NAGENDRA NATH LAHKAR Vs. STATE OF ASSAM

JUDGEMENT

(1.) HEARD Mr. R. C. Saikia, learned counsel appearing for the writ petitioner. Also heard Mr. B. K. Sharma, learned GA appearing for the respondent No. 3 and 4. None appears for the respondent Nos. 1, 2 and 5.

(2.) THE short point involved in this writ petition relates to determination of the date of birth. The question is whether the date of birth of the petitioner, whose age was 18 years 2 months on 1st March, 1965, was 1st January, 1947 or 2nd January, 1947. The writ petitioner joined in the State Government service on 9. 11. 73 as Jr. Accountant-cum-Assistant. Subsequently, he was confirmed as Jr. Accountant on 1. 7. 1978 and thereafter promoted to the post of Sr. Accountant on 6. 5. 1988, which post he was holding till the date of his retirement. As per the certificate issued by the Board of Secondary Education (Annexure-A) the petitioner attained the age of 18 years 2 months on the first day of March, 1965. Therefore, according to the petitioner taking the whole day of first January, 1947 into account the date of birth of the petitioner was 2nd January, 1947. The gradation list (Annexure-C) published by the authority included the name of the petitioner at Sl. No. 14 and his date of birth was shown as 1. 1. 1947. In the subsequent gradation list also published by the concerned authority the date of birth of the petitioner was shown as 1. 1. 1947. Accordingly, due to said wrong entry of the date of birth of the petitioner, he submitted representations dated 19. 8. 1994 (Annexure-F) and 16. 4. 1998 (Annexure-I) before the Deputy Commissioner, Kamrup (Treasury Establishment), Guwahati with a prayer to correct the date of birth as 2. 1. 1947. But the respondent No. 4, without correcting the date of birth, vide his order dated 16. 11. 2004 asked the petitioner to go on retirement with effect from 31. 12. 2004 (forenoon) on attaining the age of superannuation. The respondent No. 5 also by his letter dated 31. 12. 2004, while appreciating the services rendered by the petitioner, released him from service on attaining the age of superannuation on 31. 12. 2004. On being so released, the petitioner submitted representations (Annexures L and M ). On receipt of the said representations, the Under Secretary to the Government of Assam, Finance (Establishment) Department, Dispur by his letter dated 15. 2. 2005 informed the petitioner that the date of birth was required to be corrected three years before the date of retirement and as such there was no scope to correct the date of birth at that stage. In response to the said letter, the petitioner by submitting another representation (Annexure-O) informed the respondent No. 2 i. e. the Under Secretary to the Government of Assam that on receipt of the gradation list dated 17. 8. 1994 the proprietor came to know that his date of birth and the date of superannuation were wrongly shown and that he had submitted his representation well ahead of time i. e. on 19. 8. 1994. Vide notification dated 25. 1. 2005 (Annexure-Q) the Government of Assam raised the age of superannuation of the State Government employees from 58 years to 59 years indicating therein that this decision would be applicable to all the State Government employees who were due to retire after 1. 1. 2005 (sic) and that those employees who retired on 31. 12. 2004 on superannuation will not be entitled to get this benefit. According to the petitioner as his correct date of birth should have been recorded as 2nd January, 1947 he would have got the benefit of the notification dated 25. 1. 2005 aforesaid, but due to failure of the respondents to rectify the mistake in respect of the entry regarding his date of birth of the petitioner, he was deprived from continuing with his service for one year. Thus, being aggrieved, the petitioner has come up with this writ petition seeking direction for correction of his date of birth as 2. 2. 1947 instead of 1. 1. 1947.

(3.) NOTICES having been issued, the respondent No. 4 i. e. the Treasury Officer, Kamrup filed an affidavit-in-opposition. In the said affidavit-in-opposition at paragraph 5, while admitting the receipt of the representation dated 19. 8. 1994 submitted by the petitioner regarding correction of the date of birth in the gradation list and the service book of the petitioner, the contesting respondent averred that the draft gradation list was published on 3. 7. 1986, but the petitioner raised the objection on 19. 8. 1994 i. e. after lapse of 8 years. Regarding subsequent representations submitted by the petitioner, the contesting respondent submitted that the gradation list was correctly prepared by showing the date of birth of the petitioner as 1. 1. 1947 and as such the petitioner was asked to go on retirement on 31. 12. 2004. In the affidavit-in-opposition aforesaid, more particularly at paragraph 15, it has been averred by the respondent No. 4 that had the petitioner prayed for the correction well ahead of time, the date of birth could have been corrected and that no application for such correction was received. Mr. R. C. Saikia, learned counsel for the petitioner submitted that the representation dated 19. 08. 1994, which was admitted to have been received by the Respondent No. 5 was submitted about 10 (ten) years prior to the date of superannuation of the petitioner and as such the prayer for correction having been made more than 3 (three) years prior to the date of retirement and in view of the letter dated 15th February, 2005 issued by the Respondent No. 2, the date of birth should have been corrected. From Paragraph-5 of the affidavit filed by the Respondent No. 5 it appears that the representation was received by the authority. In the said application dated 19. 8. 94, the petitioner, inter alia, submitted as follows :-