Abdul Halim vs State of West Bengal and Others

Shivakant Prasad, J—The writ petitioner has approached this Court with a prayer for issuance of a writ in the nature of mandamus for direction commanding the respondent authorities to change the date of birth of the petitioner from 3rd February, 1931 to 27th December, 1936 in the record of the West Bengal Board of Secondary Education giving cognizance to the petitioner''s original birth certificate and the affidavits sworn by his parents.

The chronology of the petitioner''s case is that he was born on 27.12.1936 at Village - Ausha, P.S. Memari, Union Board Nabastha, District - Burdwan. The date of birth was informed to Chowkidar of the village. It appears from the original Birth Register Certificate that the date of birth was on 28.12.1936. The petitioner was admitted in Begut Jahnali M.E. School and his age was recorded wrongly as 3rd February, 1931 instead of his actual date of birth on 27.12.1936. The petitioner got himself admitted in Hatgobindapur M.G.C. High School on the basis of transfer certificate and the error in the date of birth was carried on as a result the date of birth was recorded wrongly in the School Admission Register. It is submitted by the learned counsel for the petitioner that before appearing in the school final examination in 1953, the petitioner''s father wrote a letter on 12.01.1953 to the Secretary, Board of Secondary Education, West Bengal for correction of the petitioner''s date of birth by attaching therewith the petitioner''s Admit Card and affidavit sworn by him on 4.12.1951 before the 1st Class Magistrate, Burdwan. The Assistant Secretary (General) through his letter No. 3748/G dated 13.02.1953 informed the petitioner''s father that application received was too late for consideration.

It is pointed out by the learned counsel for the petitioner that the said letter of Assistant Secretary (General), Board of Secondary Education, West Bengal itself shows that the merit of the petitioner''s father''s contention in his letter dated 12.01.1953 was not considered rather at the outset it was rejected. But the fact remains that the petitioner could approach the Court of law at that material point of time challenging the said letter of the Assistant Secretary. Further contention of the petitioner is that prior to joining in service, in the Service Book and in the Police Verification Role the petitioner''s date of birth was recorded as 27.12.1936 and that Since the recording of the date of birth of the petitioner corroborated his actual date of birth the petitioner got relief of the tension arising out of the age dispute due to erroneous recording of date of birth at the time of his admission in school and non-consideration of his father''s representation for correction of the petitioner''s date of birth by the Board of Secondary Education, West Bengal. I am unable to agree with such a wishful thinking on the part of the petitioner because there cannot be opening of service record at the stage of police verification before joining government service and the police verification is not for the purpose of recording date of birth of the incumbent, ergo, question of recording of date of birth being 27.12.1936 does not arise. It is submitted that the petitioner retired from the service on attaining superannuation on 28.02.1989, five years before his actual date of retirement, still the petitioner could not get rid of his misfortune.

Further case of the petitioner is that the petitioner came to know about alteration of date of birth in the Service Book when he collected the duplicate copy of the Service Book after receiving notice dated 11.09.1987 from his employer for his superannuation on and from 28.02.1989. It reflects that the petitioner was well aware of the date of birth as recorded in the Service Book regarding alteration of his date of birth as alleged in paragraph 14 of the writ petition. Therefore, it was expedient on his part to have approached the Court right at that time instead the petitioner slept over the matter and he did not file any suit before any Court of Law for declaration of his date of birth and/or for correction of it and therefore, it can safely be said that there has been a belated application filed before the Court for direction to authorities concerned for correction of his date of birth as 27.12.1936 instead of 3.02.1931.

It is contended that the petitioner was apprised by the letter No. 2538/G dated 16.1.1989 of the Secretary, West Bengal Board of Secondary Education to this effect that after due consideration by the President it has been decided that the case has no merit and relief cannot be granted.

It is further contended that mother of the petitioner also sworn an affidavit in the Court of Executive Magistrate, Burdwan on 18.05.1992 declaring that the petitioner being eldest son was born on 27.12.1936 at their residential house in Village - Ausha but finding no relief for correction of his date of birth in the record of the West Bengal Board of Secondary Education, the petitioner moved writ petition being C.O. No. 2713 (W) of 1989 before the Hon''ble High Court, Calcutta, subsequently, the same was transferred to the West Bengal State Administrative Tribunal being T.A. No. 129/96 for wiping out the anomaly in regard to his date of birth but the learned Tribunal erred in law by not considering the original Birth Certificate obtained by the petitioner from the office of the Deputy Collector, Burdwan on the plea that in the original Birth Certificate as furnished by the applicant the column relating to the name of the child was blank.

The petitioner has further contended that the learned Tribunal in the judgment dated 28.09.2001 erred in law by not giving proper cognizance of the original Birth Certificate of the petitioner and by not arriving at a logical conclusion.

In support of his contention, the learned counsel for the petitioner relies on a judgment in the case of Sarjoo Prasad Vs. General Manager and another, AIR 1981 SC 1481 : (1981) LabIC 880 : (1981) 2 LLJ 380 : (1981) 1 SCALE 833 : (1981) 3 SCC 544 : (1981) 13 UJ 133 wherein the Hon''ble Apex Court by relying its judgment in the State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, AIR 1967 SC 1269 : (1967) 15 FLR 209 : (1967) 2 LLJ 266 : (1967) 2 SCR 625 held that the date of birth without notice and without giving opportunity to the appellant cannot be altered to the disadvantage and prejudice of an employee because an administrative order which involves civil consequences must be made in conformity with the rules of natural justice which at its lowest minimum requires notice and opportunity to the person affected thereby. It was held in the decision that the order of retirement based on such unilateral determination of age of the employee must be set aside and the employee be deemed to be continuing in service.

