Patna High Court
Ram Akhilesh Singh vs The State Of Bihar & Ors on 10 November, 2014
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16553 of 2013
===========================================================
Ram Akhilesh Singh Son of Late Daulat Singh Resident of Village- Lalna Dih,
Police Station- Harnaut, District- Nalanda at Biharsharif.
.... .... Petitioner/s
Versus
1. The State of Bihar.
2. The Director General of Police, Bihar, Patna.
3. The Additional Director General of Police (Military Police), Bihar, Patna.
4. The Deputy Inspector General of Police (Military Police) (Central Range),
Patna.
5. The Commandant, Bihar Military Police- 10, Patna/
.... .... Respondent/s
===========================================================
Appearance :
For the Petitioner/s : Mr. Bindhyachal Singh, Adv.
Mr. Satya Prakash, Adv.
For the Respondent/s : Mr. Rajiv Roy, G.P.-5
Mr. Suresh Kumar, Ac to G.P.-5
===========================================================
CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 10-11-2014
Heard Mr. Bindhyachal Singh, the learned counsel
appearing on behalf of the petitioner and Mr. Rajiv Roy, the learned
G.P.-5 appearing on behalf of the State-respondents. The pleadings of
the parties are complete and with the consent of the learned counsel
for the parties, this writ application is being disposed of by this
judgment and order at this stage.
Calling in question the legal acceptability of the order
Patna High Court CWJC No.16553 of 2013 dt.10-11-2014
2
dated 02.07.2009 passed by the respondent-Deputy Inspector General
of Police, Military Police, Central Range, Patna and the order dated
16.05.2013passed by the Additional Director General of Police, Military Police, Bihar, Patna (Annexures-3 and 4 respectively to the writ application), rejecting the prayer of the petitioner for correction of his date of birth in the service book as barred by limitation, the petitioner has filed this writ application praying for quashing the two orders and for holding that the entry of his date of birth in the service book as 01.01.1955 in place of 01.01.1956 is wrong and illegal.
The petitioner was appointed as constable in the Bihar Military Police in the year 1977 and at the time of his appointment he produced his matriculation certificate granted by the Bihar School Examination Board in proof of his date of birth to be 01.01.1956. The respondents made the entry of his date of birth in the service book of the petitioner on the basis of the said matriculation certificate which fact has been admitted by the respondents in the counter affidavit and is also appearing from the extract of the service book, the photo copy of which has been annexed with the counter affidavit. However, the date of birth which was actually recorded in the service book was 01.01.1955 in place of 01.01.1956 as mentioned in the matriculation certificate. It is also not the case of the respondents that the date of birth mentioned in the matriculation certificate which was produced Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 3 by the petitioner was 01.01.1955 or there had been interpolation rather from the letter dated 14.05.2009 issued by the Bihar School Examination Board, Patna to the respondent-Deputy Inspector General of Police (Military Police) (Central Range), Patna (Annexure-
6), it transpires that the respondents have got the said certificate verified and the Board after verification has supported the entries made in the matriculation certificate including the date of birth of the petitioner to be 01.01.1956. The prayer of the petitioner for correction of date of birth in the service book as 01.01.1956 in place of 01.01.1955 has been rejected only on the ground that the same has been made belatedly after expiry of ten years of the date of appointment and can not thus be entertained in view of the bar provided in Rule 96 of the Bihar Financial Rules and Rule 1041 (B) of Bihar Police Manual.
The petitioner's case is that he came to know in the year 2008 that his date of birth had been wrongly recorded in the service book as 01.01.1955 and thereafter he immediately filed a petition before the respondent no. 3 for correction of the same. Controverting the said fact, the respondents have stated in the counter affidavit that the petitioner had put his signature and LTI in the service book acknowledging the correctness of the entries made therein and therefore he had the knowledge of the entry of the date of birth as Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 4 made in the service book from the very beginning. It has also been averred that there is no interpolation or overwriting in the service book and therefore the petitioner's prayer for correction of his date of birth at the fag end of his career has rightly been rejected in view of the provisions in the Rules. The legal nodus thus, raised in the present writ application pertains to the nature and scope of the statutory rules governing the right of the petitioner for correction of his date of birth in the service book.
Rule 1041 (B) of the Bihar Police Manual stipulates that "the date of birth cannot be altered except under the provisions of Rule 96 of Bihar Financial Rules, volume-I and no representation shall be entertained after ten years of appointment". The provision contained in Rule 96 along with Note-1thereto of the Bihar Financial Rules is also on similar lines stipulating the period of ten years from the date of appointment as outer limit for rectification of the mistake of date of birth in the records of the service of a government servant and the exceptions have been made only with regard to a clerical error and exceptional cases deserving relaxation of the time limit.
