Gauhati High Court
Ajit Saikia vs The Union Of India And 8 Ors on 10 September, 2021
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GAHC010002502019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/124/2019
AJIT SAIKIA
S/O LT. PUNESWAR SAIKIA, NC GAON,
BORAGODHAI, DIBRUGARH, ASSAM, PIN - 786602.
VERSUS
THE UNION OF INDIA AND 8 ORS.
REP. BY THE SECRETARY TO THE GOVT. OF INDIA OIL AND NATURAL GAS
ETC. DEPARTMENT,
NEW DELHI, PIN -110001.
2:OIL INDIA LTD.
(A GOVT. OF INDIA ENTERPRISE)
DULIAJAN
ASSAM
DIST. DIBRUGARH
REP. BY ITS CHAIRMAN-CUM- MANAGING DIRECTOR
PLOT NO. 19
SECTOR 16-A
NOIDA
UTTER PRADESH
PIN-201301.
3:CHAIRMAN -CUM- MANAGING DIRECTOR
OIL INDIA LTD.
PLOT NO. 19
Page No.# 2/12
SECTOR 16-A
NOIDA
UTTER PRADESH
PIN -201301.
4:CHIEF GENERAL MANAGER (ADMN)/PGO
OIL INDIA LTD. DULIAJAN
PLOT NO. 19
SECTOR 16-A
NOIDA
UTTER PRADESH. PIN -201301.
5:RESIDENT CHIEF EXECUTIVE
OIL INDIA LTD.
DULIAJAN
DIST. DIBRUGARH
ASSAM
PIN - 786602.
6:CHIEF INDUSTRIAL RELATIONS MANAGER
OIL INDIA LTD. DULIAJAN
DISTRICT- DIBRUGARH
ASSAM
PIN - 786602.
7:GENERAL MANAGER (EMPLOYEE RELATIONS)
OIL INDIA LTD.
DULIAJAN
DIST. DIBRUGARH
ASSAM
PIN - 786602.
8:HEAD OF THE CENTRAL ASSET DEPTT.
OIL INDIA LTD.
DULIAJAN
DIST. DIBRUGARH
ASSAM
PIN - 786602.
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9:GROUP MANAGER
OIL INDIA LTD.
DULIAJAN
DIST. DIBRUGARH
ASSAM
PIN - 78660
Advocate for the Petitioner : Shri A. Ganguli
Advocate for the Respondent : Ms. S. Baruah, CGC, (respondent No. 1)
Shri S. N. Sarma, Sr. Advocate (respondent nos. 2 to 9)
BEFORE
HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI
JUDGMENT & ORDER (ORAL)
Date : 10-09-2021
Heard Shri A. Ganguli, learned counsel for the petitioner. Also heard Ms. S.
Baruah, learned CGC for the respondent no.1. Shri S. N. Sarma, learned senior
counsel assisted by Shri K. Kalita, learned counsel has appeared for the contesting
respondent nos. 2 to 9.
2) Considering the subject matter in dispute and also the fact that exchange of
pleadings are already complete, this writ petition is taken up for disposal at the
admission stage.
3) The petitioner is aggrieved by the action on the respondent authorities in not
considering his prayer for correcting his date of birth in his Service Book. While the
petitioner claims his date of birth to be 31.05.1967, the one recorded in his Service
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Book is 07.05.1960 as a result of which according to the petitioner he would be
deprived from his entitlement to be in service for a period of approximately seven
years.
4) Before going to the issue which calls for determination, it would be
convenient to place the basic facts on record. The petitioner claims to have read upon
to Class IX and is equipped with a school certificate issued by the Head Master of the
Bhadoi H. E. School, in which the age was stated to be 15 years 7 months. The
petitioner has accordingly deduced his date of birth to be 31.05.1967. The petitioner
claims to have registered himself in the Employment Exchange, Duliajan, with
registration no. 3284/87, in which the date of birth was recorded as 31.05.1967.
5) The petitioner was initially appointed in the job of Grade-I as Trade-I in the
Oil India Ltd. and he claims that at the time of entering into services the school
certificate and Employment Exchange Certificate were submitted. After working for a
year from 1997 to 1998, the petitioner was confirmed in the job w.e.f. 24.06.1998.
6) The projected case of the petitioner is that on coming to know of the
incorrect recording of his date of birth in his Service Book as 07.05.1960, he had
made a representation on 11.04.2018 followed by another on 27.04.2019, which were
turned down by the respondent authorities.
7) According to the petitioner, his date of superannuation should have been
31.05.2027 instead of 07.05.2020. It is the case of the petitioner that no proper
opportunity was granted to him to convince the respondents regarding his correct
date of birth and his prayer was rejected in a mechanical manner for which he had
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suffered grave prejudice in the form of loss of service for about 7 years.
