BINAPANI DEI Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is an application under Art. 226 of the Constitution of India wherein the petitioner asks for issuing an appropriate Writ for quashing the order, dated 27th June, 1963 passed by the Government declaring that the petitioner still continues in service.

(2.) THE facts leading to the application may be stated in a narrow compass. THE petitioner was appointed as a lady Assistant Surgeon in the Orissa Medical Cadre on 12th June, 1938 and was confirmed as Superintendent of Medical Aid to Women and children on 11th May, 1955. Her age in the Civil list and History of Services of Gazetted Officers of Orissa, maintained by the Accountant General, Orissa is 10th April, 1910. This date was declared by her to be her date of birth at the time of entry into the service and was supported by documentary evidence produced by the father and verified and accepted by the Government. On the basis of this date, the petitioner was to ordinarily retire on 10th April, 1965 on completion of the age of 55. But according to the resolution of the Government of Orissa in the Political and Services Department, dated 21st May 1963, the age of compulsory retirement has been raised from 55 to 58 years with effect from the 1st December 1961 and she was to retire on the 10th April, 1968. By a letter, dated 9th May, 1963 the Government of Orissa determined 16th April, 1907 as the date of her birth. On a representation being made by the petitioner to the Chief Minister, Orissa, the Government in the Health Department by a letter, dated 27th June, 1963 ordered that the petitioner was deemed to have retired with effect from the afternoon of 16th April, 1962; but the Government granted an extension of service from 16th April, 1962 till the afternoon of 15th July, 1963. As a result of this order, the petitioner has been deprived of nearly 5 years of active service and consequential promotions, privileges and benefits of increased pension. THE petitioner and her sister Dr. Jyotsana Dei passed Matriculation examination privately In 1924. No age or date of birth was recorded in their Matriculation Certificates as at that time the Patna University did not record the age or date of birth of girl students. THE petitioner was admitted into the I.A. class attached to the Ravenshaw Girls School and passed the I. A. examination in 1926 along with her sister. Both of them were admitted into Lady Hardinge Medical College, Delhi She passed M.B.B.S. examination of the Punjab University and was first posted as a lady Doctor in Bettlah Hospital, Bihar, in 1936 and subsequently in the Pilgrims Hospital, Puri, in 1937 and joined Orissa Medical Service on the 12th June, 1938. On the 15th November, 1957, an anonymous petition was filed challenging the correctness of the date of birth of the petitioner. She affirmed the correctness of her date of birth, as given in the Civil List. Though the matter seemed to have been dropped, nearly four years thereafter the question was reopened with reference to the Admission Registers of the School and College sections of the Ravenshaw Girls School. It was intimated to the petitioner by a letter from the then Secretary to Government in the Health Department (Sri S.M.H. Burney) on 23rd August, 1961 that she was admitted into class X and her age was shown as 15 years and that on 9th July, 1924 she was admitted into the First Year I.A. Class and her age was shown as 17 years and 2 months, and she was required to show cause why 9th May, 1907 should not be accepted as her date of birth on the basis of the entry in the Admission Register of the I.A. Class. She submitted explanation challenging the genuineness of the entry in the Admission Register. After some correspondence, the Admission Registers were examined by the petitioner in presence of the Director of Health Services and the officers of the Vigilance department, and the petitioner showed further cause on 19th March, 1962 pointing out irregularities against the acceptance of the age mentioned in the Admission Registers of the Ravenshaw Girls' School. THEre was further scrutiny of the Registers on the 12th July, 1962 and the matter was kept pending till there was a proposal for appointment of an Additional Director for the Family Planning for the State of Orissa. Mr. Sitakantha Misra, the then acting Director of Health, himself wanted to be the Additional Director after his reversion from the post of Director of Health Services, and the petitioner submitted a representation asserting her superior claim. On 26th September, 1982, Dr. Sushila Nayar, Union Health Minister, Government of India, who was personally known to the petitioner, visited Orissa, and the petitioner mentioned to her about the proposed appointment of Dr. Sitakantha