Gauhati High Court
State Of Manipur And Ors. vs M. Irabot Singh on 3 November, 1999
Author: H.K. Sema
Bench: H.K. Sema
JUDGMENT H.K. Sema, J.
1. This appeal has been referred to me as the (3rd Judge) for opinion by Hon'ble the Chief Justice by its order dated 5.9.1999 in view of the dissenting Judgment of the Division Bench consisting of Hon'ble Mr. Justice P.K. Sarkar and Hon'ble Mr. Justice H.K.K.Singh.
2. The undisputed facts leading to the filing of the writ petition and the present appeal are these :
Writ petitioner (Respondent herein) joined the Government service as Lecturer in Hindi on 7.8.1968. His date of birth recorded at the time of his entering into service on 7.8.1968 was 1.9.1940. Thereafter, writ petitioner was appointed as Lecturer in Manipur on 25.9.1968. However, his date of birth is maintained as on 1.9.1940. By an impugned notice dated 27.6.1998 (Annexure-5 in the writ petition), he was ordered to be retired on superannuation w.e.f. 31.8.1998 taking his date of birth as on 1.9.1940. Thereafter, petitioner filed a representation dated 9.7.1998 addressed to the Director of Education(s) Government of Manipur for correction of his date of birth from 1.9.1940 to 1.7.1942, claiming that actual date of birth of the writ petitioner according to the Matriculation examination Certificate and Admit Card is 1.7.1942 and not 1.9.1940. The date of birth recorded in his service book as on 1.9.1940 has been recorded wrongly through oversight. His representation dated 9.7.1998 for correction of his date of birth has been rejected by an order dated 22.7.1998 as not maintainable at the belated stage.
3. Petitioner has filed writ petition on 6.8.1998, however, he has not assailed the order dated 22.7.1998 rejecting his representation dated 9.7.1998. It appears this fact has not been brought to the notice of the learned Single Judge. The learned Single Judge by its Judgment and order dated 8.9.1998 quashed the impugned notice dated 27.6.1998 retiring the petitioner on superannuation w.e.f. 31.8.1998. The learned Single Judge also directed that the date of birth of the petitioner is 1.7.1942 and not 1.9.1940. It was further directed that writ petitioner shall retire from service with reference to his date of birth as 1.7.1942. Being aggrieved, the State Government preferred an appeal registered as Writ Appeal No. 166/98.
4. The Division Bench consisting of Hon'ble Mr. Justice P.K. Sarkar and Hon'ble Mr. Justice H.K.K. Singh concluded the argument of both sides on 19.2.1999 and order was reserved. On 21.5.1999, the Hon'ble Judges delivered the spliting Judgments. The Hon'ble Mr. Justice P.K. Sarkar affirmed the Judgment of the learned Single Judge and dismissed the appeal preferred by the appellant.
5. Dissenting from the view expressed by Hon'ble Mr. Justice P.K. Sarkar, the Hon'ble Mr. Justice H.KK. Singh taking the view that delay and laches stands on the way of the writ petitioner and the date of birth recorded in the service book of the writ petitioner at the time of his entering into service cannot be corrected at the fag end of his service, especially when the dispute was raised after he received a notice retiring him on superannuation w.e.f. 31.8.1998.
6. Hon'ble Mr. Justice P.K. Sarkar was of the view that the dispute was not in the nature of correction of the date of birth but is was purely a case of correction of Arithmetic error committed by the petitioner as well as by the Government, and therefore, the error can be corrected even at the fag end of service of the petitioner if Matriculation certifiate is considered as genuine one. I am respectfully disagree with the view expressed by Hon'ble Mr. Justice P.K. Sarkar as he has completely overlooked the basic facts that the claim for correction of date of birth has been made by the petitioner at the fag end of his service and only after he received a notice retiring him on superannuation. The learned Judge also completely overlooked the fact that there was negligence and laches on the part of the writ petitioner in failing to raise a dispute at appropriate time as envisages under Note-6 to FR 56. On the other hand, Hon'ble Mr. Justice H.K.K. Singh has dwelt at length the Judgment of the Hon'ble Supreme Court in Burn-Standard Co. Ltd. and others, Appellants, v. Dinabandhu Majumder and another, respondents, (1995) 4 SCC 172 and Union of India, Appellant, v. Ram Sula Sharma, Respondent, (1996) 7 SCC 421 and has reached the conclusion that the laches and negligence precludes the writ petitioner from raising a dispute at the fag end of his service and dismissed the writ petition. I am respectfully agreed with the conclusion reached by my learned brother H.KK. Singh for the reason that I assigned herein.
