Calcutta High Court (Appellete Side)

Sekhar Sarkar vs The State Of West Bengal And Others on 16 September, 2022

                               1



                 IN THE HIGH COURT AT CALCUTTA
                CONSTITUTIONAL WRIT JURISDICTION
                           APPELLATE SIDE


Present:
The Hon'ble Justice Kausik Chanda


                       W.P.A. No.7998 of 2022
                           SEKHAR SARKAR
                              -VERSUS-
            THE STATE OF WEST BENGAL AND OTHERS

                                   AND

                       W.P.A. No.5087 of 2019


                           SEKHAR SARKAR
                              -VERSUS-
            THE STATE OF WEST BENGAL AND OTHERS


For the petitioner          : Mr. Goutam Thakur, Adv.,
                             Ms. Anandamayi Ghosh, Adv.


For the State               : Mr. Tapan Kumar Mukherjee, Sr. Adv.,
(W.P.A. No.7998 of 2022)     Ms. Debdooti Dutta, Adv.


For respondent no.7         : Mr. Piyush Chaturvedi, Adv.,

Mr. Dwaipayan Sengupta, Adv.,

Mr. Smarat Dey Paul, Adv.

For respondent nos.5 & 6 : Mr. Dipanjan Datta, Adv,

(W.P.A. No.7998 of 2022) Mr. Atanu Basu, Adv.,

For respondent nos.4 & 5 Mr. Sayan Datta, Adv.

(W.P.A. No.5087 of 2019)



Hearing concluded on           : 05.08.2022

Judgment on                    : 16.09.2022


Kausik Chanda, J.:-

Since the issues involved in these two writ petitions are interrelated,

they are taken up for hearing together and disposed of by this common

judgment and order.

2. The petitioner was appointed as a Library Assistant of Jadavpur

Vidyapith College of Education on September 29, 1981 with effect from

July 4, 1981, and his service was confirmed on May 18, 1982.

3. The Department of Higher Education, West Bengal, by an order dated

June 21, 2007, took over the B.Ed. Course run by the said Jadavpur

Vidyapith College of Education for establishing a Department of Education

under the Arts faculty of Jadavpur University.

4. The State also transferred the teaching staff and five non-teaching

staff of the said college with effect from August 1, 1994, with their service

continuity at Jadavpur University for the proposed Department of

Education.

5. The service of the petitioner was regularised by an order dated June

27, 2013, issued by the Higher Education Department. The operative part

of the said order is quoted below:

"His service in the University shall be treated as continued service without entertaining any claim of any arrear salary for the period from 01.03.2007 to the date of his joining in the University, since no service was rendered by him during these periods. It may also be clarified that his date of birth shall be 03.03.1959 as recorded in his service book. The earlier order vide No.395-Edn (U) dated 09.04.2013 stands cancelled and withdrawn."

6. Following the said order, the petitioner joined Jadavpur University as

"Peon" on July 15, 2013.

7. The Registrar of the Jadavpur University by a letter dated January 3,

2019, intimated to the petitioner that his superannuation fell due on March

31, 2019, upon attaining the age of sixty years.

8. The petitioner challenged the said letter dated January 3, 2019,

issued by the Registrar by filing W.P. No.5087(W) of 2019.

9. In the said writ petition, on March 29, 2019, a Coordinate Bench of

this Court passed the following order:

"In spite of direction passed by this Court on March 27, 2019 the respondent no. 5 is not present before this Court.

Mr. Dipanjan Dutta, learned advocate appearing for the respondent no. 5 submits that the respondent no. 5 is seriously ill and, as such,

Mr. Debabrata Roy one of the members of the respondent no. 4 is present before this Court.

Mr. Debabrata Roy is directed to file an affidavit disclosing the a copy of the Service Book of the petitioner. Such affidavit shall be filed within April 02, 2019.

In view of the Admit Card as well as the Certificate issued by the Wet Bengal Board of Secondary Education recording that the date of birth of the petitioner is April 21, 1962, the petitioner's retirement from the service of the respondent University is stayed till April 9, 2019.

The application will appear in the list under the heading application on April, 2, 2019.

It is made clear that this interim order shall not entitle the petitioner to claim any equity."

10. Again on February 7, 2020, the following orders were passed by

another Coordinate Bench:

"Time to file affidavit as directed by my order dated November 25, 2019 is extended for a period of fortnight from date. In that affidavit the Director of Public Instruction, West Bengal, shall also disclose a copy of the application of the petitioner when he joined service. This supplementary affidavit shall be served on all the parties who will file a counter thereto. Mr. Billodal Bhattacharyya's client shall produce the original files which are present with them including any noting thereon since service book of the petitioner is not traceable in the records of any of the respondents. Regardless of whether the petition succeeds or fails, the service book is necessary ultimately because the service career of the petitioner cannot be blessed with the fruits of labour without service book being made and so I direct Mr. Billodal Bhattacharyya to ensure that his client takes steps for preparation of a service book of the writ petitioner in close collaboration with Mr. Datta's client. As and when any reasonable request is made to the petitioner, he shall also cooperate in this regard. The date of birth shall be kept as

March 3, 1959 with an endorsement that 'this is disputed and shall not be given effect to until disposal of this petition.' The interim order already passed is revived with one modification- the writ petitioner shall be paid remuneration as and when he works and the respondents shall not prevent the writ petitioner from working until disposal of this writ petition. The amount due on account of salary for January, 2020 shall be released to the petitioner along with the remuneration in the next wage cycle.

