ABDUL KHALIQUELASKAR Vs. ALL ASSAM PUBLIC HEALTH EMPLOYEES ASSOCIATION

JUDGEMENT

(1.) Heard Mr. HRA Choudhury, learned counsel for the appellant. The All Assam Public Health Employees Association, Cachar Branch, Silchar, had instituted a Writ Petition (C) No. 5179/2000 challenging the order of correction of date of birth of the present appellant(who was respondent No. 6 in the writ petition). The appellant was also an employee under the Health and Family Welfare Department, Govt. of Assam. While the appellant entered into service, his date of birth in the Service Book was recorded as 19.8.1942 and accordingly, his date of superannuation was fixed as 31.8.2000. An application for correction of the date of birth is said to have been submitted by the appellant on 1.4.1999 to change the date of birth from 19.8.1942 to 19.8.1944. By an order dated 12.10.99, passed by the Joint Director of Health Services, Cachar, Silchar, the said application was allowed and the date of birth was changed to 19.8.1944, resulting in the change in the date of superannuation of the appellant to 31.8.2002. The learned Single Judge, vide the impugned order dated 12.2.2002, has allowed the writ petition and quashed the order of change of date of birth of the appellant(respondent No. 6 in the writ petition). It is noticed by the learned Single Judge that though the official respondents had put in appearance through their counsel, yet respondent No. 6, i.e., the appellant, did not put in appearance despite service. Learned counsel for the appellant submits that in fact he had already put in his Vakalatnama on behalf of respondent No. 6 in the Registry. However, the same could not be tagged with the file and his name was also did not appear in the cause list when the matter was to be heard by the learned Single Judge.

(2.) An affidavit was filed on behalf of the official respondents wherein it was stated that the correction in the date of birth had been made by the Joint Director of Health Services on the basis of the application made by the appellant learned Single Judge referred to the provisions of clause (C) of SR 8, which provides that the Commissioner and the Heads of the Department are the competent authorities to approve any change in the date of birth. However, the learned Single Judge on the basis of the dicta laid down in the Apex Court judgment in Secretary and Commissioner, Home- Vs-R.Kiruba Karan, AIR 1993 SC 2647,that the change of date of birth should be done in exceptional cases on full satisfaction of the authorities after strictly adhered to the procedure prescribed by the Rules, passed the impugned order. As per the provisions of SR 8, no request for change of birth is to be entertained within the period of three years before the original date of superannuation. In the present case, the original date of superannuation was 31.8.2000, and if any application for the correction of date of birth was to be entertained, it could be prior to 31.8.1997. Admittedly, the application was made in the year 1999, i.e., it was within three years of the original date of superannuation.

(3.) Further, as per clause (C) of SR 8, only the Commissioner/Heads of the Department could approve the change in the date of birth, which in the present case was only done by the Joint Director of Health Services and was never approved by the Head of the Department, i.e., the Director of Health Services, Assam.