Jharkhand High Court

Jhagru Das vs M/S Bharat Coking Coal Ltd. ... on 6 December, 2022

      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              W.P(S) No. 1847 of 2021
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      Jhagru Das                                                .... .... Petitioner(s).
                                    Versus

1. M/s Bharat Coking Coal Ltd. Through the Chairman-cum, Managing Director, Koyla Bhawan, Koyla Nagar, Dhanbad

2. The Director (Personnel), M/s Bharat Coking Coal Ltd. Koyla Bhawan, Koyla Nagar, Dhanbad

3. The General Manager (P& IR), M/s Bharat Coking Coal Ltd. Koyla Bhawan, Koyla Nagar, Dhanbad

4. The General Manager, Kusunda Area No.-VI, M/s Bharat Coking Coal Ltd. , Godhar, Kusunda

5. The Project Officer, Godhar Colliery, under Kusunda Area No.-VI, M/s Bharat Coking Coal Ltd. Kusunda, Dhanbad .... .... Respondent(s)

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CORAM : HON'BLE MR. JUSTICE ANANDA SEN.

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      For the Petitioner(s)   : Mr. Lukesh Kumar, Advocate
      For the BCCL            : Mr. Amit Kr. Sinha, Advocate


05/Reserved on 11.11.2022                         Pronounce on: 6 /12/2022

By filing this writ application, the petitioner has prayed to quash the order dated 23/27.02.2021 (Annexure-12) by which his application for correction of his date of birth in the service records including Form-B was rejected. Further prayer has been made to allow the petitioner to continue in service till April, 2025 on the basis of date of birth recorded in the matriculation certificate. Further prayer has been made to correct his date of birth as 6.4.1965 in place of 25 years as on 5.11.1986 as recorded in his service records.

2. The petitioner has passed his matriculation from Bihar School Education Board in the year 1991. The matriculation certificate was issued in August, 1981 recording his date of birth as 6th April, 1965. The petitioner was appointed as Miner Loader by the respondents on 3.11.1986 and he was regularized on 12.8.1987. The Form-B register, which is a statutory register, was opened wherein his age was recorded as 25 years as on that date. It is the case of the petitioner that he objected such recording by filing an application on 19.8.87. The petitioner was thereafter promoted as General Mazdoor Category-I considering his educational qualification which was duly verified.

Subsequent promotion was granted to different post considering his matriculation certificate but surprisingly his date of birth was not corrected. It is the case of the petitioner that the petitioner has objected the recording of his date of birth but the same was not considered in terms of the regulation of the company. As per the petitioner since he was promoted to different post considering his educational qualification, his date of birth which was recorded therein should have been accepted to be the correct date of birth and the impugned order dated 23/27.2.2021 could not have been passed.

3. Counsel appearing on behalf of the respondents submits that there was no minimum educational qualification requirement when the petitioner entered in service as Miner Loader, thus the petitioner never produced his matriculation certificate at the time of his entry into service. He was thus subjected to medical test for assessment of age which the petitioner accepted and his age was assessed as 25 years as on 4.11.1986. The statutory Form-B register suggests that the petitioner accepted the aforesaid recording as he has put his signature by way of acknowledgement on the same. As per the counsel for the respondent if the petitioner had any objection with respect to the entry of date of birth he should have objected then only, but he failed to do. Challenging his date of birth and praying for correction when he has already superannuated in the month of November, 2021 does not help the petitioner. It is well settled principle of law that the dispute with respect to the date of birth cannot be raised at the fag end of his service career.

4. I have heard the parties.

5. The Hon'ble Apex Court in State of Madhya Pradesh & Others v. Premlal Shrivas, [(2011) 9 SCC 664], has been pleased to hold 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. Paragraph-8 of the said judgment is being reproduced as under:

"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 [(1993) 2 SCC 162)] ."

6. In State of Tamil Nadu vs. T.V. Venugopalan, (1994) 6 SCC 302 as also in State of Maharashtra vs. Gorakhnath Sitaram Kamble [(2010) 14 SCC 423], the Hon'ble Supreme Court has laid down that at the fag end of service career the dispute pertaining to date of birth is not allowed to be agitated. Relevant paragraph of the judgment rendered in State of Tamil Nadu vs. T.V. Venugopalan (supra) is being reproduced as under:

"7. ............The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing

him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs 3000."

7. Further, the Hon‟ble Apex Court in Factory Manager, Kirloskar Brothers Limited vs. Laxman [(2020) 3 SCC 419], has declared the prayer for correction in the date of birth at the fag end of service as impermissible.

8. The aforesaid three judgments have already been taken note by the Division Bench of this Court in LPA No. 393 of 2021 dated 25th August, 2022.

9. In the instant case from the record, I find that it is an admitted case that petitioner has entered in service in the year 1986. At the time of his entering in service, he was subjected to medical test wherein his age was assessed as 25 years as on 4.11.1986. The petitioner accepted the said recording and has put his signature which is evident from Anneuxre-1. Consequently thereafter a statutory Form-B register was opened wherein his date was mentioned as 5.11.1961 which commensurate with the medical examination report. The petitioner has also put his signature therein acknowledging his date of birth as 5.11.1961. Subsequent Form-B register was also opened wherein he put his signature therein and acknowledged the entry therein. In 1987 service excerpts were issued to this petitioner wherein his age was recorded as 25 years, the petitioner also did not object, rather he put his signature acknowledging the same. This clearly suggest that from the very inception, he has acknowledged and admitted his date of birth to be 5.11.1961 which is recorded in the service records.

10. Thus, I find no merit in this writ application, the date of birth recorded in the matriculation of the petitioner cannot be given weightage at the fag end of his service career when at the initial stage the petitioner had no objection.