Hadis Khan vs Commissioner of Police

Satyabrata Sinha J.

The Petitioner in this application has, inter alia, prayed for issuance of a writ of or in the nature of mandamus directing the Respondents to determine his date of birth in accordance with school leaving certificate.

The fact of the matter lies in a very narrow compass.

The Petitioner was appointed as a constable in Calcutta Police Force on August 1, 1957. At the time of his appointment his date of birth was recorded as April 26, 1937. The contention of the Petitioner, however, is that his date of birth was May 13,1941, as would appear from the certificate granted by the Headmaster of Radhakrishna Gupta Adarsha Vidyaiaya, Indore College, Gazipur, Uttar Pradesh, on August 16, 1994, as also from Scholar''s Register and Transfer Certificate Form of the said institution, dated October 30, 1954.

The Petitioner filed an application for correction of his age in his service book. He was directed, to file his original certificate, which he did. By an order dated August 24, 1994, as contained in Annex. ''D'' to the writ application the representation of the Petitioner was rejected by the Deputy Commissioner of Police, Headquarters, Calcutta, stating �

It appears from the service book of Shri Khan that the date of birth was recorded on 1st page of the service book as 26/4/1937 with his signature thereon indicating his acceptance about the matter. He showed his age as 20 years in the Verification Roll in the year 1957, i.e. his year of birth falls as ''1937''.

He also made a separate declaration showing his actual date of birth as 26th April, 1937, with reference to Calcutta Police Gazette, para. 1134 dt. 16.6.50. Now Shri Khan has come up with a prayer for correction of date of birth in his service book as 13/5/41 according to school leaving certificate. If this date of birth is accepted, Shri Khan was underage on the date of his appointment, i.e. on 1/8/57. As such, he was ineligible for entry into Government service. In that event, he submitted false declaration in all the official records for the purpose of entry into the service.

In the circumstances stated above, Shri Khan may please be asked to show cause within 15 days from the date of receipt of this letter as to why disciplinary action should not be initiated against him for misleading his appointing authority by giving false statement at the time of his entry in service and even thereafter.

The Petitioner made a further representation on September 19, 1994. However, he was given a notice dated November 23, 1994, that he was superannuated with effect from April 30, 1995.

Mr. A. P. Chatterjee, learned Counsel appearing on behalf of the Petitioner, submits that from a perusal of Rule 9(5) of the West Bengal Service Rules (hereinafter referred to as the said Rules) it would appear that no time limit is fixed for consideration of representation relating to correction of the date of birth in the service book of an employee. The learned Counsel, however, submits that the person can be appointed during his minority of such an appointment is not illegal but merely irregular.

Reliance in this connection has been placed -on Nihar Ranjan Bhowmick v. State of West Bengal 1991 (1) C.L.J. 93 and an unreported decision of this Court dated March 26, 1991, passed in C.R. No. 433 (W) of 1991.

Sub-rule (1) of Rule 9 of the said Rules envisages a declaration in the prescribed form by the Government servant at the time of entry in service. The said sub-rule clearly states that such a declaration shall be binding on the applicant and he shall have no right to revise it subsequently for any reason whatsoever. (Underlining for emphasis)

Sub-rule (2) of Rule 9 provides for submission of evidence in support of such declaration.

Sub-rule (3) of Rule 9 envisages consideration for such declaration by the concerned authorities.

Sub-rule (5) of Rule 9, however, empowers the Government to review the order fixing the year, month and date of birth subject to the condition that if such modification is made to the disadvantage of the Government servant, he shall be given an opportunity of making a representation.

In terms of the said Rules, therefore, the Petitioner does not have any existing legal right to get his date of birth corrected. Rule 9(5) of the said Rules is merely an enabling provision. In appropriate cases only, the authorities are empowered to take recourse to the said provision. No employer, thus can force the authorities to correct his date of birth in terms of the said provision. An employee normally is bound by his own declaration which, if accepted by the employer, remains binding on the parties. Rule 9(5) of the said Rules Is an exception to Rule 9(1). The representation of the Petitioner has been considered and the Deputy Commissioner of Police, Headquarter, Calcutta, in his impugned order categorically stated that not only the Petitioner''s date of birth has been recorded as April 26, 1937, but the same also contains a signature signifying his acceptance in relation thereto. He was also shown his age as 20 years in the year 1957. He further made a separate declaration showing his actual date of birth as April 29, 1937, with reference to Calcutta Police Gazette dated June 16, 1950. The said declaration is, thus, binding on the Petitioner.

In this view of the matter, the Petitioner cannot be said to have any legal right whatsoever to get his date of birth altered only because, according to him, his date of birth is May 13, 1941, as per the School Records. The Petitioner admittedly is a non-matriculate. The Petitioner was possessed of the said purported school certificate when he entered in service. He had chosen not to produce the said purported certificate at the relevant time, evidently, on the ground that he would not be allowed to join the service as he was, would then have been considered to be a minor.

