Calcutta High Court
State Of West Bengal And Ors. vs Sisir Kumar Paria on 24 September, 1996
Equivalent citations: (1997)ILLJ1085CAL
Author: Visheshwar Nath Khare
Bench: Visheshwar Nath Khare
JUDGMENT V.N. Kare, C.J.
1. This appeal arises out of the judgment of the learned single Judge dated February 4, 1991 allowing the writ application being Civil Order No. 11509(W) of 1989 filed by the writ petitioner respondent.
2. The petitioner respondent was initially appointed as a Lower Division Clerk in the office of the Settlement Officer, 24- Parganas, Government of West Bengal on July 3, 1954. After the petitioner joined the service, his service book was opened wherein the date of birth entered was January 15, 1934. The petitioner respondent was furnished with a copy of the service book. Subsequently, in the year 1963, the petitioner respondent appeared in the School Final Examination as a private candidate and was declared successful. Accordingly, he was issued a certifi-cate of having passed the School Final Examination. In this certificate, the date of birth of the petitioner respondent was shown as January 15, 1938.
3. It appears in the year 1989 the petitioner re-spondent made a representation to the Government of West Bengal for correction of date of birth in the service book on the basis of the date of birth as recorded in the School Final Exami-nation Certificate. The respondents authority declined to correct the date of birth as prayed for by the petitioner respondent. Consequently, the petitioner filed a writ petition in this Court under Article 226 of the Constitution of India challenging the Memo. dated May 10, 1989 whereby the prayer of the petitioner respondent for correction of the date of birth was declined. A learned single Judge of this Court, while hearing the matter, was of the view that the date of birth given in the School Final Examination Certificate is binding on the authority. Consequently, the learned Judge issued direction that the date of birth of the petitioner respondent be corrected in terms of the date of birth recorded in the School Final Examination Certificate. Aggrieved the State of West Bengal has come up in appeal.
4. Learned Advocate appearing for the appellants urged that the date of birth recorded in the School Final Examination Certificate after joining service does not bind the employer and as such the learned single Judge has erroneously directed for the correction of the date of birth recorded in the School Final Examination Certificate. On the other hand, learned Advocate appearing for the petitioner respondent contended that the weightage necessarily has to be given to the date of birth recorded in the School Final Examination Certificate and the learned Judge was correct in ordering for correction of the date of birth of the petitioner respondent. We have heard the learned Advocates and perused the records.
5. For deciding the case, it is necessary to extract the relevant Rule 9 of the West Bengal Service Rules:
'Rule 9. Declaration of age : Duties and functions of Appointing authorities.- (1) Every applicant for Government service shall at the time of and for the purpose of, entry into Government service submit to the appointing authority a declaration in the form set out in Note 1 below stating the year, month and date of his birth or where the date of birth is not known or both the month and the date of birth are not known, the year and the month, or only the year of birth, as the case may be. The declaration so made shall be binding on the applicant and he shall have no right to revise it subsequently for any reason whatsoever.
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(5) The appointing authority or, where the final order fixing the year, month and date of birth of a Government servant, the Government, may at any time for sufficient reasons review the order fixing the year, month and date of birth and modify the same, provided that the year, month and date of birth shall not be modified to the disadvantage of the Government servant unless he has been given an opportunity of making any representation which he may wish to make against the proposed action.
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6. Rule 9(1) of the Rules shows that the declaration given by employee in respect of date of birth shall be binding on the employee and further the employee shall have no reason to revise the same subsequently for any reason whatsoever. However, Sub-rule (5) aforesaid provides for the review of the date of birth recorded in the service book by the Government
7. If both the sub-rules are read together, it may be found that the review by the Government is permissible on certain contingencies. The question that arises for consideration before us is as to whether the petitioner respondent, on the strength of the date of birth recorded in the School Final Examination Certificate, is entitled to get his date of birth correct or not. As stated earlier, although the review is permissible, but the review can be done only on the material which is based on contemporaneous record, namely, any evidence or material which was in existence at the time of joining the service. In the present case, what we find is that the petitioner respondent, after a decade of joining the service, appeared in the School Final Examination and therein he was shown to have been born in the year 1938. While seeking review, it is not permissible to rely upon such entries in the certificate which came into existence after joining the service. In fact, the certificate at best is a declaration that the petitioner respondent passed the School Final Examination only. No assistance could be derived by the writ petitioner respondent for the purpose of correcting his date of birth recorded in the service Book. In our view, the learned Judge was not correct in holding that the entry of date of birth in the School Final Certificate which came into existence after 10 years of joining the service is binding on the employer. Since review of the correction of the date of birth is not permissible under such material or evidence, the view taken by the learned single Judge in allowing the writ petition was erroneous.
8. We accordingly set aside the judgment of the learned single Judge under appeal.
9. Before the judgment could be completed, it was urged on behalf of the petitioner respondent that since the petitioner respondent has already worked on the basis of the judgment of the learned single Judge and thereafter retired, and as such, the Government may be directed not to recover the salary paid to the employee during the extended period of service. We have considered the matter and we feel that the petitioner respondent was paid salary for having worked in the office of the State and the payment was not a bounty and as such this payment of salary to the writ petitioner is required to be regularised. However, while computing the retiral benefits and other benefits, the petitioner respondent shall be treated as having retired on the basis of his date of birth as being January 15, 1934 and on reaching the age of 58 years.
10. With such directions the appeal is allowed in part. Hence no order need be passed on the pending application.
Vinod Kumar Gupta, J.
11. I agree