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A STATE OF ASSAM&: A1'IR. v. DAKSHA PRASAD DE.KA &: ORS, October 23, 1970 H7 I [J, C. SHAH, K. S. HBGDB AND A, N. GROVER, 11.] c D E F G Natural Justice-Application for correction of date of birth in service record-Fil¢ within threeyears of date of actual supetannuatio...-lf could be entertained. Therespondentwas appointedAssistant Sub-Inspector of Police with effectfrom January17, 1929,and on hisownrepresentation his date of birth was entered in the servicerecord as July I, 1910.Under F.R, 56(a) he was liableto be compulsorilyretired on )uly I, 1965. In 1963 he appliedthat the date of birth in the service record may be corrected as August I, 191L The application WilS rejected withoutgiving him an opportunityto supporthis caseand he was informedon June26, 1965, tbat he wouldstand ~uperannuated on June 30, 1965. He filed a writ petition intheHighCourtand the HighCourtquashedthe orderdatedJune 26, 1965. In appeal to this Court: HELD: UntU the service record of a publicservant is corrected he cannotclaim that be has been deprivedof !he auaranteeunder Art. 311 (2) of the Constitution. by beina colllpu!lorily retir~d on attainin&the aao of superannuation on the basis of the service record.A publla servut lll&Y di1pute the cormtne11 ot tho dato of birth a1 entei'ed in tho lilrvice record and may apply for ill gorrection, butin viow df S.R. 8 Noto,which aov· emedthe employment of tho respondent, 11n application· for flUdl a correGtioncould not be enl,illlined if ii w11 mado wilh!n threo yun bttoil tho dato of 'actual 1ujl41111trnuation'. Tho worcb '1U1tual 1upcr111111Ua• lion' moan the date of superannuation according to tho service rllCjjrd, and not accordin1 to the date of. bli'th cltimed by tho public servant. The respondentrepresented that he had attained the a1e of majority on tbe date on which he. entered service. It was not open to him to colllftd lbat under 1the appropriale service rule he could not have been admittedto the service. {688 O·H, 689 A·B, F-0] S1atf oi Orl.ua v. Dr. (MID) Blnapanl Dtl, [1967] 2 S.C.ll. 625 explalsed. <;:!VIL APPELLATEJut.ISDICTlON: Civil ApPealNo. 226S of 1965. Appeal by specill leave from the jOllgment lllO.d Older 4iled Januar.y 10, 19'6ll of cm Aslam aod Nagaland High Court in Civil Rule No. 266of l96S. Naunit Lal,fur the appellants. R. Gopalakrishnnn, for respondent No. I. !I The Judgmentof theCourt was delivered by Slilll, J, DakshaPrasad Deka-hereinaf11er called 'the reS· pondent'-wasappointed Assistant Sub-IDs~tor of Police With B88 SUPREME COURT REPORTS [1971] 2 S.C.R. .effect from January17, 1929. On a representation mad·· :iy the resp0j11dent thedate of his birthwas entered in the serv;ce reccrd as July 1, 1910. Under F.R. 56(a) therespondent wasliableto becompulsorilyretired on July 1, 1965. In 1956 therespondentapplied that the dateof birthenteredin hisservice 1ecord be show•n as August 1, 1911.That application was rejected.The respondentagain applied in 1963 for correction ofhisdateof birth. The applicationwas rejectedand by order dated Ju,ne 26,1965,the respondentwas informedthat he will standsuperannuated on June 30, 1965.His representation madeto theGovernmentof Assamagainstthat orderwas un successful. The respondentthen appliedto theHighCourtof Assam prayingfor a. writ in thenatureof mandamus requir~ng the State of Assamto forbear from givingeffect to the order datedJune 26,1965.The HighCourtquashedthe orderdatedJune 26, 1965,and directedthe State of Assamto givean opportunity to therespondentto showcauseagainstthe orderdirecting com pulsoryretirementand an opportunityto provehis truedate ofbirth.Agai,nstthat order,this appeal is preferredwith spe cial leave. In the opinionof theHighCourtif thetruedateof birthof therespondentwas August l, 1911, the ordercompulsorily retir ing the respondent on June 30, 1965,withoutgiving him an opportunityto provehis trueage,infringedthe guaranteeof Art.311 (2) of theConstitution.. In our judgment, the High Courtwas wrongin holdingthat therewas any infringement of Art. 311(2) oftheConstitution. In the servicerecord of therespondenthis dateof birthwas recordedas July .1,, 1910 and unde.- f.R. 56(a) the respondent wasliabletu pe ~9gipulsorily retirJdon thedate on whichhe attainedthe. agl!'' 