KARUNASINDHU NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS is the fifth journey of the petitioner to this Court on the question of his date of birth. According to the authorities, his date of birth is 25 -7 -1930, but the petitioner claims it to be 10 -5 -1934. He places reliance on several certificates issued by institutions where he claims to have prosecuted studies at different points of time. Since the authorities proposed to superannuate him on his completing 60th year, on the basis of the date of birth as recorded in the service records i.e., 25 -7 -1930, petitioner moved this Court earlier for interference. Earlier writ petitions were disposed of with directions. The Inspector of Schools was directed to deal with petitioner's case on consideration of all relevant materials. The Inspector of Schools before whom the petitioner was making his grievance, initially did not decide the case on merits and had not granted adequate opportunity to the petitioner. On that basis, on the four earlier occasions, matter was sent for reconsideration by the Inspector of Schools. By the impugned order dated 27 -9 -1991, Inspector of Schools, Bhadrak Circle, Bhadrak has found petitioner's actual date of birth to be 25 -7 -1930, and not 10 -5 -1934 as claimed by him.

(2.) MR . P. Acharya, learned counsel for the petitioner submits that notwithstading direction of this Court for considering the matter on merits, the Inspector has failed to do so. The learned counsel for the State, however, submits with reference to the impugned order that Inspector of Schools on consideration of relevant document has concluded that the date of birth has been correctly recorded as 25 -7 -1930.

(3.) AS observed by the Apex Court in the case of Director of Technical Education and another v. Smt. K. Sitadevi, AIR - 1991 SC 308, the question relating to what is the exact date of birth, is a question of fact and the writ Court should not interfere with the finding recorded by authorities, unless the same is perverse, or unreasonable, and is not supported by any material Date of birth of a person is intermingled with his status which is directly connected with the civil right of that person such as the right to office, right to exercise franchise, right to continue in service up to a particular age. Normally, a civil right is to be enforced in a suit since what is the date of birth of a person being an inference from proved facts is a question of fact. When an enquiry into complicated questions of fact would arise, the High Court in its discretion in appropriate cases would decline to enter upon enquiry into the same in a petition under Article 226 of the Constitution and leave the party seeking the relief to approach an appropriate Court. As observed by this Court in Laxman Swain v. Managing Director. Steel Authority of India Ltd. Rourkela and another, 60 (1985) CLT 10, the date of reaching age of superannuation must be determined on the basis of service record and not on what the employee claims unless service record is first corrected. Both the employee and the employer can dispute the date of birth indicated in the service record of the concerned employee; maintained by the employer. Such a dispute is to be resolved by the employer. Where employer seeks to effect change which shall result in employee reaching age of superannuation earlier, concerned employee has to be informed of the case of employer, material in support of the case, and an opportunity has to be granted to the employee to meet the materials. Where employee seeks to change the date to gain an advantage of postponing the date of superannuation, he has to substantiate it by placing material to establish his stand.