High Court
Case Details
WP(C) 343/2013 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN Mr. S. Bora, learned Standing Counsel, Guwahati Municipal Corporation (GMC). Heard Mr. S. Chakraborty, learned Counsel for the petitioner and 2. By way of the present petition under article 226 of the Constitu tion of India, petitioner has challenged the legality and validity of the order dated 31-12-2012 passed by the Commissioner, GMC (Annexure F to the writ petitio n) whereby prayer of the petitioner for correction of his date of birth in terms of report of the State Standing Medical Board dated 15-09-2009 was rejected and further seeks a direction to the respondents to allow him to continue his servi ce as per corrected age. 3.
Legal Reasoning
Facts of the case may be briefly noted. Petitioner was a regular Mazdoor in GMC. He was appointed as suc 4. h in the year 1980. At the time of entry into service, his date of birth was wro ngly recorded by the GMC in his service book as 06-01-1953. According to the pet itioner, his date of birth is 01-07-1962. Being an illiterate person and a Mazdo or, he was not aware of the wrong recording of his date of birth. It was only in the year 2009 that he came to know that his date of birth was wrongly recorded as 06-01-1953. Petitioner submitted a representation before the Commissioner, G 5. MC (respondent No.2). The authorities of GMC decided to refer the petitioner to the State Standing Medical Board for medical examination to ascertain his age. I n this connection, a letter dated 30-06-2009 was issued by the Commissioner, GMC to the Chairman, State Standing Medical Board for medical examination of the pe titioner. 6. Petitioner appeared before the Medical Board on 03-08-2009. On e xamination, the Medical Board vide certificate dated 15-09-2009 opined that the age of the petitioner would be above 45 years but below 50 years. Despite report of the Medical Board, GMC authorities declined to rectify the date of birth of the petitioner, which was recorded in the service book. By letter dated 15-02-20 10 issued by the Municipal Secretary, GMC, petitioner was informed that his appl ication for correction of date of birth submitted after more than 25 years of hi s service in GMC cannot be considered. 7. At that stage, petitioner approached this Court by filing a writ petition, which was registered and numbered as WP(C) No.4577/2010. This Court b y the judgment and order dated 12-12-2012 set aside the letter dated 15-02-2010 and remanded the matter back to the respondent No.2 for taking a fresh decision within 15 days by taking into consideration all relevant factors, including the certificate issued by the State Standing Medical Board. 8. Thereafter, respondent No.2 passed the impugned order dated 31-1 2-2012. As per the said order, petitioner’s date of birth was recorded in his se rvice book on the basis of the medical certificate dated 06-01-1983 and he havin g accepted the same by putting his thumb impression, the second certificate issu ed by the State Standing Medical Board cannot be acted upon. Accordingly, prayer of the petitioner for correction of his date of birth was rejected. 9. resent petition. Aggrieved, petitioner is again before this Court by way of the p
Legal Reasoning
Mr. Chakraborty, learned Counsel for the petitioner while reiter 10. ating the submissions made in the earlier round of litigation, submits that stan d taken by the respondent No.2 that second certificate of the State Standing Med ical Board cannot be acted upon is devoid of any reason or logic. He submits tha t petitioner’s date of birth was recorded on the basis of a report of the State Standing Medical Board dated 06-01-1983 wherein the Board certified the age of t he petitioner to be exactly 30 years as on 06-01-1983. On that basis, the GMC au thorities treated the petitioner’s date of birth as 06-01-1953. On the face of i t, the said certification was totally absurd and putting of thumb impression by the petitioner would not confer any legitimacy to such certification. It is in t hat context when the petitioner made the request for correction of his date of b irth, the GMC authorities themselves referred the petitioner for medical examina tion by the State Standing Medical Board. This time petitioner was assessed to b e above 45 years of age but below 50 years of age. Having itself referred the ca se of the petitioner to the Medical Board, there is no justification on the part of the GMC authority not to act on the certificate of the State Standing Medica l Board dated 15-09-2009. Impugned order dated 31-12-2012 being wholly illegal, should therefore be quashed and the petitioner be directed to be continued in se rvice as per corrected age. 11. The submissions made by Mr. S. Chakraborty, learned Counsel for the petitioner is opposed by Mr. S. Borah, learned Standing Counsel, GMC, who ha s also produced the record. Mr. Bora submits that the earlier certificate of the State Standing Medical Board dated 06-01-1983 was attached with the service boo k of the petitioner because of which, perhaps, it escaped his notice as well as that of the Court. He submits that respondent No.2 had considered the case of th e petitioner but for good reason, as is evident from the impugned order, could n ot be accepted. Reiterating his submissions made before the Court in the earlier round of litigation, learned Standing Counsel seeks dismissal of the writ petit ion. 12. roduced. Submissions made have been considered. Also perused the record p 13. The case was heard at some length on 07-03-2013. As