Tarak Nath Kar vs State Of West Bengal & Ors

Biswanath Somadder, J

By consent of the parties, the appeal is treated as on day's list and taken up for consideration along with the application for stay.

The instant appeal arises out of a judgment and order dated 25th July, 2019, passed by a learned Single Judge in WP 7010 (W) of 2019 (Tarak Nath Kar vs. The State of West Bengal & Ors.). By the impugned judgment and order, the learned Single Judge was pleased to dismiss the writ petition filed by Tarak Nath Kar and gave liberty to the learned District Judge, Paschim Burdwan, to take necessary steps and initiate appropriate proceedings against the concerned person(s) to identify who was/were responsible for the alteration/interpolation in the service records of the writ petitioner which is maintained in the office of the concerned District judgeship and to take necessary action against the erring staff, strictly in accordance with law.

The appellant before us is the writ petitioner.

The appellant/writ petitioner is a Group-D staff attached to the Judge, Special Court-cum-Additional District and Sessions Judge, Asansol. He was appointed on 2nd September, 1985, in terms of the District Judge's order no.38(P) dated 24th August, 1985. At the time of joining service, his date of birth was recorded in the service record as 23rd July, 1964. The grievance of the writ petitioner before the learned Single Judge was that his date of birth has been wrongly entered as 23rd July, 1964 and his correct date-of-birth is 24th July, 1966. The learned Single Judge took into consideration all relevant facts of the case and the submissions advanced by the parties. The relevant rules, namely, the West Bengal Service Rules, Part-I, were also taken into consideration, especially, Rule 9 thereof. The learned Single Judge has discussed in details all aspects of the matter and rendered a decision supported with cogent and justifiable reasons for not granting any relief to the writ petitioner. Relevant portion of the impugned judgment and order is reproduced hereinbelow:-

"Following the said procedure the date of the birth of the petitioner was duly recorded in his service record as 23rd July, 1964. The same is binding upon the petitioner and he is not entitled to seek any modification thereof at such a late stage.

In the instant case, the petitioner has not been able to come forward with a single piece of document prior to the date he joined his service evidencing his date of birth as 23rd July 1966. All the documents that the petitioner is relying upon have come into existence long after the petitioner joined his service in the year 1985. Moreover, the registration certificate which the petitioner is relying upon was issued by the West Bengal Board of Secondary Education in the year 1998 when the petitioner appeared in the Madhyamik Pariksha (SE) 1999 as an external candidate. As the petitioner did not pass school final examination prior to his appointment, accordingly the certificate issued in his favour more than thirteen years after he joined service cannot be relied upon for the purpose of correction of his date of birth.

The date of birth is recorded in the Aadhar card on the basis of voluntary disclosure made by a citizen of India and the same is usually not considered as a valid age proof for the purpose of recording the date of birth in the service records of a government employee. The date of birth of a citizen is not verified at the time of incorporating the same in the Aadhar card. In most cases, the year of birth is only recorded in the Aadhar card and not the day and month of birth. Assuming, but not admitting that the same has evidentiary value the said Aadhar card cannot be relied upon as it was issued long after the petitioner joined service. No case has been made out by the petitioner necessitating a review of the date of birth that has been entered in his service record.

In the absence of any contemporaneous document(s) to indicate that the date of birth of the petitioner is 23rd July 1966, the employer is bound to follow the date of birth, which has been declared by the employee at the time of joining his service and recorded in his service records. Any change in the recorded date of birth has to be preceded by a Government order to that effect.

The District Judge has rightly come to a conclusion that the recording of the date of birth of the petitioner has been altered and/or interpolated, penned through without any order or attestation of the Controlling Authority. The same cannot be accepted under any circumstances.

In view of the discussions made hereinabove, no relief can be granted to the petitioner in the instant case. The date of birth recorded at the time of initial joining that is 23rd July 1964 has to be accepted as his date of birth.

The District Judge, Paschim Burdwan will be at liberty to take necessary steps and initiate appropriate proceedings against the concerned person(s) to identify, who was/were responsible for the alteration/interpolation in the service record of the petitioner which is maintained in the office of the respondents and to take necessary action against the erring staff, strictly in accordance with law.

W.P No. 7010 (W) of 2019 stands dismissed."

In an Intra-Court Mandamus Appeal, interference is usually warranted only when palpable infirmities or perversities are noticed on a plain reading of the impugned judgment and order. In the facts of the instant case, we do not notice any such palpable infirmity or perversity on a plain reading of the impugned judgment and order.

As such, we do not find any merit in the instant appeal, which is liable to be dismissed and stands accordingly dismissed along with the application for stay.

Urgent photostat certified copy of this judgment, if applied for, be given to the parties.

I agree.