Judgment · High Court · 2012

This writ petition is directed against the alleged premature ret irement of the petitioner from service taking his date of birth as 12.04.1952 in stead of 12.09.1957 claimed by the petitioner. There is no dispute that as per H igh School Leaving Certificate (HSLC) Examination Certificate of 1972, the date of birth of the petitioner is 12.04.1952. However, the petitioner after passing HSLC examination in 1972 and issuance of the certificate claimed his date of bir th as 12.09.1957 and to that effect his elder brother Shri Nihar Ranjan Paul had sworn an affidavit on 22.02.1978. The said affidavit was sworn in before the Ju dicial Magistrate, 1st Class, Silchar.

#2. The case projected is that since the petitioner was appointed as LDC-cum -Typist in the office of the Commandant Battalion Training Centre, Dergaon in 19 83 and to be precise on 26.08.1983, had his date of birth calculated on the basi s of the said affidavit as 12.09.1957 been not accepted, he would have been over aged for appointment in 1983. In this connection, the petitioner has shown his age on the date of appointment as 31 years, 4 months and 21 days as against the permissible upper age limit of 30 years. However, in the process the petitioner has conveniently withdrawn the process of selection which included advertisement indicating the last date of submission of application form etc. There is no whi sper in the writ petition as to whether on the date of submission of the applica tion offering candidature, the petitioner was within the age limit.

#3. There is another aspect of the matter that has come to the notice of thi s Court on perusal of the service book of the petitioner. As per the service boo k, the petitioner was appointed as LDA in the year 1978 against a temporary vaca ncy in the office of the Superintendent of Police, Cachar, Silchar. Thus the pet itioner has conveniently omitted the earlier appointment as LDA w.e.f. 1978 in c ontinuation of which he was regularly appointed.

#4. According to the petitioner, the authority at the time of his appointmen t having accepted the corrected date of birth as disclosed in the said affidavit , they are now precluded from taking the date of birth of the petitioner as 12.0 4.1952 and retiring him from service on that basis. The petitioner has also refe rred to the gradation list published on 20.03.2010 in which his date of birth wa s shown as 12.09.1957.

#5. The respondents have filed the counter affidavit denying the contentions raised in the writ petition. It has been stated that in the service book two da tes of birth were recorded- one is 12.04.1952 and the other is 12.09.1957. It is the stand of the respondents that the date of birth recorded in the HSLC Examin ation Certificate will prevail over the declaration made in the affidavit which was sworn in by the elder brother of the petitioner. It has been stated that the particular entry in the HSLCE certificate having not been corrected by the auth ority which had issued the same, the affidavit sworn in by the elder brother of the petitioner cannot have any bearing. The affidavit has also referred to the p articular enquiry conducted in association with the petitioner. It appears that the petitioner was associated with the said enquiry and he had placed reliance o n Horoscope. However, in the writ petition there is no disclosure of the said en quiry and participation of the petitioner in the same.

#6. r. B.J. Ghosh, learned State counsel. I have heard Mr. P. Roy, learned counsel for the petitioner as well as M While Mr. Roy has submitted that the date of birth recorded in the servi 7. ce book could not have been altered without putting the petitioner to any kind o f notice, Mr. Ghosh, learned State counsel submits that the writ petition is lia ble to be dismissed in view of the material suppression of fact. Mr. Roy, learne d counsel for the petitioner has placed reliance on the Division Bench judgment of this Court in the case of Dakshaprasad Deka vs. Inspector General of Police, Assam and ors. reported in AIR 1967 Assam and Nagaland 13 (V 54 C 6) (1) . In that case it was emphasized that in case of any dispute raised by an incumbent, due opportunity to prove a fact regarding correct age should be given to him. Ho wever, the fact of the matter is that the said judgement of the Division Bench h as been reversed by the Apex Court in its judgment reported in AIR 1971 SC 173 ( State of Assam & ors. vs. Dakshaprasad Deka).