Gauhati High Court
Bhadreswar Dewri vs The State Of Assam And Ors on 27 January, 2021
Page No.# 1/11
GAHC010099772010
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5372/2010
BHADRESWAR DEWRI
S/O LATE ANANTA DEWRI VILL- NO.4 NOKALIPUR, P.O. KUMARIKATA, P.S.
TAMALPUR, DIST. BASKA, ASSAM
VERSUS
THE STATE OF ASSAM AND ORS
THROUGH THE COMMISSIONER-SECRETARY, IRRIGATION DEPARTMENT,
GOVT. OF ASSAM, DISPR, GUWAHATI.
2:THE UNDER SECRETARY E
GOVT. OF ASSAM
IRRIGATION DEPARTMENT
DISPUR
GUWAHATI-6.
3:THE CHIEF ENGINEER IRRIGATION
ASSAM
CHANDMARI
GUWAHATI-3.
4:THE EXECUTIVE ENGINEER
RANGIA DIVISION IRRIGATION RANGIA
DIST. KAMRUP.
5:THE ACCOUNTANT GENERAL A and E
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI-29
Page No.# 2/11
Advocate for the Petitioner : MR. U DUTTA
Advocate for the Respondent : SC, AG
Linked Case : I.A.(Civil)/3757/2019
BHADRESWAR DEWRI
S/O LATE ANANTA DEWRI
R/O VILL. NO. 4 NOKALIPUR
P.O. KUMARIKATA
P.S. TAMULPUR
DIST. BAKSA
ASSAM.
VERSUS
THE STATE OF ASSAM AND 4 ORS
THROUGH THE COMMISSIONER SECY. IRRIGATION DEPTT.
GOVT. OF ASSAM
DISPUR
GUWAHATI.
2:THE UNDER SECY. (E)
GOVT. OF ASSAM
IRRIGATION DEPTT.
DISPUR
GUWAHATI 6
3:THE CHIEF ENGINEER (IRRIGATION)
ASSAM
CHANDMARI
GUWAHATI-3
4:THE EXECUTIVE ENGINEER
RANGIA DIVISION (IRRIGATION) RANGIA
DIST. KAMRUP
5:THE ACCOUNTANT GENERAL (A AND E)
ASSAM
MAIDAMGAON
BELTOLA
GUWAHATI 29
------------
Advocate for : MR. B BORA
Page No.# 3/11
Advocate for : SC
IRRIGATION appearing for THE STATE OF ASSAM AND 4 ORS
BEFORE
HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA
ORDER
Date : 27-01-2021
Heard Mr. U. Dutta, learned counsel for the petitioner. Also heard Mr. N. Upadhyay for
the respondent Nos. 1 to 4 and Mr. C. Baruah for the respondent No. 5.
2. The challenge in this writ petition is to the letter dt. 08.04.2010 issued by the Under
Secretary (E) to the Government of Assam, Irrigation Department, by which the proposal for
correction of the date of birth of the petitioner was rejected on the ground that the same not
permissible within three years from the date of retirement, as per Service Rule 8 (c) and
hence the proposal was returned. The petitioner's case is that while the petitioner's correct
date of birth was 01.05.1958, the respondents have taken the petitioner's date of birth to be
01.05.1950 due to a typographical error.
3. The petitioner's case in brief is that he was initially appointed as a Muster Roll worker
under Rangia Irrigation Division on 01.01.1987, which is under the jurisdiction of the
respondent No. 4, i.e. the Executive Engineer, Rangia Division (Irrigation). On 26.05.2005, the
Chief Engineer, Irrigation wrote a letter to all the Executive Engineers under the Irrigation
Department, asking them to submit the list of Muster Roll workers alongwith their particulars,
as the list was to be verified with the list of Muster Roll workers already submitted to the
Government earlier. Consequent to the said letter dated 26.05.2005, the respondent No. 4
submitted a list of Muster Roll workers under his division, which included the petitioner. The
Page No.# 4/11
date of birth of the petitioner was shown as 01.05.1958 as per the list prepared by the
respondent No. 4.