Misra to be the Family Planning Director overlooking her superior claim. Later, Dr. Nayar told her at a Dinner party that she had already given her strong views in the matter to the Health Secretary, Government of Orissa. Soon after the visit of Dr. Nayar and the submission of representation by the petitioner, Sri A.L. Nair, Secretary of the Department of Health, addressed a letter to the petitioner on 28th September, 1962 referring to the question of her date of birth. Sri Nair specified in his letter that according to the School Admission Register her date of birth was 22nd August, 1906 and according to the I.A. Class Admission Register it was April 1907, and the latter date was to be treated as the date taken from the Matriculation Certificate. THE letter required the petitioner to show cause why her date of birth should not be accepted as 16th April, 1907. THE petitioner showed cause, made various representations challenging the correctness of the entries in the Admission Registers and asserting the correctness of the age given in the Civil List, and ultimately the Government passed the order which is assailed in the Writ application. Thus the petitioner assails the order of compulsory retirement on the following substantial grounds : (i) After lapse of about quarter of a century, the Government of Orissa cannot re-open the question of her age under R. 66 of the Orissa General Financial Rules. (ii) THE compulsory retirement of the petitioner before the age of superannuation given in the Civil List amounts to removal from service within the meaning of Art. 311 of the Constitution and the removal was effected without giving a reasonable opportunity of showing cause against the action proposed to be taken and in violation of the principle of natural justice; and (iii) THE removal was mala fide as the petitioner made representation asserting her superior claim to be appointed as an Additional Director of Family Planning and as she made certain complaints to Dr. Sushila Nayar, the Union Health Minister, about the supersession of her claim.

(3.) AFTER she had put in more than twenty years of service, the correctness of the age, as given by her was examined by the Health Department and the entries in the Admission Registers of Ravenshaw Girls' School, Cuttack were brought to the notice of Government. It was then found that she was shown as having been admitted to Class X of the said school on 22-8-1921 and her age was also entered as fifteen years on that date. If this entry be taken as correct, her date of birth would be 22-8-1906. She passed her Matriculation Examination as a private candidate and, according to the practice then prevailing, the ages of all female candidates were not shown in the Matriculation Certificate. There is thus no evidence to show what was the age of the petitioner, as given in the Matriculation Certificate, but the School Admission Register shows that when she was admitted to the 1st Year Class (I.A) class on 9-7-1924 her age was recorded as 17 years and 2 months, which would indicate that her date of birth was sometime ' in April, 1907. This entry has been alleged to have been signed by none else than the petitioner's own mother, Shrimati Debi. When called upon to explain these discrepancies regarding the date of birth, the petitioner, after scrutinising the entries In the said Admission Register of the Ravenshaw Girls' School, pointed out certain suspicious features like alterations and Interpolation and also certain significant omissions and stated that the entries in the Register should not be accepted as correct. She went to the length of saying that she could not recall that she ever went to a school at Cuttack. She definitely alleged that the entries in the Admission Register were tampered with by her enemies and wanted Government to accept her horoscope as proof of age. Government thereafter directed the Director of Health Services Sri S.K. Misra, to offer his views on her explanation. He corresponded with the Principal of the Lady Hardinge Medical College Hospital, New Delhi, where the petitioner studied for her M.B.B.S. Degree Examination, and ascertained from the Principal of that College that when she joined that College on 16-9-1926 her date of birth was recorded as 4-4-1908 in the College Admission Register. He suggested in his letter to Government, dated 11-8-1962 (Annexure 2 D) that this date should be preferred to the date as given in the Ravenshaw Girls' School Admission Register, because the petitioner was an adult when she joined the Lady Hardinge Medical College at New Delhi, and must have known her age as given by her to the College authorities. Whereas the ages as noted in the Ravenshaw Girls' School Admission Register were based on statement made by her relatives.