Gauhati High Court
Mantasir Ali Laskar vs Commissioner And Secretary, Govt. Of ... on 2 March, 2004
Equivalent citations: (2005)1GLR214
JUDGMENT B.K. Sharma, J.
1. By this writ petition, the petitioner has prayed for a direction to the respondents not to disturb the services of the petitioner as Inspector of Police (U.B.), Traffic and to allow him to continue to his service till he attains the age of 58 years as on 30.6.2004. The claim of the petitioner is that according to the age recorded in his Matriculation Certificate, his date of birth is 1-7-1946 and on that basis he is entitled to continue in his service upto 30.6.2004. However, by the impugned W.T. message dated 26-6-2002, the intimation was sent to the effect that the petitioner and some others as mentioned in the W.T. message would retire from service w.e.f. 30.6.2002. It was at that stage, the writ petition was filed and this Court by an interim order dated 12-7-2002 issued an interim direction not to give effect to the said W.T. message dated 26-6-2002 with a further direction to allow the petitioner to continue in his service. The petitioner has been continuing in his service till date on the basis of the said interim order.
2. The petitioner was appointed as Assistant Sub-Inspector of Police and was directed to join the Police Training College, Dergaon by letter dated 18-3-1964. The petitioner was appointed on the basis of his application dated 18-3-1964 and on the same very date the aforesaid letter dated 18-3-1964 was issued directing him to join the Training College. The petitioner completed the training and has been continuing in his service till date. Presently he is holding the post of Inspector of Police.
3. As per the averments made in the writ petition, the petitioner submitted a representation on 28-12-2001 for rectification of his date of birth recorded in the service book on the basis of the age recorded in the Matriculation Certificate. It is the case of the petitioner that on receipt of the said representation, the Inspector General of Police (Admn.), Assam called for the service book and original Matriculation Certificate for verification etc. which was duly sent to him. The University authority with whom the respondents made correspondences also confirmed by their communication dated 27-3-2002 intimating the respondents that the original Matriculation certificate in respect of the petitioner found to be correct upon verification of the same. If the age recorded in the Matriculation certificate which is 15 years 8 months on the 1st day of March, 1962 is taken into account, then the date of birth of the petitioner is 1-7-1946 and the petitioner would complete 58 years of age on 30-6-2004. However, by the W.T. message dated 26-6-2002 he was made to retire from service w.e.f. 30.6.2002. It is due to the aforementioned interim order, the petitioner has been continuing in his service till date. It is in this background, the present writ proceeding has been initiated by the petitioner.
4. The respondents have not filed any affidavit but have produced the records pertaining to the service of the petitioner including his service book. The service book reflects the date of birth of the petitioner as 1944 and the same bears the signature and thumb impression of the petitioner. The respondents have also produced a gradation list of Inspectors as circulated under Memo. No. FA/XII-6/89/80 dated 15-9-1993 asking for objection/claim about gradation/date of birth etc. from the incumbents. In the said gradation list under column "date of birth, it was recorded as 1944" against the name of the petitioner at serial No. 413 of the said gradation list.
5. Mr. A.S. Chowdhury, learned senior counsel assisted by Mr. A.K. Dasgupta, advocate strenuously argued that the petitioner has been wrongly made to retire contrary to his actual date of retirement on the basis of the age recorded in the Matriculation Certificate. He argued that the petitioner could come to know about the wrong recording of his date of birth as 1944 only on 26-6-2002 when the aforesaid W.T. message dated 26-6-2002 was issued intimating his date of retirement as 30-6-2002. He further submitted that it is the Matriculation Certificate which is the basis to arrive at the age and date of birth of the incumbent and there cannot be any deviation from the entries made in the certificate. The petitioner's date of birth on the basis of the said certificate being 1-7-1946, the petitioner is entitled to continue in his service till attaining the age of superannuation i.e. 58 years which the petitioner would complete on 30-6-2004, Mr. Chowdhury submitted referring to the additional affidavit filed on 19-2-2004, after the matter was heard on 1-7-2004. Mr. Chowdhury submitted that the authorities of the Police Training College wrongly recorded the date of birth of the petitioner in the service book as 1944 instead of 1-7-1946. He also submitted that the petitioner was asked to put his signature and thumb impression in blank form/sheet which he accordingly did and the entries more particularly the entry relating to the date of birth were subsequently inserted in the service book. Thus he submitted that the impugned action on the part of the respondents in declaring the date of retirement of the petitioner as 30-6-2002 is wrong and liable to be interfered with by this Court in exercise of its power under Article 226 of the Constitution of India. As regards the reflection of the date of birth as 1944 in the service book and the aforementioned gradation list, Mr. Chowdhury submitted that the petitioner was not aware of the said documents and thus could not raise any objection against the wrong recording of the date of birth.