7. Before I proceed further on the other contentions, it appears learned Single Judge while disposing of the writ petition on 8.9.1998 also relied upon the decision of the Division Bench presided over by me in L. Iboyaima Singh, appellant, v. State of Manipur and others, respondents reported in (1997) 2 CLR 53. In that case, writ petitioner joined Government service in 1959. The age of the writ petitioner recorded in the Matriculation Certificate was 17 years 6 months as on 1.3.1956. His date of birth recorded in the service book at the time of his entering into service was 1.8.1939. In fact the correct date of birth was 1.9.1938 and not 1.8.1939. This Mathematical error was detected by the State Government subsequently and the date of birth of the writ petitioner was corrected as 1.9.1938 instead of 1.8.1939. Writ petitioner has assailed the order on the ground that no opportunity of hearing has been afforded to the writ petitioner before the mathematical error has been corrected. The ground for assailing the order impugned in that case was violation of the principles of natural justice.
8. In the case, the Division Bench of this Court repelled the contention in para 7 of its Judgment as under :
"7. The rules of natural Justice are not embodied rules. Application of rule of natural Justice, therefore, depends upon the facts and circumstances of each case. In order to sustain the complaint of violation of the rule of natural justice, the petitioner must be established that prejudice has been caused to him for non-observance of the rule of natural justice. In the instant case, as already stated that there was a mathematical error crept In at the time of recording the date of birth in the service book, that mathematical error was correctly rectified.
In such a situation, no prejudice has been caused to the writ petitioner/appellant. The fact that the correction has been made without hearing the appellant has no substance because in such situation hearing of the appellant would make no difference because no prejudice has been caused to the appellant. At the same time, when such error is detected it is upto the respondents/Government to rectify such mathematical error at any point of time as and when detected."
9. Admittedly, in the facts and circumstances as recited above, the Judgment of the Division Bench in Iboyama Singh (supra) is not applicable in the facts and circumstances of the case for more than one reasons, firstly, the petitioner pleaded the violation of the principle of national justice, and secondly, in the case it was the State Government which detected the mathematical error and was corrected subsequently and correctly. It was not the case of the writ petitioner raising the dispute at the belated stage. It is in this circumstances the Division Bench held that Government is entitled to rectify such mathematical error at any point of time as and when detected. But this view is non-suited the writ petitioner. Therefore, the Judgment of Division bench in Iboyama (supra) has been erroneously adapted in the case at hand.
10. The contention of counsel for the appellant Mr. Ng. Kumar that the order of Division Bench in Iboyama (supra) squarely covered the present dispute is clearly erroneous and this contention is rejected.
11. Having resolved the aforesaid point, reverting to the facts of the case at hand, and at the risk of repeatatic, the petitioner joined in Government service on 7.8.1968. His date of birth recorded in the service book as on 1.9.1940. After serving about 30 years in the service and at the fag end of his service when he received an Impugned notice dated 27.6.1998, retiring him on supannuatlon w.e.f. 31.1.1998, taking his date of birth as on 1.9.1940, writ petitioner filed for the first time the representation dated 7.9.1998 claiming that his date of birth Is 1.7.1942 and not 1.9.1940, which is clearly impermissible in view of a bar imposed under Note-6 to F.R. 56 and a catena of decisions of the Apex Court, such claim is hit by laches and negligence and his silence for about 30 years of his service would precludes him from raising that his date of birth entered into service record was erroneous, even if he has good evidence to establish that the recorded date or birth is clearly erroneous. In fact, in the case at hand, petitioner passed the Matriculation examination in 1981. The age of the petitioner as on 1.3.1961 was 18 years 8 months, and therefore, his correct date of birth would be 1.7.1942, and if the petitioner raise a dispute within a stipulated time without wasting much of his time, his case would have been different, but as held by the Apex Court In Union of India, Appellant, v. Harnam Singh, Respondent, (1993) 2 SCC 162, his inaction for all this period of about thirty years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in service record was not correct, even if he has good evidence to establish that recorded date of his birth is erroneous.
