1993 Supreme(Cal) 250

High Court of Calcutta (FULL BENCH)
Bhagabati Prasad Banerjee, Altamas Kabir, Amal Kanti Bhattacharjee, JJJ.
Dy. Commissioner of Police, Special Branch and Ors.
Vs.
Bhupesh Chandra Karanjai & Moti Ranjan Bhattacharya
Full Bench Reference No. 1 of 1991 in Appeal from Original Order No. 1469 of 1990 And Appeal from Original Order No. 3541 of 1990
Decided on : 26th May, 1993

Rule 9(1) of the West Bengal Service Rules (Part-I) is binding on the applicant, subject to the rider that under Rule 9(5) the declarant would be entitled to apply for correction of a genuine mistake in the service records or to ask for correction of, his service records on review of the order passed under Rule 9(3).

Headnote:

RULE 9(1) OF THE WEST BENGAL SERVICE RULES (PART-I) - BINDING EFFECT - APPLICANT - REVISION OF DATE OF BIRTH - MATRICULATION CERTIFICATE - SCOPE OF RULE 9(5) - REVIEW OF ORDER FIXING DATE OF BIRTH - POWER OF APPOINTING AUTHORITY/GOVERNMENT - "BOY SERVICE" - ANALOGY FROM FUNDAMENTAL RULES - DUTY OF LAW COURTS - RELIANCE ON DOCUMENTS PRODUCED BY EMPLOYEE - CORRECTION OF AGE IN SERVICE RECORDS.

Fact of the Case:

The writ petitioner was recruited as Constable in the Calcutta Police Force on February 5, 1948. The date of birth as recorded in the declaration furnished by the writ petitioner at the time of his initial entry into the police Force stood at 3rd February, 1930. But, the date of birth mentioned in the Matriculation Certificate was November, 1, 1931. According to the date of birth in the Matriculation Certificate the Petitioner was 16 years 3 months and 4 days on the date of joining the Calcutta Police Force. It was alleged that the writ petitioner was ineligible to be appointed as constable in the Calcutta Police Force on the basis of the date of birth recorded in the Matriculation Certificate. A representation, dated June 24, 1968 was filed by the petitioner before the Commissioner of Police for correction of his date of birth and again another representation was filed on November 27, 1984. But, by the communication dated March 24, 1985 the prayer made on behalf of the writ petitioner for correction of date of birth in the service book, was rejected. The writ petitioner had disclosed names of various persons in paragraphs 9 and 10 of the writ petition whose dates of birth had been corrected by the authorities concerned in similar circumstances and in those cases those police personnel did not even complete the age of 18 years when they joined the police service. The correction of dates of birth of those constables were made on the basis of Matriculation Certificates or Admit Cards subsequently produced. It was further alleged that those persons also made declaration of some other date of birth at the time of joining, still then, their dates of birth were corrected subsequently on the basis of the said documents. It was further stated that there were several other persons who declared some other dates of birth which were recorded in the Service Book, but inspite of such declaration, correction have been made in 29 such cases. It was alleged that though the writ petitioner's case was similar to those cases, his date of birth was not corrected and the writ petitioner was discriminated against. The writ petitioner could not produce the Matriculation Certificate as he alleged that he had misplaced the said Certificate.

Finding of the Court:

1. Rule 9(1) of the West Bengal Service Rules (Part-I) is binding on the applicant, subject to the rider that under Rule 9(5) the declarant would be entitled to apply for correction of a genuine mistake in the service records or to ask for correction of, his service records on review of the order passed under Rule 9(3). 2. The declarant would be entitled to ask for correction or rectification of a genuine and bona fide mistake. Secondly, he may bring to the notice of the appointing authority of the government materials which were not within his knowledge or which he was not in a position to produce at the time of making the declaration, which, on the principles of review, as embodied in Order 47 of the Code of Civil Procedure, would occasion an alteration of the order passed under Rule 9(3). 3. In a situation where there was no requirement for documents to be submitted in support of the declaration made by the applicant at the time of entry into service, the declarant can ask for correction of age on the basis of Matriculation Certificate or any other similar certificate to be produced by the employee is a document contemporaneous with his entry into service. 4. The appointment of a minor or 'boy service' is recognised for limited purposes and should not stand in the way in the matter of correction of age, particularly in view on the fact that the applicant receives no advantage thereby in the absence of any minimum age prescribed for entry into Government service. 5. The law courts may direct the concerned authority in the circumstances of each case to consider a document produced by an employee, which is contemporaneous with his entry into service for the purpose of review, as contemplated in Rule 9(5) of the Rules of 1971. This will even apply in case of persons appointed under the West Bengal Service Rules, 1941 where there was no provision similar to those contained in Rules 9(2) to 9(5) of the 1971 Rules in keeping with the principle that a genuine and bona fide mistake may be corrected at any time.

Issues: 1. Whether by reason of the language used, Rule 9(1) of the West Bengal Service Rules (Part-I) can be said to have a binding effect on the declarant; 2. Whether it is open to the declarant to take recourse to Rule 9(5) of the above noted Service Rules to apply for correction or rectification of the above date of birth at a subsequent stage; 3. Whether a declarant can be permitted to correct his age on the basis of his Matriculation Certificate which certificate the declarant failed to produce at the time of his appointment; 4. Whether an analogy can be drawn from the fundamental rules providing for 'boy service' regularisation in the matter of correction of age; 5. Whether it is the duty of the Law Courts to rely upon a document produced by an employee after a considerable period of time, though at the time of entry into the service his declaration runs counter to such a document, more so when the declarant himself has filled in the declaration in his own handwriting stating his qualification to be a Matriculate.

Ratio Decidendi: 1. Rule 9(1) of the West Bengal Service Rules (Part-I) is binding on the applicant, subject to the rider that under Rule 9(5) the declarant would be entitled to apply for correction of a genuine mistake in the service records or to ask for correction of, his service records on review of the order passed under Rule 9(3). 2. The declarant would be entitled to ask for correction or rectification of a genuine and bona fide mistake. Secondly, he may bring to the notice of the appointing authority of the government materials which were not within his knowledge or which he was not in a position to produce at the time of making the declaration, which, on the principles of review, as embodied in Order 47 of the Code of Civil Procedure, would occasion an alteration of the order passed under Rule 9(3). 3. In a situation where there was no requirement for documents to be submitted in support of the declaration made by the applicant at the time of entry into service, the declarant can ask for correction of age on the basis of Matriculation Certificate or any other similar certificate to be produced by the employee is a document contemporaneous with his entry into service. 4. The appointment of a minor or 'boy service' is recognised for limited purposes and should not stand in the way in the matter of correction of age, particularly in view on the fact that the applicant receives no advantage thereby in the absence of any minimum age prescribed for entry into Government service. 5. The law courts may direct the concerned authority in the circumstances of each case to consider a document produced by an employee, which is contemporaneous with his entry into service for the purpose of review, as contemplated in Rule 9(5) of the Rules of 1971. This will even apply in case of persons appointed under the West Bengal Service Rules, 1941 where there was no provision similar to those contained in Rules 9(2) to 9(5) of the 1971 Rules in keeping with the principle that a genuine and bona fide mistake may be corrected at any time.

Final Decision: F.M.A. 1469 of 1990 and F.M.A. 3541 of 1990 fail and are dismissed and the judgments passed by the learned trial judges in the respective writ applications stand affirmed.