Ram Swarup Ram vs M/S. Bharat Coking Coal Limited ...
2023 Latest Caselaw 3723 Jhar

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      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                 W.P.(S) No. 5603 of 2018

Ram Swarup Ram                             ...      ...     Petitioner
                               Versus
1. M/s. Bharat Coking Coal Limited through the Chairman-cum-
   Managing Director, Dhanbad
2. The Project Officer, Godhur Colliery, Kusunda Area of M/s. Bharat
   Coking Coal Limited, Dhanbad            ...    ...    Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR
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For the Petitioner : Mr. Suraj Singh, Advocate For the Respondents : Mr. Indrajit Sinha, Advocate Mrs. Aditee Dongrawat, Advocate

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Order No. 07 Dated: 05.10.2023

The present writ petition has been filed for issuance of direction upon the respondents to correct the date of birth of the petitioner in the service record as '05.09.1967' in place of '13.05.1965'.

2. Learned counsel for the petitioner submits that the petitioner had passed the matriculation examination in the year 1983 and in the matriculation certificate issued by the Bihar School Examination Board, Patna, his date of birth was recorded as '05.09.1967'. Subsequently, the petitioner joined the service as Miner/Loader on 22.01.1987 at Khas Kusunda Colliery under the respondent-BCCL. In the year 1987 itself, a service excerpt was issued from the service record of the petitioner wherein his date of birth was mentioned as 05.09.1967 and he was under the impression that his date of birth was rightly recorded as per his matriculation certificate. However, recently the petitioner came to know from the "Date of Birth Cell" that his date of birth has been mentioned as 13.05.1965 whereas in the service excerpts, Form-B and Colliery Identity Card, his date of birth has been mentioned as 05.09.1967. The petitioner filed representations dated 20.08.2016 and 16.07.2018 before the respondent no. 2 for correcting his date of birth in the service record as '05.09.1967', however, the same has not been corrected, which has compelled him to file the present writ petition.

3. It is further submitted that as per Implementation

Instruction No. 76 of the National Coal Wage Agreement (NCWA)-III, the date of birth of the existing employee who is matriculate, must be determined only on the basis of date of birth recorded in the matriculation certificate issued by the Examination Board and as such, the respondents are bound to correct the date of birth of the petitioner as recorded in his matriculation certificate i.e., 05.09.1967.

4. On the contrary, learned counsel for the respondent-BCCL submits that the petitioner had not produced his matriculation certificate at the time of appointment and, therefore, his age was determined by the medical board as 21 years as on 13.05.1986. The date of birth of the petitioner was recorded in the statutory Form-B as well as other service records as 13.05.1965 which was duly authenticated by him by putting his signature. If the matriculation certificate issued in the year 1983 by the Bihar School Examination Board, Patna was available with the petitioner at the time of his appointment i.e., on '22.01.1987', he should have submitted the same as a proof of his date of birth, but he did not do so. Moreover, the petitioner has raised the dispute by filing the present writ petition after rendering considerable service of more than 31 years which cannot be entertained at such a belated stage.

5. It is further submitted that the petitioner was transferred to Godhur Colliery in the year 1990 and his name and details were entered at page no. 84 of the statutory Form-B register of the said colliery at Serial No. 2312, wherein his date of birth was recorded as 13.05.1965, however, later on he in conspiracy with the concerned employee of the office, re-entered his date of birth as 05.09.1967. The records of Godhur Colliery were burnt by the miscreants in April 2011 and thereafter the service book of the petitioner was recreated wherein his date of birth was recorded as 13.05.1965 by rectifying wrong entry made therein with proper authentication. The Independent Medical Examination (IME) report and initial Form-B register are the statutory documents concerned with genuineness of the date of birth of the petitioner in which the same has been recorded as 13.05.1965 and any correction without approval of the competent authority i.e., the concerned Director is not acceptable.

The other records by reasons of which the petitioner is claiming his date of birth as 05.09.1967 are the subsequent documents and the entry of date of birth mentioned in the same cannot be taken into consideration.

6. Heard the learned counsel for the parties and perused the materials available on record.

7. The thrust of argument of learned counsel for the petitioner is that the petitioner passed his matriculation exam in the year 1983 i.e., before entering into the service and in the matriculation certificate, his date of birth was recorded as 05.09.1967 which is his correct date of birth and, therefore, as per Implementation Instruction No. 76 of the NCWA-III, the respondents are bound to correct his date of birth in the service record as per the matriculation certificate.

8. On the other hand, the contention of the respondent-BCCL is that the petitioner had not produced his matriculation certificate at the time of entering into the service in BCCL and his age was assessed by the medical board as 21 years as on 13.05.1986 and, therefore, the date of birth of the petitioner has rightly been recorded in the service record including the statutory Form-B as 13.05.1965.

9. The factual contention of the respondents to the effect that the petitioner had not submitted his matriculation certificate at the time of entering into the service, has not been denied by the petitioner. Thus, it is clear that though the petitioner had passed the matriculation examination before entering into the service, he did not submit the same before the respondent-BCCL 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 'illiterate'. Clause (A)(iv) clearly provides for determination of age of the appointees by the Colliery Medical Officer keeping in view any documentary and other relevant evidence produced by the concerned appointee and the said date of birth has to be treated as correct date of birth which cannot be altered under any circumstance. In the initial Form-B register and other documents, his date of birth has been shown as 13.05.1965. Though the petitioner has claimed that in

subsequent Form-B register, his date of birth has been recorded as 05.09.1967, yet he has failed to explain under what circumstance the said correction was made and whether the same was done by the specific order of the competent authority. It has also not been explained by the petitioner that subsequent to entering in the service, he had made any request to the competent authority of the respondent-BCCL for correction of his date of birth by submitting his matriculation certificate. As such, the claim of the petitioner on the basis of the subsequent document(s) is not tenable.

10. Moreover, the petitioner raised his claim for correction of date of birth for the first time by filing representation on 20.08.2016 i.e., after more than 29 years since his appointment.

11. In the case of "Karnataka Rural Infrastructure Development Ltd. Vs. T.P. Nataraja" reported in (2021) 12 SCC 27, the Hon'ble Supreme Court 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 forever."

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.

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

13. In view of the aforesaid discussion, I do not find any ground to entertain the present writ petition seeking correction of date of birth of the petitioner in the service record at the fag end of service.

14. The writ petition is accordingly dismissed.

(Rajesh Shankar, J.) Manish/AFR