Md. Naqui Ahmed vs State of West Bengal

Nikhil Nath Bhattacharjee, J.—The writ Petitioner who is the Appellant herein has impugned the judgment and order dated November 17, 1992, passed by the learned trial Judge, the operative part of which runs as follows:

Considering all the aspects the writ petition is disposed of by directing the Respondent Tramways Authorities to consider the representation of the Petitioner for rectification of his date of birth on the basis of Admit Card and the School Final Certificate produced by the Petitioner within a period of 6 weeks from the date of communication of the order and by passing an appropriate decision as to the rectification of the date of birth on the basis of such evidences. It is made clear that the Petitioner will not be entitled to any service benefit for his earlier appointment until he reached the age of 71 years on the basis of the age in the said Admit Card.

There will be no order as to costs.

This order will not prevent the Respondent authority to take any other appropriate action against the Petitioner in accordance with law.

On the factual aspect it appears that the Petitioner was sponsored by his father who having put in more than 15 years of service, was entitled to do so, for the post of conductor with the then Calcutta Tramways Company Ltd. in the year 1956. At the time of recruitment, standard for appointment as conductor, amongst others, was 21 to 30 years of age as per the staff regulation, as was printed in the staff employment forms issued to Petitioner''s father by the company. The were duly filled in by the father giving particulars of the Petitioner as Matric standard, of native village Ugawah, P.S. Asthanan, Patna, Bihar, but the column as to age was, significantly, left blank. There was a medical examination of the Petitioner on November 29, 1956, and it appears from the report thereof that Petitioner''s age as per his own statement was 23 years, but the Chief Medical Officer of the company found him to be 25 years of age. The Petitioner joined his appointment on January 29, 1957. In the records of the company his age was noted as 25 years as on January 29, 1957, that is to say, his recorded date of birth is January 29, 1932.

It is the Petitioner''s specific case that he appeared at the School Final Examination as a regular candidate being a student of M. L. Jubilee Institution, 29 Surya Sen Street, Calcutta, held in March 1955. He states that he could not pass the said examination and had to appear as a private candidate in the School Final Examination held under the Board of Secondary Education, West Bengal, in March 1962, and passed the examination in the 3rd Division. He further states that, according to his Admit Card of the School Final Examination, 1955, as also the certificate of passing the said examination of 1962 his date of birth is December 14, 1939.

In any case the Petitioner worked as a conductor and eventually was promoted to the post of Traffic Inspector in the company. Anomalies regarding age and date of birth of a number of employees having come up, a circular was issued in 1978 by the authorities inviting prayers for amendment of the recorded date of birth of the employees and, accordingly, the Petitioner applied for rectification of his date of birth in the service book which wrongly recorded as January 29, 1932, in place and stead of his actual date of birth being December 4, 1939. The application was supported by copies of the Admit Card and the certificate of passing School Final Examination, 1962. He subsequently submitted a school leaving certificate issued by the Headmaster. M. L. Jubilee Institution on January 4, 1991, wherefrom it also appears that his date of birth as per the admission register of the school is December 14, 1939 which tallies with that of the Admit Card and the School Final pass certificate. On September 8, 1978, he was asked to appear before the Chief Medical Officer (Respondent No. 7) for medical examination as to'' his age, but be did not appear. In March 1990 the Petitioner was intimated that his representation for rectification of his recorded age in the service book was rejected, against which he submitted an appeal which also met the same fate on November 27, 1990. Another appeal for rectification drafted by a lawyer was submitted in January 1991. On February 9, 1991, the Respondent authority intimated the Petitioner that he had been given an extension of service upto January 28, 1992, he having already reached the age of superannuation of 58 years on January 28, 1991. On April 10, 1991, the Petitioner received a letter dated April 8, 1991, from the Respondent authority intimating the final rejection of his appeal for amendment of service record as to his date of birth. On September 23, 1991, the Petitioner was served with a letter dated September 16/19, 1991, declaring that he would superannuate from the service with effect from September 30, 1991. The Petitioner was very much aggrieved by the said decision of the Respondent authority and moved the writ petition under Article 226 of the Constitution of India.

The specific case of the Respondent, on the other hand, is that the Calcutta Tramways Company was subsequently taken over by the State Government and became the Calcutta Tramways Company (1978) Ltd. In 1991, the authorities issued printed forms to all C.T.C employees inviting option whether to come under the revised scale and be superannuated on attaining 58 years of age or to retain the old scale and to retire at 55 years of age which was the age of superannuation according to the staff regulation of the erstwhile company. So long the C.T.C. employees were due to retire at 55 years of age with an annual extension on the basis of medical fitness for a further period of 5 years. The Petitioner submitted his option form in part A, part B and part C duly signed by him on September 5, 1991, electing to come under the revised scale of pay retrospectively with effect from May 1, 1990. In the option from it is specifically provided that the age of superannuation will be 58 years unless one has crossed, the said - age when it would stand finally on September 30, 1991. Earlier the Petitioner''s service was extended upto January 28, 1992, but the Petitioner having exercised the option to come under the revised scale of pay retrospectively, he was allowed to opt the revised scale of pay and he having already crossed 58 years of age, was due to retire finally with effect from September 30, 1991 as per terms of the scheme accepted by him and. in fact, he retired from the company''s service on superannuation with effect from September 30, 1991.

