- Bookmark
- Share
- CaseIQ
Calcutta Port Trust And Others v. Ajit Kumar Deb .
Factual and Procedural Background
This appeal arises from a judgment dated 28.7.1993 of a learned Single Judge of the High Court (Altamas Kabir, J.) in C.O. No. 4146(W) of 1990. The admitted facts are:
- The petitioner was appointed as an unskilled labourer by the Port Trust Authorities on 4.4.1952.
- At appointment a medical examiner assessed the petitioner’s age as 20 and the service record recorded the date of birth as 2.4.1932.
- The petitioner passed the School Final Examination as a private candidate in 1958.
- The petitioner applied for correction of his date of birth on 4.3.1989 and repeated the request on 7.12.1989 and 2.3.1990. The Port Trust served him with a notice of retirement on 12/19.2.1990.
- The Single Judge allowed the petition and directed the Port Trust to correct the petitioner’s age in accordance with the date mentioned in the school leaving certificate; the Port Trust appealed.
Additional contested factual assertions: the petitioner filed a supplementary affidavit and annexed an alleged 1958 application for correction of age; the Port Trust denied any such 1958 application and maintained that no documentary proof was produced at the time of entry, so the medical assessment determined his recorded age.
Legal Issues Presented
- Whether the petitioner is entitled to correction of his recorded date of birth in service records on the basis of school documentation produced long after entry into service.
- What evidentiary value attaches to a transfer certificate and matriculation certificate (particularly where extracts from the school register or admission form are not produced) under Section 35 of the Evidence Act and relevant precedents.
- Whether an application for correction of date of birth made long after entry into service (and close to superannuation) is tenable, especially in light of the five-year limitation in Note 5 to Fundamental Rule 56 and the authorities construing it.
- Whether administrative action (such as a departmental circular entertaining late corrections) can override or amend the applicable service rules governing correction of date of birth.
Arguments of the Parties
Petitioner's Arguments
- The petitioner asserted that his true date of birth is shown in his school final certificate and in a transfer certificate recording birth as 26.1.1937, and therefore the service record should be corrected to that date.
- He claimed to have applied for correction as early as 1958 (annexing a letter alleged to have been filed in 1958) and later renewed his requests in 1989–1990.
- The petitioner relied on a Division Bench decision in Nihar Ranjan Bhowmick v. State of West Bengal & Ors. (1991 (1) CLJ 93 : 1990 (7) SLR 79 (Cal.)) to argue that school entries and matriculation records can constitute good proof of age.
Port Trust Authorities' Arguments
- The Port Trust contended that the petitioner produced no certificates at the time of entry and his age was determined by medical assessment; they denied receipt of any application in 1958 and said the first application was in 1989.
- They argued that the transfer certificate produced by the petitioner was from a private institution and not supported by extract entries from the school register or admission form; thus the documents lack evidentiary value under the principles in the cited Supreme Court authority.
- The Port Trust relied on precedent (Patil Paban Bose v. The Commissioners for the Port Trust of Calcutta, AIR 1957 Cal 720) to show that fundamental rules apply to Port Trust employees and on service rules (Note 5 to Fundamental Rule 56) limiting correction requests to within five years of entry into service.
- They further argued that an administrative circular entertaining late corrections would not have the force to amend or override service rules.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nihar Ranjan Bhowmick v. State Of West Bengal & Ors., 1991 (1) CLJ 93 : 1990 (7) SLR 79 (Cal.) | Holds that entries in school register/admission form and matriculation certificates constitute good proof of age (court quoted petitioner relying on this decision). | The petitioner relied on this decision; the Court nevertheless examined admissibility and accompanying materials and found the petitioner’s papers insufficient under controlling principles. |
| Birad Mai Singhvi v. Anand Purohit, 1988 Supp SCC 604 : AIR 1988 SC 1796 | Sets out conditions under Section 35, Evidence Act, for admissibility of school register entries: (1) entry in a public/official book; (2) entry states a fact in issue/relevant fact; (3) entry made by a public servant in discharge of official duty or by person performing duty specially enjoined by law; and cautions about evidentiary value where basis for entry is not shown. | The Court applied these conditions to conclude the petitioner’s transfer certificate (private institution, no extract from register or admission form) lacked the necessary evidentiary foundation; mere matriculation/transfer certificate without underlying school register or proof of basis is insufficient. |
| Sri Saroj Kumar Bhattacharya v. Bengal Immunity Ltd. & Ors., 1994 (1) CLJ 79 : 1994 (1) SLR 74 (Cal.) | Holds that where an employee made a declaration of age at entry into service, a matriculation certificate obtained subsequently (after entry) cannot be used to alter that earlier declaration. | The Court cited this authority to support the proposition that a matriculation certificate created after entry into service cannot be relied upon to overturn an age declared at entry. |
