Shambhu Das vs The Bharat Coking Coal Limited ...
2023 Latest Caselaw 2497 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(S) No. 4362 of 2021

Shambhu Das                                ...      ...     Petitioner
                                Versus
1. The Bharat Coking Coal Limited through its Chairman-cum-
   Managing Director, Saraidhela, Dhanbad
2. The Director Personnel, Bharat Coking Coal Limited, Saraidhela,
   Dhanbad
3. The General Manager, Bharat Coking Coal Limited, Dhansar Area,
   Dhanbad
4. The Deputy Manager Personnel, Putki Balihari Colliery, Bharat
   Coking Coal Limited, Dhansar, Dhanbad
5. The Project Officer, Kachi Balihari Colliery, Bharat Coking Coal
   Limited, Dhansar, Dhanbad              ...     ...    Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Shailesh, Advocate For the Respondents : Mr. A.K. Das, Advocate

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Order No. 07 Dated: 01.08.2023

The present writ petition has been filed for issuance of direction upon the respondents to make necessary correction in the records of Non-Executive Information System (NEIS) maintained by the respondents, wherein the age of the petitioner has been wrongly entered as 28 years as on 05.09.1990 considering his date of birth as 05.09.1962 in place of his actual date of birth as 31.12.1968 as at the time of joining the service on 06.11.1990, he had already passed 'Madhyama' examination held in the year 1989 under 'Bihar Sanskrit Education Board, Patna' and the certificate of the said exam shows his date of birth as 31.12.1968.

2. Learned counsel for the petitioner submits that the petitioner got employment in the BCCL at Dhanbad in the year 1990 as underground Miner/Loader at Putki Balihari Area on 06.11.1990. It is evident from the excerpt of service record/details of the petitioner prepared in the year 1993 that his age was wrongly entered as 28 years as on 05.09.1990, whereas his date of birth has been mentioned as 31.12.1968 in his 'Madhyama' Certificate. At the time of entering into service, the petitioner wanted to enter his date of birth on the basis of the aforesaid certificate, however, at that time he was not having his certificate. Subsequently, the petitioner represented

the competent authority i.e., the General Manager, Putki Balihari Area on 01.08.2013 seeking correction of his date of birth recorded in the service records, copies of which were also sent to the Chief Personnel Manager and the Project Officer, Putki Balihari Area. Thereafter, he kept on pursuing his representation before the appropriate authorities to rectify his date of birth on the basis of Implementation Instruction No. 76 of National Coal Wage Agreement (NCWA)-III. Recently, the petitioner represented the Chairman-cum-Managing Director, BCCL, Dhanbad on 23.05.2021 requesting inter alia to look into the matter regarding correction of his date of birth on the basis of 'Madhyama' certificate which he had secured prior to joining of his service, however, nothing has been done. The inaction on the part of the respondent authorities in not correcting the date of birth in the service records of the petitioner on the basis of his 'Madhyama' certificate is arbitrary, malafide and contrary to the procedures as laid down vide Implementation Instruction No. 76 of NCWA-III which has been made applicable for determination/verification of age of the employees. The matriculation or equivalent certificate is the most authentic document for proof of the date of birth of any person especially when he has passed matriculation or equivalent examination prior to joining of his service.

3. Per contra, learned counsel for the respondents submits that the matriculation certificate was neither produced by the petitioner at the time of appointment nor immediately thereafter and he had been all along acknowledging his date of birth as 28 years as on 05.09.1990. Therefore, he cannot claim to change his date of birth in the service records on the strength of said 'Madhyama' certificate that too at the fag end of his service. Implementation Instruction No. 76 of NCWA-III has been explained and interpreted by this Court as well as the Hon'ble Apex Court in catena of decisions wherein it has been held that until and unless there are contradictory dates of birth appearing in various service records, question of invocation of this provision cannot arise.

4. It is further submitted that at the time of appointment, the

date of birth of the petitioner was recorded as 28 years as on 05.09.1990 which was duly acknowledged by him. Moreover, he has also put his signature in the service excerpts as well as in the Form-B Register.

5. Heard learned counsel for the parties and perused the materials available on record. The petitioner has sought correction of his date of birth in his service records claiming that his correct date of birth is 31.12.1968 as has been recorded in his 'Madhyama' certificate issued by the 'Bihar Sanskrit Education Board, Patna' before entering into the service.