Let supplementary affidavit be filed by the State within two weeks from date; reply thereto, if any, be filed one week thereafter. Returnable three weeks hence. Lay note is disposed of as above.

This order shall not create any equity in favour of the writ petitioner."

11. In compliance with the said orders, the petitioner was allowed to

work till April 30, 2022, but due to the pendency of the said writ petition,

the retiral dues of the petitioner were not released by the University.

12. By filing W.P. No. 7998 of 2022, the petitioner prayed for a direction

upon the Jadavpur University to incorporate his period of service from July

4, 1981 to July 14, 2013 in the service book and also for a direction to

release the pension and other retiral dues by reckoning the service period

from July 4, 1981 to July 14, 2013.

13. Mr. Goutam Thakur, learned advocate appearing for the petitioner,

submits that the petitioner passed Madhyamik Examination under the

West Bengal Board of Secondary Education as an external candidate in the

year 1989. He was asked by the Principal, Jadavpur Vidyapith College of

Education, inter alia, to submit documents for his age proof. Accordingly,

the petitioner submitted admit card of the said Madhyamik examination,

where his date of birth was recorded as April 21, 1962. He also produced a

certificate from the Headmaster of the relevant school certifying his age as

19 years 2 months 13 days as on July 14, 1981.

14. Upon consideration of the said documents, the Jadavpur Vidyapith

College of Education recorded the date of birth of the petitioner as April 21,

1962.

15. Mr. Thakur submits that after joining Jadavpur University as Peon,

an identity card was issued by the University recording his date of birth as

April 21, 1962, though by a subsequent letter from the Registrar the

petitioner was asked to return the said identity card alleging that the date

of birth in the said identity card was mentioned on the self-declaration of

the petitioner and without verifying the records.

16. Mr. Thakur has drawn the attention of the Court to the case reported

at (1993) 2 CLJ 74 (Dy. Commissioner of Police, Special Branch v.

Bhupesh Chandra Karanjai) to suggest that the date of birth can be

corrected at any stage of the service period by an employee when the same

has been wrongly recorded by the authority. He further relied upon a

judgment reported at (2010) 11 SCC 702 (Manoj Kumar v. Government

of NCT of Delhi) to argue that since the petitioner sought to rectify the

date of birth long before the retirement, his date of birth should be

corrected as April 21, 1962.

17. Opposing the prayer of the writ petitioner, Mr. Piyush Chaturvedi,

learned advocate appearing for the University, submits that the challenge

of the petitioner with regard to the superannuation notice dated January 3,

2019, is grossly belated and such challenge cannot be entertained at the

fag end service of the petitioner.

18. Mr. Chaturvedi submits that the petitioner was repeatedly made

aware that his date of birth, in all official records, based on his own

declaration, was recorded as March 3, 1959. The petitioner sought to

correct his date of birth relying upon the admit card of the Madhyamik

examination as an external candidate. The date of birth, appearing on the

Madhyamik admit card, cannot be considered sacrosanct when the

candidate is an external candidate. In this regard, Mr. Chaturvedi has

placed reliance on paragraph 5 of a judgment reported at (1994) 1 CLJ 79

(Sri Saroj Kumar Bhattacharya v. Bengal Immunity Ltd.).

19. He submits that even the letter issued by the Higher Education

Department on June 27, 2013, clarified that his date of birth would be

recorded as March 3, 1959. The petitioner, while filling up the application

form on July 15, 2013, for his employment at Jadavpur University,

consciously declared his date of birth as March 3, 1959.

20. Though an identity card was inadvertently issued by the University

declaring his date of birth as April 21, 1962, the University asked the

petitioner to return the identity card immediately.

21. Mr. Chaturvedi argues that the petitioner did not challenge recording

of the date of birth contemporaneously. Though the petitioner made

representations before the authority, the said representations did not give

rise to a fresh cause of action nor did it revive the stale claim from the

petitioner. In this regard, he placed his reliance upon the judgments

reported at (2013) 12 SCC 179 (State of Uttaranchal v. Shiv Charan

Singh Bhandari), (2010) 2 SCC 59 (Union of India v. M.K. Sarkar), and

(2008) 10 SCC 115 (C. Jacob v. Director of Geology and Mining).