| Patil Paban Bose v. The Commissioners for the Port Trust of Calcutta, AIR 1957 Cal 720 | Establishes that Calcutta Port Trust employees are governed by Fundamental Rules and thus the associated notes and conditions apply. | The Court noted this precedent to confirm that Fundamental Rule 56 (Note 5) applied to the petitioner and thus the five-year limitation and procedural safeguards were relevant. |
| State of Tamil Nadu v. T.V. Venugopalan, (1994) 6 SCC 301 : 1994 (4) SLR 626 (SC) | Declares that belated applications for correction of date of birth made at the fag end of career, especially beyond five years from entry, are generally not tenable; courts/tribunals should not be overly liberal in entertaining such late claims. | The Court relied on this authority to treat the petitioner’s late application with suspicion and to emphasise that correction claims made close to superannuation are to be approached with caution. |
| Union of India v. Harnam Singh, (1993) 2 SCC 162 : AIR 1993 SC 1367 | Affirms that service rules may fix a time limit (five years) beyond which correction of date of birth cannot be entertained as a matter of right, even if evidence later shows recorded date to be erroneous. | The Court applied this principle to assess the petitioner’s delay and to conclude that belated correction cannot be allowed as a right; it reinforced the relevance of the five-year rule and the intention behind it. |
Court's Reasoning and Analysis
The court proceeded step-by-step from facts and established legal principles in reaching its conclusion:
- Establishment of baseline facts: the petitioner joined service in 1952; his date of birth in service records was recorded as 2.4.1932 based on a medical assessment at appointment; the petitioner later produced school-related documents showing a different date (transfer certificate—26.1.1937—and school final certificate from 1958 obtained as a private candidate).
- Assessment of documentary proof: the court examined the evidentiary value of the transfer certificate and matriculation documents in light of the Supreme Court’s decision in Birad Mai Singhvi (conditions for admissibility under Section 35, Evidence Act). The court emphasised that school register entries are admissible only if the entry is in a public/official book, states a relevant fact, and is made by a public servant in discharge of official duty or by a person under a statutory duty; further, where an entry as to age is not supported by material on which it was recorded (admission form or register extract), it has little evidentiary value.
- Application of principles to the petitioner's documents: the transfer certificate was from a private institution and was not supported by an extract from the school register or admission form; therefore, following Birad Mai Singhvi, the transfer certificate and the matriculation evidence could not be given weight sufficient to alter the service record.
- Examination of petitioner’s conduct and timing: the petitioner produced an undated annexure (Annexure D) and made inconsistent assertions—initially appearing to learn about the incorrect record only in 1989, later claiming a 1958 application. The court found the claim of a 1958 application to be an afterthought and the petitioner’s conduct "not free from suspicion."
- Consideration of service-rule limitations: the court noted Note 5 to Fundamental Rule 56 (as applicable to Port Trust employees per Patil Paban Bose) which requires that requests for correction be made within five years of entry into Government service and be supported by evidence of a genuine bona fide mistake. The court relied on authoritative Supreme Court pronouncements (State of Tamil Nadu v. T.V. Venugopalan; Union of India v. Harnam Singh) which stress that belated applications, particularly those made at the fag end of service, are not ordinarily tenable and that courts should not unduly facilitate last-minute claims to extend service.
- Rejection of reliance on departmental circular: the court observed that an administrative circular entertaining some applications could not amend or override the service rules; such administrative acts cannot create binding legal precedent to permit belated corrections contrary to the rules.
- Conclusion of analysis: given the absence of primary materials (school register extract/admission form), the private nature of the transfer certificate, the suspicious timing and conduct of the petitioner, and the governing service-rule limitations as explained in binding authorities, the court concluded that the Single Judge erred in directing correction of the petitioner’s date of birth.
Holding and Implications
Holding: The appeal is allowed and the order of the learned Single Judge directing correction of the petitioner’s date of birth is set aside. The bench expressly held that the transfer certificate and matriculation certificate produced by the petitioner were not sufficient to justify altering the recorded date of birth in the service record.
Consequential directions and immediate effects:
- If the petitioner rendered service subsequent to the date of his superannuation and any amounts were paid on that account, such amounts should not be recovered by the Port Trust Authorities.
- The parties were left to bear their own costs.
Implications beyond the parties: The decision applies established authorities (including Birad Mai Singhvi, State of Tamil Nadu v. T.V. Venugopalan, Union of India v. Harnam Singh) to deny belated corrections of date of birth where foundational school-register material is absent and where applications are made late in the career. The opinion does not purport to establish a new precedent but reinforces existing principles concerning evidentiary requirements for school records and the five-year limitation in service rules.
