STATE OF ASSAM & ANR. versus DAKSHA PRASAD DEKA & ORS

STATE OF ASSAM & ANR.

v. DAKSHA PRASAD DEKA & ORS. October 23, 1970

[J. .. SHAH, K. S. HE.GDE AND A. N. GROVER, JJ.]

Naturtt! Justi~e--:-App/ication for correction of dme of birth in sm'ir:.-rtcorti-F•Itd wltlrtn three years of tlate of actual superannuation--If COitld he tllltrtaintd.

The respondent wa~ appointed A~'>i~tant Sub-lnsp~ctor of Police with dfect from Janu~try 17. 1929, and on his owo r~prcs~ntation his date of birth 11as entered in the service record as July l, 1910. Under F.R. 56(a) be 11a, liable to be compulsorily retired on July J, J%5. In 1963 h.: 3pplicd that the d.ttc of binh in the scrvtce rei:ord may be corrccto:d as Aug~! I, I 911. The application was rejected without giving him 3n opportunity to suppon his case und he was informed on June 26, 1965, !bat he ~<ould stand superannuated on Jun.: 30, 1965. He tiled ~~orit petitiOn in the High Coon and the High Court qu.tshed the order d:1tcd June 26. 1965.

In appeal to this Court :

HELD : Until the service record of public scrvlnt is cortcctcd he C3nnot c1~im th01t he hit~ been deprived of the guarant~~ un~r Art. Jl1(2J of th~ Con,IJtution by bein~; compulsorily retired on ~unrn!ng lh!! 3gt! of ·~pcr•nnu:.tion on the h;"is of th~ scr..,ice record. A, pubhc ~ant roa)' dtlputc the correctness of the date of birth as entered 10 th.: scrv•c~ rccor~ loll IIUI)' :~pply for it~ correction, bul in view of S.K. II t:Jotc, whtch go'; ' cmr.S the employment o( the r~-spondcnl, un Jpphca~to"' for such tOrrt(llon could not he cntcrtuineJ if it was mnJe w•th•n tbree Y~ ~fore the date of ';,ctu<~l supcrannu:nion'. The. words 'llctual ~pcr;t~':~;­bon' lll(an the date of superannuation according to the ~ervtee Th: lDd not according to the d01IC of b1rth claimed by the pubhe .sc~~n~. ~ ~~pon.Jcna rcpr,~cnh:d that he ha1l utt>•incd the 31:~ of maJon ~ ,J tb;lt 1 ~r •lc on I~ 10hich uppropriate h~: entered '>Crvicc scrvic.:. It rut.: he "a~ could not have not open [10 ]h~~ c3o;mincd to SJ krvtcc. !6llll G·H, 61!9 A·ll. F·Gl • • • I 1967J 2 S.C.R. 6-~ , . I' Cc'<"' .ulr of Oril.Jn v. Dr. (/Ifill) Owupam n r,..lntd, 1966C lVtL At•PELLATE } URISOtCTlON: CIVI . .1 p,..-ne:al No • 2265 of ~ · • nt and order datx:d l hn ppcal by special leave from the JUdg!Xl~ High court io l c· ~,ary 10, 1966 of the Assam and Nagli:IO tvt Rule No. 266 of 1965. Narmlt L(l/, fur the uppclhtnls. )1 R. Gop(/hlkrisltmut, for rc~pont.h:nt No. I. t 1 The J udgmcnt of the Court w.as . . dclivc:C\!d . by • lied 'tbc res· 1Shah k berctoafrer ~::t r with Ponde , • J. Daksha Prasad. De.: ·o-b·lospcctor of Po 1ce nt -w:~s nppointcd As~1~1an t Su

l t 1 1. I '

. --· .

·effect from January 17, 1929. On representation mad·· ~,y the respopdent the date of his birth was entered in the serv;ce reccrd as July 1, 1910. Under F.R. 56(a) the respondent was liable to be compulsorily retired on July 1, 1965. In 1956 the respondent applied that the date of birth entered in his service record be shown as August 1, 1911. That application was rejected. The respondent again applied in 1963 for correction of his date of birth. The application was rejected and by order dated Ju,ne 26, 1965, the respondent was informed that he will stand superannuated on June 30, 1965. His representation made to the Government of Assam against that order was un-successful.

The respondent then applied to the High Court of Assam praying for a, writ in the nature of mandamus requir~ng the State . of Assam to forbear {rom giving effect to the order dated June 26, 1965. The High Court quashed the order dated June 26, 1965, and directed the State of Assam to give an opportunity to the respondent to show cause against the order. directing com-pulsory retirement and 'ln opportunity to prove his true date of birth. Agai1nst that order, this appeal is preferred with spe-cial leave.

In the opinion of the High Court if the true date of birth of the respondent was August 1, 1911, the order compulsorily retir-ing the respondent on June 30, 1965, without giving him an opportunity to prove his true age, infringed the guarantee of Art. 311 (2) of the Constitution. . In our judgment, the High Court was wrong in holding that there was any in-fringement of Art. 311 ( 2) of the Constitution.