6. Mr. H.K. Mahanta, learned State counsel appearing for the respondents on the other hand submitted that the petitioner cannot raise a grievance at the fag end of his service career in respect of the date of birth recorded in the service book. He further submitted that the entries made in the service book including the entry relating to the date of birth of the petitioner having been accepted by the petitioner by putting his signature and thumb impression, he is estopped from making a grievance against the same and that too at the fag end of his service career. He relied upon three decisions of the Apex Court as reported in (1994) 6 SCC 302 (State of T.N. v. T.V. Venugopalan) : 1994 Suppl. (1) SCC 155 (Secretary and Commissioner v. R. Kirusbakaran) and (2003) 6 SCC 483 (State of U.P. v. Gulaichi), in support of his arguments justifying the action of the respondents. In reply Mr. A.S. Chowdhury relied upon a decision of the Delhi High Court as reported in 1990 (1) SLR 31 (Shaukat Ali v. Indian Airlines) in which case single Judge of the Delhi High Court while allowing the writ petition held in the facts and circumstances of that case that the delay in making the claim for change of date of birth as recorded in the service book on the basis of the School Leaving Certificate would not defeat the case of the petitioner.
7. I have considered the materials on record and the submissions made by the learned counsel for the parties. Taking the date of birth of the petitioner as 1-7-1946, he would have been under-aged for the service in question which he had entered on 18-3-1964. His date of birth has been recorded as 1944 in the service book. He has also accepted the entries made in the service book which include the entry relating to the his date of birth as 1944 by putting his signature and thumb impression as required under the rules. His such recorded date of birth was also reflected in the aforesaid gradation list to which admittedly there was no objection on the part of the petitioner, although such objections were called for from the incumbents including the petitioner whose names were included in the gradation list. It is on these materials, the issue relating to the date of birth and the date of retirement of the petitioner from service will have to be determined.
8. It is an admitted position that the petitioner never raised any objection during the entire period of his service life except the one raised by his representation dated 28-12-2001 which is about six months prior to his date of retirement i.e. 30-6-2002. In paragraph 9 of the writ petition, the petitioner has made the following statements :
"That the petitioner further beg to state that while recording date of birth etc. in the Police Training College on 28-3-1964 the petitioner's year of birth was recorded as 1944 but date of month etc. was not mentioned."
9. Likewise in the additional affidavit filed by the petitioner, the following statements has been made in paragraph 4. :-
"That in the Police Training College his date of birth was not correctly filled in and in place of quoting 1-7-1946 as to his date of birth the staff of the Police Training College, Dergaon, Assam wrongly noted his date of birth as on 1-7-1944."
10. From the aforesaid averments, it is clear that the petitioner was aware about the date of birth recorded in the service book and yet he did not raise any objection against the same. Although a statement has been made in the additional affidavit filed on 19-2-2004 that the petitioner was not aware about the entries made in the service book and the gradation list the same having not been shown or served on the petitioner and that he could come to know about the alleged wrong recording of date of birth as 1944 only through the impugned W.T. message, same runs counter to the revelation made in his own representation dated 28-12-2001 and the averments made in the writ petition and the additional affidavit which have been quoted above. In his Annexure-C representation dated 28-12-2001, the petitioner has made the following statements :-
"The Hon'ble Director General of Police Assam, Guwahati.
Sub : Rectification of service records in service book.
Ref: S.P. (City) Memo No. GCP(R)/5251-71 dated 5-9-2001 and D.O. No. 3653 dated 2-9-2001.
Sir, With reference to the above letter cited above I have been informed that my superannuation date falls on 30th July, 2002. It may be pointed out here that as per my record, my date of superannuation falls on 30th July' 2004. In view of above, I have the honour to state the following facts and figure recorded in my service book in respect of my date of birth to be rectified at your end.
That Sir, I have joined in the department as direct recruited A.S.I. of police on 28-3-1963 at P.T. College, Dergaon. Due to calculating error of the then Reserve Officer of P.T.C., Dergaon my date of birth is recorded in the service book as 1st July '1944. But as per Matriculation Examination record my date of birth is 1st July' 1946. Photocopy of certificate is enclosed herewith for your ready references.
In view of above facts I request your honour kindly to rectify my date of birth recorded in the service book as my date of superannuation falls on 30th July, 2004.