4. The respondent No. 4, thereafter issued an Office Order dated 06.10.2005, showing
that the petitioner's service as Helper had been regularized in pursuance to Government letter
No. IGN (E) 104/2003/198 dated 03.10.2005 and Finance Department letter dated
22.08.2005.
5. As the petitioner's date of birth had been wrongly recorded as 01.05.1950 at the time
of regularization of his service, the petitioner submitted an application for correction of his
date of birth, stating that a wrong date of birth had been recorded by the State respondents,
which was probably due to a typographical error.
6. The respondent No. 4 thereafter submitted a proposal for correction of date of birth of
the petitioner vide letter dated 15.10.2007, addressed to the Chief Engineer, Irrigation
Department. Alongwith the respondent No. 4's letter dated 15.10.2007, the respondent No. 4
annexed a statement showing that the petitioner's date of birth was 01.05.1950 as per the
Government approved list, while the petitioner's date of birth as per the School Certificate
was 01.05.1958. The respondent No. 4 thereafter issued another letter dated 13.05.2008 to
the Chief Engineer, Irrigation Department requesting him that the date of birth of the
petitioner be corrected at the earliest, as the Service Book of the petitioner could not be
opened due to the anomaly concerning the petitioner's date of birth, as the Government
record did not tally with the certificates and register of the respondent No. 4.
7. The proposal for correction of the petitioner's date of birth was thereafter forwarded by
the Chief Engineer, Irrigation Department to the Secretary to the Government of Assam,
Page No.# 5/11
Irrigation Department vide letter dated 04.12.2009. The respondent No. 4 also issued another
letter dated 31.12.2009 to the Chief Engineer, Irrigation Department, the extract of which
states as follows:-
"It is observed that the date of birth of Shri Bhadreswar Dewri. Helper has been
exhibited as 1-5-1958 (indistingly) in the Govt. approved list and the date of
superannuation as 1-5-2010 (Sl. 84) instead of 1-5-2018 which may accure due to
oversight/typographical mistake. The matter may kindly be settled as early as possible.
So that the person concerned is not to be relieved from Govt. service with effect from
30-4-2010 untimely and the matter may turn to other way if he is deprived of his
legitimate claim.
Under the circumstances stated above and on the basis of the school certificate
attached herewith your honour is requested kindly to take appropriate necessary
action towards correction of date of birth of Shri Bhadreswar Dewri, helper of this
Division in this so as to avoid unnecessary correspondences in future."
8. The extract of the letter dated 18.01.2020 issued by the Chief Engineer, Irrigation to
the Secretary to the Government of Assam, Irrigation Department is reproduced below:-
"It may be stated that the services of Shri B. Dewri, Helper was regularized vide
govt. order No. IGN(E) 104/2003/198 dtd. 3-10-2005 and his date of birth is recorded
as 1-5-1950 in the Govt. notification. But as per School certificate his date of
retirement should be 30-4-2018.
In this connection a copy of School certificate of Shri B. Dewri authenticated by
the Inspector of School, Baksa District Circle, Musalpur alongwith E.E's letter No.
RDI/M-II/2009/7775 dtd. 30-12-2009 are enclosed herewith for favour of further
necessary action."
9. The Registrar, Board of Secondary Education, Assam thereafter wrote a letter dated
25.03.2010 to the Under Secretary (E) to the Government of Assam, Irrigation Department
(Establishment Branch), which is reproduced below:-
Page No.# 6/11
"Sub: VERIFICATION OF EDUCATIONAL CERTIFICATE AND AGE.
Ref: Your letter No. IGN(E) 88/2007/59 dtd. 08-03-2010.
Sir,
With reference to your letter cited above, I am directed to inform you
that the Duplicate Admit Card (Photo copy) which you sent for verification in
respect of Bhadraswar Dewri bearing Roll - 534 No. 464 of the HSLC.
