Chairman, BFIDC and another Vs. Md. Hatem Ali & others, 3 LNJ (AD) (2014) 117

Case No: CIVIL APPEAL NO. 223 OF 2007

Judge: Syed Mahmud Hossain,

Court: Appellate Division ,,

Advocate: Mr. Chowdhury Sanwar Ali,Mr. Chowdhury Md. Zahangir,,

Citation: 3 LNJ (AD) (2014) 117

Case Year: 2014

Appellant: Chairman, BFIDC and another

Respondent: Md. Hatem Ali & others

Subject: Writ Petition,

Delivery Date: 2011-06-07


APPELLATE DIVISION
(CIVIL)
 
Surendra Kumar Sinha, J
Md. Abdul Wahhab Miah, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J.
Mohammad Mamtaz Uddin Ahmed, J.
Md. Shamsul Huda, J.

Judgment on
07.06.2
011
  The Chairman Bangladesh Forest Industries Development Corporation (BFIDC) and another
....Appellants.
     -Versus-
Md. Hatem Ali and others
....Respondents.
 

Constitution of Bangladesh, 1972
Article 102
In the duplication Secondary School Certificate, the date of birth of the writ-petitioner has been written as “Thirty-first October Nineteen Hundred and Forty Nine.” Records reveal that the writ petitioner obtained the duplicate certificate after observing all formalities. Writ-respondent Nos.2 to 5 could not prove that the duplicate Secondary School Certificate was a forged one. Another important aspect is that the service book of an officer is kept with the authority and not with the employee. Therefore, the writ-petitioner cannot be held responsible for any interpolation in his service book. There is no ground to interfere with the decision of the High Court Division. . . .(17)

For the Appellants : Mr. Chowdhury Sanwar Ali, Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record. 
For Respondent No. 1 : Mr. Chowdhury Md. Zahangir, Advocate-on-Record.
Respondent Nos. 2-3 : Not represented.

Civil Appeal No. 223 of 2007
 
JUDGMENT
Syed Mahmud Hossain, J:

This appeal by leave by writ respondent Nos.2 and 3 is from the judgment and order dated 06.02.2006 passed by the High court Division in Writ Petition No. 5599 of 2004 making the Rule absolute.

The facts leading to the filing of this appeal, in short, are as follows:
           The writ petitioner joined the service of Bangladesh Forest Industries Development Corporation (in short, BFIDC) Khulna Complex on 01.05.1969 as Assistant Supervisor. In course of his service career the writ petitioner was promoted to the post of Assistant Manager (Administration) of BFIDC. While serving as such, the petitioner was supplied with a gradation list under memo dated 12.12.1984 about the officers of BFIDC in the post of Assistant Administrative Officer in which his name was shown at serial No. 24 and his date of birth as 31.10.1949. On receipt of the gradation list, the petitioner got confused about his correct date of birth. Meanwhile, he lost his original Secondary School Certificate. As such, he could not take any step to correct his date of birth although his date of birth was shown as 31st October, 1947 AD in one part of the service book. The petitioner also found that the figure “9” occurring in the figure ‘1949’ was disfigured and converted into figure ‘7’. In view of the anomaly in the service book the petitioner thought it necessary to obtain a duplicate Secondary School Examination Certificate. He took all necessary steps for the purpose. Eventually the petitioner succeeded in obtaining a duplicate certificate of the result of his Secondary School Certificate Examination. Having gone through the duplicate certificate, the petitioner found that his date of birth is 31.10.1949 and not 31.10.1947.

Such being the state of affairs, the petitioner submitted an application on 7.8.2003 to respondent No. 3 for correction of his date of birth in his service book according to the date available in duplicate Secondary School Certificate. But the application was rejected and the decision was communicated to him by a letter dated 17.11.2003.

Challenging the decision dated 17.11.2003 refusing to correct his date of birth as per the duplicate Secondary School Certificate the writ petitioner filed the Writ Petition and obtained the Rule Nisi.

Respondent Nos.2 to 5 filed a joint affidavit-in-opposition controverting the material statements made in the writ petition. Their case, in short is that in filling up the column No 5 of page 3 of his service book, part-1 the petitioner, without any little scratch/ overwriting, wrote his date of birth as on “Thirty first October Nineteen hundred and forty seven A.D” in words. In column 1 and 4 of the same page of the service book-1 he wrote his name as “Md. Hatem Ali, S/o Mvi. Nazimuddin Mia” respectively. Similarly, he filled in the column 1, 2 and 5 of page 3 part 2 of the service book as Md. Hatem Ali, S/o late Nazimuddin and his date of birth as on 31.10.1947 respectively. Subsequently, someone overwrote ‘9’ over the figure 7 and the overwriting is conspicuous with bare-eyes. Therefore, this Rule should be discharged.

After hearing both the parties, the High Court Division made the Rule absolute without any order as to costs and directed the respondents to take all necessary steps for correction of the date of birth and the name of the writ-petitioner including the name of his father in his service book according to the S.S.C. certificate produced by him before the concerned authority.

Being aggrieved by and dissatisfied with the impugned judgment and order dated 06.02.2006 passed by the High Court Division, writ-respondent Nos.2 and 3 filed Civil Petition for Leave to Appeal No.590 of 2006 in which leave was on 05.11.2007. As a result, Civil Appeal No.223 of 2007 has been initiated.

Mr. Chowdhury Sanawar Ali, learned Advocate has appeared with the leave of the Court for writ respondent Nos.2 and 3 submits that the dispute as regards the date of birth of the writ petitioner cannot be resolved without taking evidence and as such, the Writ Petition filed by the writ petitioner was misconceived. He further submits that the High Court Division failed to take into consideration that the writ petitioner himself recorded his name as Hatem Ali and his date of birth as 31.10.1947 in the service book and that the duplicate certificate produced before the authority by the petitioner reveals that his  name is Hatem Ali Fakir son of Nazimuddin Fakir and that his date of birth is 31.10.1949 and that without taking into consideration those admitted facts the High Court Division made the Rule absolute and as such the impugned judgment and order should be set aside.

