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Case Number

Matter No. 5268 of 1988

Judges

Mr. Prabodh Dinkarrao Desai, C.J
Mr. Ajit Kumar Sengupta, J.

Acts

ARTICLE 226 CONSTITUTION OF INDIA

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Smart Summary

Structured Summary of the Opinion (Sengupta, J.)

Factual and Procedural Background

The petitioner joined the Calcutta Police as a constable on 1 February 1949. His service book recorded his date of birth as 19 January 1931 and his initial literary qualification as "Non-Matric". He later received a Matriculation Certificate (issued 5 November 1949) from the East Bengal Secondary Education Board, Dacca, showing his date of birth as 1 October 1933 and that he passed the Matriculation Examination held in May 1948. By letter dated 4 September 1950 he submitted that certificate and the service book was amended to show his literary qualification as "Matric" but the recorded date of birth was not corrected.

The respondent issued a Memo dated 2 February 1988 informing the petitioner that he would retire on superannuation with effect from the afternoon of 31 January 1989. The petitioner represented for correction of his date of birth and challenged the non-correction by moving the High Court under Article 226 of the Constitution. The learned Single Judge dismissed that application by order dated 13 January 1989. The present appeal was taken up and an order dated 30 January 1989 allowed the appeal, quashed the impugned Memo dated 2 February 1988, directed correction of the service records on the basis of the Matriculation Certificate and directed that the petitioner be permitted to continue in service until superannuation on the basis of the corrected records; it also directed exclusion of the period of ineligibility from qualifying service for pension and awarded costs of Rs. 750 to be paid with the petitioner’s February salary. The opinion sets out the reasons for that order.

Legal Issues Presented

Whether the date of birth recorded in the petitioner's service book should be corrected in accordance with the date of birth shown in the Matriculation Certificate submitted by the petitioner.
Whether accepting the Matriculation Certificate (and thereby accepting that the petitioner was a minor at the time of appointment) permits the respondents to initiate disciplinary action for an alleged false declaration at appointment, or whether such action is excluded by the conduct of the authorities over the intervening years.
Whether a refusal to correct the petitioner's date of birth, when similar corrections had been made for others, constituted unreasonable discrimination violative of Articles 14 and 16 of the Constitution.

Arguments of the Parties

Appellant's (Petitioner's) Arguments

The petitioner produced his Matriculation Certificate showing date of birth as 1 October 1933 and requested correction of his date of birth and recording of his literary qualification in the Service Book.
Although the literary qualification was corrected, the date of birth was not amended; the petitioner sought correction and continuation in service on the basis of the Matriculation Certificate.
The petitioner impliedly relied on the authenticity of the Matriculation Certificate and on the respondents' prior acceptance of that certificate for correcting his literary qualification.

Respondents' Arguments

The respondents contended that if the Matriculation Certificate's date (1 October 1933) were accepted, the petitioner would have been a minor on his appointment date and thus ineligible for government service at that time.
The respondents argued that the petitioner thereby must have made a false declaration regarding his date of birth to obtain employment and would be liable to departmental proceedings for that alleged falsehood.
The respondents implicitly relied on the recorded date of birth in the Service Book (19 January 1931) and suggested that the discrepancy justified not altering the Service Book entry.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court proceeded through a sequence of factual and legal observations:

