Gautam Kr. Das v. The State of Assam and 5 Ors

ORDER Date : 09.01.2023

Heard Ms. A.Devi, the learned counsel appearing on behalf of the petitioner, Mr. A.Kalita, the learned counsel appearing on behalf of the respondent Nos. 1, 2, 3, 4 and 5 and Mr. P.Nayak, the learned counsel appears on behalf of the respondent No.6.

¶2The dispute involved in the instant writ petition pertains as to whether the petitioner's date of superannuation is 31st of December, 2019 or 31st of January, 2020. The case of the petitioner herein, is that the petitioner's date of birth was recorded in the High School Leaving Certificate as 15 years 2 months on the 1st day of March of 1975. It is the case of the petitioner that applying the Office Memorandum dated 31st of October, 2012, issued by the Government of Assam, Finance (Estt-A) Department dated 31st of October, 2012, the petitioner's date Page No.# 3/7 of Superannuation would be 31st of January, 2020. However, the respondent authorities have superannuated the petitioner on 31st of December, 2019. It is under such circumstances that the petitioner had approached this Court.

¶3The question involved in the instant writ petition depends upon the interpretation of the Office Memorandum dated 31.10.2012. Taking into account the relevance of the said Office Memorandum, the same is reproduced herein below: " GOVERNMENT OF ASSAM FINANCE (ESST-'A') DEPARTMENT DISPUR. GUWAHATI-6

No.FEG.26/2012/29 Dated Dispur, the 31st October,2012

OFFICE MEMORANDUM It is observed that some Departments are coming to Finance Department for interpretation as regards calculation of Date of Birth on the basis of age, as used to be mentioned in old HSLC/HSSLC pass certificate/Admit Cards etc. in which the age on 1st March of a year was mentioned instead of the exact date of birth. In this connection it may be mentioned that there should not be any confusion into the matter as explanation is already provided below F.R 56(a) of the F.R & S.R from which it is clear that a Govt. servant whose date of birth falls on the 1st day of any month shall have attained the age of superannuation on the afternoon of the last day of the preceding month and that a Govt. servant whose date of birth falls on days other than 1st day of a month shall attain the age of superannuation on the last day of the month. Page No.# 4/7 For example, if the age of a candidate be mentioned in the old HSLC/HSSLC pass certificate/Admit Card as 15 years 10 months 1 day on 1st March, 1999, his date of birth should be computed as 1st May, 1983 and the Govt. servant shall retire on superannuation on 30th April, 2043. Further, if the age of candidate be mentioned in the old HSLC/HSSLC pass certificate/Admit Card as 15 years 10 months on 1st March, 1999, his date of birth should be computed as 2nd May, 1983 and the Govt. Servant shall retire on superannuation on 31st May, 2043. In view of the above, it should not be necessary to come to Finance Department for interpretation in this regard. This is issued as a general clarification. Sd/- (Dr.A.K.Bhutani) Commissioner & Secretary to the Government of Assam Finance (Esst-A) Department

Memo No.FEG.26/2012/29-A Dated Dispur, the 31st October, 2012"

¶4A perusal of the said Office Memorandum would show that a question was raised before the Finance Department for interpretation as regards the calculation of the date of birth on the basis of age as used to be mentioned in the old HSLC/HSSLC pass certificate/Admit Card etc., in which the age on 1st of March of the year was mentioned instead of the exact date of birth. It was observed that in view of the explanation to F.R 56(a) of the Fundamental Rules Page No.# 5/7 and the Subsidiary Rules of the State of Assam, a Government servant whose date of birth falls on the 1st day of any month shall have attained the age of superannuation on the afternoon of the last day of the preceding month and that a Government servant whose date of birth falls on days other than the 1st day of the month shall attain the age of superannuation on the last day of the month. Two illustrations have been given in the said Office Memorandum to the effect that if the age of a candidate mentioned in the old HSLC/HSSLC pass certificate/Admit Card as 15 years 10 months 1 day on 1st of March, 1999 his date of birth should be computed as 1st of May, 1983 and the Government servant shall retire on superannuation of 30th April, 2043. However, if the age of a candidate has been mentioned in the old HSLC/HSSLC pass certificate/Admit Card as 15 years 10 months on 1st of March, 1999 and his date of birth should be computed as 2nd of May, 1983 and Government servant shall retire on superannuation on 31st of May, 2043. The learned counsel for the petitioner has submitted that in the instant case the petitioner's date of birth was recorded as 15 years 2 months on 1st of March, 1975 and as such in view of the Office Memorandum dated 31st of October, 2012, the petitioner's date of birth would be 2nd of January, 1960 and accordingly, the date of Superannuation of the petitioner would be 31st of January, 2020. The learned counsel submitted that taking into account that in the service book, it has been recorded as 1st of January, 1960, the petitioner has been superannuated by the respondent authorities on 31st of December, 2019.

