. The p erson who recorded the age in the admission register, relied upon by the appella nt, was not examined. Learned Single Judge held that there was no occasion to change his date of birth as entered in the service book which was based on matriculation certifi cate. Even though the said entry was not conclusive, change could be on clear pr oof of error in the said entry. The appellant relied upon entry of date of birth in the admission register without examining the person who recorded the said en try and without showing on what basis the said entry was made. Such entry could not be accepted for changing the date of birth in service book based on Matric C ertificate. It was held : (cid:28)10. It is against the backdrop of the aforesaid legal principles that I have perused the enquiry report of the Respondent No.3, which is annexed as Annexure -2 to the affidavit-in-opposition of the Respondent No.4. From the enquiry repor t, it is revealed that the Headmaster of Fakirganj M.V. School who had recorded the date of birth of the petitioner in the admission register for Class IV in th e year 1958 was not examined by the respondent No.3. In my opinion, this is the person who had special means to know as to how and on what basis or on whose inf ormation the date of birth of the petitioner had been recorded by him. There is no evidence to show that this Headmaster was no longer alive when the enquiry wa s conducted by respondent No.3. The Respondent No.3 admittedly had examined Shri Abdur Razzaque Mollah, Assistant Teacher of Salkata J.P. High School, Shri Isha k Choudhury, Principal-in-Charge (Academic), Shri Abdul Hoque Choudhury, Headkas ter, Fakirganj M.V. School, Shri Samsul Hoque, Headmaster of Basukata P.B.M.E. S chool and respondent 4, but there is no evidence to show that any of these teach ers had personally seen the preparation of, or had prepared, the admission regis ter of Fakirganj M.V. School for Class IV with respect to the petitioner in 1958 . The statements of persons who had no means of knowing on what basis the date o f birth of the petitioner had been recorded as 1-9.1948 at Fakirganj M.V. School , have been recorded or cross-examined. At any rate, the parents of the petition er, if any of them is still alive, should have been examined by the respondent N o.3 to enlighten him on what basis the date of birth of the petitioner had been recorded as 1-9-1948 in the admission register for Class IV when his date of bir th was recorded as 2-1-1953 in his matriculation certificate. As already held by me, the burden of proof is upon the complainant to prove that the date of birth of the petitioner is 1-9-1948 and not 2-1-1953 as recorded in his service book, which, in turn, is based on his matriculation certificate. In my opinion, the f indings recorded by the respondent No.3 in his enquiry report are based on surmi ses and conjectures, and cannot be allowed to upset the date of birth of the pet itioner already maintained in his service book for the last over 30 years. (cid:29) We have heard learned counsel for the parties. Learned counsel for the appellant submits that since he was next in the seniority and had a chance of promotion, he had the locus to question the date o f birth of the writ petitioner. Change of date of birth was justified on the bas is of the admission register relied on by the appellant and, in these circumstan ces, the learned Single Judge was not justified in interfering with the order of change of date of birth and retirement of the writ petitioner accordingly. We are unable to accept this submission. The writ petitioner entered ser vice in the year 1979 and declared his date of birth which was acted upon all th rough out till the appellant made a complaint dated 22.3.2010. It is, thus, seen that the complaint of the appellant was made after 31 years of entry of the wri t petitioner into service. Such a complaint could not have been entertained in a bsence of any clinching material. Reliance on admission register was misconceive d in view of the matriculation certificate and the service book and in absence o f the person making the entry in the admission register being examined. The orde r changing the date of birth of the writ petitioner was not called for. In Secretary and Commissioner, Home Department Vs. R, Kirubakaran, 1994 Supp. 1 SCC 155, it was observed : (cid:28)5. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respec t of correction of his date of birth in the service record is to be dealt with a nd what procedure is to be followed. In many such rules a period has been prescr ibed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be e ntertained. The sole object of such rules being that any such claim regarding co rrection of the date of birth should not be made or entertained after decades, e specially on the eve of superannuation of such public servant. In the case of St ate of Assam v. Daksha Prasad Deka, (1970) 3 SCC 624 this Court said that the da te of the compulsory retirement (cid:28)must in our judgment, be determined on the basi s of the service record and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appro priate procedure (cid:29). This Court in the case of Government of A.P. v. M. Hayagreev Sarma, (1990) 2 SCC 682 had occasion to examine the A.P. Public Employment (Reco rding and Alteration of Date of Birth) Rules, 1984. The public servant concerned had claimed correction of his date of birth with reference to the births and de aths register maintained under the Births, Deaths and Marriages Registration Act , 1886. The Andhra Pradesh Administrative Tribunal corrected the date of birth a s claimed by the petitioner before the Tribunal, in view of the entry in the bir ths and deaths register ignoring the rules framed by the State Government referr ed to above. This Court said: (SCC p. 685, para 7) (cid:28)The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it p rovides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth. (cid:29)

6. In the case of Executive Engineer v. Rangadhar Mallik, 1993 Supp(1) SCC 763 R ule 65 of the Orissa General Finance Rules, was examined which provides that rep resentation made for correction of date of birth near about the time of superann uation shall not be entertained. The respondent in that case was appointed on No vember 16, 1968. On September 9, 1986, for the first time, he made a representat ion for changing his date of birth in his service register. The Tribunal issued a direction as sought for by the respondent. This Court set aside the order of t he Tribunal saying that the claim of the respondent that his date of birth was N ovember 27, 1938 instead of November 27, 1928 should not have been accepted on t he basis of the documents produced in support of the said claim, because the dat e of birth was recorded as per document produced by the said respondent at the t ime of his appointment and he had also put his signature in the service roll acc epting his date of birth as November 27, 1928. The said respondent did not take any step nor make any representation for correcting his date of birth till Septe mber 9, 1986. Recently, in the case of Union of India v. Harnam Singh,(1993) 2 S CC 162, it was said: (SCC p. 167, para 7) (cid:28)A government servant who has declared his age at the initial stage of the emplo yment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth , if he is in possession of irrefutable proof relating to his date of birth as d ifferent from the one earlier recorded and even if there is no period of limitat ion prescribed for seeking correction of date of birth, the government servant m ust do so without any unreasonable delay. (cid:29)

7. An application for correction of the date of birth should not be dealt with b y the tribunal or the High Court keeping in view only the public servant concern ed. It need not be pointed out that any such direction for correction of the dat e of birth of the public servant concerned has a chain reaction, inasmuch as oth ers waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, becaus e of the correction of the date of birth, the officer concerned, continues in of fice, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. C ases 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 asp ect, 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 on ly plausible. Before any such direction is issued, the court or the tribunal mus t 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 t he procedure prescribed, and within the time fixed by any rule or order. If no r ule or order has been framed or made, prescribing the period within which such a pplication has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence i n support of such claim, which may amount to irrefutable proof relating to his d ate of birth. Whenever any such question arises, the onus is on the applicant, t o prove the wrong recording of his date of birth, in his service book. In many c ases it is a part of the strategy on the part of such public servants to approac h the court or the tribunal on the eve of their retirement, questioning the corr ectness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, eve n if ultimately their applications are dismissed, by virtue of interim orders, t hey continue for months, after the date of superannuation. The court or the trib unal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced beca use if the public servant succeeds, he can always be compensated, but if he fail s, he would have enjoyed undeserved benefit of extended service and merely cause d injustice to his immediate junior. (cid:29) In view of above, application of the appellant for change of date of bir th of Respondent No.1 could not have been entertained 31 years after entry into service and without clinching material. Thus, we find no error in the order of the learned Single Judge. The appeal is dismissed.