Sohan Singh Bawa v. State Of Haryana

Tek Chand, J.:— This is a petition under articles 226 and 227 of the Constitution of India praying for the issuance of a writ of mandamus or order or direction to the respondents to determine the correct age of the petitioner and make necessary consequential correction in the petitioner's service record. The petitioner is a member of the Punjab Educational Service Class II and is posted at Jind as District Education Officer. The petitioner has stated that he was born on 4th of February, 1916, and has two brothers, one elder to him Bawa Amar Singh born on 15th of April, 1911 and the other younger to him Bawa Mohinder Singh born on 1st of February, 1922. Both these brothers are in Government service. When petitioner joined as a student on 9th of December, 1920, Malwa Khalsa High School. Ferozepur City, his date of birth was entered as 4th of February, 1916. He passed his matriculation examination in 1930 from Government High and Normal School, Ferozepur City, and his B.A examination from R.S.D College, Fuozepur City, in 1934. He lost his Page: 936father when he was six years old. He contends that when the record regarding the date of birth was transferred from primary department, to the next higher department the figure ‘6’ in year of the birth was by error made into ‘o’ and this fact was discovered only in 1934 by him. The petition joined Government service on 10th of November, 1942, and while declaring his date of birth as 4th of February, 1910 on the basis of his matriculation certificate, he also indicated by a note that the question of the correction of his date of birth was pending with the Punjab University, Lahore This matter was slid pending in July, 1943, when the petitioner's service-book was prepared. He had brought to the notice of the officer concerned that the date of birth as mentioned in his matriculation certificate should be treated as provisional subject to the final decision of the University. His request for amendment of the date was decided immediately before the partition of the country by the Punjab University, Lahore and this information could not be dispatched to him immediately because of the widespread communal disturbances in 1947. The petitioner made repeated representations to the Punjab University, Lahore, but no reply was received till 28th of January, 1950. The Registrar of this University informed the petitioner that owing to communal disturbances his caw could not be traced and he should make a fresh application. After protracted correspondence, the Panjab University, Lahore, finally decided in petitioner's favour and intimated to him that the date of birth had been corrected. This intimation was sent by the Registrar of the Punjab University Lahore, on 5th of May, 1955. The petitioner received through the office of the Deputy High Commissioner for India in Pakistan, on 6th of December, 1955, a corrected copy of the matriculation certificate furnished by the Registrar of the Panjab University, Lahore. Its copy is marked ‘A-1’. The relevant portion of the corrected certificate is:—

“Date of Birth 4th February, 1916, (Changed from 4th February, 1910).”

2. The petitioner applied for correction of his date of birth on the basis of the corrected matriculation certificate and he was informed on 14th of June, 1956, by the Inspector of Schools, Ambala Division, that his case could not be forwarded to the Director of Public Instruction, Punjab, in view of the instructions contained in para 3 of the Chief Secretary to Government, Punjab's notification No. 20076 (H—Gat.), dated 4th July, 1928. Annexure ‘B—1’ is a copy of the said notification. As much of the arguments addressed at the bar rest on the notification, the relevant portions are reproduced below—

“2. ……………… No time limit, however, is imposed within which a Government servant may apply for correction of the age as recorded and in consequence cases are not uncommon in which Government servants apply for the alteration of their recorded date of birth shortly before attaining the age of superannuation,

3. The Governor in Council and the Governor acting in Ministers is now pleased to direct that in regard to Page: 937future Government servants a declaration of age made at the time of, or for the purpose of entry into Government service, shall as be deemed to be conclusive unless he applied for correction of his age as recorded within two years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of a Government servant at any time against the interests of that Government servant when it is satisfied that the age recorded in his service book or in the History of Services of a gazetted officer is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom.

4. With regard to a person now in Government service, one year from the date of these orders is allowed within which he may apply for correction of his recorded date of birth and after the expiry of this period no application shall be entertained.