The Judgment of the Court was delivered by
Surya Kumar Tiwari, J.:— This appeal arises out of a judgment dated 28.7.1993 delivered by one of the Id. single Judges of this High Court (Altamas Kabir, J.) In C.O No. 4146(W) of 1990.
2. The admitted facts in this case are these:—
The petitioner was appointed as an unskilled labourer by Port Trust Authorities on 4.4.1952 The petitioner passed School Final Examination as a private candidate in the year 1958. At the time of appointment, the petitioner was sent for medical examination and the doctor who examined him, opined that he was aged 20 on the date of examination. Accordingly, his date of birth came to be recorded as 2.4.1932 in the service records.
3. The petitioner applied for correction of entries regarding date of birth on 4.3.89 and repeated his request vide letters dated 7.12.89 and 2nd March, 1990. The authorities of the Port Trust served him with a notice of retirement on 12/19.2.90. In addition to the above admitted facts, the petitioner furnished a Supplimentary Affidavit before the ld. Single Judge and also filed a copy of a letter which he had allegedly filed in the office of Port Trust Authority for correction of his age, on 15.12.1958
4. In their Affidavit-in-Opposition the Port Trust Authorities have refuted the contentions of the petitioner and have contended that the petitioner never produced any certificates at the time of his entry into the service. Hence his age came to be determined, on the basis of assessment of the medical report.
5. In reply to the Supplementary Affidavit of the petitioner, the Port Trust Authorities have further contended that no such application was received in the year 1958 and the petitioner for the first time applied for correction of his age only in the year 1989.
6. The ld. Single Judge allowed the petition and directed the Port Trust Authorities to correct the petitioner's age in accordance with the date mentioned in the School leaving certificate. Hence this appeal.
7. The ld. Counsel for the petition has relied on a Division Bench Judgment of this High Court in case of Nihar Ranjan Bhowmick… v. State Of West Bengal & Ors.…, 1991 (1) CLJ 93 : [1990 (7) SLR 79 (Cal.)], wherein it has been laid down that “Mere self-serving declaration of a recruit, can never be the proof of age of declarant. The entry in the school register and admission form regarding the date of birth on the basis whereof the age is recorded in the Matriculation Certificate constitute a good proof of age and hence the Court held that the age of the petitioner should be corrected accordingly.
8. The Supreme Court in case of Birad Mai Singhvi v. Anand Purohit, 1988 Supp SCC 604 : AIR 1988 SC 1796, has laid down the conditions on the basis of which the entries in the school register would be admissible, under Section 35 of the Evidence Act. These conditions are:
“Firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue of relevant fact, and thirdly, it must be made by a public servant in discharge of this official duty of any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.”
9. The third condition laid down by the Supreme Court is that the entry must be made by a public servant is discharge of his official duty and the entry regarding the age in the school register is not of much evidentiary value to prove the age in the absence of the material on the basis of which it was recorded. If the entries in the school register are based on parent's information it has an evidentiary value but if it is based on the statement of a stranger it has none.
10. It has been further held that mere proof of matriculation certificate based on entries in the school register are not enough to prove the correctness of the age.
11. The petitioner has filed a xerox copy of the transfer certificate issued by Mahamanab Siksha Sadan, Calcutta wherein his date of birth has been recorded as 26th January, 1937. The Id. Counsel for the petitioner argues that the same is the date of birth mentioned in his school final certificate though the petitioner passed the school final examination in the year 1958 as a private candidate. Hence the date mentioned in the school final examination certificate is supported by a contemporaneous document i.e the transfer certificate issued by the School on 15.1.1950 But the age mentioned in the transfer certificate is not supported by any extract entry of the school register or admission form and it is not clear as to on what basis the date of birth came to be recorded in the transfer certificate unless the admission form and the entry in the school register are produced. These transfer certificates of a private institution have also no evidentiary value according to the law propounded by the Supreme Court in Biradmal's case (supra).
12. It has been laid donw by a Division Bench of this High Court in the case of Sri Saroj Kumar Bhattacharya… v. Bengal Immunity Ltd. & Ors.… (1994 (1) CLJ 79): [1994 (1) SLR 74 (Cal.)] that if an employee had made a declaration about his age at the time of entry into service and therefore he passes matriculation examination as a private candidate he cannot rely on the date mentioned in the matriculation certificate which had come into existence subsequent to his entry in service.
