Hussain Mian vs The State Of Jharkhand
2021 Latest Caselaw 1903 Jhar

                                                    1



                  IN THE HIGH COURT OF JHARKHAND AT RANCHI
                                        W.P. (S) No. 3617 of 2020
                  Hussain Mian, son of Late Mubarak Mian, Resident of - Village - Garfari,
                  P.O. - Pindari, P.S. - Masliya, District - Dumka.
                                                                          ... PETITIONER
                                                    Vs.
             1.   The State of Jharkhand
             2.   The Director General - cum - Inspector General of Police, Jharkhand,
                  Ranchi.
             3.   The Deputy Inspector General of Police, Karmic, Jharkhand, Ranchi.
             4.   The Deputy Inspector General of Police, Dumka.
             5.   The Superintendent of Police, Deoghar.
                                                                     ... ... RESPONDENTS

CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK (Through : Video Conferencing)

For the Petitioner : Mr. Pradeep Kumar, Advocate For the Respondents : Mr. O.P. Tiwari, GP-III

05/15.06.2021 In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing and heard at length. Concerned lawyers have no objection with regard to the proceeding which has been held through Video Conferencing and there is no complaint in respect to audio and video clarity and quality and after hearing at length, the matter is being disposed of finally.

2. Petitioner has approached this Court with a prayer to quash letter issued by Superintendent of Police, Deoghar vide Memo No. 676, dated 30.05.2020, asking him to retire on 31.05.2020 from the post of Sub- Inspector of Police, Deoghar and further prayer has been made for necessary correction in the date of birth as 04.03.1963 which has wrongly been recorded as 04.05.1960 in the service book.

3. It is specific case of the petitioner that he cleared his matriculation in the year 1983 and at the time of his appointment, he submitted the said matriculation certificate showing his date of birth as 04.03.1963 and accordingly, he should have retired on March, 2023 but he has been made to retire on 31.05.2020 due to wrong entry of date of birth in the service record. The notice of retirement was served to the petitioner vide memo no. 564, dated 16.05.2020 and thereafter, he was made to retire on 31.05.2020.

Petitioner approached before the respondents for correcting his date of birth and to allow him to continue in service till date of retirement but no heed was paid to him and as such, he has knocked door of this Court.

4. Mr. Pradeep Kumar, learned counsel appearing for the petitioner submits that there is apparent wrong entry of date of birth of the petitioner in the service record and based on correct date of birth, petitioner should have retired in March, 2023 but he has been made to retire on 31.05.2020. Even the notice of retirement was served to the petitioner on 16.05.2020 against the Pension Rule 129, as said notice ought to have been served to the petitioner six months' prior to his retirement. Although, petitioner was appointed on the basis of his Matriculation certificate but the same has been ignored while considering date of birth of the petitioner. To buttress his arguments, learned counsel places heavy reliance on the Judgment of this Court passed in the case of Sudhir Kumar Mandal Vs. Steel Authority of India Limited and others in L.P.A. No. 425 of 2015 which is also reported in 2016 SCC OnLine Jhar 1117. Learned counsel submits that even the notice of retirement is not in accordance with law and also not in consonance with the Rule 812 of the Police Manual as also Rule 189 of the Pension Rules, Learned counsel further submits that even in the identity Card and the Seniority List, which is Annexures-6 and 7 to the writ petition, the date of birth of the petitioner has been mentioned as 04.03.1963. The respondents cannot force the petitioner to superannuyate on the basis of an imaginary date of birth as 04.05.1960.

5. Per contra, counter affidavit has been filed by the respondents.

6. Mr. O.P. Tiwary, learned GP-III vehemently opposes contention of learned counsel for the petitioner and submits that no person can be allowed to agitate for correction in date of birth recorded in service book at the fag end of his service. The issue is no more resintegra as the same has been put at rest by the Hon'ble Supreme Court in a plethora of Judgment that neither the employee nor the employer is permitted to raise the issue of correction of date of birth at the fag end of service. Admittedly, in the instant case, petitioner has raised his grievance regarding dispute in date of birth at the fag end of his service and the same is not sustainable in the eyes

of law. To buttress his arguments, learned counsel places reliance in the Judgment of the Hon'ble Apex Court passed in the case of Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran reported in 1994 Suppl. 91) SCC 155 as also in the case of State of M.P. Vs. Premlal Shrivas reported in (2011) 9 SCC 664.

7. Be that as it may, having gone through rival submission of the parties and from perusal of the Judgments brought on record, this Court is of the considered view that admittedly grievance was raised by the petitioner at the fag end of his service i.e. at the time of retirement. The State of Bihar issued guidelines in the year 1976 invited applications from the Constables who passed Matriculation Examination so as to correct date of birth as recorded in matriculation certificate. The issue fell for consideration before the Hon'ble Patna High Court in the case of Ram Sobhit Rai Vs. State of Bihar reported in 1989 BBCJ 141 and Radhe Shyam Singh Vs. State of Bihar reported in 2001 (1) PLJR 451. In some of the cases, the writ petition was allowed and in some cases the same was not allowed.

8. Admittedly, it is not in quarrel that petitioner had cleared matriculation examination prior to his appointment and had duly submitted the matriculation certificate. As per petitioner itself, the service book was prepared at the time of his appointment and it cannot be presumed that in the entire service career petitioner never had any occasion to go through the service book and he only came about the wrong entry at the time when he was given notice of retirement. The challenge thrown to the notice of retirement is not acceptable to this Court as petitioner has approached this Court at the fag end of his service. The correction in the date of birth at the fag end of service is not permissible in the eyes of law. even if petitioner has a good evidence to establish that the recorded date of birth is clearly erroneous, the same is fortified by the Judgment of the Hon'ble Apex Court rendered in the case of State of M.P. Vs. Premlal Shrivas reported in (2011) 9 SCC 664. Para-8 and 12 of the said Judgment reads as under:

"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the

fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he 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. No court or the tribunal can come to the aid of those who sleep over their rights. ............

12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book."

9. Time and again it has been held that if government servants sleep over their right and are not vigilant, the Court cannot come to their rescue/ aid and grant relief only because they were ignorant of the Rules. These decisions lead to a different dimension of the case that correction in date of birth at the fag end would be at the cost of large number of employees, therefore, any correction at the fag end must be discouraged by the Court.

10. In the instant case, petitioner has raised the grievance at the fag end i.e. after more than 33 years and as such, he slept over his right and was not vigilant. This Court cannot come to the rescue/ aid of the petitioner and cannot grant any relief.

11. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, the writ petition is devoid of any merit and the same is hereby dismissed.

(Dr. S.N. Pathak, J.)

RC