Jharkhand High Court

Nand Lal Harijan vs M/S. Bharat Coking Coal Limited on 23 January, 2024

Author: Rajesh Shankar

Bench: Rajesh Shankar

                                     1

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        W.P.(S) No. 1742 of 2023
                                  ---

       Nand Lal Harijan                          ...     ...        Petitioner
                                Versus

1. M/s. Bharat Coking Coal Limited, Dhanbad represented through its Chairman-cum-Managing Director

2. The Director (Personnel), M/s. Bharat Coking Coal Limited, Dhanbad

3. The Project Officer, Moonidih Colliery, M/s. Bharat Coking Coal Limited, Dhanbad

4. Area Personnel Manager, W.J. Area, M/s. Bharat Coking Coal Limited, Dhanbad, Moonidih, Dhanbad .... ... Respondents CORAM: HON'BLE MR. JUSTICE RAJESH SHANKAR For the Petitioner : Mr. Mukesh Kumar, Advocate For the Resp. : Mr. Amit Kumar Das, Advocate Mr. Shivam Utkarsh Sahay, Advocate

Order No. 06 Dated: 23.01.2024

The present writ petition has been filed for quashing

letter no. H-163 dated 25/27.05.2021 (Annexure-14 to the writ

petition) issued under the signature of Project Officer,

Moonidih Colliery, Bharat Coking Coal Limited (BCCL), Dhanbad

(the respondent No.3), whereby the petitioner was intimated

that he would attain the age of 60 years on 03.08.2021 and as

such he would retire from service on 31.08.2021. Further prayer

has been made for issuance of direction upon the concerned

respondents to correct the date of birth of the petitioner in the

official records as per his date of birth recorded in his

matriculation mark-sheet and to allow him to continue in service

till 14.09.2023 as well as to pay all the consequential benefits

including arrears of salary and allowances for the period he has

been prevented from discharging his duty by the impugned

letter.

2. Learned counsel for the petitioner submits that the

father of the petitioner namely Late Kailash Harijan was an

employee of the respondent-BCCL, who was declared medically

unfit by the medical board of the said respondent, and in his

place, the petitioner was offered employment to the post of

'General Majdoor', Category-I under TRM (Time Rated Majdoor)

vide letter dated 10.07.1981 issued by Deputy Chief Mining

Engineer-cum-Project Officer, Moonidih Project, Dhanbad.

Thereafter, the petitioner was directed to bring all the relevant

documents including the educational certificates. Pursuant to

the said direction, the petitioner submitted all the required

documents including his Matriculation mark-sheet wherein his

date of birth was recorded as 14.09.1963. Further, the petitioner

was sent for medical examination vide letter dated 10.07.1981

issued by the Senior Personnel Officer, Moonidih Project, BCCL,

Dhanbad as per the Mines Act, 1952 and accordingly he was

examined on 16.07.1981. Subsequently, the petitioner was

issued appointment letter vide office order dated 03.08.1981

and he was directed to report for duty to the

Superintendent/Project Manager, Moonidih Project with effect

from 03.08.1981 itself.

3. It is further submitted that the I.D. Card or any of the

documents provided to the petitioner by the respondent-

company does not mention his date of birth, and as such he was

under bonafide impression that his date of birth was recorded in

the service record as 14.09.1963 which was mentioned in his

Matriculation mark-sheet.

4. It is also submitted that sometime in year 2013, the

promotion list of the employees including the petitioner was

displayed from which, he came to know that his date of birth

entered in records of the respondent-company was 03.08.1961.

He got a copy of his service excerpts to verify the date of birth

as recorded in the service book and came to know that his age

in the service excerpts was mentioned as 20 years as on

03.08.1981. The petitioner made repeated representations to

the respondent authorities including representations dated

20.05.2013, 01.03.2016 and 28.07.2016 requesting to correct

his date of birth as 14.09.1963, however the same remained

unresponded.

5. Learned counsel for the petitioner further submits that

the petitioner's matriculation mark-sheet was sent for

verification by the respondent authorities and the same was

found genuine which would be evident from letter dated

17.11.2017 issued by the Assistant Secretary/Deputy Secretary,

Secondary Education Council, Uttar Pradesh, Allahabad to the

Deputy Manager (Personnel), Moonidih Colliery, Dhanbad. The

respondent authorities having not decided the issue of

correction of the petitioner's date of birth, he again represented

the Project Officer, Moonidih Colliery, BCCL (the respondent

no. 3) on 11.10.2018 whereafter he received letter no. 615

dated 28/29.11.2019 issued by the Area Personnel Manager,

Western Jharia Area, Moonidih (the respondent no. 5) seeking

clarification in connection with correction of his date of birth.

