Jharkhand High Court
Mohan Lal Nishad vs M/S. B.C.C.L. Through Its ... on 18 January, 2024
Author: S.N. Pathak
Bench: S.N.Pathak
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 2767 of 2011
----------
Mohan Lal Nishad .......... Petitioner
Versus
1. M/s. B.C.C.L. through its Chairman-cum-Managing Director,
Koyla Bhawan, Koyla Nagar, P.S. Saraidhela, District Dhanbad.
2. General Manager, Kuhia (Golakdih) OCP Colliery, Bastakola Area,
P.O. Bastakola, P.S. Jharia, District Dhanbad.
3. Project Officer, Kuhia (Golakdih), OCP Colliery, Bastakola Area
P.O. Bastakola, P.S. Jharia, District Dhanbad.
.......... Respondents.
----------
CORAM: HON'BLE DR. JUSTICE S.N.PATHAK
-----------
For the Petitioner : Mr. M.B. Lal, Advocate
For the Respondents : Mr. Anoop Kr. Mehta, Advocate
Mr. Manish Kumar, Advocate
----------
07/ 18.01.2024 In the instant writ petition prayer has been made for direction upon the
respondents to change the date of birth as per educational certificate as
24.02.1956, instead of 03.05.1952 which has wrongly been entered in his
service excerpts.
2. Shorn of unnecessary details, the petitioner was appointed as E.P.
Fitter on 21.01.1974. Thereafter, he continued to discharge his duties
sincerely and diligently. It is the case of petitioner that in the year 1987 when
service excerpts was supplied to the petitioner, then for the first time he
came to know that an imaginary date of birth viz. 03.05.1952 has been
entered in his service excerpts. Thereafter, immediately he approached the
respondents for making correction of date of birth as has been mentioned in
his educational certificate but the same was not considered and arbitrarily
and illegal he has been made to superannuate on 31.05.2012 though as per
date of birth entered into his education certificate, the petitioner ought to
have retired w.e.f. 29.02.2016.
Hence,, the petitioner has been constrained to knock the door of this
Court for redressal of his grievances.
3. Mr. M.B. Lal, learned counsel appearing for the petitioner
vociferously argues that it is the respondents who have wrongly entered the
date of birth in the service excerpts though as per Certificate of 7th Board
Examination, his date of birth was 24.02.1956, which ought to have been
mentioned in the service experts. It has been argued that it was incumbent
upon the respondent authorities to correct the date of birth of the petitioner
as mentioned in the said certificate. Learned counsel further submits that
since the respondents have taken no decision, the petitioner retired before his
actual date of retirement, for which he has suffered a lot. Therefore, a
direction be given to the respondents to change the date of birth of the
petitioner as per certificate of 7th Board Examination in the service excerpts
and extend the benefits to the petitioner for remaining service period.
4. Per contra, counter affidavit has been field. Learned counsel appearing
for the respondents opposing the contention of learned counsel for the
petitioner, submits that the issue involved in the writ petition is no more res
integra. In plethora of judgments, it has been decided that no correction in
the date of birth can be made at the fag end of service. The employer and
employee are stopped from making any correction in the date of birth at the
fag end of service. Learned counsel further submits that after appointment of
the petitioner, service book of the petitioner was opened in which his date of
birth was recorded as 03.05.1952 and the same has been acknowledged to be
correct by the petitioner by putting his signature thereon. Even the entire
service excerpts carried the date of birth of petitioner as 03.05.1952 and the
petitioner accepted it and never approached the authorities for making
correction in the same. Learned counsel further submits that the petitioner
has approached the authorities only after rendering more than 37 years of
service and as such, the writ petition deserves to be dismissed on the ground
of delay and laches itself.
5. Having the heard learned counsel for the parties and having gone
through the entire records, this Court is of the considered view that no
interference is warranted in the writ petition for the following reasons:-
(i) The petitioner has raised the dispute regarding date of birth for the
first time in the year 2011 i.e. after retirement on the basis of
matriculation certificate, whereas he was appointed in the year 1974
itself, i.e. after lapse of almost 37 years.
(ii) The claim of the petitioner that for correction in the date of birth as
Certificate of 7th Board Examination, is not accepted to this Court
on the ground that he has rendered more than 37 years without any
demure and protest and for the first time in the year 2011 he has
raised dispute regarding his date of birth. Any settlement entered
into by the parties has got its statutory force and once the parties
have agreed in the settlement, the same cannot be challenged by the
parties.
