Shri Sayed Mozibar Rahman vs State of Meghalaya

Mr. Dinesh Maheshwari, C.J.(Oral) - The writ petitioner/appellant has filed intra-court appeal against the order dated 19.08.2015 as passed by the learned Single Judge in WP(C) No.298 of 2013. The appeal is reportedly time-barred by 67 days; and the writ petitioner/appellant has filed the application seeking condonation of delay while stating his illness and pursuing of the matter in review application to be reasons for delay. In the totality of circumstances of the case, while ignoring the short delay and while taking the appeal on the regular side, we have heard the learned counsel for the appellant on merits.

Having heard the learned counsel appellant and having perused the material placed on record, we are satisfied that the intra-court appeal remains bereft of substance and does not merit admission.

The appellant''s claim had been that at the time of his entry into the service in Sub-Divisional Office, PWD (R&B) in the year 1973, his date of birth was recorded as 01.10.1952. The appellant submitted that in the year 2007, the Executive Engineer, PWD (R), Nongpoh, circulated the particulars of the staff with date of entry into service and date of superannuation etc., where his name appeared at serial number 8 with his date of birth as 01.10.1952. However, by the letter dated 23.01.2008, the appellant was asked to submit his original birth certificate as inconsistency was found in the service book where his date of birth was found recorded as 01.10.1949. The appellant allegedly submitted the copy of the admit card and duplicate school certificate as issued on 10.12.2007 and claimed that the original certificate was lost in floods. However, with reference to a communication from the Secretary, Board of Secondary Education Assam that as per record, the appellant''s age, as on 01.03.1968, was 18 years 5 months, the department maintained that his date of birth was 01.10.1949 and hence, his date of superannuation was 31.09.2007. Accordingly, by way of a communication dated 08.07.2008 from the Executive Engineer, PWD (R), Nongpoh, the appellant was asked to submit his pension papers.

It is borne out that though the appellant claimed to have continued in service but, his salary was withheld from January, 2008 and no pension was released to him. Aggrieved by the aforesaid communication dated 08.07.2008 from the Executive Engineer, PWD (R), Nongpoh, the appellant earlier approached the Court in WP(C) (SH)No.157 of 2011 wherein, this Court found the approach of the respondents unjustified where neither the appellant was put to any notice nor any enquiry was held in the matter. Therefore, this Court directed the respondents to hold proper enquiry after giving fair opportunity to the appellant/writ petitioner. While deciding the said writ petition on 21.08.2012, this Court, inter-alia, observed and directed as under:-

"7. In the instant case as entry in the Service Book of the petitioner, his date of birth was recorded as 1st October 1952 while in the Leave Accounts Statement his date of birth was recorded as 1st October 1949. In order to confirm the actual date of birth the petitioner was asked to produce the Admit Card in original. The Executive Engineer PWD (Roads) also requested the Secretary, Secondary Board of Education Assam to let his office know this the exact date of birth of the petitioner. The Registrar, Secondary Board of Education, Assam vide his letter dated 3.6.2008 informed the Executive Engineer PWD (R&B) that petitioner''s age was 18 years 5 months on 1.3.1968 and not 15 years 5 months as per records maintained by the office of Board of Secondary Education, Assam Guwahati.

The Executive Engineer PWD (Roads) vide letter dated 23rd January 2008 informed the petitioner that as per incumbency register, his date of birth is 1.10.1949 and as such he would have been retired on 31.9.2007. The petitioner was asked to produce the original birth certificate. The petitioner thereafter submitted his original Birth Certificate issued on 2.5.2008, photocopy of Admit card of Board of Secondary Education, Assam and a certificate issued by the Headmaster, Ghograpar High School.