22. Mr. Chaturvedi submits that after the relevant particulars are made

available to the Jadavpur University, steps would be taken for completing

the formalities to disburse the retiral benefits of the petitioner treating his

date of birth to be March 3, 1959.

23. I am of the view that this is not a case where an employee sought to

rectify his date of birth at the tail end of his service. It is not in dispute that

the petitioner, while working as a Library Assistant at Jadavpur Vidyapith

College of Education, appeared in the Madhyamik examination in the year

1989, and in the relevant educational testimonials his date of birth was

recorded as April 21, 1962. There was some confusion regarding the date of

birth of the petitioner, while he was serving at Jadavpur Vidyapith College

of Education. He repeatedly asserted before the said authority that his date

of birth was April 21, 1962, and he produced the certificate from the

Headmaster of his school, admit card, and certificate of Madhyamik

examination.

24. On February 14, 1998, the Principal of Jadavpur Vidyapith College of

Education for the purpose of maintaining the service book/personal file of

the petitioner requested him to furnish, inter alia, age-proof-document. In

response to such letter, he duly submitted before the said Principal all

relevant documents including his Madhyamik Certificate and Admit Card

showing his date of birth to be April 21, 1962.

25. It further appears that on September 5, 2007, the General Secretary

of National Council of Education, Bengal, wrote a letter to the petitioner to

the following effect:

"Ref: N1/JVCE/2007-428

September 5, 2007

Sri Sekhar Sarkar Staff JVCE NCE, Bengal Kolkata-700032.

It is learnt from the office of the D.P.I. that your date of birth is 03.03.1959. You are accordingly advised to indicate whether you have written anything to the D.P.I. on any occasion of your service period at the JVCE stating that your date of birth is 03.03.1959. If not, you are to provide your actual date of birth supported by acceptable documentary evidence.

Sd/-

For General Secretary National Council of Education, Bengal"

26. The petitioner responded to the same by writing a letter dated

September 6, 2007. He asserted that he never wrote anywhere his date of

birth as March 3, 1959. He requested the said General Secretary to accept

his date of birth as April 21, 1962, on the basis of his Madhyamik

Certificate.

27. The Jadavpur Vidyapith College of Education accordingly accepted

the date of birth of the petitioner as April 21, 1962. Such acceptance will be

evident from the document appearing at page 185 of the W.P. No.7998 of

2022, whereby the Jadavpur Vidyapith College of Education furnished the

particulars of its employees along with their respective dates of birth before

the Treasury at Calcutta Pay and Accounts, Phears Lane, Kolkata-12.

28. The factual aspects, noted above, have not been disputed by the

Jadavpur Vidyapith College of Education before me.

29. It is true that the Government order dated June 27, 2013, mentioned

that date of birth of the petitioner would be treated as March 3, 1959. It is

also true that before the authority of the Jadavpur University, the

petitioner did not assert his date of birth to be April 21, 1962,

contemporaneously. But at the same time, it has to be noticed that the

appointment of the petitioner under Jadavpur University was not a fresh

appointment. The Government order dated June 27, 2013, makes it very

clear that it was a continuous service. When the petitioner asserted his

date of birth to be April 21, 1962, as long back as on as in 1998, and the

said date of birth was accordingly accepted by the Jadavpur Vidyapith

College of Education, he was entitled to continue with his service at

Jadavpur University on the basis of such accepted date of birth.

30. I am of the view that Mr. Thakur has rightly placed reliance upon the

judgment reported at (2010) 11 SCC 702 (Manoj Kumar v. Government

of NCT of Delhi). Paragraph 12 of the said judgment reads as follows:

"12. The explanation offered by the appellant with supporting documents, was not considered either by Respondents 3 and 4, or by the Tribunal and the High Court. They ignored the relevant material and decided against the appellant only because the matriculation certificate as it stood at the time of the employment application was different from the date given in the application for employment. While the matriculation certificate is a strong material, other equally relevant material cannot be ignored, particularly when the matriculation certificate has been corrected. The case of an entrant seeking correction of date of birth should not be equated with cases of government servants at the tail end of their service trying to get extension of service by alleging wrong date of birth. We should also not lose sight of the fact that many service rules provide for change of date of birth in the service register, on production of satisfactory proof, provided that the change is sought within the first few years of entering service. Be that as it may."

31. The judgment reported at (1994) 1 CLJ 79 (Sri Saroj Kumar

Bhattacharya v. Bengal Immunity Ltd.) is not applicable in the facts of

the present case. The date of birth of the petitioner in this case is not based

only on the admit card and certificate of Madhyamik external examination.

He had also a certificate from the Headmaster of his school in support of

his case. That apart, the said judgment was passed in the factual context

where the employee chose not to take any steps for correction of his date of

birth for long 17 years.

32. Having regards to the facts of the case as noted above, the other

judgments cited at the Bar need not be separately considered.

33. In any event, the petitioner was allowed to be in service till April 30,

2022, following the interim orders passed in W.P. No.5087(W) of 2019 and