5. When the Government servant, within the period allowed under paragraphs 3 and 4 above, makes an application for the correction of his date of birth as recorded, a special enquiry should be held to ascertain his correct age and reference should be made to all available sources of information, such as certified copies of entries in the municipal birth registers university or school age certificates, Janam Patries or horoscopes. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such applications and no alteration should be allowed unless it has satisfactorily been proved that the date of birth as originally given by the applicant was a bona fide mistake and that he has derived no unfair advantage therefrom.”

3. The petitioner sent a detailed representation to the Director of Public Instruction, Punjab, on 30th of October, 1956, vide annexure ‘C’. The decision on this representation was unfavourable to the petitioner and he was informed that the change in the date of birth “cannot be allowed at this late stage under rule 7.3 read with annexure ‘B’ of the Punjab Financial Rules Volume I”, vide annexure ‘D’. The petitioner still made another representation, annexure ‘F’, and pointed out that rule 7.3 of the Punjab Financial Rules was no bar in his case, as he had applied for correction at the earliest opportunity. He was informed by memo, dated 1st of October, 1958, from the Director of Public Instruction, Punjab that the orders already passed were to stand. The petitioner made a further representation on 4th of April, 1959, to the Punjab Government followed by several reminders. He was informed that his representation was considered and rejected by Government, vide annexure ‘G’. In this representation the petitioner enclosed several Page: 938documents specified in para 18 of the petition in support of the proof of his real age. The petitioner maintains that the order of the Director of Public Instruction, Punjab, dated 30th of June, 1958 (annexure ‘D’) as also the order of the Haryana Government dated 5th of January, 1967 (annexure ‘G’) are illegal and deserve to be struck down for reasons mentioned in the petition.

4. The Under-Secretary to Government, Haryana, Education Department, by way of a return has filed an affidavit on behalf of respondent No. 1, the State of Haryana. Reference has been made in the affidavit to the petitioner's on applications and other documents in which he had himself shown his date of birth as 4th of February, 1910, and not 1916, as contended by him later on. It was also stated that there was no record with the department showing that at the time of preparation of his service-book in July, 1943, he had given in writing that the date of his birth was to be corrected. It was further stated that the petitioner had not intimated the circumstances under which the change in the date of his birth was allowed by the University of the Punjab at Lahore. On the basis of rule 7.3 of the Punjab Financial Rules, Volume I, read with annexure ‘B’ attached to Chapter VII, his date of birth could not be corrected, as application for this purpose was not made within two years of his entry into Government service. It was maintained that the Punjab Financial Rules were statutory rules and action taken in pursuance of these rules was legal and in order. It was further contended that the matter was not justiciable and the merits of the petitioner's contention could not be gone into under Article 226 of the Constitution of India, the impugned orders being administrative. At this stage, reference may be made to the Punjab Financial Rules. Rule 7.3 runs as under:—

“7.3 Every person newly appointed to a service or a post under Government should at the time of appointment declare the date of his birth by the Christian era with confirmatory evidence as far as possible confirmatory documentary evidence such as Matriculation Certificate, Municipal birth certificate and so on. If the exact date is not known an approximate date may be given. The actual date or the assumed date determined under note 1 below should be recorded in the History of Service, Service Book, or any other record that may be kept in respect of the Government servant's service under Government and once recorded, in cannot be altered except in the case of a clerical error, without the previous orders of Government. See also Annexure B to this Chapter.”

5. To this rule, three notes are added. Note (3) is to the following effect:—

“For administrative instructions in respect of alterations in the date of birth, see Annexure B to this Chapter.”

6. The administrative instructions contained in annexure ‘B’ are reproduced below:—

ANNEXURE B

(Referred to in Rule 7.3 and note 3 thereunder).

1. In regard to the date of birth a declaration of age made at the time of, or for the purpose of entry into Government service, shall as against the Government servant in question, be deemed to be conclusive unless be applies for correction of his age as recorded within two years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of a Government servant at any time against the interests of that Government servant when it is satisfied that the age recorded in his service book or in the History of Services of a Gazetted Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom.