In Nihar Ranjan Bhowmick v. State of West Bengal (Supra) a Division Bench of this Court has held that mere self-serving declaration of a recruit, in particular, in public employment, can never be the proof of age of the declaring. However, the matter relating to recording of the date of birth in the instant case, as noticed hereinbefore, is governed by the statutory rules.

In Nihar Ranjan''s case the Petitioner thereof passed his Matriculation examination earlier to his joining certificate, and although the concerned authority altered the literary qualification of the Petitioner, his date of birth as stated in the said Matriculation certificate was not altered. It was the contention of the Petitioner thereof that he could not produce the said certificate as he had not received the original certificate.

Such is not the position here, in this case, the Petitioner on his own showing was in possession of the school leaving certificate which was granted to him prior to his joining of service.

Learned Judges in Nihar Ranjan, also held that boy service is permissible under fundamental rules.

Mr. Chatterjee has not been able to place before me any material to show that ''boy service'' is permissible in the State of West Bengal under any statutory rules. Be that as it may, in my opinion, it is not necessary to consider the other aspect of the matter at all.

A school leaving certificate is a mere piece of evidence. Similarly horoscope affidavit etc. may also be pieces of evidence. The question as to whether one piece of evidence would be accepted or not is a question of judgment as there does not exist any specification as to what evidence should be accepted.

It is not disputed that an entry in the school register, recording a date of birth, is merely a piece of evidence in terms of Section 35 of the Evidence Act. Thus, a certificate given by the Headmaster may be admissible in evidence, but such evidence is not conclusive.

However, it may be noticed that in Birad Mal Singhvi Vs. Anand Purohit, it has been held that an entry relating to" the date of birth made in the school is relevant and admissible u/s 35 of the Evidence Act, but the entry regarding to the age of a person in a school is not a much evidentiary value to prove the age of a person in the absence of material on which the age was recorded.

Thus, in absence of the primary material on the basis whereof the age was recorded, and particularly where, conflicting evidences are available, it is not possible to accept the contention of Mr. Chatterjee that the date of birth of the Petitioner as recorded in the said certificate would prevail over the letter of the Board.

The conduct of the Petitioner, however, shows that he had deliberately tried to withhold the said certificate for obvious reasons. Suppression of a material document which affects the condition of service would amount to fraud and in such cases even the principles of natural justice are not required to be complied with.

It is now well-known that an application for alteration of date of birth must be made within a reasonable time. He was appointed in 1957. He filed an application for correction of his date of birth only upon receipt of the notice of retirement. On these grounds also, the Petitioner is not entitled to any relief.

In Bhupindra Nath Chatterjee Vs. The State of Bihar and Others, the Supreme Court has held that the date of birth recorded in the service records should be accepted as correct. In Union of India Vs. Harnam Singh, the Supreme Court held:

A Government servant who had declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in ''possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay.

A school leaving certificate does not constitute an irrefutable proof. The Apex Court, however, allowed the appeal preferred by the Union of India stating:

In the facts and circumstances of this case, we are not satisfied that the Tribunal was justified in issuing the direction in the manner in which it has been done. The application for correction of date of birth, entered in the service book in 1956, for the first time made in September 1991, was hopelessly belated and did not merit any consideration. As already noticed, it had not been made even within the period of five years from the date of coming into force of Note 5 to FR 56(m) in 1979. The Tribunal, therefore, fell in error in issuing the direction to correct his date of birth and the impugned order of the Tribunal cannot be sustained.

In Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, the Supreme Court, inter alia, held that when no time-limit is prescribed for filing an application for correction of date of birth, it should be done within a reasonable time. The Supreme Court in the aforementioned case has observed that the applicant has to produce evidence in support of his claim which may amount to irrefutable proof relating to his date of birth and whenever any such question arises, the onus is on the applicant to prove that of this date of birth recorded in his service book is wrong.

This aspect of the matter has also recently been considered by the Supreme Court again in State of T.N. Vs. T.V. Venugopalan, wherein the Supreme Court in no unmistakable term has laid clown that a belated application on the eve of retirement should not be accepted. In the decisions cited by Mr. Chatterjee the provisions of Rule 9(1) of the said Rules were not considered. The said decision have, therefore, been rendered per incurium. It is now also well-known that a decision is not an authority on the point which was not canvassed before the Court. .

The Petitioner cannot be permitted to relies from his declaration in view of Sub- rule (1) of Rule 9. He has obtained in legal right to get his date of birth altered. Moreover, the Petitioner evidently has not approached this Court with clean hands. He deliberately suppressed the original school leaving certificate at the time of his entry in service. It is now well-known that he who seeks equity much do equity.

For the reasons aforementioned, in my opinion, it is not a fit case in which I should exercise my discretionary jurisdiction in the matter. This application is, therefore, dismissed but without ''any order as to costs.