This provision of Rule 96 has come up for consideration by a Bench of this Court in Tajuddin Khan Vs. The State of Bihar 2014 (3) P.L.J.R. 746 in which case also the claim for correction of date of birth was rejected on the ground that the entry in the service Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 5 book as regards date of birth could not be changed after ten years. It has been ruled as follows:-
"19. Ordinarily, the date of birth, recorded in the Government employee's service book, cannot be changed. This does not, however, mean that in an appropriate case, date of birth of the Government employee concerned, as recorded by the competent Board, which conducts the examination, cannot be looked into for the purpose of verification. The idea behind Rule 96 of the Bihar Financial Rules, 1950, is to make a Government employee retire on reaching the date of superannuation. However, the object behind Rule 96 of Bihar Finance Rules, 1950, is not to punish a Government employee if his date of birth recorded is of a date earlier than the date of birth, which stands recorded in the relevant records of the Board or recorded in the records of the municipality concerned. A reference in this regard may be made to the cases of Murli Manohar Tiwari Vs. The State of Bihar & Others, reported in 1986 P.L.J.R. 1180, and Ram Sobbhit Rai Vs. The State of Bihar & Others, reported in 1989 B.B.C.J. 141. In this regard, reference may also be made to a decision of the Division Bench of this Court in Siyaram Singh Vs. State of Bihar, reported in 1995 (1) P.L.J.R. 691."
(emphasis supplied) The issue relating to the provisions prescribing time limit Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 6 for correction of entry regarding date of birth in the service book has also fallen for consideration before the Apex Court in the Case of Md. Yunus Khan Vs. U.P. Power Corporation Limited 2009 (1) SCC 80 and their Lordships have held as follows:-
"......An employee may take action as is permissible in law only after coming to know that a mistake has been committed by the employer....."
Much reliance, however, has been placed on behalf of the State-respondents on the decision of the Apex Court in the case of State of T.N. Vs. T.V. Venugopalan, 1994 (6) SCC 302 in support of the stand that the prayer for change of date of birth by a government servant cannot be entertained after expiry of the time limit as prescribed by the rules. However, in the said case, the claim was for alteration in the date of birth, which was made in the service book on the basis of Secondary School Leaving Certificate, on the ground that the date of birth in the said certificate itself had been wrongly and inadvertently made. The claim for correction was also made only a year before retirement. In that fact situation their Lordships have overturned the decision of the Administrative Tribunal which had allowed the prayer for correction of the date of birth. Their Lordships have, however, observed that "the date of birth as entered in the school record (Matriculation, Secondary Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 7 School Leaving Certificate or H.S.C. or Board Exams, whatever may be the name of the certificate from an institution in which the candidate had undergone course of study be it in the primary or secondary educational institutions), is the resource material for making entry in the service record". It has further also been observed that "permission to reopen accepted date of birth of an employee specially on the eve or shortly before the superannuation of the government employee, would be an impetus to produce fabricated record." In the present case, the facts are diametrically opposite when the petitioner has prayed that his date of birth in the service book should be in accordance with the date of birth entered in the matriculation certificate which he had produced before the respondents at the stage of joining the service and which according to the respondents also was the basis for making the entry of the date of birth in the service book. In addition, the petitioner has approached the respondents for the relief admittedly in 2008 (as mentioned in Annexure-3) almost six years prior to his superannuation. The dictum in T.V. Venugopalan (supra), therefore, does not boost the contention made on behalf of the respondents rather it supports the view that the date of birth in the service book should be in consonance with the date of birth mentioned in the undisputed educational certificate of a government employee. Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 8 As mentioned above, the respondents have not disputed the correctness of date of birth as entered in the matriculation certificate issued in the year 1972 which was five years before the petitioner entered into the service. To the contrary, the respondents have got the same verified from the Board which had issued the certificate and after verification the Board has reported the same to be correct. In this fact situation, the burden is definitely upon the respondents to explain the circumstances under which the date of birth as 01.01.1955 came to be entered in the service book of the petitioner on the basis of the same matriculation certificate which contained the date of birth as 01.01.1956. The respondents have remained conspicuously silent in this regard. This fact thus inevitably leads to the inference that the entry of the date of birth as 01.01.1955 in the service book of the petitioner was a clerical error. From the order dated 02.07.2009 (Annexure-3 to the writ application), it further transpires that in the Form relating to General Provident Fund, attached with the service book, the date of birth of the petitioner was earlier mentioned as 01.01.1956 but later on corrected as 01.01.1955. It is the specific case of the petitioner and not denied by the respondents that the service book through out has been in control and custody of the respondents and the matriculation certificate produced by the petitioner was also attached with the service book. The respondents had the copy of the Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 9 matriculation certificate of the petitioner is also apparent from annexure-6 wherein it has been mentioned that the respondents had sent the photo copy of the matriculation certificate to the said Board for verification.
In the corpus of service law, the principle is now well entrenched that a wronged employee should not be denied his rights in a case when no fault in any manner is attributable to him. As such, this Court is not inclined to allow the respondents to sustain their own mistake and deny the relief to the petitioner on the specious plea of bar of limitation as provided in the Rule 96 of the Bihar Financial Rules which in any event has also provided the scope for correction of date of birth in case of a clerical error or in exceptional circumstances.
In result, this application is allowed and the impugned order dated 02.07.2009 passed by respondent no. 4 (Annexure-3) and the order dated 16.05.2013 passed by the respondent no. 3 (Annexure-
4) are accordingly quashed. In view of the admitted position that the date of birth of the petitioner has been recorded in the matriculation certificate as 01.01.1956, the respondents are directed to make correction of the date of birth of the petitioner in his service book and other related service records as 01.01.1956 in place of 01.01.1955 as earlier recorded.
This writ application is, accordingly, allowed with the Patna High Court CWJC No.16553 of 2013 dt.10-11-2014 10 aforesaid directions. In the facts and circumstance of the case, there shall be no order as to costs.
(V. Nath, J) Devendra/-
U