13. The Id. counsel for the Port Trust Authorities have placed reliance on the law laid down Patil Paban Bose v. The Commissioners, for the Port Trust of Calcutta (AIR 1957 Cal 720). It has been laid down in that case that the Calcutta Port Trust Authorities had adopted fundamental rules in 1921 and, therefore, the provisions of fundamental rules apply to the employees of the Port Trust.
14. Note No. 5 below, fundamental Rule 56 runs thus:
“Note 5.— The date on which a Government servant attains the age of fifty-eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School Certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of Ministry of Department of the Central Government, or the Comptroller and Auditor General in regard to persons serving in the Indian Audit and Accounts Department, or an administrator of a Union Territory under which the Government servant is serving, if—
(a) a request in this regard is made within five years of his entry into Government service.
(b) it is clearly established that a genuine bona fide mistake has occurred; and
(c) the date of birth so altered would not make him ineligible to appear in any School or University or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service”.
15. It has been laid down by the Supreme Court in case of State of Tamil Nadu v. T.V Venugopalan, [(1994) 6 SCC 301]: [1994 (4) SLR 626 (SC)] wherein it has been laid down that application for correction of date of birth made at the fag end of the career and that too long after five years of entry into the service would not be tenable and a Government Servant applying after 5 years of his entry into the service would not be eligible for correction of his date of birth. The Supreme Court further observed as under:
“It is common phenomenon that just before superannuation, an application would be made to the Tribunal or Court just to gain time to continue in service and the Tribunal or Courts are unfortunately unduly liberal in entertaining and allowing the Government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the rcord and place reference thereon and seek the authority to correct it. When rejected on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance the Tribunal has grossly erred in showing over-indulgence in granting the reliefs even tratching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground”.
16. The Supreme Court has laid down a similar law in case of Union Of India v. Harnam Singh, (1993) 2 SCC 162 : AIR 1993 SC 1367 : [1993 (2) SLR 42 (SC)]. It has been laid down as below:—
“It is nonetheless competent for the Government to fix a time limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or Tribunals cannot come to the aid to those who sleep over their rights and allow the period of limitation to expire. Unless altered his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. According to the Note 5 by notification D/- 30-11-1979 it is obvious that the request for correction of date of birth is requied to be made by the Government servant within five years of his entry into Government service and is his date of birth may be corrected if it is established that a genuine bona fide mistake had occurred while recording his date of birth at the time of his entry into Government service. While applying the amended rule, two artificial classes of Government Servants between those who joined service before and after cannot be created by ignoring the ground realities and the intention of the rule making authority to discourage stale claims and non-suit such Government servant who seek the alteration of their recorded date of birth belatedly and mostly on the even of their superannuation. The interpretation has to be the one which advances the intention and not the one which frustrates it”.
17. The ld. counsel for the petitioner has argued that the petitioner had applied as far back as in 1958 to get his age corrected but the authorities did not take any action, hence he was constrained to repeat his request from 1989 and onwards.
18. A copy of the letter which has been annexed as Annexure ‘D’ to the petition is undated. Para 2 of the letter is:
“I have understood very recently that my age was wrongly recorded in my service sheet which was not supported by a documentary evidence as I have now in my school certificate is in all cases acceptable as the proof of actual age”.
19. So it was for the first time in 1989 that the petitioner learnt about the entry of the incorrect date in his service record. Then the petitioner improves his version and says that in the year 1958 he had learnt about incorrect recording of his date of birth and protested strongly and also made an application with the true copy of the School Final Examination Certificate in 1958 itself. The petitioner remained quiet until the year 1989 and did not pursue the matter till then. Certainly he was awakened in 1989 and started making representations. The story that he had made an application in 1958 appears to be an afterthought.
20. I, therefore, feel that the conduct of the petitioners not free from suspicion. The School transfer certificate which he has produced h|as been obtained from a private institution. The extract of the register of entry regarding date of birth or the form of admission has not been produced to prove the entry regarding actual date of birth.
21. I, therefore, find that the transfer certificate and the Matriculation Certificate cannot be of any assistance to the petitioner.
22. It has further been argued that vide circular issued on 18th January, 1990, the Port Trust Authorities had entertained the application of certain employees regarding change in their dates of births. Rule cannot be amended by any administrative circular even if any application were entertained and allowed by the Port Trust Authorities, they cannot be treated as legal and such acts cannot lay down any percedent.
23. I, therefore, hold that the ld. single Judge's order cannot be allowed to stand. The appeal is allowed and the order of the ld. Trial Judge is set aside. If the petitioner has rendered any service subsequent to the date of his superannuation and if any amount has been paid on that account, it should not be recovered. We, leave the parties to bear their own costs.
24. Prabir Kumar Majumdar, J.:— I agree.
25. Appeal allowed.
Alert