In the service record of the respondent his date of birth was recorded as July, 11, 1910 and unde.- f.R. 56(a) the respondent was liable tu pe ~2p1pulsorily retiryd on the date on which he attained the , agf [1]qt:f55 years. The date of compulsory retire-ment under F.~ .. ~6(a) must in our judgment, be determined o,n the basis of the service record, and not on what the respon-dent claimed to be his date of birth, unless the service re.cord is first corrected consistently with the appropriate p•·oct.'!dme. public servant may dispute the date of birth as entered in th.e . service record, m may apply for correction .of the record. But until the record is corrected-, he. cannot claim 'that he has been deprived of the guarantee under Art. J 11 ( 2) of the Constitution by bei!lg compulsot;ily retired on att~ining. :the age of superan-nuation on the footing of the date of birth 'ebt~red in the service record.

It is tn1e that the State authorities did not give tQ the res-pondent an opporti:mity to support his case that he was born on

August 1, 1911, and that the service record was erroneous. But in view of S.R. 8 Note, which governed the employment of the respondent an ~pplication for correction of the service record could not be entertained if it was made within three years before the date of "actual supernnuation". S.R 8 Note provides :

"No alteration in the date of birth of Government servant should be allowe~ except in very rare cases where manifest mistake has been made. Such mis-takes should be rectified at the earliest opportunity in the course of-( 1) periodical re-attestation of the en-tries in the first page of service book, and (2) prepara-tioo of the annual detailed statement of permanent establishment (Financial Rule Form No. 11) in which is noted the date of incumbent's birth. In no case the request for change in the date of birth of Govern-ment servant made on date within three years of the date of his actual superannuation should be entertain-ed." Y.alidity of the Rule is not challenged by the respondent We are unable to agree with the view of the High ·Coun that the date of "actual superannuation" within the meaning of 9.R. 8 Note is the date of superannuation computed with reference to the claim made by the public servant, and not with reference to the date as entered in the service record. If such an interpreta-tion be accepted, S.R. 8 Note would prove in majority of • cases of no practical utility. It is intended by S.R. 8 Note that any error in the service record shall be rectified at the earliest opportunity and in no ~ase should an application for rectifica· tion be entert~ined within three years of the "date of actual super. annuation", i.e. the date of superannuation according to the service record. I' Again, if the contention of the respondent were correct, on the date on which he entered servioe he was minor. If on r~presontation that he had attained the age Qf majority on the -date on which he entered service, it would not be open for him. after being admitted to . the service, · to contend that under the appropriate service rules he could not have been admitted to the -service. but for the misrepresentation made by him.

Counsel for the respondent relied upon the _judgment of this Court in State of Orissa v. Dr. (Miss) Binapani Dei & Ors.(l) in support of the contention that public servant must be given an opportunity to prove his true date of birth before he is super. annuated, and any order passed without such opportunity is ille-H gal. In our judgment Dr. l Miss) Binapani's ccw? ( [1]) enunciates no such proposition. In that case in the service record of pub-

<'> 1967 2 S.C. R· 6~5

2--L 694 Sup. C.1.!71

lie servant. April 10, 1910 was entered as the date of her birth. An enquiry was held and the public servant was required to show cause why her date of birth should not be accepted as April 4, 1907. Thereafter the Government of Orissa determined her date of birth as April 16, 19()7, 3ilil declared that she should be deemed to have been superannuated on April 16, 1962. This order was challenged by the public servant in petition to the High Court of Orissa. The High Court held that the order of the State Government amounted to compulsory retirement before she attained the age of superannuation and was contrary to the· rules goveljDing. her service conditions and amounted to removaJ. within the meanitig of Art. 311 of. theJ Constitution, and since -she was not given reascmable opportunity oi showing cause against ·the actiQn proposed to be taken in regard to her, the order was· invalid. This Court confirmed the order passed by the High Court of Orissa. It was observed by this Court that ·evf!O! an administrati~e order which involved civil consequences must .be made consistently with the rules cf n·atural . justice. The person concerned must be informed of the case of the State :and the evidence in support thereof and must be given f~r o~ . portltnity to meet the case before an adverse decision js taken. 'The public servant, accorditrlg to the service record, could not bO superannuated before April 10, 1965. But bY" an enquiry which. was not held in manner consistent with the rules ol. na.tu· rat julitice an order was made altering the date of birth as entered: in the service record, ~d declaring that she was bQm in 1907. That was plainly ·an order J)assed to the prejudioo of the public servant without giving an opportunity to meet the case of the State. In the present case, however, th~ State did not seek to modify the service record : it was the respondent who sought modification of the service recora and claimed that he be declared superannuated only on the basis of the rectification prayed for by him. It is true that ordinarily when an application is made for rectification of age by public servant, the' State. should give the applicant proper opportunity to prove his case and should give due consideration to the evidence brought. before it. But in the present case, since the application for rectification was made within three yeats of the date of actual superannuation, according to S.R 8 Note the application could not be eritet:tained. 1be principle of Dr. (Miss) Binapani's case([1]) has no application to this case.

The appeal is allowed and the order passed by the High Court is set aside. The petition filed by the reswndent' shall stand dis-missed. There will be no order as to costs throughout.

Appeal allowed,

. 0) {19671 ..:1 S.C.R. 625.