Priyadhar Nath vs The State of Assam and Others

Manisana, J.—This writ petition relates to date of birth of the Petitioner and consequently his date of superannuation.

Facts, The Petitioner was appointed as Assistant Sub Inspector of Police on 29. 2. 52, and his date of birth was recorded as "....1931" in the service book. Accordingly, he was superannuated on 1.7.8.9. At the time of superannuation he was working as Deputy Superintendent of Police. Some time in 1988 before his actual superannuation, the Petitioner came to know that there was wrong entry in the service book with regard to his date of birth. According to his matriculation certificate the date of birth of the Petitioner would be 1.1.32, not "...1931" as recorded in the service book. As soon as the Petitioner came to know about it, the Superintendent of Police was apprised of the mistake and thereafter there were correspondences between the Inspector General of Police (A) and the Government of Assam about the correction of Petitioner''s date of birth. The Inspector General of Police (A), under his letter dated 28.11.88, forwarded the representation submitted by the Petitioner for the change in his date of birth. On 10.3.89, the Inspector General of Police (A) also wrote to the Government requesting for an order for correction of the date of birth of the Petitioner as 1.1.32 in place of "....1931" slating that the dale of birth of the Petitioner was wrongly recorded in his service book without proper verification of his matriculation certificate and his date of birth would be 1.1.32. The Government, by a letter dated 12.4.89 communicated that it was a time barred case. Thereafter the Petitioner submitted his representation dated 28.4.89 to the Governor, but to no avail. The Petitioner also approached the Administrative Tribunal, but the Administrative Tribunal did not entertain the matter on the ground that it was premature. Hence this petition.

SR 8 relates to the correction or change in the date of birth for the purpose of determining the date of superannuation. SR 8 has two parts. First, in the case of a Government servant whose year of birth is known but not the exact date, the 1st July should be treated as the date of birth. Secondly, if only the month and year of birth is known, the 16th of the month is taken to be the exact date of birth. The Petitioner''s case comes under the first part as his year of birth is known but not the exact date and, therefore, the July 1st, 1931 had been treated as the date of birth of the Petitioner for the purpose of determining the date of superannuation and he had been superannuated on 1.7.89.

With regard to the procedure for change or alteration in the date of birth recorded in the service book, there is a "note" or "foot-note" appended to SR 8. Under the note the date of birth of the Government servant is to be recorded on his initial appointment. No alteration in the date of birth of the Government servant recorded in the service book shall be allowed except in very rare case where a manifest mistake has been made. However, in no case request for change in the date of birth of a Government servant made on a dale within three years of the actual superannuation should be entertained. Therefore, under the note there is a time limit presented for correction of the date of birth of the Government servant.

In respect of the foot-note, a Bench of five Judges of the Supreme Court has, in C. Channabasavaiah Vs. State of Mysore and Others, held that the foot-note is not intended to by-pass while considering the rule to which it is appended. In Tara Singh and Others Vs. State of Rajasthan and Others, a Bench of three Judges of the Supreme Court had held that the notes are part of the rules because they are for the guidance of the authorities. They are not inconsistent with the rules but are intended to fill up gaps where the rules are silent. The notes to the rule make explicit what is implicit in the rules. In Mary Commen Vs. Manager, M.G.M. High School, Kuruppampaddy, Kerala and Others, it has been held by a two-Judge Bench that, although a note to a rule does not have any binding effect, it docs indeed have a persuasive force. It cannot be ignored that the note has come as an appendage to a rule for clarificatory purpose though it does not form part of me rule.

In view of the above decisions of the Supreme Court, whether or not a note is a part of the rule to which it is appended, the note cannot be ignored and it is of aid not only applying the rule but also interpreting the true import of the rule.

Coming to SR 8, in the rule itself, there is no lime limit for alteration in the date of birth recorded in the service book is provided. But the note appended to it makes it clear that request for change of the date of birth made within three years of the actual superannuation shall not be entertained. Under the note time limit is clearly and fully expressed.

In the present case, the Petitioner was superannuated on 1.7.89 during the pendency of the writ petition. Even if his date of birth is taken as on 1.1.32 he was to be superannuated on 1.1.90. Therefore, his request for correction or change of date of birth within three years of the actual superannuation for his request was made in 1988. Therefore, the Government rightly rejected that request as a lime barred case.

The learned Counsel for the Petitioner has contended that while rejecting his representation he was not given an opportunity to have his say and, therefore, there was non-compliance with the principle of natural justice. He has referred us to the decision of the Supreme Court reported as State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, The case before the Supreme Court also relates to change in the date of birth recorded in the service book. But the principle of natural justice depends upon the facts and circumstances of each particular case. The Court may not issue its writ to compel the observation of natural justice, because it is not necessary to observe natural justice but because the Court does issue futile writ. The fact here is indisputable that the Petitioner made his representation within three years of his actual superannuation and, therefore, the only conclusion under the law is that the request of the Petitioner could not be entertained under the foot-note appended to SR 8. For these reasons, no useful purpose would be served even if a writ is issued for the alleged non-compliance with the principles of natural justice.

For the foregoing reasons the writ petition is dismissed, No costs.