Now, the four decisions strongly relied upon before us, the first in point of time is the case of Khagendra Nath Dutta v. Deputy Commissioner, Special Branch, Calcutta 1989 (1) C.L.J. 499. In that case the Petitioner was a matriculate and the certificate thereof was with him, but at the time of entry as a constable in 1950 he declared his date of birth as April 25, 1931, and not what his certificate recorded in order that he was not disqualified being a minor. On the verge of his retirement in November 1988 he prayed for correction of his age on the basis of Matriculation certificate. His departmental authority having refused to rectify his date of birth the Petitioner moved a writ application when the Hon''ble G. N. Ray J., as His lordship then was, held that having enjoyed the benefit on the basis of a wrong declaration, he cannot be permitted to reap further benefit of his own wrong. The learned Judge also observed that the writ Court being a Court of equity, the petition must come with clean hands and that nobody should be allowed to initiate an action arising out of his own wrong.

The second decision is of Nihar Ranjan Bhowmick v. State of West Bengal 1990 (7) S.L.R. 69. The Petitioner in that case entered into the Government service in 1949. His date of birth in the service book was recorded as January 19, 1931, and he was described a non-matric. It was his case that he passed the Matriculation Examination in 1948 from East Bengal Secondary Education Board, Dacca, and that his date of birth as recorded in his certificate is October 1, 1933. In 1950 he submitted his Matriculation certificate to his administrative head for correction of his date of birth, but although his educational qualification was corrected, no correction was made in the service book about his date of birth. According to the recorded age in the service book he was due to retire on superannuation with effect from January 31, 1989. The Petitioner made representation for correction of his date of birth. His averment that date of birth of several other Police personnel on the basis of Matriculation certificate, admit card and other authentic documents had been corrected, remained uncontroverted. However, a learned Single Judge dismissed his writ application against which he preferred an appeal before the Division Bench which held that the recording of the date of birth in the service book was not on any cogent material, not even on the basis of his declaration and that when the genuineness or authenticity of the Matriculation certificate is not disputed or challenged, the date of birth as recorded in such certificate must be taken to be correct. There was also another aspect of the matter which was that undisputedly in several other cases the authorities themselves had corrected the dates of birth on the basis of Matriculation certificates although upon such correction it was found that the concerned incumbent were minors at the respective dates of appointments and the Court held that there was no reason why the Petitioner should be discriminated against. The further fact that weighed with the Division Bench appears to be that the authorities having learnt that the incumbent according to Matriculation certificate produced by him entered into the Police service during minority did not take any steps to initiate disciplinary proceeding, indicates that appointment of a person below the age of 18 at the material time immediately after the partition was neither unusual, nor illegal.

The third case is of Smt. Suraj Kumari Vs. District Judge, Mirzapur and others, wherein a Single Judge of the said Court held that person not coming to Court in clean hands should be penalised, and in that case which has absolutely no bearing in the facts of the present case awarded some cost for the said wrong doing.

Lastly, in the decision in Steel Authority of India Ltd. v. Sudhendu Kumar Chakraborty C.L.T. 1991 (1) H.C. 318 another Division Bench of this Court presided over by the Hon''ble Umesh Chandra Banerjee J. held that recording of age of a regular student cannot be equated with that of a private candidate in the School Final certificate and further that where the Petitioner was informed in 1980 that a certain date of birth had been accepted for official purposes and he did not take any action against the same till 1990 the writ petition could have been straightway rejected on that ground alone, but for the ends of justice the Petitioner''s age on medical examination is to be accepted as his correct age at the time of entry into the service.

What is the ratio decidendi in the above four decisions applicable to the present case ? Dias on Jurisprudence defined ratio decidendi as the material facts of the case plus the decision thereon. To our mind the common element that reverberates through the above four citations is the legal maxim, Nemo ex proprio dolo consequitur actionem, i.e. no one can maintain an action arising out of his own wrong. Maxwell on The Interpretation of statutes, edited by Langan (12th ed.), at p. 212 under the heading "Presumption against impairing obligations, or permitting advantage from one''s own wrong," observes:

On the general principle of avoiding injustice and absurdity, and construction will, if possible, be rejected (unless the policy of the act requires it) if it would enable a person by his own act to impair an obligation which he has undertaken, or otherwise to profit by his own wrong.

He then quotes with approval the observation in Kish v. Taylor (1991) 1 K.B. 625 as follows:

A man may not take advantage of his own wrong. He may not plead in his own interest a self-created necessity.

In Khagendra Nath Dutta v. Deputy Commissioner, Special Branch, Calcutta'' (Supra) the learned Judge relied fully on this principle and rejected the writ application. In Nihar Ranjan Bhowmick v. State of West Bengal (Supra) the principle was attracted but as immediately after entering into the service the incumbent prayed for correction when his educational qualification and not the date of birth was corrected without assigning any reason and also as he was discriminated against in the matter of such correction, the writ application was allowed. In Suraj Kumari v. District Judge, Mirjapur (Supra) the Court not only did not allow taking advantage of one''s own wrong but penalised him for attempting to take such advantage. In Steel Authority of India Ltd. v. Sudhendu Kumar Chakraborty (Supra) the possibility