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PETITIONER: STATE OF ASSAM & ANR.

       Vs.

RESPONDENT: DAKSHA PRASAD DEKA & ORS.

DATE OF JUDGMENT: 23/10/1970

BENCH: SHAH, J.C. BENCH: SHAH, J.C. HEGDE, K.S. GROVER, A.N.

CITATION:  1971 AIR  173            1971 SCR  (2) 687  1970 SCC  (3) 624

ACT: Natural Justice-Application for correction of date of  birth in service record-Filed within three years of date of actual superannuation-If could be entertained.

HEADNOTE: The  respondent  was appointed  Assistant  Sub-Inspector  of Police  with  effect from January 17, 1929, and on  his  own representation his date of birth was entered in the  service record  as July 1, 1910.  Under F.R. 56(a) he was liable  to be  compulsorily  retired  on July 1,  1965.   ’In  1963  he applied that the date of birth in the service record may  be corrected as.  August 1, 1911.  The application was rejected without giving him an opportunity to support his case and he was  informed  on  June  26,  1965.  that  he  would   stand superannuated on June 30, 1965.  He filed a writ petition in the  High Court and the High Court quashed the  order  dated June 26, 1965. In appeal to this Court HELD  :  Until  the service record of a  public  servant  is corrected  he cannot claim that he has been deprived of  the guarantee  under  Art. 311(2) of the Constitution  by  being compulsorily retired on attaining the age of  superannuation on  the basis of the service record.  A public  servant  may dispute  the correctness of the date of birth as entered  in the service record and may apply for its correction, but  in view  of S.R. 8 Note, which governed the employment  of  the respondent,  an application for such a correction could  not be entertained if it was made within three years before  the date   of  ’actual  superannuation’.   The   words   ’actual superannuation’ mean the date of superannuation according to the  service record, and not according to the date of  birth claimed  by the public servant.  The respondent  represented that  he  had attained the age of majority on  the  date  on which he entered service.  It was not open to him to contend that  under the appropriate service rule he could  not  have been admitted to the service. [688 G-H, 689 A-B, F-G] State of Orissa v. Dr. (Miss) Bimapani Dei, [1967] 2  S.C.R. 625 explained.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 265, of 1966. Appeal  by special leave from the judgment and  order  dated January  10,  1966 of the Assam and Nagaland High  Court  in Civil Rule No. 266 of 1965. Naunit Lal, for the appellants. R. Gopalakrishnan, for respondent No. 1. The Judgment of the Court was delivered by Shah,  J.  Daksha Prasad Deka-hereinafter called  ’the  res- pondent’-was  appointed  Assistant Sub-Inspector  of  Police with 688 effect  from January 17, 1929.  On a representation made  by the  respondent  the date of his birth was  entered  in  the service  record  as  July 1, 1910.   Under  F.R.  56(a)  the respondent was liable to be compulsorily retired on July  1, 1965.   In  1956 the respondent applied that  the  date  of birth entered in his service record ’be showing as August  1 191 1. That application was rejected.  The respondent  again applied  in 1963 for correction of his date of birth.   The application was, rejected and by order dated June 26,  1965, the respondent was informed that he win stand  superannuated on June 30, 1965.  His representation made to the Government of Assam against that order was unsuccessful. The  respondent  then  applied to the High  Court  of  Assam praying  for a writ in the nature of mandamus requiring  the State  ,of Assam to forbear from giving effect to the  order dated June 26, 1965.  The High Court quashed the order dated June  26,  1965 and directed the State of Assam to  give  an opportunity  to  the respondent to show  cause  against  the order directing compulsory retirement and an opportunity  to prove  his  true date of birth.  Against  that  order,  this appeal is preferred with special leave. In  the opinion of the High Court if the true date of  birth of  the  respondent  was  August  1, 1  9  1  1,  the  order compulsorily  retiring-  the respondent on  June  30,  1965, without  giving  him an opportunity to prove his  true  age, infringed the guarantee of Art. 311(2) of the  Constitution. In  our judgment, the High Court was wrong in  holding  that there   was  any  infringement  of  Art.,  311(2)   of   the Constitution. In  the service record of the respondent his date  of  birth was  recorded  as  July 1, 1910 and  under  F.R.  56(a)  the respondent was liable to be compulsorily retired on the date on  which  he  attained the age of 55 years.   The  date  of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth,  unless the service record is first corrected consistently with  the appropriate  procedure.  A public servant  may  dispute,.the date  of birth as entered, in the service record,   and may apply for correction of the record.  But until the record is corrected,  he cannot, claim that he- has been  deprived  of the guarantee under Art. 311(2) of the Constitution by being compulsorily retired on attaining the age of’ superannuation on the footing of the date of birth entered- in the  service record.   It. is true that the State authorities did not give to the respondent  an opportunity to support his case that  he  was born on              689 August  1, 1911, and that the service record was  erroneous. But in view of S.R. 8 Note, which governed the employment of

