Judgment:
S.K. Kar, J.
1. Appellant as the plaintiff instituted a suit, T. S. No. 53/92, against the respondent, United Bank of India (defendant), before the Civil Judge, senior Division, Tinsukia, stating, inter alia, that he joined service under Comilla Union Bank Ltd. at Tinsukia on 1.1.1949 as a sub-staff. It is stated that the said bank in course of time got merged with the United Bank of India, i.e., the respondent/defendant, in 1950.
2. The case for the appellant is that while in such service and posted at Panitola Branch as Head Cashier he was served with a letter No. ZO/PD/DIS/556/92 dated 24.6.1992 issued by the zonal office of the respondent bank informing him that he will retire by 30.11.1992 on superannuation at the age of 60.
3. That on receipt of such letter he immediately replied vide letter dated 6.7.1992 stating that he did not quote his date of birth while joining the service in the erstwhile Comilla Union Bank Ltd. but later on in the year 1975 requested the authority to record his age by submitting his admit card of the H.S.L.C. Examination alongwith photo copy of H.S.L.C. certificate and horoscope on 29.4.1975. That after certain correspondences being made ultimately the bank answered by stating that the bank stood by its decision. That he met personally the officers and made several other correspondences but the bank maintained the view that as per the records of the bank the date of his superannuation would be 30.11.1992.
4. That as per the H.S.L.C. certificate of 1972 issued by the Board of Secondary Education, Assam, age of the appellant as on 1.3.1972 was 34 years 4 months 10 days and if it is taken into account he will be retiring by 19.10.1997 on reaching the age of superannuation of 60 years. That due to wrong recording of the age of the appellant by the respondent bank in the year 1949 when the appellant was only a minor he is forced to lose 5 years of service. That he was not asked at the time of entering the service to give declaration of his age nor he had given on his own any information to that effect at that time. That his fundamental right has been jeo-pardised by compelling him to retire by 30.11.1992 etc.
5. With these averments in the plaint and citing accrual cause of action on and from 23.4,1975 onwards (giving several dates) till 29.9.92 he prayed for declaration of his date of birth as 20.10.1937, for injunction restraining the respondent/defendant from removing him from service and for setting aside the latter No. ZO/PD/DIS/556/92 dated 24.6.1992.
6. The respondent bank as defendant contested the suit raising the usual legal objections (not quoted) and denying the allegations made on the plaint excepting the fact that the plaintiff joined service on 1.1.1949. It was contended by the respondent that on his own admission appellant joined the service on 1.1.1949 but submitted admit card of HSLC examination only in the year 1975 for correction of the age. That the claim of the appellant that his age on 1st March, 1972 is 34 years 4 months 10 days when accepted would mean that he joined his service on at the age of 11 years. That under no circumstances at the relevant time bank would appoint a boy of 11 years to service. It was submitted that as per the service record maintained by the bank the date of birth of the appellant/plaintiff was 30.11.1932. That from time to time the appellant was informed about the decision of the bank. That there is no question of the appellant suffering any financial loss. Rather he approach court with incorrect, baseless and flimsy statement with intent to derive undue gain by production of manipulated documents and accordingly the suit was liable to dismissed with compensatory costs.
7. The trial court framed the following issues (quoted as it is):
'1. Whether the suit is maintainable in law and facts.
2. Whether there is any cause of Action for the suit.
3. Whether the age of retirement of the plaintiff should 30.11.1992 or 19.10.1997. (The dates wrongly typed in place of 30.11.1932 and 19.10.1937)
4. Whether the plaintiff is entitled to the relief, as prayed for.
5. To what relief, if any, the plaintiff is entitled ?'
8. During hearing of the suit plaintiff examined himself as the only witness (P.W. 1. Exhibited certain documents marked as exts. 1 to 14. Defendant (it seems from record) did not adduce any evidence.
9. Issue Nos. 1 and 2 were decided in favour of the plaintiff/appellant holding that there was cause of action for the suit and suit is maintainable. Issue Nos. 3 and 4, however, were taken together for discussions and were decided against the appellant and consequently, the suit was dismissed. Hence this appeal.
10. I have heard learned counsel appearing for the appellant as well as for the respondent. Perused the materials on the case record (LCR) of the trial court, which was called for and forwarded, I have also carefully examined the evidence on record and the impugned judgment of the trial court.
11. Although the memorandum of appeal has recorded as many as 16 grounds, the pertinent question that require determination in this appeal on the guidelines of Order 41 Rule 31 of C.P.C. is issue No. 3 framed in the suit. Issue Nos. 4 and 5 are only issues with respect to the reliefs. After reappreciation of the evidence the findings of this court go as hereunder.