the hearing remained inconclusive, case was taken up on 01-04-2013 for further hearing. Peti tioner was asked to be personally present before the Court. Accordingly, he was present in Court. The Court had put some questions to him to make a rough assess ment about his probable age in view of the certificate of the State Standing Med ical Board dated 15-09-2009. The record produced by Mr. Borah contains the service book of the petiti 14. In the previous round of litigation, as noticed above, this Cour t after quashing the letter dated 15-02-2010 remanded the matter back to the res pondent No.2 for afresh decision by taking all relevant factors into considerati on, including the certificate issued by the State Standing Medical Board. The re levant portion of the said order reads as under :- (cid:28)11. oner. It is seen therefrom that the petitioner was examined by a Medical Board o n 06-01-1983. Date of birth has been recorded therein as 06-01-1953, according t o medical certificate. Though copy of medical certificate is stated to have been enclosed therein, the same was however not found on record. The record disclos es that 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 wr ongly entered in the service book as 06-01-1953. In support of his contention, p etitioner had submitted a birth certificate of the local area authority of his p ermanent place of residence. A supporting affidavit sworn by the petitioner on 1 9-02-2009 was also annexed. It appears that case of the petitioner was forwarded by the GMC authorities to the State Standing Medical Board on 30-06-2009. Petit ioner was examined by the State Standing Medical Board on 03-08-2009 for determi nation of age. The report of State Standing Medical Board dated 15-09-2009 indic ates that as per report of Assistant Professor, Department of Forensic Medicine, Gauhati Medical College Hospital, Guwahati, age of petitioner would be above 45 years and below 50 years. By the impugned order dated 15-02-2010, petitioner wa s informed that his application for correction of date of birth could not be con sidered. There is no reference to the report of the State Standing Medical Board in the said order. The record also does not disclose that GMC authorities had c onsidered the report of the State Standing Medical Board before taking the impug ned decision. 12. The law relating to correction of date of birth in the service record of 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 co rrection of date of birth should not ordinarily be entertained towards the fag e nd of service. There is therefore no dispute to the proposition of law laid down 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 record ed 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 below SR 8 (c), it is provided that in no case request for change in the date of birth of a Government servant made on a date within 3 years of the date of his actual supe rannuation 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 official s of the Government of Assam headed by the Additional Director of Health Service s as its Chairman. Petitioner was examined by an expert of Forensic Medicine Dep artment, Gauhati Medical College Hospital. There is no reason to believe that su ch a high level expert body will give a report without fair and proper assessmen t. It is an independent body. When its opinion was sought for, it is only reason able 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 State Standing Medical Board. Learned Standing Counsel, GMC has not been able to show any distinguishing feature in the present case for adopting a different approac h. 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 and below 50 years of age as on 03-08 -2009 has not been considered by the authority, the Court is of the view that th e 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 decisio n on the claim of the petitioner by taking into consideration all relevant facto rs, including the certificate issued by the State Standing Medical Board. 19. he date of receipt of a certified copy of this order. (cid:29) Such decision shall be taken within a period of 15 (fifteen) days from t 15. On remand, respondent No.2 passed the impugned order dated 31-12 -2012 without giving due consideration to the certificate dated 15-09-2009 issue d by the State Standing Medical Board which assessed the age of the petitioner t o be within 45 to 50 years. Respondent No.2 rejected the prayer of the petitione r on the ground that petitioner’s date of birth was recorded in his service book on the basis of the Medical Certificate issued on 06-01-1983 and he had accepte d the same by putting his thumb impression in the service book. Order dated 31-1 2-2012 is as under :- (cid:28)OFFICE OF THE GUWAHATI MUNICIPAL CORPORATION :: GUWAHATI No. GPR/1506/83/100 Date: 31-12-2012
Decision
