Calcutta High Court (Appellete Side)
Jebunnessa Munshi vs The West Bengal Legislative ... on 26 February, 2021
26.02.2021
Item No. 18
Ct. No. 04
PG
M.A.T. 259 of 2021
With
I.A. no. CAN 1 of 2021
r
Jebunnessa Munshi.
Vs.
The West Bengal Legislative Assembly Secretariat
& anr.
Mr. Bikash Ranjan Bhattacharyya, sr. adv.,
Mr. Kallol Bose
Mr. Suman Banerjee
...........for appellant
Mr. Raja Saha
Mr. Amit Kumar Ghosh .... for respondents
This intra-Court appeal is from interim order
in the writ petition, where appellant had prayed for
cancellation of letter dated 13 th January, 2020 and
memos dated 24th and 28th December, 2020. The
prayers relate to her impending retirement. Appellant
wanted age correction. Interim order was refused.
Parties have appeared and they agree that the appeal
itself can be taken up on the papers disclosed in the
stay application.
Mr. Bhattacharyya, learned senior advocate
appears on behalf of appellant /writ petitioner. He
submits, exceptional circumstances can cause age
correction as has been said by Supreme Court. The
document(s) must be unimpeachable for Court to rely
on as the exceptional circumstance, in allowing the
age correction, keeping in mind the other aspects of
why it should not be allowed.
On query from Court, we have been shown
paragraph 5 in the writ petition introducing the
documents, which Mr. Bhattacharyya submits, are
unimpeachable. Paragraph 5 is reproduced below:-
"Your petitioner states that as the
service book of the petitioner was not
traceable from 2007, the respondent
authorities concerned decided to
reconstruct the said service book of the
petitioner on the basis of petitioner's
long persuasion. On 27.08.2013,
following the direction of her superior
authority and for the purpose of
reconstruction of her service book, the
petitioner duty submitted attested
copies of her admit card, mark sheet
and pass certificate of her High
Madrasah Examination. In said
documents, the date of birth of the
petitioner is clearly mentioned as
23.02.1963. Photocopy of the said
letter dated 27.08.2013 along with
copies of the admit card, and pass
certificate of High Madrasah
Examination of the petitioner are
annexed hereto and collectively marked
as 'Annexure P-1'."
The originals have been produced before us. Mr.
Saha, learned advocate appears on behalf of
respondents and has inspected the documents.
Mr. Bhattacharya relies on judgments of
Supreme Court in State of T N v T.V. Venugopalan
reported in (1994) 6 SCC 302, paragraph 7. He
submits, memo relied on by respondents is dated 24 th
January, 2012. Per declaration of law in State of T N
(supra) his client has five years thereafter to apply for
age correction. It is on expiry of this five years that
she can be said to lose her right to make application
for correction of date of birth. He next relies on
Umesh Chandra v. State of Rajasthan reported in
(1982) 2 SCC 202, paragraphs 14, 15 and 16 for it to
be said that the unimpeachable documents were
made ante litem motem, that is to say they were made
at a time when declarant had no motive to distort the
truth. Lastly he relies on Sisu Ranjan Das v.
Commissioner of Police reported in 1979 (2) CLJ
428 for view of a learned single Judge of this Court
that the document of appointment bearing signature
and designation of the officer could not be taken to be
a declaration under sub-rule (1) of rule 9 in West
Bengal Service Rules, Part- I framed by the Governor
under article 309 of the Constitution, came into force
on 1st October, 1971. He submits, interference on
urgent basis is necessary as in event her employer
causes her to retire, irreparable damage will be
caused.
Mr. Saha, draws attention to pages 169 and
171 (disclosures in the affidavit-in-opposition used in
the writ petition). Page 169 is application for
enrolment by form A in West Bengal Health Scheme,
made on 12th September, 2011 by appellant, under
her signature. Relevant particulars in this document
are that date of birth is 23rd February, 1961, date of
entry into Government service is 16th March, 1981
and date of superannuation is 28th February, 2021.
Page 171 is application form for part withdrawal from
General Provident Fund (GPF). Here too appellant
has, on 24th August, 2012, said, inter alia, her
superannuation falls on February, 2021. Similar part
withdrawal application was made earlier on 8 th April,
2011 (page 165) giving same particulars. Mr. Bose
assisting Mr. Bhattacharyya submits, explanation
that subsequently correction of dates was made by
the GPF authority at instance of his client, has been
given in the supplementary affidavit. He opposes
interference also relying on State of T N (supra),
paragraphs 6 and 7.
We have examined the originals of the two
documents relied upon in the writ petition, disclosed
therein as collective annexure 'P/1'. Both the
documents are duplicates. The documents, as
duplicates, were issued on 8th April, 2013. The pass
certificate issued by West Bengal Board of Madrasah
Education on High Madrasah Examination does not
bear particulars of date of birth. The explanation at
the Bar is, the writing was washed away. Attested
copy of this document appears as part of the
annexure. The endorsement of attestation is as on
27th August, 2013. It is clear that then the
obliteration happened between 8th April, 2013 and
27th August, 2013. There is a further submission at
the Bar, of the originals lost in travel undertaken by
appellant in a taxi, that is why the duplicates were
obtained.
In context of above facts, paragraph 5
reproduced above is to be seen again. There is no
averment on discovery of the lost originals of these
documents, at a date after 24th August, 2012, when
lastly appellant declared her date of superannuation
to be in February, 2021. It strikes us that there was
also no attempt at explanation as to how 23 rd
February, 1961 was asserted by the parties, to be the
date of birth prior to 24 th August, 2012. Disclosure in
the writ petition was attested copy of the certificate,
bearing particulars of her date of birth, the
attestation made a few months after the duplicate
certificate was itself obtained, without explanation as
on the date of filing the writ petition that on or prior
to that day and in between 8th April, 2013 and 27th
August, 2013, the particulars of date of birth in the
duplicate certificate stood obliterated. We do not find,
prima facie, the two original duplicates to be
unimpeachable documents. We do not therefore have
reason to interfere with impugned order.
State of T N (supra) is not applicable because
of our above finding on the documents. Umesh
Chandra (supra) is also not applicable because we
have not been shown the original documents, for us
to find that they were made ante litem motem. View in
Sisu Ranjan Das (supra) was taken on a document
signed by the appointing officer. Such document was
held as could not be a declaration of the appointee.
The facts are different here.
The application and appeal are both
dismissed. We reiterate that our this order is on
prima facie findings. The first Court will
independently deal with the writ petition for its final
disposal. The documents handed up are handed
back.
(Arindam Sinha, J.)
(Suvra Ghosh, J.)