8) Shri Ganguly, learned counsel for the petitioner submits that all
contemporaniou records including the school leaving certificate dated 04.06.1994, the
Employment Exchange Certificate, the Driving License, PAN Card, Adahar Card and
even the Passport of the petitioner contains the death of birth of the petitioner as
31.05.1967, which according to him is the correct date of birth. The learned counsel
accordingly, argues that in view of the overwhelming materials to substantiate his
date of birth as 31.05.1967, it would be absolutely unjustified to record his date of
birth as 07.05.1960 which has to be clarified to be 07.08.1960.
9) It is further submitted that the petitioner at the time of induction in the
service, had submitted the school certificate. However, ignoring the same, his date of
birth was recorded based on a medical examination, which is not contemplated under
the law in view of the availability of a certificate. In support of his submission Shri
Ganguly, learned counsel for the petitioner placed reliance on a judgement dated
31.07.2012 rendered by the Hon'ble Division Bench of this Court in WP (C)
3403/2012 in the case of Mantu Ram Talukdar Vs. The Union of India & Ors.
10) Per contra, Shri Sarma, learned senior counsel for the contesting respondent
nos. 2 to 9 submits that the issue involved is no longer res integra in view of the
categorical law settled by the Hon'ble Supreme Court time again. Turning it to be a
usual practice on the part of an employee to raise an issue of incorrect date of birth
at the verge of retirement, the learned senior counsel submits that such practices are
required to be deprecated as the same is often done as an afterthought at the verge
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of retirement.
11) By drawing the attention of this Court to the relevant pleadings in the writ
petition, more particularly those made in paragraph 5, the learned senior counsel
submits that the averments regarding non-consideration of the petitioner's school
leaving certificate has been verified as being true to records and there is no record to
substantiate the said statement.
12) The learned senior counsel has also referred to the first representation of the
petitioner, which was submitted on 11.04.2018, which talks about an affidavit
executed on 07.04.2018 to substantiate the school certificate, from where the date of
birth can be deduced as 31.05.1967 and it is for the first time that such a request
was made to the authorities.
13) By drawing the attention to the Modified Standing Orders of the respondent
Company more particularly, the provisions relating the recording of age as laid down
in Clause 5.0, the age of a incumbent, was required to be indicated at the time of
engagement either from the matriculation or school leaving certificate granted by the
Board of Secondary Education and or similar Educational Authority or a certificate
from the school where the incumbent had studied. In the instant case, the records
substantiate that no such certificate was ever submitted to the authorities.
14) The Model Standing Order also contemplates a situation where such certificate
cannot be submitted in the form of Clause 5.2 which lays down that in such a case
the incumbent shall be examined by the companies Head (Medical Services) whose
opinion as the age shall be final and binding on the workman. The learned senior
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counsel has also drawn the attention of this Court to the employee's bio-data, which
has been annexed as Annexure R-4 to the affidavit-in-opposition filed on 15.05.2019.
15) The said document which has been signed on each page by the petitioner
clearly states that the date of birth of the petitioner is 07.08.1960 along with other
details of the petitioner of his residential address, family members and other
antecedents. The said bio-data is also accompanied by a solemn declaration that the
information given are true to the best of the knowledge of the petitioner.
16) To substantiate the argument that the school certificate was not given at the
time of entering into service, the senior counsel has referred to the part of bio-data,
which relates to "certificates produced and seen". Under the said heading, the
following certificates appear to have been submitted by the petitioner :
i. Employment Exchange Registration 3284/87
ii. OBC certificate
iii. Son's birth certificate
iv. Verification report
v. Local man certificate
vi. PRC
17) By specifically dealing with the Employment Exchange Certificate though the
same is not a prescribed document for ascertaining the age, the learned senior
counsel points out that the same would reveal that the original registration was done
on 28.12.1980 at Tinsukia and the certificate annexed though registered on
16.11.1987 indicates the original registration no. 28.12.1980.
18) The learned senior counsel submits that if the said certificate is required to be
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believed, it appears that the petitioner got himself registered with the Employment
Exchange at Tinsukia at the age of 13 years which is an absurd preposition.
19) Shri Sarma, learned counsel accordingly submits that apart from the fact that
the conduct of the petitioner in approaching the authorities at a belated stage at the
verge of retirement, even on merits, the petitioner does not deserve any
consideration before this Court, as no convincing materials could be placed on record
to accept the projected case of the petitioner.
20) Shri Sarma, learned senior counsel submits that law in this field is well settled
and has been summarised by the Hon'ble Supreme Court in its recent decision
reported in the case of Bharat Coking Coal Ltd. Vs. Shyam Kishor Singh
reported in (2020) 3 SCC 411 wherein the following observation has been made:
"9. This Court has consistently held that the request for change of the date
of birth in the service records at the fag end of service is not sustainable.