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the respondent an application for correction of the  service record could not be entertained if it was made within  three years before the date of "actual supernuation".  S,R. 8 Note provides               "No  alteration  in  the date of  birth  of  a               Government servant should be allowed except in               very  rare cases where a manifest mistake  has               been made.  Such- mistakes should be rectified               at the earliest opportunity in the course  of-               (1)  periodical re-attestation of the  entries               in  the  first page of service book,  and  (2)               preparation of the annual detailed  statement               of  a permanent establishment (Financial  Rule               Form  No. 11) in which is noted the  date  of,               incumbent’s birth.  In no case the request for               change  in the date of birth of  a  Government               servant made on a date with three years of the               date of’ his actual. superannuation’ should be               entertain ed." Validity  of the Rule is not challenged by  the  respondent. are unable to agree with the view of the High Court that the date of "actual superannuation" within, the meaning. of S.R. 8 Note is the date of superannuation computed with reference to  the  claim  made by the public  servant,  and  not  with reference to the date as entered-in the service record.   If such an interpretation be-accepted, S.R. 8 Note would  prove in  a  majority  of cases of no practical  utility.   It  is intended  by  S.R.  8 Note that any error  ’in  the  service record  shall be rectified at the, earliest opportunity  and in-  no  case  should an application  for  rectification  be entertained within three years of the "date of actual super- annuation". i.e. the date of superannuation according to the service record. Again, if the contention of the respondent were correct,  on the date on which he entered service he was a minor.  If  on a representation that he had attained the age of majority on the  date on which he entered service, it would not be  open for  him, after being admitted to the service,  to  contend that  under the appropriate service rules he could not  have been admitted to the service, but for the  misrepresentation made by him. Counsel for the respondent relied upon the judgment of  this Court  in State of Orissa v. Dr. (Miss) Binapani Dei &  Ors. (1) in support of the contention that a public servant  must be  given  an opportunity to prove his true  date  of  birth before  he is superannuated, and any order  passed  without such  opportunity  is illegal.  In our judgment  Dr.  (Miss) Binapani’s case(1) enunciates no such proposition.  In  that case in the service record of a pub- (1) 1967 2 S. C. R.- 625 2-L 694 Sup.  C.I/171 690 lic servant, April 10, 1910 was entered as the date of  ’her An enquiry was, held and the public servant was required  to show cause why her date of birth should not be accepted  as April 1907.  Thereafter the Government of Orissa  determined her of birth as April 16, 1907, and declared that she should deemed to have been superannuated on April 16, 1962. order was  challenged by the public servant in a petition to  High Court  of  Orissa.  The High Court held that the  order  the State  Government amounted to compulsory  retirement  before she attained the age of superannuation and was contrary  to the  rules governing her service conditions and amounted  to removal within the meaning of Art. 311 of the  Constitution, and  since  :she was not given a reasonable  opportunity  of

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showing  cause against the action proposed to ’;be taken  in regard to her, the order was invalid.  This Court  confirmed the  order  passed  by the High Court  of  Orissa.   It  was observed  by this Court that ,even an  administrative  order which involved civil consequences must be made  consistently with the rules of natural justice ’The person concerned must be  informed  of the case of the State and the  evidence  in support thereof and must be given a fair opportunity to meet the  case  before an adverse decision is  taken  The  public servant,  according  to  the service record,  could  not  be superannuated  before  April 10, 1965.  But  by  an  enquiry which was not held in a manner consistent with the rules  of natural  justice  an order was made altering  the  date  of birth  as entered in the service record, and declaring  that she  was born in 1907 That was plainly an order  passed  to the  prejudice  of  the public  servant  without  giving  an opportunity  to meet the case of the State.  In the  present case, however, the State did not seek to modify the  service record: it was the respondent who sought modification of the service  record  and claimed that he declared  only  on  the basis  of the rectification prayed for by him.  It  is  true that   ordinarily   when   an  application   is   made   for rectification  of age by a public servant, the State  should give the applicant proper opportunity to prove his case  and should give due consideration to the evidence brought before it.   But  in the present case, since  the  application  for rectification  was  made within three years of the  date  of actual   superannuation,  according  to  S.R.  8  Note   the application could not be, entertained.  The principle of Dr. (Miss) Binapani’s case(1) has no application to this case.  The  appeal  is allowed and the order passed  by  the  High Court  is set aside.  The petition filed by  the  respondent shall  stand dismissed.  There will be no order as to  costs throughout. V.P.S.                      Appeal at (1)  [1967] S.C.R. 625. 691