12. PW 1 stated that he joined his service as a peon. During his cross-examination PW 1 stated that at the time of appointment he did not submit/produce his age certificate and it was only in the year 1975 he informed the bank about his date of birth. Thus, the information was given admittedly after about 25/26 of years of his service. He also stated that no formal appointment letter was issued appointing him to the service. Only manager called him and offered the job. During his cross-examination he admitted that he entered the service at the age of 11 years few months. He was suggested that admit-card had given manipulated age and his horoscope was false and manufactured for this purpose of illegal gain, which he denied. He also admitted that he was never admitted into any school. Therefore, one can easily come to a conclusion that the oral evidence adduced by appellant in the suit is very weak and inform. Exts. 1, 2, 5, 6, 7, 8, 9, 10, 11, 13, are all letters of correspondences between appellant and the bank and Ext. Nos. 12 and 14 are A/D cards (all in photocopies) and Ext. No. 3 also a photocopy of the Admit card. None of the original document was filed by the appellant. However, it is noted that the documents were 'proved in original'. Be that as it may, these documents would prove nothing in so far the determination of date of birth. Learned trial court while discussing the question of the worth of the evidence of PW 1 held as follows ;
'The plaintiff deposed that at that time of his initial appointment as peon in the Comilla Union Bank Limited, he did not furnish his age to the Bank, nor any appointment letter was issued to him by the said Bank. He deposed that them the Manager of the Comilla Union Bank Limited called the plaintiff and appointment him to the service of the Bank as peon. This portion of evidence adduced by PW 1 (plaintiff) is not believable. The normal practice is as soon as a person entered into a service, the authority would ask for his biodata including age, educational qualification etc., and accordingly a service record of that person would be prepared. This is a normal phenomenon that the plaintiff did not furnish his age and his bio-data to the Comilla Union Bank Limited at the time of his initial appointment is not believable.'
It is also the admitted position that documents to prove date of birth were submitted before the authority only after 24/25 years of service and in the year 1975. When the appellant/plaintiff has admitted that he did not attend any school, naturally he would give his date of birth from his mind while he filled up the form to appear in the examination. There is no other legal evidence, either documentary or oral, to prove the date of birth save and except the isolated version of the appellant himself (PW 1). PW 1 has nowhere disclosed his source of information about it.
13. Learned counsel appearing for the appellant has referred me to the law pronounced by Hon'ble Apex Court as reported as AIR 1967 SC 1269. But after going through the fact of that case I find the judgment was given entirely on different context. It was held therein --
'That the order determining the date of birth is administrative in character, but even an administrative order which involves civil consequences must be made consistently with the rules of natural justice after informing the parties affected by the order, the evidence in support thereof and giving an opportunity to such party of being heard and of meeting or explaining the evidence. In that case, the date of birth of the Govt. Servant as recorded in the Service Book at the time of her appointment in the year 1938 and the said order was sought to be altered by an administrative order and Supreme Court upheld the judgment of the High Court quashing the said order on the ground that the said administrative order was passed contrary to the Principle of natural justice.'
On the other hand learned lawyer appearing for the respondent has submitted that plaintiff is to prove his own case as per the settled principles of law by referring to citations - AIR 1986 SC 1509 (para 6) ; (1998) 4 SCC 539 (para 10) and (1996) 2 SCC 484 (paras 6 & 7) ; (Books not submitted). He also submitted that any application for changing of date of birth made after 5 years of entering into the service may be summarily rejected as per the established principle of law vide (1994) 2 SCC 491. In this context I may quote from note 6 to FR 56 also -
'The date on which a Government servant attains the age of fifty eight years or sixty years, as the case may be, shall be determined with reference to the date of birth declared by the Government servant at the time of appointment and accepted by the appropriate authority on production, as far as possible, of confirmatory documentary evidence such as High School or Higher Secondary or Secondary School certificate or extracts from Birth Register. The date of birth so declared by the Government servant and accepted by the appropriate authority shall not be subject to any alteration except as specified in this note. An alteration of date of birth of a Government servant can be made, with the sanction of a Ministry of Department of the Central Government, or the Comptroller and Auditor General in regard to persons serving in the Indian Audit and Accounts Department, or an Administrator of a Union Territory under which the Government servant is serving, if,
(a) a request in this regard is made within five years of his entry into Government Service ;
(b) it is clearly established that a genuine bona fide mistake has occurred; and
(c) the date of birth so altered would not make him ineligible to appear in any school or university or Union Public Service Commission examination in which he had appeared, or for entry into Government service on the date on which he first appeared at such examination or on the date on which he entered Government service.'
14. After considering the submission made and going through the relevant laws pronounced by court, it may be observed as follows :
'The right to get the date of birth corrected either on the basis of Matriculation Certificate or otherwise is not a legal right far less a constitutional light. Even if there is some legal right the same can be waived Employer is not bound to correct the date of birth
2000 (1) SLR Cal 795 Pusparani Chakraborty v. Allahabad Bank'
Similarly, in 2000 (2) SLR P&H; 716 it was held that date of birth can be corrected only where there is irrefutable evidence suggesting mistake in the date of birth. This court sitting in a Division Bench held in case of a person similarly situated that it is not permissible to correct the date of birth by a authority if the incumbent do not come within five years of entering the service - Refs, 2000 (2) GLR 4. The facts of this case are squarely covered by the facts of 2002 (2) GLR 4. In any case, there is absolutely no cogent and irrefutable evidence to establish the date of birth of appellant as 20.10.1937.
15. Concluding, there is no merit in this appeal to interfere with the findings of lower court.
16. Appeal stands dismissed on contest with costs of Rs. 1000 (One thousand rupees only).
17. Send the LCR back at one.