The Executive Engineer PWD (Roads) Nongpoh vide the impugned letter dated 8th July 2008 informed that the superannuation age of the petitioner as clarified by the Registrar Board of Secondary Education, Guwahati is on 31.9.2007 and asked the petitioner to submit his pension paper immediately. The petitioner was never asked to show cause why the date of birth as per the clarification by Registrar of Board of Secondary Education, Assam should not be accepted. The respondents never called upon the petitioner to explain the discrepancies and to give his explanation. No enquiry was held as to how and when the over-writing in the Service Book of the petitioner occurred.

The impugned order without proper enquiry is contrary to the basic concept of justice and therefore, liable to be set aside. The respondent authorities are therefore directed to hold proper enquiry giving fair opportunity of hearing to the petitioner, before any decision against him is taken. The enquiry should be conducted within 3 (three) months w.e.f. receipt of this order and judgment."

It is borne out that after the aforesaid order, the matter was processed in enquiry by the respondents but, in such enquiry proceedings, ultimately, the appellant himself admitted his date of birth as 01.10.1949 where after, the department also assured that no action shall be taken against him regarding overwriting in the service book; and his pension case was ordered to be processed accordingly. The enquiry report dated 19.03.2013 reads as under:-

"The Enquiry was conducted by Shri. R.B. Dkhar, Sub Divisional Officer, P.W.D. (Roads) Byrnihat Sub Division, Bynrihat along with Shri. B. Khlem, Executive Engineer, P.W.D. (Roads) Nongpoh Division, Nongpoh, Smti. J. Soanes, Head Assistant O/o Executive Engineer, P.W.D. (Roads) Nongpoh Division and Shri Fedrick Rymbai, Lower Divisional Assistant O/o Executive Engineer, P.W.D. (Roads) Nongpoh Division.

During enquiry, Shri. Syed Muzibur Rahman, ex-UDA has accepted and agreed that his date of birth is 01/10/1949 as appeared in the Service Rolls and Service Book.

The Department i.e. O/O Executive Engineer, PWD (Roads) Nongpoh Division has given the assurance that his pension papers will be processed provided Shri. Syed Muzibur Rahman has willingly accepted that his date of birth is 01/10/1949 to be fulfilled with necessary instruction from the Court.

Shri. Syed Muzibur Rahman, Ex-UDA is to be retired on 30/09/2007 as per his date of birth that appears on the Service Book/Roll i.e. 01/10/1949.

As per record in the Service Roll his date of joining to Government service is 01/10/1973, which clearly indicates that he is due to retire on 30/09/2007.

As per the over writing in the Service Book/Roll of Shri. Syed Muzibur Rahman, Ex-UDA nothing can be ascertain as to when and how the over writing takes places as no record is available in the O/O Executive Engineer, PWD (Roads) Nongpoh Division.

The Department also assures that no action will be taken against Shri. Syed Muzibur Rahman, Ex-UDA, since he is co-operating and providing all the information as asked for.

In view of all the above stated facts, Shri. Syed Muzibur Rahman, Ex-UDA has willingly accepted that his date of birth is 01/10/1949 and not to take into consideration the over writing in his service book/roll provided his pension is processed accordingly with effect the date of his retirement i.e. 30/09/2007."

The appellant thereafter, approached this Court by way of the writ petition leading to this appeal, seeking to question of the enquiry report dated 19.03.2013 and for direction to the respondents to accept his date of birth as 01.10.1952, which was recorded earlier in his service book.

The learned Single Judge, after having examined the record and after having heard the submissions of the appellant, found no case in his favour and proceeded to dismiss the writ petition by the impugned order dated 19.08.2015 while, inter-alia, referring to the admission of the appellant himself. The learned Single Judge concluded as under:-