The learned Additional Solicitor General has in that regard relied on the
decision in State of Maharashtra vs. Gorakhnath Sitaram Kamble
wherein a series of the earlier decisions of this Court were taken note and
was held as hereunder: (SCC pp. 428-29, paras 16-17 & 19)
"16. The learned counsel for the appellant has placed reliance on the
judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj
Kumar Agnihotri. In this case, this Court has considered a number of
judgments of this Court and observed that the grievance as to the date
of birth in the service record should not be permitted at the fag end of
the service career.
17. In another judgment in State of Uttaranchal v. Pitamber
Dutt Semwal relief was denied to the government employee on the
ground that he sought correction in the service record after nearly 30
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years of service. While setting aside the judgment7 of the High Court,
this Court observed that the High Court ought not to have interfered
with the decision after almost three decades.
* * *
19. These decisions lead to a different dimension of the case that
correction at the fag end would be at the cost of a large number of
employees, therefore, any correction at the fag end must be discouraged
by the Court. The relevant portion of the judgment in Home Deptt. v. R.
Kirubakaran reads as under: (SCC pp. 158-59, para 7)
"7. An application for correction of the date of birth [by a public servant
cannot be entertained at the fag end of his service]. It need not be
pointed out that any such direction for correction of the date of birth of
the public servant concerned has a chain reaction, inasmuch as others
waiting for years, below him for their respective promotions are affected
in this process. Some are likely to suffer irreparable injury, inasmuch as,
because of the correction of the date of birth, the officer concerned,
continues in office, in some cases for years, within which time many
officers who are below him in seniority waiting for their promotion, may
lose their promotions forever. ... According to us, this is an important
aspect, which cannot be lost sight of by the court or the tribunal while
examining the grievance of a public servant in respect of correction of his
date of birth. As such, unless a clear case, on the basis of materials
which can be held to be conclusive in nature, is made out by the
respondent, the court or the tribunal should not issue a direction, on the
basis of materials which make such claim only plausible. Before any such
direction is issued, the court or the tribunal must be fully satisfied that
there has been real injustice to the person concerned and his claim for
correction of date of birth has been made in accordance with the
procedure prescribed, and within the time fixed by any rule or order. ...
the onus is on the applicant, to prove the wrong recording of his date of
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birth, in his service book.'"
21) Ms. S. Baruah, learned CGC endorses the submission of the learned senior
counsel for the respondent nos. 2 to 9 submits that the petitioner is not able to make
out a case for interference by this Court.
22) The rival submissions learned counsel for the parties have been duly
considered and the materials before this Court have been carefully examined.
23) This Court in exercise of writ jurisdiction under Article 226 of the Constitution
of India is primarily required to examine the decision making process and rather than
the decision itself. Though the power of this Court under Article 226 is unlimited, the
restrictions are self imposed and would confine within the decision making process.
Only on certain conditions when such decision has been arrived at by taking into
consideration, irrelevant factors or by ignoring the relevant factors or when the
principles of natural justice has been grossly violated or in a case where the decision
arrived at does not appeal to a reasonable mind, a scope for interference can be
there.
24) Apart from the above conditions, which are not exhaustive in nature, this
Court will be loath to interfere in such decision.
25) In the instant case, the projected case of the petitioner is that his date of birth
was wrongly recorded while entering into service. However, there is nothing on
record to substantiate that the school leaving certificate was placed before the
authorities. On the other hand, the contrary appears to be correct as the option of
medical examination had to be opted in view of absence of the documents prescribed
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under the Model Standing Orders. Though, a statement has been made in paragraph
5 of the writ petition, the same as pointed out by the learned senior counsel for the
respondents, has been verified as true to records. In absence of any records to
substantiate the claim, such statements cannot be accepted. At this stage, it is to
remind ourselves that in absence of any scope to adduce evidence who are open for
cross-examination, a writ court has to base its findings based on the pleadings and
materials, which are to be verified by an affidavit. The importance of such verification
is sacrosanct as the entire claim by contesting parties are to be deduced from the
pleadings itself.
26) Regarding the recording of the date of birth, this Court has found that contrary
materials are available on record in the form of the entries into the biodata which
records the date of birth as 07.08.1960 and has been duly solemnly affirmed by the
petitioner. The facts of Mantu Ram Talukdar (Supra) are distinguishable in view of
the categorical finding that at the time of entering into service, the incumbent had
submitted a certificate, wherein the date of birth was reflected. However in the
instant case, the Model Standing Orders which specifies the nature of certificates to
be submitted at the time induction into the service no such certificate could be
submitted as would be evident from the fact that the authorities had to resort a
medical examination to ascertain the age. Such recording has not been put to
challenge at any earlier point of time and has been done only for the first time in the
year 2018, which itself raises a serious doubt on the bona-fide of the petitioner. It is
also a fact that the petitioner has, in the meantime retired from service by calculating
his date of birth as year of birth 1960.
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27) Under the above facts and circumstances, there is hardly any scope for this
Court to interfere with the impugned decision and accordingly the writ petition is
dismissed.
28) No order as to cost.
JUDGE
Comparing Assistant
