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1996 Supreme(Cal) 379
High Court Of Calcutta
Visheshwar Nath Khare, Vinod Kumar Gupta
STATE OF WEST BENGAL - Appellant
Versus
SISIR KUMAR PARIA - Respondent
F. M. A. 405 Of 1993
Decided On : 09/24/1996
ASOKE BANERJI, MANJURI GUPTA, PRATIBHA CHAUDHARY, PRATIMA, SUSMITA DUTTA
The date of birth recorded in the School Final Examination Certificate after joining service does not bind the employer and cannot be relied upon for the purpose of correcting the date of birth recorded in the service book.
Headnote:
SERVICE LAW - DATE OF BIRTH - RULE 9 OF THE WEST BENGAL SERVICE RULES - REVIEW OF DATE OF BIRTH - DATE OF BIRTH MENTIONED IN SCHOOL FINAL EXAMINATION CERTIFICATE AFTER JOINING SERVICE - NOT BINDING ON EMPLOYER.
Fact of the Case:
The petitioner, who was initially appointed as a Lower Division Clerk in the office of the Settlement Officer, 24- Parganas, Government of West Bengal, sought correction of his date of birth in the service book on the basis of the date of birth recorded in the School Final Examination Certificate issued after he joined the service. The writ petition was allowed by the learned single Judge.
Finding of the Court:
The court held 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 erroneously directed for the correction of the date of birth recorded in the School Final Examination Certificate.
Issues: Whether the date of birth recorded in the School Final Examination Certificate after joining service binds the employer.
Ratio Decidendi: Rule 9 (1) of the West Bengal Service Rules provides that the declaration given by an 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. Review by the Government is permissible on certain contingencies, but only on the basis of contemporaneous record, namely, any evidence or material which was in existence at the time of joining the service.
Final Decision: The court set aside the judgment of the learned single Judge and held that the petitioner was not entitled to get his date of birth corrected on the basis of the School Final Examination Certificate. However, the court directed that the petitioner's salary paid during the extended period of service be regularized, but his retiral benefits and other benefits shall be computed on the basis of his date of birth as being January 15, 1934 and on reaching the age of 58 years.
( 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. . . . . . . . . . . . . . . . (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. . . . . . .