'cedure.A public servantmay disputethe dateof birth as entered ln th.e service record, 1tnd mayapplyfor correction of the record. But untilthe record is corrected', he. cannotclaim that he hasbeen deprivedof theguaranteeunder Art. J 11 ( 2) of theConstitution bybeing compulsm;ily retired on attaining :the age of superan nuation on thefootingof thedate of birth 'entered ln theservice record. It is tnie thatthe State authoritiesdid notgive IQ the res pondentan opportlmityto supporthis casethat he was born on A B c D E F G H A B c D • I' H ASSAM v. D. P. DEKA (Shah. J.) 689 August 1, 1911, and thatthe servicerecord was erroneous.But in view of S.R. 8 Note,which governedthe employmentof the respondentan .applicationfor correctionof theservicerecord couldnot be entertainedif it wasmadewithinthree years before the dateof "actual supernnuation". S.R. 8 Noteprovides: "No alteration in the dateof birthof a Government servantshould be allowei;l exceptin veryrare cases wherea manifest mistakehas beenmade. Such mis takesshould be rectifiedat theearliestopportunity in the course of-( 1) periodicalre-attestationof theen triesin thefirstpageof servicebook, and (2) prepara tion of theannualdetailedstatement of a permanent establishment(Financial Rule FormNo. II) in which is notedthe dateof incumbent'sbirth. In no casethe requestfor changein thedateof birthof a Govern ment servantmade on a datewithinthree yearsof the dateof hisactualsuperannuationshould be entertain ed." Validityof the Rule is not challengedby therespondent. We areunableto agreewith the view of the High ·Coun thatthe dateof "actual superannuation"within the meaning of 9.R. 8 Note is thedateof superannuationcomputed with referenceto theclaim made by thepublicservant, and not withreferenceto thedate as enteredin theservicerecord. If such an interpreta tionbe accepted, S.R. 8 Notewouldprovein a majorityof casesof nopracticalutility. It is intended by S.R. 8 Notethat anyerrorin theservicerecord shall be rectifiedat theearliest opportunityand in nocaseshouldan applicationfor rectifica tion beentertainedwithin three yearsof the "date of actual super annuation", i.e. thedateof superannuationaccording to the serviCe record. Again, if thecontentionof therespondentwere correct,on thedateon whichhe enteredservioe he was a minor. If ona :represe.ntation thathe hadattainedthe age qf majorityon the date on whichhe enteredservice,it wouldnot be openfor him. afterbeingadmittedto. theservice,to contendthat underthe appropriateservice rules he couldnot havebeenadmittedto the service.but for themisrepresentationmade by him. ' Counselfor therespondentrelied upon the judgmentof this Courtin State of Orissa v. Dr. (Miss)BinapaniDei & Ors.(') in supportof thecontentionthat a publicservantmust be given anopportunity to provehis truedateof birth before he is super annuated,and any orderpassedwithoutsuch opportunity is ille gal. In our judgment Dr. I Miss) Binapani's ca.1e( 1 ) enunciates nosuchproposition.In that case in theservicerecord of a pub- ( I) 1967 2 S. C. R· 6'' 2--L 694 Sup. C.1.[71 690 SUPREME COURT REPORT$ [1971] 2 S.C.R. lie servant,April 10, 1910 was entered as the dateof herbirth. Anenquiry was heldand the publicservant was required to show cause why her dateof birthshouldnot be accepted as April4, 1907. Thereafterthe Governmentof Orissadetermined her date ofbirth as April 16, 1907, 3lllkl declaredthat she shouldbe deemedto havebeensuperannuatedon April16, 1962.This order was challenged by thepublicservantin a petition to the HighCourt of Orissa. The HighCourtheld that the orderof the State Governmentamounted to compulsory retirement before sheattainedthe age of superannuationand was contrary to the rules govefi!1ing. herserviceconditionsand amountedto removill within the meanirig of Art, 311 of the Constitution,and since she was not given a reasQnable opportunity of showingcause against ·the actionproposedto betakenin regardto her,the order was· invalid. This Court confirmed theorderpassedby theHighCourt of Orissa. It was observedby thisCourtthat evein an administrativeorder whichinvolved civil consequences must .be madeconsistentlywith the rulescf natural. justice. Thepersonconcernedmust be informed of thecaseof theState and theevidencein supportthereof and mustbe givena fair op. . portltnity to meet the casebeforean adversedecision is taken. The publicservant, accordiirtg to theservicerecord,could not be superannuated beforeApril 10, 1965.But by" an enquiry which was notheld in a mannerconsistentwith the rules of natu ral ju~tice anorder was madealteringthe dateof birth as entered in the servicerecord,and declaringthat she was bom in 1907. That was plainly ·an order J)assed to the prejudide ofthe public servantwithoutgiving an opportunityto meet the caseof the State. In thepresentcase, however, thl State did not seekto modifythe servicerecord : it was therespondentwho sought modificationof theservicerecord and claimedthat he be declared superannuatedonly on thebasisof therectificationprayed for by him. It is true thatordinarilywhen an application is made for rectification of ageby a publicservant,the' Stateshould give the applicantproper opportunityto provehis caseand should give dueconsiderationto the evidence broughtbefore it. But in the presentcase, since the applicationfor rectificatiOlll was made '!l'ithin three yeats of the dateof actualsuperannuation,according to S.R 8Notethe applicationcould not be eritettained. The pri111ciple of Dr. (Miss)Binapani'scase( 1 ) hasno application tothis case. Theappeal is allowedand the orderpassedby theHighCourt is set aside.The petitiOlll filed by therespondentshall stand dis missed.There will be noorder as to costs throughout. V.P.S: Appeal allowed, (I) [1967] <> S.C.R. 625. A B c D E F G H |