This is for favour of your kind information and necessary rectification.
Yours faithfully, Sd/-M.A. Laskar, Traffic Inspector of Police."
11. The said representation was also submitted in reference to Memo dated 5-9-2001 and D.O. letter dated 2-9-2001. These two documents have not been annexed to the writ petition although the representation was made in reference to those two documents making a prayer for correction of his date of birth. Thus the petitioner was all along aware about the alleged wrong recording of his date of birth in the service book as 1944, but yet he did not make any representation and or objection against the same throughout his service career. It is unbelievable that the petitioner was not aware of the date of birth recorded in his service book and in the gradation list. The respondents have produced only one such gradation list of 1993. It is the common knowledge that gradation lists are published from time to time giving the service particulars including the date of birth of the incumbents and objections are invariably asked for from the incumbents. The petitioner entered the service of the department of police way back in 1964 and it is unbelievable that during these long 30 years of service, the petitioner was not aware of any one of the gradation list published and circulated. In the writ petition, it is not the case of the petitioner that he was not aware of the date of birth recorded in the service book or in the gradation list, rather he has admitted that he was aware of the same all throughout. It is only in the additional affidavit filed on 19-2-2004, such a plea has been raised which runs counter to his own averments made in the same very affidavit and the writ petition as noticed above.
12. Another very important aspect of the matter which is required to be noted is that the petitioner would have been under-aged for an appointment under the government if his date of birth is taken to be 1-7-1946. He having been appointed on 18-3-1964, he would have been under-aged by three months two days and thus would not have been eligible for any government job. He was under-aged for government job on 18-3-1964 and thus naturally was so in the earlier point of time also when he had applied for the post and the matter relating to his appointment was under process. It was possibly on that account, the petitioner indicated his date of birth as 1944 so as to enable him to be considered for the appointment. After having attained that goal, now he cannot be allowed to turn round the same for further benefit by way of extending the age of superannuation. If this is allowed same will be a gain for the petitioner at both ends of his service i.e. entry and exit points.
13. The petitioner, as has been noticed above, did not raise any objection regarding the date of birth recorded in the service book and reflected in the gradation list till such time when he made the representation on 28-12-2001 which was at the fag end of his service career. If is in this context the aforesaid decisions relied upon on behalf of the respondents come into play. In the case of T.V. Venugopala (supra), the Apex Court held that the delay in seeking correction would be fatal and the government servant should not be permitted to challenge the recorded date of birth in the service book which has been accepted by counter signing the same at the fag end of his service career. Deprecating the approach of the Tribunal in granting the relief to the applicant the Apex Court held that the Tribunal grossly error in showing overindulgence in granting the reliefs even trenching beyond its power of allowing the applicant to remain in office for two years after the date of superannuation. The course of action adopted by the Tribunal was held to be the grossest error of law committed by the Tribunal holding the same not to be countenanced and sustained on any ground.
14. In the case of R. Kirubakaran (supra), the Apex Court noticed the adverse effect of allowing correction of date of birth and held that such correction should normally not be allowed. It has been held in that case that the Tribunal or the High Court should not deal with an application for correction of date of birth keeping in view the only public servant concerned. The Apex Court has also emphasised in that case that the Court or the Tribunal must be slow in granting any interim relief for continuation in service. The Apex Court also pointed out the chain reaction that follows with the continuation of the services of the incumbent beyond the date of superannuation such as adverse effect on promotion prospect of his juniors etc. Limited scope of judicial review in such matter has also been emphasised by the Apex Court. Same is the view expressed by the Apex Court in the case of Gulaichi (supra). In that case, the Apex Court observed as follows :-
"Normally, in public service, with entering into the service, even the date of exit, which is said as the date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the individual concerned. This is the practice prevalent in all services, because every service has fixed the age of retirement, it is necessary to maintain the date of birth in the service records. But, of late a trend can be noticed, that many public servants, on the eve of their retirement raised a dispute about their records, by either invoking the jurisdiction of the High Court under Article 226 of the Constitution of India or by filing applications before the Administrative Tribunals concerned, or even filing suits for adjudication as to whether the dates of birth recorded were correct or not."
"As observed by this Court in State of T.N. v. T.V. Venugopalan and State of Orissa v. Ramanath Patnaik, when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence. The view expressed R. Kirubakaran case was adopted."