O R D E R Perused the judgment and order dated 12-12-2012 passed in WP(C) No.4577/2010 (P. Achiya Babu -Vs- GMC & Ors.) whereby the matter relating to correction of date o f birth of the petitioner i.e. P. Achiya Babu has been remanded back for a fresh decision of his claim by taking into consideration all relevant factors includi ng the certificate issued by the State Standing Medical Board dated 15-09-2009. In considering the matter, the personal file of the concerned employee has been scrutinized. It appears that the Medical Board after examining Sri P. Achiya Bab u on 06-01-1983 had recorded a finding that he was 30 years as on that date. Acc ordingly, his date of birth was recorded as 06-01-1953 in the Service Book. He h as accepted the same to be correct by putting his thumb impression on the Servic e Book which was opened on 05-07-1983. Thereafter, he filed a representation 23- 02-2009 and submitted a birth certificate along with the same, by which his date of birth is stated to be 01-07-1962. Accordingly the matter was forwarded to th e State Standing Medical Board. The said board by its letter dated 15-09-2009 fo rwarded a medical certificate by which his age was determined was above 45 and b elow 50 years. His prayer for correction of date of births was rejected on the g round of inordinate delay and the same was communicated to be vide order dated 1 5-02-2010. Being aggrieved Sri P.Achiya Babu preferred the aforementioned writ petition. On perusal of the records it appears that there is a certificate on record issue d by the Medical Board on 06-01-1983 stating that his age was 30 years as on 06- 01-1983 an accordingly his date of birth was recorded as 06-01-1953. It appears from a reading of the judgment and order dated 12-12-2012 that the said document has perhaps escaped the notice of the Hon’ble Court. Now the certificate issued by the State Standing Medical Board dated 15-09-2009 states that his age 45 to 50 years as on 03-08-2009 which means that his date of birth is in between 15-09 -1959 and 15-09-1964. The date of birth of Sri P. Achiya Babu having been record ed on the basis of a Medical Certificate issued on 06-01-1983 and he, having acc epted the same to be correct by putting his thumb impression on 05-07-1983 when the Service Book was opened, the authority is of the opinion that the second cer tificate dated 15-09-2009 issued by the State Standing Medical Board cannot be a cted upon. In view of the above, on consideration of the materials on record, the prayer of Sri P. Achiya Babu for correction of his date of birth in terms of the letter d ated 15-09-2009 issued by the State Standing Medical Board cannot be considered and accordingly stands rejected. Commissioner Guwahati Municipal Corporation Guwahati. (cid:29) 16. In the earlier judgment dated 12-12-2012, this Court noted that the medical certificate dated 06-01-1983 was not found on record. Now, the learn ed Standing Counsel has submitted that the said certificate was attached with th e service book of the petitioner because of which perhaps it escaped his notice as well as that of the Court. Without commenting on this aspect, Court would ins tead like to proceed with the matter and decide the case on the basis of the mat erials now placed before the Court. 17. Petitioner’s date of birth was not recorded in his service book on the basis of any school certificate or such other document. It was recorded o n the basis of a medical certificate dated 06-01-1983 which certified petitioner ’s age as on the said date to be exactly 30 years. By accepting petitioner’s age to be 30 years as on 06-01-1983, the GMC authority recorded petitioner’s date o f birth as 06-01-1953. It is beyond one’s comprehension as to how a medical cert ificate can declare the age of a person with such pin point accuracy to be exact ly 30 years as on 06-01-1983. This itself is quite absurd and bereft of any logi cal foundation. Petitioner being an illiterate person and a mazdoor, his positio n cannot be equated with a literate Government employee. Had the date of birth b een recorded on the basis of matriculation certificate or such other document, t he matter would have been entirely different. 18. The physical appearance of the petitioner as seen by the Court m ay justify the assessment of the petitioner’s age by the State Standing Medical Board in its certificate dated 15-09-2009. 19. As already noticed in the previous judgment, the GMC authorities had themselves referred the petitioner to the State Standing Medical Board for an assessment of his age. The Board comprises of high level officials of the Hea lth Department, Government of Assam, including an expert of Forensic Medicine De partment, Gauhati Medical College. It is a high level independent expert body an d there is no reason to believe that such a body will give a report without fair and proper assessment. When its opinion was sought for, it is only fair and rea sonable that it should be given due consideration. From a perusal of the impugne d order, it does not appear that it was given the due consideration. It is not that GMC has not corrected the date of birth of its em 20. ployees on the basis of findings of the State Standing Medical Board. As indicat ed by this Court in the earlier judgment dated 12-12-2012, in the case of one Sh ri Vijay Shah, his date of birth was corrected in his service book on the basis of the findings of the State Standing Medical Board and the learned Standing Cou nsel, GMC could not show any distinguishing feature in the case of the petitione r for adopting a different approach. The impugned order dated 31-12-2012 is not as per the judgment o 21. f this Court dated 12-12-2012. The same is accordingly set aside and quashed. Re spondents shall now make a re-assessment of the age of the petitioner on the bas is of the certificate of the State Standing Medical Board dated 15-09-2009 and s uch other documents as may be considered relevant and allow the petitioner to re join service on the basis of the corrected date of birth. Petitioner shall be de emed to have continued in service during the interregnum. This shall be done wit hin a period of 4(four) weeks from the date of receipt of a certified copy of th is order. 22. Writ petition is allowed. 23. No cost.