"5. Now, after considering the submissions advanced by the learned counsel and on perusal of the documents referred above, I am of the considered view that the petitioner could not make out the case that his date of birth is 01.10.1952. He has relied only on the photocopy of the admit card, but failed to produce the original admit card, which in logical conclusion cannot be accepted safely. On the other hand, I have noticed that, there are two date of births found mentioned in the Service Roll. One is 01.10.1952 and the other is 01.10.1949 and that remains unanswered by the learned counsels for the parties. Now, the question remains that the petitioner in his Formal Application for Pension/Gratuity signed by him on 20.12.2013 at Annexure-F (1) page 22 annexed to the counter affidavit of the respondents No. 1-4 he has admitted that his date of birth is 01.10.1949 and his date of retirement is 30.09.2007. Similarly, the clarification of the date of birth issued by the Registrar, Board of Secondary Education Assam, Guwahati-21 made it clear that the petitioner''s date of birth as on 01.03.1968 was 18 years 5 months and not 15 years 5 months. Here, the pension/gratuity paper submitted by the petitioner as well as the clarification of the date of birth issued by the Registrar, Board of Secondary Education Assam, Guwahati-21 confirms that the date of birth of the petitioner was 01.10.1949 and his date of retirement was 30.09.2007. If it is so, I do not find any merit in this instant writ petition and also I do not see any irregularities on the part of the Government (Respondents)......."

The appellant also filed a review application seeking to suggest that he had found the original of the duplicate admit card as also copy of the FIR for the loss of the original admit card and sought review of the order dated 19.08.2015. The learned Single Judge found no case for review and proceeded to reject the review application by the order dated 28.09.2015 while concluding as under:-

"After hearing the submissions advanced by the learned counsels and carefully going through the judgment dated 19.8.2015 passed in WP(C)No.298 of 2013, I do not find any point to review the matter further because petitioner had lost the original admit card and then he obtained the duplicate copy which he produced before the Court today wherein it shows that his age is 15 years 5 months on 1.3.1968 whereas, the Board of Secondary Education Assam, in their letter dated 30.6.2008 in response to the enquiry clearly mentioned that the age of the petitioner is 18 years 5 months on 1.3.1968. Secondly, petitioner himself has admitted that his date of birth is 1.10.1949 in his pension papers which is quoted in my judgment dated 19.8.2015 passed in WP(C) No.298 of 2013. Besides the Roll of Service also indicates two dates of birth which remained unanswered. Therefore, after considering all angles I just cannot overlook the voluntary statement given by the petitioner in his pension papers that his date of birth is 1.10.1949 as well as the certificate issued by the Board of Secondary Education Assam, during verification by the Office.

For the reasons above, I do not find anything to interfere with judgment 19.8.2015 passed in WP(C)No.298 of 2013. Hence, the Review Petition stands dismissed and disposed of."

It is sought to be contended on behalf of the appellant that the learned Single Judge has proceeded on the irrelevant considerations and particularly, the admit card and FIR have not been considered in correct prospective. In our view, the submissions do not make out any case for interference in appeal.

Even when there had been inconsistency as regards the entry in the service book on the date of birth of the appellant, the fact of the matter remains that the Board of Secondary Assam, in their letter dated 30.06.2008 clearly mentioned that the age of the appellant/writ petitioner was 18 years 5 months as on 01.03.1968. Moreover, in the enquiry proceedings held after the orders of this Court, the appellant/writ petitioner specifically admitted his date of birth as 01.10.1949 and prayed for settlement for his pension case accordingly.

The late attempt on the part of the appellant/writ petitioner to seek reconsideration of the matter on the basis of the alleged duplicate admit card could not have been countenanced and we find nothing of error or infirmity in the approach of the learned Single Judge in dismissing the writ petition, particularly in view of the communication from the Board of Secondary Education, Assam as also in view of the unequivocal admission of the appellant/writ petitioner himself. It remains trite that an admission is the best evidence against a person and when such an admission was made in the enquiry proceedings by the appellant/writ petitioner himself and there was nothing clinching or conclusive on record to dislodge the admission, there was no scope for any other finding by the Writ Court.

Thus, the order passed by the learned Single Judge remains unexceptionable.

In view of the above, the appeal fails and is, therefore, dismissed.