2. The orders in this annexure have effect from the 4th July, 1928. With regard to persons in Government service on that date one year from that date was allowed within which they could apply for correction of their recorded date of birth.

3. When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded a special enquiry should be held to ascertain his correct age and reference should be made to all available sources of information such as certified copies of entries in the municipal birth register, university or, school age certificate, Janam Patris or horoscopes. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such applications and no alteration should be allowed unless it has satisfactorily been proved that the date of birth as originally given by the applicant was a bona fide mistake and that he has derived no unfair advantage therefrom.

4. The result of every such enquiry should, in the case of non-gazetted servants, be briefly stated in their service books and if a correction is sanctioned the fact should be deported to the Accountant General.”

7. It will be noticed that under para 1, the administrative instructions are that the date of birth as given in the first instance he taken to be conclusive unless application for correction of age is made within two years from the date of entry into Government Service. The instructions contained in para 3 give an Page: 940indication as to how a special enquiry should be held to ascertain a person's correct age. The argument of the learned counsel for the petitioner is that effect has not been given to the statutory rule 3.26(a) of the Punjab Civil Service Rules, Volume I. This rule provides—

“3.26 (a) Except as provided in other clauses of this rule, the date of compulsory retirement of a Government servant other than a Class IV Government servant, is the date on which he attains the age of 58 years………”

8. The above orders have effect from 28th of March, 1963. A point is made that a person is entitled to serve till he attains the age of 58 years. In the instant case, the petitioner cannot be superannuated before that age and, therefore, the ascertainment of the actual date when he attains the age of 58 years is imperative. A reference was made to a Division Bench decision in (1) Dakshaprasad Deka v. Inspector General of Police, Assam, A.I.R 1967 Assam and Nagaland 13. That case was somewhat similar and the point urged before the Bench was that the petitioner's retirement in the year 1965, though in fact he attained the age of superannuation in 1966, amounted to removal within the meaning of Article 311 and unless an opportunity was given to him to prove his real age, there had been a violation of Article 311(2) of the Constitution. Referring to the financial rule, it was observed:—

“This rule clearly means the date when he factually attains the age of 55 years and not when he attains the age of 55 years according to the year of his birth given in his service book, if the petitioner disputes the fact and prima facie makes out a case on the basis of some evidence, his retirement before the year 1966 will amount to punishment. He will be deprived of his benefit of one year's salary and he should have been in these circumstances given an opportunity of showing cause before he was retired……”

9. A similar argument, as has been advanced in the instant case, was also urged before the Assam and Nagaland Bench on behalf of the State. Reference was made to a note below S.R 8 to the following effect:—

“………In no case the request for change in the date of birth of a Government servant made on a date within three years of the date of his actual superannuation should be entertained.”

10. The argument was that as the application for change had been made within three years of his attainment of superannuation in the year 1964, it could not be entertained. The contention of the petitioner's counsel there, which prevailed with the Bench, was that the attainment of superannuation did not mean superannuation according to the age given in the service record but it meant superannuation according to the age of the petitioner. The Bench observed:—

“In any case when a dispute was raised the Petitioner should have been given an opportunity to prove the fact of his age before his petition was rejected and the Page: 941principles of natural justice require that before he was compulsorily retired and if a dispute was raised with regard to his age, he should have been given an opportunity to prove his correct age and thus there has been a clear violation of Article 311 of the Constitution.”

11. The petition was allowed, the order of superannuation was quashed and the opposite parties were directed to give an opportunity to the petitioner to show cause against the order of retirement an prove his real age. The facts and the circumstances of the reported case are very much similar to the instant case.