In the present case reasonable opportunity was given to the petitioner. The date of birth was recorded in the service book on the declaration of the petitioner himself. So the petitioner is estopped from pleading further on this count.

Yet another decision in the case of H. Subba Rao Vs. The Life Insurance Corporation of India and Another, AIR 1976 Kar 231 : (1976) ILR (Kar) 800 : (1976) 1 KarLJ 289 has been relied by the petitioner wherein it has been observed that it is an accepted principle that an entry in the Register of Births is not conclusive evidence in the disputed date of birth, so also is an entry made pursuant to the direction of the Magistrate, under Section 13(3) of the Registration of Births and Deaths Act, 1969.

Section 13(3) of the Act provides:

"Any birth or death which has not been registered within one year of its occurrence, shall be registered only on an order made by a Magistrate of the first class or a Presidency Magistrate after verifying the correctness of the birth or death and on payment of the prescribed fee."

It is further observed that such entry shall be made immediately after the occurrence. Precaution should be taken while making delayed entries. The law says that an entry which has not been made within one year of its occurrence cannot be made without an order of the Magistrate. Section 13(3) of the Act is just a constraint on the Registrar. It is not a provision whereby an aggrieved party could get an adjudication on his disputed date of birth. The order of the Magistrate binds only the Registrar and not others. The entry made by the Registrar, pursuant to an order of the Magistrate, cannot carry higher probative value and its proof must necessarily depend upon the facts and circumstances of each case. Thus on respectful consideration of the cited decision it would go to show that the facts of the case in hand is not apposite to the facts of the cited decision but the principle applies to this effect that an entry in the Register of Births is not conclusive evidence in the disputed date of birth,

In this context, it would be apt to take note of the Rule 9 of the West Bengal Service Rules which provides duties and functions of appointing authorities.

"Rule 9(1) provides as under -

"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."

The date of birth recorded in the service record of the petitioner initially dated 27.12.1936 has been deleted and 3rd February, 1931 has been mentioned on the basis of the School Final Certificate obviously as per declaration of the employee and the service book was duly verified year to year by providing him increment in his pay scale.

Per contra, Learned counsel for the respondent has invited my attention to the judgment dated 28.09.2001 passed by the learned Tribunal wherein it has been observed that the petitioner himself disclosed and entered his date of birth as on 3.02.1931. His service book was opened in the year 1961 and the Dealing Assistance initially recorded the date of birth wrongly, that such entry later on was corrected as per Rule 9 of the W.B.S.R., Part I, and his date of birth was recorded as per the School Final Certificate. The applicant did not raise any objection at that point of time when his date of birth was published in the gradation list as on 3.02.1931.

Learned Tribunal held that the applicant himself declared his date of birth while he was called upon to fill up the forms. Moreover, a Gradation List was published by the office, where his date of birth was duly mentioned, the applicant did not raise any objection. The applicant himself signed his Service Book. He did not raise any objection at any point of time during his service career till he was served with a notice of retirement and that being the position, the learned Tribunal therefore was of the view that the applicant raised furore over the recording his date of birth rather at a very later stage and in fact his claim as to his date of birth is found to be stale.

It has also been observed that even had there been any objection against the recording of his date of birth in the Service Book at an early date, his objection would have been not tenable due to weak piece of evidence. The original Birth Certificate furnished does not appear before learned Tribunal from convincing and satisfactory. On the other hand, the admitted position is that although the applicant declared his date of birth as on 3.02.1931 and on receipt of superannuation notice he woke up and tried to lengthen his career by changing his date of birth. Accordingly, the learned Tribunal dismissed his application. Against the judgment of the learned Tribunal an appeal was preferred being W.P.S.T. 247/02 wherein the Division Bench of this Hon''ble Court by its order dated 18.12.2003 passed the following order:

"The case of the petitioner regarding his actual date of birth is not supported by any proper evidence as has been pointed out by the learned Tribunal. We, therefore, see no reason to interfere with the order of the learned Tribunal, but we direct the authorities to arrange for early release of the petitioner''s retiral benefits.

The writ petition is accordingly dismissed.

There will be no order as to costs."

I am aware of a decision of the Hon''ble Apex Court in which it has been succinctly laid down in Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, AIR 1993 SC 2647 : (1993) 5 JT 404 : (1994) 1 LLJ 673 : (1993) 3 SCALE 829 : (1994) 1 SCC 155 Supp : (1993) 2 SCR 376 Supp : (1994) 1 SLJ 141 , Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, AIR 1993 SC 2647 : (1993) 5 JT 404 : (1994) 1 LLJ 673 : (1993) 3 SCALE 829 : (1994) 1 SCC 155 Supp : (1993) 2 SCR 376 Supp : (1994) 1 SLJ 141 as under-

"7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior."

Therefore, having regard to the factual aspect of the case and legal points as advanced before this Court by the learned counsels for the petitioner and the respondents and in respectful consideration of the principle of law laid down by the Hon''ble Apex Court, I am of the view that the issue which has already been decided in its finality by a Division Bench of this Hon''ble Court, now question of reopening of such an issue does not arise any further. Accordingly, I hold that an employee who raised the dispute as to correctness of his date of birth recorded in the service record at the fag end of his career for correction of his date of birth, has no legal right to maintain such an application or a suit.

In the context of the above discussion this writ petition is liable to be dismissed. Accordingly, the application is dismissed, however, without any order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties on usual undertakings.