Documentary chronology and gap in evidence: The court noted the petitioner did not possess the original Matriculation Certificate when he joined on 1 February 1949 and that the certificate was issued only on 5 November 1949. The Service Book entry of date of birth as 19 January 1931 did not appear to be based on any identified supporting material, nor was there evidence that the petitioner had made a declaration fixing that date.
Authorities' awareness and conduct: By 4 September 1950 the respondent authorities had received and acted upon the Matriculation Certificate at least to the extent of amending the petitioner's literary qualification to "Matric". Thus the respondents were aware of the discrepancy between the Service Book and the Matriculation Certificate for decades but did not initiate any departmental proceedings against the petitioner for a false declaration.
Inconsistency in respondents' approach: The court observed it was inconsistent for respondents to accept and act on the Matriculation Certificate for qualification purposes while refusing to correct the date of birth. The court required respondents to point to material that justified retaining the Service Book date of birth but found no such material in the record.
Evidentiary principle and proof of age: The court emphasised that proof of age primarily depends upon documentary material and the authenticity of such documents; mere self-serving or oral statements are weak proof. Entries in school registers and admission forms that underpin a Matriculation Certificate were identified in the opinion as good proof of age. The Matriculation Certificate was not shown to be forged or fabricated.
On-the-facts fairness and laches: Having accepted the Matriculation Certificate for one purpose and having taken no action for nearly 39 years, the respondents could not fairly or lawfully initiate disciplinary action at that late stage. The long inaction and partial acceptance of the certificate undermined the respondents' present refusal to correct the date of birth.
Regulatory flexibility and "boy-service": The court observed that there is no absolute rule forbidding appointment of a minor; Rules may be relaxed, and the concept of "boy-service" exists (service during minority) which may be regularised. The period of "boy-service" is ordinarily excluded when computing qualifying service for pension. Thus the mere fact that acceptance of the Matriculation Certificate would show the petitioner was a minor at appointment did not require invalidation of his service or automatic disciplinary sanction.
Non-discrimination: The court noted that the authorities in other cases had corrected dates of birth on the basis of Matriculation Certificates even when that showed incumbents were minors at appointment. To refuse identical treatment to the petitioner would amount to arbitrary discrimination contrary to Articles 14 and 16 of the Constitution.
Conclusion of analysis: On the basis of documentary authenticity (no challenge to the Matriculation Certificate), the authorities' prior conduct and inaction, the availability of regulatory mechanisms to regularise minority-appointed service, and the requirement of non-discrimination, the court found no justification to maintain the Service Book date of birth and therefore allowed the appeal.

Holding and Implications

Holding: The appeal is allowed; the impugned Memo dated 2nd February, 1988 issued by the Reserve Officer, Special Bench, Calcutta is quashed and set aside.

Direct effects and orders made by the Court:

The respondent authorities are directed to correct the petitioner's service records to reflect the date of birth as shown in the Matriculation Certificate (1 October 1933) and to permit him to continue in service until he attains superannuation on the basis of those corrected records.
Because the petitioner joined service while still below the minimum age prescribed by the Rules at the relevant time, the period during which he was ineligible to be appointed shall be excluded from his qualifying service for pension purposes (i.e., the "boy-service" period will not count towards pensionable service).
The appellant (petitioner) is awarded costs of Rs. 750 for the writ petition and the appeal; the costs are to be paid to him along with his salary for the month of February payable in March 1989.

Broader implications:

The opinion's reasoning emphasises reliance on authentic documentary evidence of age, consistent administrative treatment, and the remedial availability of regularisation for service during minority. The court's decision had direct operative effect as described above; the opinion does not purport to lay down any novel legal doctrine beyond applying these principles to the facts of this case, and it did not cite any case law as precedent.

Judge concurring: Desai, C.J. (agreed).

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Nihar Ranjan Bhowmick v. State Of West Bengal & Ors.

Sengupta, J.:— On January 30, 1989 we passed the following:

“The appeal is taken up for hearing by treating the same as included in the days cause list. Filing of paper book is dispensed with and the undertaking given in that behalf is discharged.

For the reasons to be recorded in the judgment which will be pronounced on 2nd February, 1989, the appeal succeeds and is allowed. The impugned Memo dated 2nd February, 1988 issued by the Reserve Officer, Special Bench, Calcutta, is quashed and set aside. The respondent authorities are directed to correct the service records of the writ petitioner on the basis of the age mentioned in the certificate of passing of the Matriculation Examination held in the month of May, 1948 and consequently to permit him to continue in service till he attains the age of superannuation on the basis of such corrected records. Since the petitioner joined service while he was still below the minimum age prescribed by the Rules at the relevant time, the period during which he was ineligible to be appointed shall be excluded from his qualifying service for the purpose of pension.