12. Mr. Abnasha Singh, learned counsel for the petitioner, also cited observations from the Single Bench Judgment in (2) H.C Darbara Singh… v. The Punjab State…., 1967 C.L.J (Pb. & Hry.) 70, to the effect that the question of age was a very vital question relating to the rights of an individual and it could not be countenanced at all that the civil Courts have no jurisdiction to determine the correct age of an individual and the matter could not be taken out of the purview of the Court on the ground that it was just administrative. In (3) Bhanwar Singh Bhup Singh Rajput v. State of M.P, A.I.R 1963 M.P 335, the Indore Bench expressed the view that the retirement of Government servant on the basis of the date of birth mentioned in the service book, on the ground of his having reached the age of superannuation amounts, if his claim about his real date of birth is correct, to punishment or removal from service, inasmuch as it involves loss of pay and the other benefits to which he would be entitled if he had continued in service in accordance with the date of birth as claimed by him.

13. This cannot be done unless the Government servant is given an opportunity of showing cause against the action proposed to be taken against him. Failure to give such opportunity before directing his retirement constitutes infringement of the guarantee under Article 311(2). Reliance was placed upon the decision of the Supreme Court reported in (4) P.L Dhingra v. Union of India, A.I.R 1958 S.C 36. In this case, the petitioner's contention had been rejected on the basis of administrative instructions contained in annexure ‘B’ namely, that the application for correction of the age was not made by the petitioner within time and no effort was made to examine the material submitted by the petitioner in support of his contention. This is true of the decision referred to in memo No. 681-FC-15/1956-12858, dated 30th June, 1958, from the Director of Public Instruction, Punjab (annexure ‘D’) and of the communication from the Secretary to Government, Haryana, Education Department, to the Director of Public Instruction, memo No. 673-Ed. I. (3F)-66/167, dated 5th January, 1967, a copy of which was forwarded to the petitioner, vide annexure ‘G’. Both these documents are cryptic and do not refer to any reason whatsoever. In annexure ‘D’ all that was said was that the change in the petitioner's date of birth “cannot be allowed at this late stage under rule 7.3 read with annexure ‘B’ of the Punjab Financil Rules, Volume I.” Annexure ‘G’ merely stated that the petitioner's request for the correction of Page: 942date of birth from 4th February, 1910 to 4th February, 1916 “has been considered and rejected by Government.” It is absolutely clear from these impugned orders that no decision was taken on the merits or on the basis of the material furnished by the petitioner and/or available on the records of the Government. The decision is cryptic and contains no reason whatsoever for interfering with a very valuable civil right of the petitioner. Neither of these orders can be said to be speaking orders which in view of the observations of their Lord-hips of the Supreme Court in (5) Bhagat Raja v. Union Of India & Others, Civil Appeal Nos. 2596 and 2597 of 1966, decided on 29th March, 1967, cannot stand. In arriving at a decision for or against a party, it was obligatory upon the authority to give reasons. The purpose is not served by merely communicating the fact that the presentation has been rejected or dismissed. An important legal right of the petitioner should not have been brushed aside on the basis of administrative instructions contained in annexure ‘B’ to Chapter VII of the Punjab Financial Rules, Volume I. An argument was advanced on behalf of the State that the petition of writ was premature, as the petitioner had not yet been retired. This contention is devoid of merit. The State has decided to retire him in 1968 when according to the petitioner's contention he should be retired in 1974. The decision arrived at by the State is final and will be put into effect in 1968. If such a decision violates the constitutional rights of the petitioner, it cannot be maintained on the ground that the petitioner should seek remedy on retirement even when it is premature.

14. In view of what has been stated above, the petitioner was entitled to be given an opportunity to prove the fact of his real age before his representation was rejected. The principles of natural justice require that an opportunity to prove the correct age ought to have been given, the omission to do so has been violative of the petitioner's right under Article 311 of the Constitution. I allow the petition, quash the impugned orders as reproduced in annexures ‘D’ and ‘G’ and direct the opposite parties to give an opportunity to the petitioner to show cause against his retirement on 4th of February, 1968, and to prove his real age, as contended by him. There will be no order as to costs.

15. Petition allowed.