Mr. Chowdhury Md. Jahangir, learned Advocate-on-Record for the writ petitioner, on the other hand, submits that the High Court Division on consideration of materials on record came to a definite finding that the date of birth of the petitioner is 31.10.1949 and as such no interference is called for.

We have considered the impugned judgment, the submissions of the learned Advocates and other papers on record. Admittedly, the petitioner joined Khulna Complex of BFIDC on 1.5.1969 as Assistant Supervisor. Later, he was promoted to the post of Assistant Manager (Administration). While in service, the petitioner was supplied with a gradation list dated 12.12.1984 in respect of the officers of BFIDC in the post of Assistant Administrative Officer in which his name was shown at serial No. 24 and his date of birth as 31.10.1947. Meanwhile, he lost his Secondary School Certificate and as such he could not take any step to correct his date of birth recorded as 31.10.1947 in the service book. The petitioner also detected that the figure “9” in figure 1949 was interpolated and converted into “7” in the service book. The petitioner obtained a duplicate Secondary School Certificate and became sure that his actual date of birth, in fact, is 31.10.1949 and not 31.10.1947. After that, the petitioner submitted an application for correction of his date of birth before respondent No. 3 on 17.8.2003 according to the duplicate Secondary School Certificate. The authority received that application for correction but ultimately rejected the same by a decision communicated to him, vide letter dated 17.11.2003 (Annexure-H).

Challenging the above decision of the authority, the petitioner obtained the Rule Nisi from the High Court Division which made the Rule absolute and declared Annexure-‘H’ to the Writ Petition to have been issued without lawful authority. The salient findings of the High Court Division are as follows:

          The prayer of the petitioner for correction was refused on the ground of delay of 30 years and no other reason was assigned in the impugned order rejecting the prayer of the petitioner. The authority made a correction in respect of the name of one Md. K.M. Sayed after about 30 years and the date of birth of respondent No.5 was corrected as per Secondary School Certificate after 32 years. The reason assigned in the impugned order refusing his prayer was capricious, arbitrary and without any application of mind. The petitioner obtained a duplicate Secondary School Certificate as the original was lost and in this process he had to spend enough time collecting the same. The word “Fakir” in his name as well as in his father’s name had rather complicated the case of the petitioner and in such a position, the word ‘Fakir’ should not have been used after both the names to avoid such complication in the certificate, had it been a fake one. The existence of the word ‘Fakir’ in the name of the petitioner and also in the name of his father in the certificate proved its genuineness.

Leave was granted to consider the submission of the learned Advocate whether the High Court Division failed to take into consideration that the writ petitioner himself showed his date of birth as 31.10.1947 and the duplicate certificate produced before the authority by the writ-petitioner was in the name of Md. Hatem Ali Fakir son of Nazimuddin Fakir and his date of birth was 31.10.1949 and as such the High Court Division without considering this aspect of the case made the Rule absolute illegally.

 The memo No. শিউক/সদ/পাঃ /প্রশিঃ /৮ (১) / ২০০৩/১৩৮৯ (৪৫)- dated 31.12.2003 Annexure-‘I’ to the Writ Petition reveals that the Secretary, BFIDC (respondent No. 3) asked all the officials   serving under BFIDC to supply their academic certificates with a view to rectifying errors, if any, in their service books in respect of their name as well as the date of birth. Pursuant to that memo many employees of BFIDC made applications for correction. It appears from the judgment that correction of name was made in respect of an employee, namely, Md. K. M. Sayed after about 30 years. The High Court Division also noticed that the date of birth of respondent No. 5 was corrected even after about 32 years. The writ-petitioner being the employee of BFIDC was discriminated against the other employees whose name and date of birth were corrected after a long lapse of time. Such invidious discrimination in respect of the writ petitioner is not permissible in view of articles 27 and 29 of the Constitution.

Sir Ivor Jennings in his “The Law and the Constitution”, Fifth Edition, at page-50 stated:

“Equality before law means that among   equals, the law should be equal and should be equally administered, that like should be treated alike”.

In this connection, reliance may be made on the case of Aluminium Corporation of India Ltd. Vs. Union of India and others AIR 1975 (SC) 2279 wherein it has been held as under:

“All who are equal are equal in the eye of law, meaning thereby that it will not accord favoured treatment to persons within the same class”.

In the service book, it has been stated in no uncertain terms that the petitioner passed the S.S.C. examination in 1965 from Areal Swarnamoyee High School, Tongibari, Munshigonj under the Board of Intermediate and Secondary Education, Dhaka and was placed in the 3rd Division. Therefore, the word ‘Fakir’ occurring in the name of the writ-petitioner and also in the name of his father in the duplicate Secondary School Certificate cannot belie the genuineness of the duplicate certificate as the other entries made therein are found to be correct. In the duplication Secondary School Certificate, the date of birth of the writ-petitioner has been written as “Thirty-first October Nineteen hundred and forty nine.” Records reveal that the writ petitioner obtained the duplicate certificate after observing all formalities. Writ-respondent Nos.2 to 5 could not prove that the duplicate Secondary School Certificate was a forged one. Another important aspect is that the service book of an officer is kept with the authority and not with the employee. Therefore, the writ-petitioner cannot be held responsible for any interpolation in his service book.

In the light of the findings made before, we do not find any ground to interfere with the decision of the High Court Division.

Accordingly, the appeal is dismissed. There is no order as to costs.

Ed.