Chattisgarh High Court

Shobit Ram vs South Eastern Coalfields Ltd. And ... on 12 July, 2021

                           1

                                                       NAFR

      HIGH COURT OF CHHATTISGARH, BILASPUR

                WPS No. 1135 of 2009

   Shobit Ram Aged About 53 Years S/o Shri Prem
    Sai, Occupation Service, presently Posted As
    Driller,    category    GradeC,      S.E.C.L.,     New
    Kumda Colliery No. 7, 8, Bishrampur Area,
    R/o Village Ratanpur, Tehsil Surajpur, P.S.
    Jainagar   Post    Kandharhai,   District       Sarguja
    (Chhattisgarh).

                                        Petitioner

                        Versus

  1. South   Eastern   Coalfields    Ltd.   Through    the
    Chairman cum Managing Director, Seepat Road,
    Bilaspur, C.G.

  2. The   Personnel   Manager   (I.R.)     SECL,   Seepat
    Road, Bilaspur, C.G.

  3. The SubArea Managaer, S.E.C.L., New Kumda,
    Bishrampur Area.

                                        Respondents

For Petitioner : Mr. Kawaljeet Singh Saini, Adv. For Respondents : Mr. Atul Kesharwani, Adv.

Hon'ble Shri Justice Sanjay K. Agrawal

Order on Board

12/07/2021

1. Proceedings of this matter have been taken

up through video conferencing.

2. The petitioner herein calls in question the

notice dated 07.02.2009 (AnnexureP/5)

issued by the respondentauthority proposing

petitioner's retirement w.e.f. 31.07.2009.

3. Mr. Kawaljeet Singh Saini, learned counsel

for the petitioner, would submit that the

petitioner's correct date of birth is

31.03.1953 which has been recorded in

Annexure P/4 i.e. ClassV certificate issued

by the Principal Government Primary School,

Ratanpur, BlockSurajpur, Surguja, C.G.

which has not been considered by the

respondents and he has been proposed to be

retired w.e.f. 31.07.2009 taking his date of

birth as 30.07.1949 which is unsustainable

and bad in law.

4. Mr. Atul Kesharwani, learned counsel for the

respondents, would submit that petitioner

has raised the dispute about his date of

birth after completing 34 years of the

service and i.e. fag end of his service and

secondly that Annexure P/4 is not a document

earmarked under the Implementation Agreement

and also documents filed alongwith Annexure

R1/1 R1/2 would show that the petitioner's

date of birth is 30.07.1949 and, as such,

writ petition deserves to be dismissed.

5. I have heard learned counsel for the

parties, considered their rival submission

made hereinabove and went through the

records with utmost circumspection.

6. In order to consider the plea raised at the

Bar, it would be appropriate to notice the

relevant provision contained in

Implementation Instruction No.76 which is a

part of National Coal Wage Agreement III and

which provides procedure for

determination/verification of the age of the

employees, and for resolution of disputed

cases of Service Records, framed by the

Joint Bipartite Committee for the Coal

Industries of Coal India Limited. In

Implementation Instruction No.76, the

procedure is divided in two parts, Para (A)

provides for Determination of the age at the

time of appointment whereas Para (B)

provides for Review/determination of date of

birth in respect of existing employees. In

order to consider the plea raised at the

Bar, it would further be appropriate to

reproduce Para (A) (ii) which provides for

determination of the age at the time of

appointment. It reads as follows:

"ii) Nonmatriculates but educated.

In the case of appointees who have pursued studies in a recognised educational institution, the date of birth recorded in the School Leaving Certificate, shall be treated as correct date of birth and the same will not be altered under any circumstances."

7. Para (B) of Implementation Instruction No.76

provides for Review/determination of date of

birth in respect of existing employees which

we are concerned here. Para (B) (i) (a) of

the said Instruction reads as follows:

"i) (a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards

issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities / Boards / Institutions prior to the date of employment."

8. A careful and critical reading of Para (B)

(i)(a) of Implementation Instruction No.76

would show that in case of existing

employees, following documents issued prior

to the date of employment shall be treated

as correct:

1. Matriculation certificate.

2. Higher Secondary Certificate issued by

the recognized University or Board.

3. Middle Pass Certificate issued by the

Board of Education and/or Department of

Public Instruction.

4. Admit cards issued by the aforesaid

Bodies.

Thus, four kinds of documents are deemed to be

correct if they are available and they must

have been issued by the said University,

Board or Institution prior to the date of

employment.

9. Reverting to the fact of the present case in

light of the aforesaid provisions of the

Implementation Instruction it would appear

that the document Annexure P/4 i.e. ClassV

certificate issued by the Principal

Government Primary School, Ratanpur, Block

Surajpur, Surguja, C.G. is not the document

within the meaning of Implementation

Instruction No.76, therefore, the said

document cannot be relied upon to hold the

date of birth of the petitioner is

31.03.1953. The petitioner has completed 34

years of his service and due to retirement

w.e.f. 31.07.2009, now in 2008 he has raised

the dispute belatedly i.e. fag end of his

service.

10. The Supreme Court in the matter of Bharat

Coking Coal Limited and others v. Shyam

Kishore Singh1 placing reliance upon its

earlier judgment in the matter of State of

Madhya Pradesh and others v. Premlal Shrivas 2

in which it has been held that even if there

is good evidence to establish that the

recorded date of birth is clearly erroneous, 1 (2020) 3 SCC 411 2 (2011) 9 SCC 664

correction cannot be claimed as a matter of

right, held in paragraph 10 as under:

"10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. v. Premlal Shrivas4 it is held as hereunder: (SCC pp. 667 & 669, paras 8 & 12)

"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a

government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam

Singh ).

* * *

12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay.

3 (1993) 2 SCC 162 : 1993 SCC (L&S) 375

There is also no substance in the plea of the respondent that since Rule 84 of the M.P.

Financial Code does not prescribe the timelimit within which an application is to be filed, the appellants were duty bound to correct the clerical error in recording of his date of birth in the service book."

11. Similarly, the Supreme Court in Shyam

Kishore Singh's case (supra) as well as in

the matter of Eastern Coalfields Limited and

others v. Ram Samugh Yadav and others 4 held

that prayer for correction in the date of

birth at the fag end of career is totally

impermissible.

12. Coming to the facts of the present case the

document Annexure P/4 is not a document

earmarked under the Implementation

Instruction No.76 and on that basis

correction in date of birth cannot be