Examination, 1978 is verified and found to be genuine (FAIL). His Age is 19
(nineteen) years 10 (ten) months 0 (zero) days on 1-3-1978 as per records of
this office.
This is for favour of your information and necessary action."
10. The Under Secretary (E) to the Government of Assam, Irrigation Department thereafter
wrote a letter to the Chief Engineer (I)(Irrigation), stating that the correction of the date of
birth of the petitioner was not permissible within three years from the date of retirement as
per Service Rule 8 (c) and hence the proposal was returned.
11. The petitioner's counsel submits that there being no Service Book opened by the
respondents and as the petitioner's date of birth had been wrongly recorded by the
Government due to a typographical error, which was not in consonance with the register
maintained by the respondent No. 4 and the letter of the Board of Secondary Education,
Assam, the petitioner's date of birth has to be accepted to be 01.05.1958. The petitioner's
counsel submits that the petitioner has never been given any release order releasing him
from service even till today. However, the petitioner has not been receiving his pay w.e.f.
01.05.2010, even though he diligently went to work.
12. Mr. N. Upadhyay, learned counsel for the respondent Nos. 1 to 4 submits that he has
got no comments to make, inasmuch as, no affidavit has been filed by the respondent Nos. 1
Page No.# 7/11
to 4.
13. Mr. C. Baruah, learned counsel for the respondent No. 5 submits that as per the
records in the Office of the Accountant General (A&E) Assam, the date of birth of the
petitioner is 01.05.1958.
14. I have heard the learned counsels for the parties. As can be seen from the record, no
affidavit has been filed by the Government, even though the writ petition was filed in the year
2010.
15. Service Rule 8 (c) and the Note appended thereto is reproduced below:-
(c) Commissioner and Heads of Departments may alter the recorded date of birth in
the case of non-Gazetted Government servants; provided they are satisfied after enquiry, that
the previous date was incorrect.
Note.- The Head of the office should record the date of birth in the Service Book of a
non-Gazetted Government servant on his initial appointment with reference to the
Matriculation or equivalent certificate and shall also record a remark to this effect in the
Service Book. In cases where these are not available, the Head Office should verify the date
with reference to the birth certificate to be produced by the Government servant and record a
note to that effect in the Service Book. In the case of Gazetted Government servant, the
verification should be made according to the above procedure on his initial appointment by
the Administrative Department concerned. They should intimate the date of birth of the
officer as verified to the Accountant General for incorporation of the same in the history of
services of the Gazetted Government servants.
No alteration in the date of birth of a Government servant should be allowed except in
very rare cases where a manifest mistake has been made. Such mistake should be rectified at
the earlier opportunity in the course of (1) periodical re-attestation of the entries in the first
page of service book, and (2) preparation of the annual detailed statement of a permanent
establishment (Financial Rule Form No. 11) in which is noted the date of incumbent's birth. In
no case request for change in the date of birth of a Government servant made on a date
Page No.# 8/11
within three years of the date of his actual superannuation should be entertained.
The following criteria should be followed in considering requests for change in date of
birth which are not time-barred. Such request should be supported by satisfactory
documentary evidence (such as the Matriculation or equivalent certificate or duly attested
copy of birth certificate) together with a satisfactory explanation of the circumstances in
which the wrong date came to be entered and statement on any previous attempts made to
have the record amended. It should also be examined whether the Government servant
concerned would have been within the age-limits prescribed for Government service at the
time he entered service with reference to the different date later claimed by him as the
correct date. If he would not have been so eligible, it should be examined whether the date
actually accepted then was given by him bona fide and did not give some advantage in
securing admission into service at that time, and the change proposed later on is for bona
fide reasons and not merely to gain some fresh advantage.