15. Noticing the provisions of the FR 56(a) as applicable to the instant case, the Apex Court in the case of State of Assam and Anr. v. Daksha Prasad Deka and Ors. reported in AIR 1971 SC 173 observed as follows :-
"In the opinion of the High Court if the true date of birth of the respondent was August 1, 1911, the order compulsorily retiring the respondent on June 30,1965, without giving him an opportunity to prove his true age, infringed the guarantee of Article 311(2) of the Constitution. In our judgment, the High Court was wrong in holding that there was any infringement of Article 311(2) of the Constitution."
"In the service record of the respondent his date of birth was recorded as July 1, 1910 and under F.R. 56(a) the respondent was liable to be compulsorily retired on the date on which he attained the age of 55 years. The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistent with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record, and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record."
"Again, if the contention of the respondent were correct, on the date on which he entered service he was a minor. If on a representation that he had attained the age of majority on the date, on which he entered service, it would not be open for him after being admitted to the service, to contend that under the appropriate service rules he could not have been admitted to the service, but for the misrepresentation made by him."
16. The above observations of the Apex Court in the case of Daksha Prasad Deka (supra) clinch the issue in hand. The petitioner was a minor at the time of entry into government service and thus could not have been appointed. He having represented himself to be major at the time of entry into the service, is bound by such representation and cannot now resile back from that position so as to earn some more years of service. The decision relied upon by the learned counsel for the petitioner does not help the case of the petitioner in view of the aforesaid decisions of the Apex Court. I may also gainfully refer to the decision as reported in (1997) 4 SCC 647 (Union of India v. C. Rama Swamy) in which the Apex Court held that an appointment, having been secured on the basis of a particular date of birth, it would be against public policy to permit a change in the same to enable a longer benefit and the same would operate as an estoppel. The Supreme Court pointing out that in matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment and one of the relevant circumstances is the age of the person who is sought to be appointed and that although it may not be possible to conclusively proved that an advantage has been gained by representing date of birth which is different than that the one claimed later on. The Apex Court emphasised that it will not be unreasonable to presume that when a candidate, at the first instance, communicated a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is relevant factor to assess suitability, elder person is ordinarily considered to be more mature, therefore, more suitable. In such a case, the Apex Court emphasised that it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. In that case, the Apex Court further observed as follows :-
"In such a case, even in the absence of a statutory rule like Rule 16-A, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. If such a decision is challenged the Court also ought not to grant any relief even if it is shown that the date of birth, as originally recorded, was incorrect because the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that would be to his advantage. Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent the decision is Manak Chand case does not lay down the correct law."
17. As noticed above, the petitioner obtained an employment on the basis of the declaration made by him including the declaration relating to his date of birth. After getting the employment, he remained silent over the years and made a grievance relating to the alleged wrong recording of his date of birth in the service book at the fag end of his service career to gain some more years of service. He is estopped from doing so, no matter however strong evidence he puts forward to claim a particular date of birth which is different from the one recorded in the service book. A faint submission was made on behalf of the petitioner that the respondent had in fact condoned the age according to which, the petitioner was not eligible to enter into government job, by granting relaxation. In this connection the words used in the letter dated 18-3-1964 "as a special case" were pressed into service so as to claim that the petitioner, although was a minor at that point of time was inducted to the service by granting relaxation. There is no material to show that any such relaxation was granted in favour of the petitioner. The records produced on behalf of the respondents do not show anything so as to accept the submissions. It will be dangerous to accept the argument merely on the basis of the expression used "as a special case". It is also not the pleaded case of the petitioner that he was given any such relaxation although a statement has been made that such relaxation was permissible. Had such relaxation been granted to the petitioner, he would have been bold enough to assert right from the beginning of his service career that his actual date of birth is 1-7-1946 and not 1944 instead of waiting for more than 27 years to put forward his such claim at the fag end of his service career.
18. In view of the foregoing discussions and conclusions I do not find any merit in the writ petition and accordingly the same is dismissed. The interim order passed earlier stands vacated and the petitioner should be deemed to have retired from service on attaining the age of superannuation w.e.f. 30-6-2002. His retirement benefits should be calculated on that basis. The interim order passed on 12-7-2002 in favour of the petitioner allowing him to continue in his service beyond the date of retirement i.e. 30-6-2002 was naturally subject to the result of outcome of the final adjudication. If the petitioner was not successful in the final decision, the interim order would stand set aside. The continuation in service by the petitioner on the strength of the aforesaid interim order does not and cannot create any right in favour of the petitioner. With the passing of this judgment, the interim order passed earlier stands vacated and the petitioner will not continue in his service.
No order as to cost.
Registry shall communicate this order immediately to the respondents.