Uma Sengupta vs State of Tripura and Others

H.K. Sema, J.—In this writ petition the Petitioner, inter alia, has sought for a writ of mandamus directing the Respondents to declare the date of birth of the Petitioner as on 2.4.43 instead of 1.8.37 as recorded in the service book of the Petitioner at the time of her entering into the service.

I have heard Mr. C.S. Sinha, learned Counsel for the Petitioner as well as Mr. A. Ghosh, learned Counsel for the Respondents.

Facts leading to the filing of the present writ petition may be briefly recited strictly for the purpose of disposal of this writ petition. Petitioner joined in the service as auxiliary-cum-midwife with effect from 4.9.59. As would appear from the original service record of the Petitioner produced at the time of the hearing of this writ petition, the date of birth recorded in her service book was as on 1.8.37. In 1974, the Petitioner passed the School Final examination (Complimentary). The age recorded in the School Final examination of the Petitioner was 2.4.43. It is the case of the Petitioner that her date of birth should be accepted as 2.4.43 as recorded in her admit card of the School Final examination conducted in 1974 instead of 1.8.37 as recorded in the original service book of the Petitioner at the time of Petitioner''s entering into the service. In the interregnum, by an order dated 1.11.95, the Petitioner has been superannuated with effect from 31.7.95 on attaining the age of superannuation. The claim of the Petitioner for changing of her date of birth from 1.8.37 to 2.4.43 has also been rejected by a memorandum dated 26.10.95. The Petitioner has filed the present writ petition on 11.4.97 for the time seeking a writ of mandamus to direct the Respondents to alter the date of birth of the Petitioner from 1.8.37 as recorded in the original service book to 2.4.43 as recorded in the School Final examination in 1974.

It is contended by Mr. Sinha, learned Counsel for the Petitioner that the Petitioner had submitted an application sometime in 1979 praying for alteration of the date of birth of the Petitioner from 1.8.37 to 2.4.43. Mr. Sinha, however, could not substantiate his contention by annexing a copy of the aforesaid representation, if any, filed by the Petitioner. At the same time, counter affidavit on behalf of the Respondents has been filed wherein the Respondents specifically denied under paragraph 8 of its counter that no such application has been submitted by the Petitioner in 1979. It is further averred that she has submitted a copy of the School Final examination''s admit card and one copy of mark sheet duly attested by the gazetted officer on 24.9.97 and on the strength of that document the Administrative Officer of District Planning Bureau without any application from the Petitioner for changing of her date of birth, changed the date of birth of the Petitioner on 22.10.75 as on 2.4.43 by cancelling the previously recorded actual date of birth in the service book as on 1.8.37. It is further stated that the Administrative Officer is not the competent authority to correct the date of birth recorded in the service book at the time her first entry in the Government service. This would go to show that there was no application for altering the date of birth of the Petitioner even after 1974. The Petitioner for the first time filed this writ petition seeking a writ of mandamus for altering the date of birth after she has been superannuated by an order dated 1.11.95 with effect from 31.7.95.

The law on this point are no more Res integra. It has been set at rest by a catena of decisions of the Apex Court.

In the case of Union of India Vs. Harnam Singh, the Apex Court depreciated the stale claim of alteration of date of birth on the verge of retirement by the Government servants. In the case of Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, It was pointed out by the Apex Court that alteration of date of birth it made on the eve of superannuation or near about that time, the Court or the Tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants to raise such a dispute, without explaining as to why this question was not raised earlier.

In the case of Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, it was pointed out by the Apex Court in paragraph 10 of its judgment as under:

10...Extraordinary nature of the jurisdiction vested in the High Court under Article 226 of the Constitution in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly found material. The fact that, an employee of Government or its instrumentality who has been in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correcting of his date of birth in his service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his "Service and Leave Record" could have genuinely waited till the fag end of his service career to get it corrected by availing of the extra-ordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of their discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement.

Reversing to the facts of the case as would appear from the original service record of the Petitioner that date of birth recorded in the service book at the time of the Petitioner''s initial entering in the service as on 1.8.37, but from the original record it appears that thereafter it has been changed to 2.4.43 by the Administrative Officer, District Family Planning Bureau, Government of Tripura. This has been clarified by the Respondents in paragraph 8 of its counter as referred above and stated that the Administrative Officer without any authority has altered the date of birth of the Petitioner from 1.8.37 to 2.4.43 which has been corrected by another order as on 1.8.37. This fact has been reflected in the order dated 26.10.95.

As already said that the Petitioner has joined in the service on 4.9.59, she was made to retire on superannuation with effect from 31.7.95. The present writ petition was filed on 11.4.97 for the first time raising a dispute for altering the date of birth recorded in the original service book as on 1.8.37 to 2.4.43. This would show that the Petitioner kept silence throughout her entire service career without raising this dispute and filed this writ petition after she has been superannuated from service on her attaining the age of superannuation with effect from 31.7.95. This laches and negligence on the part of the Petitioner would preclude her from raising any dispute at this belated stage with a view to continue in service after she has been superannuated.

In the facts and circumstances as recited above, there is no merit in this writ petition and the same is accordingly dismissed. No costs.