¶5On the other hand, the learned counsel Mr. A.Kalita, appearing on behalf Page No.# 6/7 of the respondent Industries and Commerce Department has submitted that in view of the S.R 8 of the F.R & S.R of the State of Assam, the petitioner's case vide the impugned orders was rejected because he failed to seek correction of the date of birth within the period as permissible. However, the learned counsel agreed as regards the interpretation so given in respect to the Office Memorandum dated 31st of October, 2012 by the petitioner. The learned counsel for the Finance Department, Mr. P.Nayak, has also submitted that taking into account the Office Memorandum dated 31st of March, 2012, the petitioner would come within the ambit of the second illustration and thereby, the petitioner's date of birth has to be computed as 2nd of January, 1960 and accordingly, the petitioner ought to have retired on superannuation on 31st of January, 2020.

¶6Having heard the learned counsels for the parties and upon perusal of the Office Memorandum dated 31st of October, 2012, as well as the Annexure B to the writ petition which is HSLC Certificate, whereby, the petitioner's date of birth have been recorded as 15 years 2 months on 1st of March, 1975, this Court is of the opinion that the petitioner's date of birth should be computed as the 2nd of the January, 1960 and accordingly, the petitioner ought to have retired on 31st of January, 2020. Under such circumstances, this Court therefore set aside the letter dated 13.11.2019/14.11.2019, as well as the order dated 03.08.2020. The question of petitioner seeking change of the date of birth does not arrive in the instant case as the present case relates to applying the Office Memorandum dated 31.10.2012 and giving effect to the same.

Page No.# 7/7

¶7This Court further observes that the petitioner's date of superannuation shall be construed in terms with the Office Memorandum dated 31.10.2012 to be 31.01.2020 and accordingly, the concerned respondent authorities shall grant the petitioner, the consequential benefits to which the petitioner shall be entitled to in view of the Court's observation that the petitioner's date of retirement would be 31.01.2020. The said exercise be completed by the concerned respondent authorities within a period of 45(forty five) days from the date of receipt of a certified copy of this order is served upon the respondent No.2.

¶8With the above observations and directions, the instant petition stands disposed of. JUDGE Comparing Assistant

PageoNo.#o1/7 GAHC010049822021 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oWP(C)/1914/2021o GAUTAMoKR.oDASo S/OoLATEoCHIDANANDAoDAS,oR/OoHOUSEoNO.o45,oRIHABARIoBILPAR,o GUWAHATIo781008,oDIST.oKAMRUPo(M) VERSUSo THEoSTATEoOFoASSAMoANDo5oORS.o REPRESENTEDoBYoTHEoPRINCIPALoSECY.oTOoTHEoGOVT.oOFoASSAM,o INDUSTRIESoANDoCOMMERCEoDEPTT.,oDISPUR,oGUWAHATIo06 2:THEoCOMMISSIONERoANDoSECY.oTOoTHEoGOVT.oOFoASSAM oINDUSTRIESoANDoCOMMERCEoDEPTT. oDISPUR oGUWAHATIo06 3:THEoSECY.oTOoTHEoGOVT.oOFoASSAM oINDUSTRIESoANDoCOMMERCEoDEPTT. oDISPUR oGUWAHATIo06 4:THEoCOMMISSIONERoOFoINDUSTRIESoANDoCOMMERCEoDEPTT. oASSAM oUDYOGoBHAWAN oBAMUNIMAIDAM oGUWAHATIo21 5:THEoADDL.oDIRECTORo(FP) oOFFICEoOFoTHEoCOMMISSIONERoOFoINDUSTRIESoANDoCOMMERCE oASSAM Page No.# 2/7 UDYOG BHAWAN BAMUNIMAIDAM GUWAHATI 21 6:THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM FINANCE (ESTT-A) DEPTT. DISPUR GWUAHATI 0 Advocate for the Petitioner : MS. A DEVI Advocate for the Respondent : SC, INDUSTRIES BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH