WP(C) 1695/2011 BEFORE THE HON BLE MR. JUSTICE T VAIPHEI 1. The validity of the order dated 8-3-2011 issued by the Director of Secondary Education, Assam (respondent No. 2) determining the date of birth o f the petitioner to be 2-9-1948 in terms of the admission register in Class IV a nd not 2-1-1953 as recorded in his service book which is based on the date of bi rth entered in his High School Leaving Certificate Examination and of the conseq uential order dated 11-3-2011 issued by the Inspector of Schools, Dhubri Distric t Circle (respondent 3) retiring him from service is under challenge in this wri t petition. 2. The facts giving rise to this writ petition, as pleaded by the p etitioner, are that he passed the HSLC Examination in 1969 with his age recorded as 16 years, 1 month and 29 days as on 1-3-1969. As per this record, his date o f birth is 2-1-1953. After obtaining B.A. degree, he was appointed as founder He admaster of Salkata Janapriya High School in the year 1979. The school was provi ncialised in the year 1991. In his service book also, his date of birth was reco rded as 2-1-1953. On the basis of this entry, he is due to retire only on 31-1-2 013 on superannuation. However, a complaint was lodged by the respondent No. 4, due to personal grudge against him, before respondent No. 3 claiming that wherea s his age was recorded in the M.V. School as 9 years, 4 months and 14 days as on 16-1-1958, his age was recorded as 12 years and 18 days as on 20-1-1965. Respon dent No. 3, after examining the Certificate of the HSLC Examination and his serv ice book did not find any discrepancy in his age and refused to entertain the co mplaint. Aggrieved by these findings of respondent No. 3, respondent No. 4 moved this Court in WP( C) No. 2864/10 for directing the respondent authorities to ho ld an enquiry with respect to the age of the petitioner. On receipt of notice fr om this Court, respondent No. 3 was alleged to have hurriedly prepared an enquir y report on 14-9-2010 and submitted his report to respondent No. 2. On the basis of this enquiry report, this Court by the order dated 31-1-2011 disposed of the writ petition with a direction to consider the report and pass an appropriate o rder in accordance with law. 3. It is the further case of the petitioner that the respondent No. 2 thereafter, without issuing notice to him and without hearing him, passed an ex-parte order on 8-3-2011 on the basis of the said enquiry report by holding th at as his age was actually 9 years, 4 months and 14 days as on 16.01.1958, his d ate of birth is 2-9-1948 as recorded in the M.V. School and that his date of ret irement was, therefore, 31-9-2008. Consequently, respondent No. 2 refused to acc ept the date of birth of the petitioner entered in the service book and directed respondent No. 3 to take action accordingly. This is how the second impugned or der of retirement of the petitioner came to be issued by respondent No. 3 releas ing him from service with effect from 30-9-2008 and appointing the respondent No . 4 to hold the charge of the post of Headmaster. The petitioner immediately fil ed a representation to the respondent No. 2 to recall both the impugned orders a s they are illegal, but no action was taken. This prompted him to file this writ petition to seek the interference of this Court as the impugned orders are cont rary to the law laid down by the Apex Court in a catena of decisions. 4. The writ petition is opposed by the State-respondents and the re spondent No. 4, who have filed their respective affidavits-in-opposition. The st ance taken by the State-respondents as projected in their affidavit-in-oppositio n is that the petitioner concealed his age and date of birth by submitting false date of birth as evident from the report of the respondent No. 3. According to the State-respondents, respondent No. 3, in the course of the enquiry, duly hear d the petitioner, who refused to offer his views either in writing or verbally. Under the circumstances, respondent No. 3 did not think it necessary to hear the petitioner again. Respondent No. 4, however, gave detailed reply to the writ pe tition in his affidavit-in-opposition. According to the answering respondent, wh ile the petitioner was serving as their Headmaster in the School, he and the tea ching staff came to learn that some of his colleagues/classmates of the petition er had already retired from service on superannuation in 2008. This aroused thei r suspicion about the age of the petitioner whereupon one Nur Hafijul Islam Ahme d of Borkolia Sharsaw of Dhubri District, Assam filed an application under the R ight to Information Act, 2005 to the Headmaster of Fakirganj M.V. School for inf ormation on the date of birth of the petitioner. As per the information so furni shed, it was revealed that the petitioner was admitted to that school on 16-1-19 58 in Class IV from Kalaihowa L.P. School with his age in the admission register shown to be 9 years, 4 months and 14 days as on 16-1-1958 and got transferred f rom that school on 16-2-1961. His date of birth as per the said admission regist er is 2-9-1948. The petitioner thereafter got admission at Hamidabad High School (now Higher Secondary School) in Class VI on 21-2-1961 after his transfer from Fakirganj M.V. School where his age was recorded as 12 years, 4 months. He studi ed there for about 6 months at Hamidabad High School whereafter he was transferr ed to Bouskata P.B. M.E. School at Class IV. He again returned to Hamidabad High School and was admitted to Class VII on 20-1-1965 showing his age as 12 years a nd 18 days as on 20-1-1965 which is 4 years and 4 months less than his actual ag e. 5. It is also the case of the respondent No. 4 that when the petiti oner was admitted at Hamidabad High School, he got his name registered as Jel Ho que Miah, which was subsequently corrected by him as Hatem Ali Sheikh. He appear ed in the HSCL Examination in the year 1969 in which his age was wrongly recorde d in his admit card as 16 years, 1 month and 29 days as on 1-3-1969 which shows that his date of birth is 2-1-1953 i.e., 5 years less than his actual date of bi rth i.e., 2-9-1948. Due to these discrepancies, the answering respondent filed a n application on 22-3-2010 to the respondent No. 3 for enquiry into the matter. When no enquiry was made, he filed WP( C) No. 2864 of 2010 before his Court to c ause enquiry into the age of the petitioner. The respondent No. 2 thereafter dir ected the respondent No. 3 to hold the enquiry. The respondent No. 2 thereafter directed the respondent No.3 to hold the enquiry. The respondent No. 3 accordin gly conducted the enquiry on 16-8-2010, heard all interested parties and then su bmitted his enquiry report to respondent No. 2 for necessary action. This Court after hearing the parties by the order dated 31-1-2011 disposed of the writ peti tion by directing respondent No. 2 to consider the report and pass appropriate o rders in accordance with law. The respondent No. 2 thereafter passed the impugne d order dated 11.3.2011 holding that the date of birth of the petitioner is 2-9- 1948 and that he had completed 60 years of age on 2-9-2008 and was due for retir ement from service as early as 30-9-2008. He accordingly directed the respondent No. 3 to take necessary action in the matter. The respondent No. 3 then passed the impugned consequential order as noted earlier. It was in terms of the conseq uential order that the answering respondent has been holding the charge of Headm aster of the school with financial powers with effect from 14-3-2011 till date. These are the sum and substance of the case of the respondent No. 4. Contending that the impugned orders do not suffer from any infirmity, he prays for dismissa l of the writ petition. 6. The first contention of Mr. P.K. Tiwari, the learned counsel for the petitioner, is that no notice was given to the petitioner before accepting the enquiry report of respondent No. 3 determing that his date of birth recorded in his service book was incorrect: the impugned order was passed by him at the behest of respondent No. 4 by ignoring the settled law that the age recorded in the certificate of HSLC Examination is accepted for all purposes. Since the impu gned order was passed by the respondent No. 2 in violation of the principles of natural justice, contends the learned counsel, the same is bad in law and is lia ble to be quashed. According to the learned counsel, the date of birth recorded in the service book at the time of his entry into service, which, in turn, was b ased on his matriculation certificate is deemed to be final and cannot be re-ope ned for fresh scrutiny, more so, on the complaint of a third party after 32 year s. He further argues that the respondent No. 3 never examined the person who had recorded the age of the petition in the admission register for Class IV maintai ned by Fakirganj M.V. School upon which heavy reliance is placed by the responde nts and the respondent authorities cannot alter the age of the petitioner on the basis of presumption and conjecture. In support of his contentions, the learned counsel relies on the decisions of the Apex Court in Madan Mohan Singh v. Rajni Kant, (2010) 9 SCC 209; State of M.P. v. Mohanlal Sharma, (2002) 7 SCC 719; Har i Singh v. State of Bihar and others, (2000) 10 SCC 284; Devki Nandan Verma v. S tate of Haryana, 1995 Supp(3) 43; Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604 and Sarjoo Prasad v. General Manager and others, (1981) 3 SCC 544. 7. Per contra, Mr. J. Abedin, the learned Standing Counsel for the Education Department, supports the impugned orders, which according to him are b ased on the enquiry report made by respondent No. 3 after hearing all the intere sted persons including the petitioner in which it was found that the petitioner had different dates of birth, but no effort was made by him to reconcile these d iscrepancies and submits that when the basis of the age entered in the service b ook of the petitioner was found to be doubtful in view of these discrepancies, n o interference is called for in the impugned orders. Heavy reliance is placed by him upon the decision of the apex court in State of Punjab v. Mohinder Singh, ( 2005) 3 SCC 703 to fortify his submission. Mr. B.C. Das, the learned senior coun sel for the respondent No. 4, submits that though the date of birth entered in t he service book of an employee in conformity with his matriculation certificate is not normally subject to alteration, such an alteration can always be made wit h the sanction of the appointing authority if it is clearly established that a g enuine bona fide mistake has occurred or that such entry was subsequently found to be base on false certificates. According to the learned senior counsel, the r espondent No. 3, in course of enquiry, has detected the correct date of birth of the petitioner to be 2-9-1948 on the basis of the admission register in respect of Class IV maintained by the Fakirganj M.V. School and rightly disbelieved his date of birth to be 2-1-1953 entered in his matriculation certificate. Moreover , contends the learned senior counsel, the case pleaded by the petitioner, in th e light of claims and counter-claims of the parties, involves a disputed questio n of fact, which cannot be decided by this Court in a summary proceeding like Ar ticle 226 of the Constitution; he should be relegated to a competent civil of ju risdiction to adjudicate the controversy. The learned senior heavily relies on t he following decisions of the Apex Cour: (i) State of M.P. v. R.P. Sharma, (1996 ) 10 SCC 516; (ii) State of Orissa v. Dr. Binapani Devi, AIR 1967 SC 1269 and (i ii) Mohan Chara Das v. The Director, State Transport, ALR 1969 Assam & Nagaland 259, to buttress his contentions. 8. I have duly considered the submissions advanced by the learned c ounsel appearing for the rival parties. There is no dispute that the date of bir th of the petitioner recorded in his service book is based on his date of birth as recorded in his matriculation certificate. There is also no dispute that the certificate in question is a genuine certificate issued by the Board of Secondar y Education, Assam before his entry into the service. It is also the common grou nd between the parties that date of birth of the petitioner i.e. 2-1-1953 as per his matriculation certificate was the basis for recording his date of birth in his service book. Both the matriculation certificate and the service book of the petitioner were prepared and maintained by public officials in the discharge of their respective official duties. The law is settled that the date of birth rec orded at the time of his entry in government service shall be deemed to be corre ct and conclusive. The instant case is where the petitioner had declared his dat e of birth as 2-1-1953 in the High School Leaving Certificate Examination form a nd the same was entered in the High School Certificate as well as in his service book. It may at this stage be noted that this case is not a case where the peti tioner is seeking alteration of his date of birth at the fag end of his career. On the contrary, the controversy about his date of birth arose out of the compla int lodged by a private party: the case was not opened at the initiative of the State respondents. Normally, in public service, when entering into service, even the date of retirement is also fixed. That is why the date of birth is recorded in the relevant register or service book, relating to the employee concerned. T his is the practice prevalent in all services, because every service has fixed t he age of retirement, and it is necessary to maintain the date of birth in the s ervice records. For an employee seeking alteration of his date of birth maintain ed in his service book, a period is normally prescribed within which if any publ ic servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object o f such rules is to discourage application for correction of date of birth after decades, especially on the eve of retirement of such employee. But a new dimensi on has been added in this case since the representation for correction of date o f birth of the petitioner comes from a third party or from the employer. 9. In State of M.P. and others v. Mohanlal Sharma (supra), it has b een held by the Apex Court that date of birth recorded in matriculation certific ate carried a greater evidential value than that contained in a certificate give n the retired Headmaster of the school or in the horoscope. However, the date of birth entered in the service book, which, in turn, was based on a matriculation certificate cannot be said to be conclusive and is merely a rebuttable presumpt ion. It is always open to the party challenging the correctness of the entry to prove that the entry was wrong or was based on fraud or otherwise, but the burde n of proof thrust upon him is indeed heavy. He must come with an irrefutable evi dence to disprove the correctness of such entry. In other words, if the responde nt No. 4 wants to rely on the admission register of Class IV maintained by Fakir ganj M.V. School to prove that the date of birth of petitioner is 1-9-1948 and n ot 2-1-1953 as recorded in the service book of the petitioner, he has to prove i ts authenticity by examining the person having special means of knowledge of the authenticity of the date mentioned therein. 10. It is against the backdrop of the aforesaid legal principles tha t I have perused the enquiry report of the respondent No. 3, which is annexed at Annexure-2 to the affidavit-in-opposition of the respondent No. 4. From the enq uiry report, it is revealed that the Headmaster of Fakirganj M.V. School who had recorded the date of birth of the petitioner in the admission register for Clas s IV in the year 1958 was not examined by the respondent No. 3. In my opinion, t his is the person who had special means to know as to how and on what basis or o n whose information the date of birth of the petitioner had been recorded by him . There is no evidence to show that this Headmaster was no longer alive when the enquiry was conducted by respondent No. 3. The respondent No. 3 admittedly had examined Shri Abdur Razzaque Mollah, Assistant Teacher of Salkata J.P. High Scho ol, Shri Ishak Choudhury, Principal-in-charge (Academic), Shri Abdul Hoque Choud hury, Headmaster, Fakirganj M.V. School, Shri Samsul Hoque, Headmaster of Bauska ta P.B.M.E. School and respondent 4, but there is no evidence to show that any o f these teachers had personally seen the preparation of, or had prepared, the ad mission register of Fakirganj M.V. School for Class IV with respect to the petit ioner in 1958. The statements of persons who had no means of knowing on what bas is the date of birth of the petitioner had been recorded as 1-9-1948 at Fakirgan j M.V. School, have been recorded or cross-examined. At any rate, the parents of the petitioner, if any of them is still alive, should have been examined by the respondent No. 3 to enlighten him on what basis the date of birth of the petiti oner had been recorded as 1-9-1948 in the admission register for Class IV when h is date of birth was recorded as 2-1-1953 in his matriculation certificate. As a lready held by me, the burden of proof is upon the complainant to prove that the date of birth of the petitioner is 1-9-1948 and not 2-1-1953 as recorded in his service book, which, in turn, is based on his matriculation certificate. In my opinion, the findings recorded by the respondent No. 3 in his enquiry report are based on surmises and conjectures, and cannot be allowed to upset the date of b irth of the petitioner already maintained in his service book for the last over 30 years. 11. On the contention that the writ petition involves a disputed que stion of fact, which cannot be decided by a writ court, the same is answered by the Apex court in Dr. Binapani Dei case (supra) in para 6 of the judgment, which read thus: 6. It was the case of the first respondent in her petition before the High court that the State had arbitrarily fixed her date of birth April 16, 1907, and on that basis had declared her superannuated before she attained the age of 58 years. On behalf of the State it was denied that the true date of birth of the f irst respondent was April 10, 1910, and that the authorities of the State had ar bitrarily and maliciously chosen to refix her date of birth. Under Article 226 o f the Constitution, the High court is not precluded from entering upon a decisio n on questions of fact raised by the petitioner. Where an enquiry into complicat ed questions of fact arises in a petition under Article 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determine d, the High court may in appropriate cases decline to enter upon that inquiry an d may refer the party claiming relief to a suit. But the question is one of disc retion and not jurisdiction of the court. In the present case the question in di spute was about the regularity of the enquiry and the High court was apparently of the view that the question whether the State acted arbitrarily did not raise any question of investigation into complicated issues of fact. No interference w ith the exercise of the discretion of the High court is, therefore, called for. 12. The law is well-settled without reference to cases that Article 226 of the Constitution can be invoked for the purpose of enforcement of an esta blished right and not to establish a right. In the instant case, the petitioner is moving this Court under Article 226 of the Constitution to enforce his right to continue in service till the date of superannuation on the basis of his date of birth maintained in the record prepared and maintained by a public servant in the performance of his official duty, namely, his service book, that too, on th e basis of the matriculation certificate issued by another public authority/body . There is presumption of regularity of an official act. The petitioner has thus reasonably succeeded in making out strong prima facie that his date of birth is 2-1-1953 and has the right to continue in service till the date of his retireme nt on superannuation compute with effect from 2-1-1953. True, several disputes h ave been raised by the respondents to question the correctness of this date of b irth but they, as found by me, have miserably failed to rebut this prima facie c ase of the petitioner. The burden of proof thrust upon them by law is indeed hea vy and cannot be simply discharged by the evidence produced by them in the cours e of the said enquiry: something more is required to rebut the presumption in fa vour of the petitioner. Just because a plea of disputed questions of fact is rai sed by the other side, that does not mean that the petitioner should be told off at the gate, particularly, when the case can be decided on the basis of unimpea chable official record as is the case here. At this stage, I may refer to Devki Nandan Verma case (supra) where the appellant was working as Superintending Engi neer in the Public Works Department in the State of Haryana. His date of birth r ecorded in the service book was 17-7-1934. He was due to retire on attaining the age of superannuation on 31-7-1992. Before he retired from service, he applied to the State Government for rectification of his date of birth which according t o him was 14-6-1936. The State Government accepted the appellant’s representatio n by the order dated 18-6-1992 and corrected his date of birth in the official r ecord. The said order was challenged by Shri S.C. Jhari, Respondent No. 2 on the ground that the same adversely affected him in the sense that his chance of pro motion was considerably postponed. The High court allowed the writ petition and quashed the order dated 18-6-1992. The special leave petition was allowed by the Apex Court. This is what it said: & & &. When correction regarding date of birth is made in the service recor of a person the State Government is doing what is required under the law. A per son has