6. Before coming to the merit of the petitioner's contention, it would be appropriate to refer the judgment of the Hon'ble Supreme Court rendered in the case of "Karnataka Rural Infrastructure Development Ltd. Vs. T.P. Nataraja" reported in (2021) 12 SCC 27, wherein Their Lordships after referring several earlier judicial pronouncements on the subject, has summarized the law with respect to change of date of birth of an employee. The relevant part of the said judgment is quoted herein below:

10.1. In [Home Deptt. v. R. Kirubakaran, 1994 Supp (1) SCC 155], it is observed and held as under: (SCC p. 158, para 7) "7. An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. 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 the promotion for ever."

10.2. In State of M.P. v. Premlal Shrivas [State of M.P. v. Premlal Shrivas, (2011) 9 SCC 664] in paras 8 and 12, it is observed and held as under : (SCC pp. 667 &

669) "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]).

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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. 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 time-limit 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."

10.3. In [LIC v. R. Basavaraju, (2016) 15 SCC 781] , it is observed as under : (SCC p. 782, para 5) "5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the

educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag-end of retirement." 10.4. In [Bharat Coking Coal Ltd. v. Shyam Kishore Singh, (2020) 3 SCC 411] of which one of us (A.S. Bopanna, J.) was a party to the Bench has observed and held in paras 9 & 10 as under : (SCC pp. 415-17) "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 v. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423] wherein a series of the earlier decisions of this Court were taken note of and it 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 [U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri, (2005) 11 SCC 465]. 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, (2005) 11 SCC 477] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment [Pitamber Dutt Semwal v. State of U.P., 1999 SCC OnLine All 1610] of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.

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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, 1994 Supp (1) SCC 155] 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 promotion 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 birth, in his service book."

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 Shrivas, (2011) 9 SCC 664] 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, (1993) 2 SCC 162]).

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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. 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 time-limit 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. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarised as under:

(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) application can be rejected on the ground of delay and laches also more particularly when it is made at the fag-end of service and/or when the employee is about to retire on attaining the age of superannuation.

7. Thus, correction of date of birth cannot be claimed as a matter of right even if there is cogent evidence for the same and the application for correction of date of birth can be rejected when it is made at the time when an employee is about to retire on attaining the age of superannuation.

8. Learned counsel for the petitioner has put reliance on the judgment rendered by a Full Bench of this Court in the case of

"Kamta Pandey Vs. M/s BCCL & Ors." reported in 2007 SCC OnLine Jhar 222. I have perused the said judgment wherein the factual position was that the concerned employee had passed Matriculation Examination prior to entering into the service and in the Matriculation Certificate, his date of birth was recorded as 01.07.1951 whereas in the Service Register, his date of birth was recorded as 16.07.1948. The said employee was issued identity card wherein his date of birth was mentioned as 01.07.1951. No sooner the Service Book was served to the said employee for verification, he corrected his date of birth, however, the same was not corrected in the Service Register by the concerned department. Learned Full Bench thus observed that the date of birth recorded in the Matriculation Certificate duly authenticated by the Education Board was a conclusive proof of age, as both the parties were governed by Implementation Instruction No. 76 of NCWA-III. Learned Full Bench also held that normally an employee would not be permitted to apply for change of his date of birth at the fag end of his service career, however, if the court is 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 as well as when clear case relating to correction in date of birth is made out on the basis of clinching materials, necessary direction for correction in the said date of birth can be given.

9. I am of the view that the case cited by learned counsel for the petitioner is not applicable in the facts and circumstance of the present case. In the said case, the concerned employee had raised his objection during verification of his service book. Moreover, in the identity card issued to the said employee, his date of birth was correctly mentioned which was never objected by the employer. However, in the case in hand, the petitioner entered in the service on 06.11.1990 and it is his own stand that though he had the certificate of 'Madhyama' equivalent to matriculation certificate, he did not file the same before the respondents at the time of joining. The petitioner has failed to explain the reason for not submitting the said certificate at the time of joining which resulted in determining his

date of birth in view of Clause (A)(iv) of Implementation Instruction No. 76 of NCWA-III by treating him as 'illiterate'. Clause (A)(iv) clearly provides for determination of age of the 'illiterate' appointees by the Colliery Medical Officer keeping in view any documentary and other relevant evidence produced by the appointee and the date of birth as determined has to be treated as correct date of birth and the same cannot be altered under any circumstance. In Form-B Register also, the age of the petitioner has been written as 28 years as on 05.09.1990 and he has put his signature on the said Form. The petitioner has raised claim for correction of his date of birth for the first time after about 23 years of his appointment which shows serious laches on his part and as such, there is no question of causing any injustice to him.

10. In view of the aforesaid discussion, I do not find any ground to entertain the present writ petition for correction of date of birth of the petitioner mentioned in his service records at the fag end of service.

11. The writ petition is accordingly dismissed.

(Rajesh Shankar, J.) Manish/AFR