(iii) Petitioner has preferred this writ petition at the fag end of service
career inasmuch as he was to superannuate on 31.05.2012 and
instant writ petition has been filed on 20.05.2011.
(iv) In this context, the Hon'ble Apex Court in the case of Union of
India Vs. Harnam Singh, reported in (1993) 2 SCC 162 held that
"No Court or the Tribunal can come to the aid of those who sleep
over their rights."
(v) Further, the Hon'ble Apex Court in case of Chennai Metropolitan
Water Supply and Sewerage Board & others Vs. T.T. Murali
Babu, reported in (2014) 4 SCC 108, has held as under:
"Thus, the doctrine of delay and laches should not be lightly
brushed aside. A writ court is required to weigh the
explanation offered and the acceptability of the same. The
court should bear in mind that it is exercising an
extraordinary and equitable jurisdiction. As a constitutional
court it has a duty to protect the rights of the citizens but
simultaneously it is to keep itself alive to the primary
principle that when an aggrieved person, without adequate
reason, approaches the court at his own leisure or pleasure,
the Court would be under legal obligation to scrutinize
whether the lis at a belated stage should be entertained or
not. Be it noted, delay comes in the way of equity. In certain
circumstances delay and laches may not be fatal but in most
circumstances inordinate delay would only invite disaster for
the litigant who knocks at the doors of the Court. Delay
reflects inactivity and inaction on the part of a litigant - a
litigant who has forgotten the basic norms, namely,
"procrastination is the greatest thief of time" and second,
law does not permit one to sleep and rise like a phoenix.
Delay does bring in hazard and causes injury to the lis. In
the case at hand, though there has been four years' delay in
approaching the court, yet the writ court chose not to
address the same. It is the duty of the court to scrutinize
whether such enormous delay is to be ignored without any
justification. That apart, in the present case, such belated
approach gains more significance as the respondent-
employee being absolutely careless to his duty and nurturing
a lackadaisical attitude to the responsibility had remained
unauthorisedly absent on the pretext of some kind of ill
health. We repeat at the cost of repetition that remaining
innocuously oblivious to such delay does not foster the cause
of justice. On the contrary, it brings in injustice, for it is
likely to affect others. Such delay may have impact on others'
ripened rights and may unnecessarily drag others into
litigation which in acceptable realm of probability, may have
been treated to have attained finality. A court is not expected
to give indulgence to such indolent persons - who compete
with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In
our considered opinion, such delay does not deserve any
indulgence and on the said ground alone the writ court
should have thrown the petition overboard at the very
threshold."
(vi) The Hon'ble Apex Court as well as this Court in catena of decisions
has held that request for change of date of birth in service records at
the fag end of service career is not sustainable. In case of State of
Tamil Nandu Vs. T.V.Venugopalan, reported (1994) 6 SCC 302,
the Hon'ble Apex Court was clearly of the opinion that the
government servant should not be permitted to correct the date of
birth at the fag end of his service career. The Court, in very strong
terms, observed as under:-
".....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".
(vii) The Hon'ble Apex Court in case of Secretary and Commissioner,
Home Department & Ors. Vs. R. Kirubakaran, reported in 1994
Suppl. (1) SCC 155, has held as under:
"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."
(viii) The Hon'ble Apex Court in case of Nedungadi Bank Ltd. Vs. K.P.
Madhavankutty & Ors., reported in (2000) 2 SCC 455, dealing
with the issue relating to stale claim, has held that, reference of the
said dispute at a belated stage is bad in eyes of law both on the
grounds of delay as well as on non-existence of an industrial
dispute.
(ix) Taking into consideration the aforesaid ratio laid down by the
Hon'ble Apex Court as well as by different High Courts, this Court
in the case of Ajit Singh Vs. M/s Tata Iron & Steel Co. Ltd.,
Jamshedpur, decided in W.P.(L) No. 1251 of 2010, held that "if
Government servants sleep over their right and are not vigilant, the
Court cannot come to their rescue / aid and grant relief only
because they were ignorant of the Rules."
6. As a sequitur to the aforesaid observations, rules, regulations,
guidelines, legal propositions and judicial pronouncements, this writ petition
is devoid of any merit and the same is hereby dismissed.
(Dr. S.N. Pathak, J.)
kunal/-