The appellant is entitled to the costs of the writ petition as well as of the appeal which are quantified at Rs. 750/-. The costs are accordingly awarded and shall be paid to him along with his salary for the month of February payable in the month of March, 1989.

All parties to act on the signed copy of the minutes of this order on the usual undertaking.”

2. We bow proceed to set out the reasons in support of the aforesaid order. The petitioner, who is now Sub-Inspector of Police, joined as a constable on 1st day of February, 1949. In the year 1961 he was promoted go the rank of Assistant Sub-Inspector of Police and thereafter in 1972 he was further promoted to the post of Sub-Inspector of Police. The date of birth as recorded in the service book is January 19, 1931 on the basis whereof the petitioner was due go retire on January 31, 1989.

3. The case of the petitioner is that he passed the Matriculation Examination in 1948 from the East Bengal Secondary Education Board, Dacca. His date of birth as recorded in the Matriculation on Certificate is October 1, 1933. He is staled to have submitted the Matriculation Certificate for correction of the date of birth as well as for recording the literary qualification in the Service Book. Although the literary qualification was corrected, no correction was made in the date of birth. The case of the petitioner is that the date of birth which was recorded in the Service Book was not on the basis of any supporting document.

4. By the Memo dated February 2, 1988 the petitioner was informed that he would retire from service on superannuation with effect from the afternoon of January 31, 1989. The petitioner made representation for correction of his date of birth. He also submitted that the date of birth of several police personal on the basis of the Matriculation Certificate, Admit Card or ocher authentic documents had been corrected and there was no reason why his date of birth on the basis of Matriculation Certificate should not be corrected. In spite of such representation the respondents did not correct the date of birth. Under the circumstances the petitioner moved this Court under Article 226 of the Constitution of India. The learned Single Judge by order dated January 13, 1989 dismissed the said application. Hence this appeal.

5. Records have been produced. It appears that when the petitioner had joined the service on February 1, 1949, endorsements were made in the Service Book as follows:—

“Date of Birth (Christian era) : 19-1-1931 Literary Qualifications : Non-Matric”

6. By letter dated September 4, 1950 the petitioner informed the Deputy Commissioner of Police, N.P through the Officer-in-Charge, Chitpore Police Station as follows:

“With due respect and humble submission, I beg to report that I passed the Matriculation Examination to the year 1948 from Dacca University. When I was appointed in Calcutta Police Department Page: 97(1949), I could not produce my certificate because at that time I had not received my original certificate and for this it was not noted in my service book.

So I therefore, pray that your honour would be kind enough to note the same in my service book and oblige. The original certificate is attached herewith.”

7. In terms of the said letter, against the column “Literary Qualifications”, the word “Non-Matric” was penned through and the word “Matric” was inserted. The following order is appended below the column “Literary Qualifications”:—

“Since produced his matriculation certificate issued on 5.11.49 from East Bengal Secondary Education Board, Dacca that he passed matriculation examination held in May, 1948.”

8. However, the date of birth was not corrected. In the said letter the petitioner mentioned that he could not produce any certificate because at the time when he joined the service he had not received the original certificate. It appears from the said endorsement that the certificate was issued on November 5, 1949, long after the petitioner had joined as Constable on February 1, 1949.

9. It has been contended on behalf of the respondents that if the date of birth as recorded in the Matriculation Certificate is taken to be correct, then the petitioner was born on October 1, 1933 and accordingly at the time of his appointment he was a minor and not eligible for the Government service. He, therefore, made a false declaration suppressing his correct date of birth only to get the employment. This is precisely the reason why the date of birth was not corrected. If his date of birth according to the Matriculation Certificate is taken to be correct, he is liable to be proceeded departmentally for making false declaration regarding his date of birth at the time of his appointment.

10. We are, however, not impressed by this contention. It cannot be disputed that the petitioner did not have the original Matriculation Certificate when he joined the service. It is not known on what basis the date of birth was recorded as January 19, 1931 in the Service Bock. It does not appear from the records that the petitioner made any such declaration before the authorities. And or about September, 1950 the petitioner forwarded the Matriculation Certificate to the Deputy Commissioner of Police who only corrected the literary qualification of the petitioner but not the date of birth. The authorities were fully aware at least from September 4, 1950 that there was discrepancy in the date of birth as recorded in the Service Book and the date of birth recorded in the Matriculation Certificate. Had they made a little arithmetic, it Page: 98would have been known go them that if the date of birth recorded in the Matriculation Certificate reflected the correct age of the petitioner, in that case the petitioner did not attain the age of 18 when be was appointed as a Police Constable. Even then no proceedings had been initiated against the petitioner for making any allegedly false declaration. On the contrary, acting on the Matriculation Certificate and accepting it to be correct, the literary qualification of the petitioner was amended. It is unfortunate that the respondents had acted partly on the basis of the Matriculation Certificate in so far as the literary qualification of the petitioner was concerned. No reason has been assigned why the date of birth of the petitioner was not corrected in accordance with the Matriculation Certificate. It is not, nor can if be, the case of the respondents that the Matriculation Certificate was not genuine or fabricated. Our attention has not been drawn to material, if any, which could justify the recording of the date of birth in the Service Bock as “19-1-1931”. It is incumbent on the respondents to indicate the material which formed the basis of recording of the date of birth in the Service Book. Mere self-serving declaration of a recruit, in particular, in public employment, can never be the proof of age of the declarant. Ordinarily the oral statement can hardly be useful to determine the correct age of a person. The question, therefore, largely depends on the documents and the nature of their authenticity. Entries 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. If it is the case of the respondents that the statement of the petitioner is the material on the basis whereof such recording was made, in that event, any candidate for employment could easily manipulate his date of birth as his statement once made could not be challenged subsequently by the appointing authority. The real contention, as we have understood, is that if the date of birth of the petitioner as recorded in the Matriculation Certificate is accepted, in that case, he was a minor oo the date of his appointment. There is no such rule that a minor can never be appointed in Government service. Rules are always relaxable. Fundamental rules provide how the “boy-service”, is, service during the period of minority of an incumbent, has to be regularised. The period of “boy-service” is never taken into account for computing the qualifying service for pension. In our view, therefore, when the genuineness or authenticity of the Matriculation Certificate is not disputed or challenged the date of birth as recorded in such certificate must be taken to be correct. That apart, the respondents had accepted and acted on the basis of the certificate by amending the literary qualification. The question of Page: 99initiation of any disciplinary proceedings at this stage cannot arise at all as the respondents, for the last 39 years, since the submission of the Matriculation Certificate, did not take any steps against the petitioner. This conduct would only demonstrate that appointment of a person below the age of 18, at the material time immediately after the partition, was neither unusual nor illegal.

11. There is another aspect of the matter. It has not been disputed that in several cases the Authorities themselves have corrected the date (s) of birth on the basis of the Matriculation Certificate (s), although upon such correction it was found that the concerned incumbents were minor at the respective date (s) of their appointment. There is no reason why the petitioner should be discriminated against. The respondents should act fairly and reasonably and not arbitrarily. We do not find any basis for such discrimination which is violative of Articles 14 and 16 of the Constitution. For the reasons aforesaid, the appeal is allowed.

12. Desai, C.J: I agree.

A.N.S

Nihar Ranjan Bhowmick v. State Of West Bengal & Ors.

Structured Summary of the Opinion (Sengupta, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Petitioner's) Arguments

Respondents' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nihar Ranjan Bhowmick v. State Of West Bengal & Ors.

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