16. A reading of Service Rule 8 (c) that the respondents can alter the recorded date of
birth of a non-gazetted Government servant, which is recorded in the Service Book, provided
they are satisfied that the recorded date was incorrect. The Note appended to Service Rule 8
(c) states that the date of birth of a non-gazetted Government servant should be recorded in
the Service Book with reference to his matriculation or equivalent certificates. No alteration to
the date of birth should be made except where a manifest mistake has occurred. The Note
also says "In no case 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."
17. The documents on record shows that the petitioner's date of birth is 01.05.1958, as
per the various certificates issued by the Kumarikata High School, Nalbari, and also as per the
letter dated 25.03.2010, issued by the Registrar of the Board of Secondary Education, Assam.
The letters issued by the respondent No. 4, i.e. the Executive Engineer, Irrigation
Department, in whose office the petitioner was working, is to the effect that the petitioner's
date of birth is 01.05.1958. The affidavit-in-opposition filed by the Office of the Accountant
General (A&E), Assam is also to the effect that the petitioner's date of birth is 01.05.1958,
Page No.# 9/11
based on the records kept by them. The date of birth of 01.05.1950, which has been
recorded by the State Government at the time of regularizing the petitioner's service seems to
be a typographical error, inasmuch as, there is nothing to support the reason for recording
the said date of birth of the petitioner. In light of the above, it is quite clear that a mistake
seems to have occurred on the part of the State Government, while recording the date of
birth of the petitioner at the time of regularization of his service. Further, the petitioner's
service having been regularized, vide letter dated 06.10.2005 issued by the respondent No. 4,
and the application for correction of his date of birth having been made soon after, as can be
seen from the letter dated 15.10.2007 issued by the Executive Engineer, it cannot be said that
the petitioner was sleeping over the issue. The proposal for change of date of the birth has
been rejected only on the ground that the same is not permissible within 3 years from the
date of retirement. For the Note to Rule 8 (c) to be applicable, the Service Book of the
petitioner should have been opened showing his date of birth. In the present case, no Service
Book has ever been opened by the State respondents. As such, Rule 8 (c) cannot be applied
for not correcting a mistake, which occurred solely due to the fault of the Government at the
time of regularizing the service of the petitioner. The Note to Rule 8 (c) which states " In no
case 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" is accordingly not
applicable to the facts of the present case.
As per the judgment of the Apex Court in the case of Naseem Bano Vs. State of
U.P., reported in 1993 Supp (4) SCC 46, averments are deemed to be admitted if not
controverted. In view of the above reasons and the fact that the documents supporting the
petitioner's date of birth as 01.05.1958 are uncontroverted, the date of birth of the petitioner
Page No.# 10/11
would have to be accepted by the State respondents as 01.05.1958. The respondents are
directed to open a Service Book showing date of birth of the petitioner to be 01.05.1958 and
the release order for superannuation of the petitioner would have to be given w.e.f.
30.04.2018. It is surprising that the respondents have not tried to examine the actual date of
birth of the petitioner and instead have tried to skirt the issue by relying upon a technicality,
i.e. Service Rule 8 (c), which is not applicable to the present case, as no Service Book has
ever been opened by the respondents. The lack of empathy on the part of the respondents to
the petitioner's case, who has been made to retire early despite giving the best years of his
life to the Government is unfortunate. Given the stand taken by various authorities and
keeping in mind the fact that Secretariat in the Irrigation Department does not have any basis
to show that the petitioner's date of birth was 01.05.1950, the respondents should have
decided the issue of the petitioner's date of birth in the right perspective. This Court is
accordingly of the view that the petitioner had been made to suffer unjustly due to the
indifference and inaction of the respondents in respect of a mistake, committed by the
respondents at the time of regularising the petitioner's service. Accordingly, back wages,
pension and other pensionary benefits would have to be paid to the petitioner. The payment
of the back wages, pension and other pensionary benefits would have to be made within a
period of 3 (three) months from the date of receipt of a copy of this order.
18. The writ petition is accordingly disposed of.
JUDGE
Page No.# 11/11
Comparing Assistant