12. In the facts and circumstances as stated above, it is an admitted fact that the writ petitioner raised a dispute for correction of his date of birth in its representation dated 9.7.1998 to correct his date of birth from 1.9.1940 to that of 1.7.1942 only after the writ petitioner received impugned notice dated 27.6.1998 retiring him on superannuation w.e.f. 31.8.1998. This laches and negligence on the part of the writ petitioner precludes him from raising any dispute that the date of birth recorded in his service book at the time of his entering into service was erroneous.'
13. At the time of hearing of this petition service book of the writ petitioner, respondent has been produced and perused. A bare perusal of the service book it appear that the petitioner's service book was opened on 6.2.1969. His date of birth is recorded clearly as 1.9.1940, and the petitioner had put thumb impression and also put the signature on it. Petitioner has also put his signature in the service book maintained by the Department throughout his service and he knew very well that his date of birth is recorded as on 1.9.1940. Despite, petitioner never raise any objection prior to 9.7.1998. Although it is submitted by Mr. Ng. Kumar that the petitioner has also filed representation some time in 1971 addressed to the Headmaster. There is no such representation in the file maintained by the Department. This apart, this statement cannot be accepted, because any man with ordinary prudence properly instructed in law would not have remain silent till 1998 if at all representation was filed in 1971. It would clearly show the statement that the petitioner has filed representation in 1971 appears to be well and after thought to make an issue out of non-issue.
14. Having said so, it Is clearly a case of laches and negligence, and the claim made by the writ petitioner is hopelessly belated with a view to cling to the post held by him at the fag end of his service which is clearly impermissible. Such kind of dispute are no more res integra. It has been set at rest by the Supreme Court in a catena of decisions.
15. In State of Tamilnadu, Appellant, v. T.V. Venugopalan, Respondent, (1994) 6 SCC 302, it has been held by the Apex Court at page 307 that inordinate delay in making the application is itself a ground for rejecting the correction of date of birth.
16. In Union of India, Appellant, v. Harnam Singh, Respondent (1993) 2 SCC 162, the Apex Court held at page 167 that a Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to established that the recorded date of birth is clearly erroneous.
17. In Burn Standard Co. Ltd. and others, Appellants, v. Dinabandhu ,1 Majumar and another, Respondents (1995) 4 SCC 172, the Apex Court had held at page 178 of its Judgment:
"The fact that an employee of Government or its Instrumentality who has been in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his service record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches."
18. In Union of India, Appellant v. Ram Suia Sharma, Respondent, (1996) 7 SCC 421, the Apex Court has depreciated the claiming of correction of date of birth at belated stage.
19. In State of Orrisa and others, Appellants, v. Ramanath Patnaik, Respondent, (1997) 5 SCC 181, the same view was taken.
20. In the facts and circumstances as stated above, the dispute raised by the writ petitioner at the fag end of his service career of about 30 years of service is clearly bar by laches and negligence, and on this ground alone, the belated dispute raised by the writ petitioner cannot be entertained. In this view, I respectfully agreed with the view taken by my learned brother Hon'ble Mr. Justice H.K.K. Singh and respectfully disagree with the view taken by my learned brother Hon'ble Mr. Justice P.K. Sarkar.
21. In the result, the appeal is allowed. The Judgment and order dated 8.9.1998 passed by the learned Single Judge in Civil Rule No. 686/98 is hereby set aside. Writ petition stands dismissed. No costs.
22. It is unfortunate that because of the Judgment and order dated 8.9.1998, the writ petitioner is still continuing in service despite that he has been reired on superannuation w.e.f. 31.8.1998. Since the order of the learned Single Judge has now been set aside, the writ petitioner shall not be entitled to any service benefits other than the salary drawn by him for the period beyond 31.8.1998. Writ petitioner shall however, cease to be a Government servant with effect from today, the 3rd November.