CHAIRMAN, AD HOC COMMITTEE Vs. SUBHENDU BIKASH DEB

JUDGEMENT

(1.) This appeal is directed against a judgment and order dated 11.11.97 as modified by an order dated 21.11.97 by a learned single Judge of this court in Civil Order No. 19008(W) of 1992. The fact of the matter lies in a narrow compass.

(2.) The writ petitioner-first respondent passed his school final examination conducted by the Board of Secondary Education in the year 1956. He was appointed in Sri Ramkrishna Sikshalaya, Howarh in the year 1960. He also obtained appointment in Howarh Municipal Corporation, previously Howrah Municipality as a clerk in the year 1962. The petitioner was placed under suspension by the corporation. He filed a writ application questioning the order of suspension as also the disciplinary proceeding despite the fact that after the said order of suspension he did not report for duty. The petitioner filed a writ application, which was registered as C.R. 764(W) of 1984. In the meantime, the writ petitioner approached the West Bengal Board of Secondary Education for correcting his date of birth. It appears that on the basis of the date of birth recorded in his service book i.e. 19.1.32, he having attained the age of superannuation in 1992, applied for and got extension. It is accepted that the State of West Bengal issued various notifications in terms whereof while fixing the age of superannuation at 60 so far as aided and non-aided schools are concerned, an option had been given to them to apply for extension which could be granted subject to fulfilment of the conditions mentioned therein including an option to be exercised by the concerned teachers to get their pay on the basis of the scale of pay prior to coming into force of the ROPA Rules, 1987 which were applied in case of the teachers in the year 1990. The petitioner filed an application before the District Inspector of Schools (PE), Howrah, for his second extension wherein, inter alia, it was alleged that he had applied for correction of his date of birth. He has not brought on record his first application for extension. As the petitioner's application for correction date of birth was not being disposed of by the West Bengal Board of Secondary Education, he filed the instant writ application impleading, inter alia, the Howrah Municipal Corporation and its Mayor, in the year 1992. The school authorities were not impleaded as parties. An application for further order was filed and affirmed on 12th April, 1996 wherein he, inter alia, prayed for the following reliefs:

(3.) The question which arises for consideration in this appeal is as to whether despite the fact that petitioner's date of birth was corrected in the Matriculation certificate, the same is binding on the appellant. A Division Bench of this court in Saroj Kumar Bhattacharya Vs. Bengal Immunity Limited and others reported in 1994(1) C.L.J 79 : 1995(2) SCT 121, I held that it would not be proper to correct the date of birth in respect of the private candidate. Before us an attempt has been made by Mr. Basu, learned counsel appearing on behalf of the respondent writ-petitioner, to show that the petitioner had been reading in a school and correction of his date of birth had been made on the basis of the register maintained therein. There cannot be any doubt whatsoever that the petitioner at the time of his appointment relied upon his date of birth as stated in the School Leaving Certificate. We do not intend to go into the correctness or otherwise of the letters exchanged between the school and in particular the letter which the petitioner allegedly wrote to the West Bengal Board of Secondary Education for correction of his date of birth, but even otherwise, we are of the opinion that apart from the decision referred to by Mrs. Choudhuri, learned counsel appearing on behalf of the appellant, there are other decisions of other High Courts to that effect. Reference in this connection may be made to 62 F.L.R. 766 and 68 F.L.R. 1183. Furthermore, the Apex Court in a decision reported in AIR 1988 Supreme Court 1796 which decision had been followed by a Division Bench of this Court in Chittaranjan Das Vs. Durgapur Project Ltd., reported in 99 C.W.N 897, categorically held that even in relation to entry of date of birth in the school register primary evidence should be produced. No such primary evidence has been produced. This aspect of the matter has been considered by this Court in Calcutta Port Trust and Ors. Vs. Ajit Kumar Deb reported in 1996 Lab. I.C. 167 : 1996(4) SCT (D.B.) 413 (Calcutta) . It is further well known that at the fag end of the career, it is not permissible for any person to apply for change of date of birth. Reference in this connection may be made to Pratul Kumar Vs. Steel Authority of India reported in 1996(1) C.H.N. 347. (Burn Standard Co. Ltd Vs. Dinabandhu Majumbar). Thus even if a date of birth has been corrected by the West Bengal Board of Secondary Education the same is not binding on the appellant. The appellant is not bound to change the service book and treat the petitioner to be in Service till 20th March,1997 as was directed by the learned trial Judge. The learned trial judge recorded the concession made on behalf of the write-petitioner that he does not intend to serve after attaining the age of sixty, i.e. after 20th March. 1997. The learned trial Judge has given him a liberty to opt for revised scale of pay. In this case, keeping in view the fact that the petitioner admitted that he, apart from serving the school was also serving the Howrah Municipal Corporation which shows his conduct, we are of the opinion that he is not entitled to any equitable relief. Furthermore, only when his date of birth was corrected by the West Bengal Board of Secondary Education, he withdrew the writ application filed against the Howrah Municipal Corporation. If he had claimed himself to be an employee of the Howrah Municipal Corporation and as even in his original writ application, Horawh Municipal Corporation was a party, admittedly he could not work in the school in question. Such double employment on the part of the petitioner cannot be appreciated and in any event, encouraged by this Court. Furthermore, in the event admittedly, the petitioner had worked upto 20th Jan., 1997 pursuant to the policy-decision of the State of West Bengal and thus, obtained the benefit of the extension of service. Having obtained such benefit in terms of the notification he was bound to receive his salary on the basis of the pre- revised scale after serving the school upto the age of sixty-five years. He now cannot be permitted to get double benefit only because in the meantime, the West Bengal Board of Secondary Education has corrected his date of birth inasmuch as by reason of the impugned order he would now be entitled to get his salary at the revised scale of pay in terms of the ROPA Rules to which he was not entitled to in terms of the aforementioned notification. In that view of the matter, in our opinion, the petitioner is estopped and precluded from contending that the changed date of birth is not binding on the employer and it should act thereupon. In our opinion, the learned trial judge erred in so far as it failed to take into consideration this aspect of the matter.