The petitioner submitted his reply before the respondent no. 5

on 21.12.2019, however, the same was not considered. He

thereafter repeatedly represented the respondent authorities

reiterating his grievance regarding incorrect entry of his date of

birth in the service records, however it was not corrected, rather

the respondent no.3 issued letter No.H-163 dated

25/27.05.2021 informing him that he would attain the age of 60

years on 03.08.2021 and as such he would retire from service

on 31.08.2021. The grievance of the petitioner is that he was

prematurely made to retire on 31.08.2021 and hence, the

present writ petition.

6. Per contra, learned counsel for the respondents submits

that the petitioner was initially appointed as 'General Mazdoor',

Category-I under 'Time Rated Mazdoor' at Moonidih Colliery,

Dhanbad and at the time of his appointment, his date of birth

was recorded as 03.08.1961 according to his initial medical

examination report dated 16.07.1981. The date of birth of the

petitioner was uniformly maintained as 03.08.1961 even in

LTC/LLTC Register, Non-Executive Personnel Information System

as well as in Form PS-3 (particulars of family) & Form PS-4

(Nomination Form). At no point of time, the petitioner

produced his matriculation certificate i.e. either at the time of

his appointment or within a reasonable period thereafter. The

petitioner started pursuing his request for change of date of

birth only from 2013 onwards i.e. after lapse of 32 years of his

appointment and the said request at such a belated stage could

not have been entertained. The petitioner got superannuated

strictly in accordance with the date of birth maintained in the

service register and as such the present writ petition is liable to

be dismissed.

7. Heard the learned counsel for the parties and perused

the materials available on record.

8. Thrust of the argument of the learned counsel for the

petitioner is that at the time of appointment, the petitioner had

submitted his matriculation mark-sheet wherein his date of birth

was recorded as 14.09.1963, however the respondent

authorities wrongly recorded his date of birth as 03.08.1961 in

his service record as well as in other documents and on that

basis, he was forced to retire on 31.08.2021.

9. On the other hand, learned counsel for the respondents

has contended that at the time of appointment, the petitioner

did not file any document in support of his date of birth and as

such, his date of birth was ascertained by the respondent- BCCL

through medical examination. Thereafter, the petitioner's date of

birth was recorded as 03.08.1961 in his service record as well as

in other documents such as LTC/LLTC Register, P.S-3 and P.S-4

forms. Accordingly, on the basis of the date of birth recorded in

the service record, the petitioner retired from service on

31.08.2021. His date of birth was recorded as 03.08.1961 in

Non-Executive Personnel Information System (NEIS) record as

well. It has further been contended that the present writ

petition has been filed after two years of retirement and

therefore the writ petition may not be entertained at this

belated stage.

10. On perusal of the medical examination form prepared

on 16.07.1981, it appears that the age of the petitioner has

been written as 20 years. In the service record also, the age of

the petitioner has been written as 20 years as on 03.08.1981.

Further, in Forms PS-3 and P.S-4 as well as in LTC/LLTC form,

the petitioner's date of birth has been written as 03.08.1961 and

he has also put his signature in all these documents.

11. The petitioner came in service of the respondents in the

year 1981 and the first objection regarding his date of birth

recorded in the service record was raised by him in the year

2013 i.e. after more than 32 years of coming in service and

before eight years of his retirement.

12. Learned counsel for the respondents puts reliance on a

judgment rendered by this Court in the case of Anand Ravidas

Vs. Bharat Coking Coal Limited & Others reported in 2023

SCC OnLine Jhar 1147 wherein it has been held as under:-

"14. In the case of Karnataka Rural Infrastructure Development Ltd. v. T.P. Nataraja, (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 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]).

***

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.

***

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]).

***

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."

15. 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.

16. I have also perused the judgment rendered by learned Division Bench of this Court in the case of Dashrath Prasad Mahto v. Chairman-cum-Managing Director, BCCL (L.P.A No. 393 of 2021) wherein learned Bench declined to accept the claim for correction of date of birth observing that the issue of date of birth was raised by the employee based upon the certificate of Madhyama Examination issued by the Registrar, Kameshwar Singh Darbhanga Sanskrit University, Bihar wherein his date of birth was shown as 10.02.1965, but the aforesaid certificate was not worth consideration since the concerned employee did not produce any document to show his valid age/date of birth at the time of entry in service and that was the reason the appointing authority, at the time of appointment, had asked the said employee to participate before the Apex Medical Board for age assessment and on the basis of the assessment made by the Apex Medical Board, the age of the employee was assessed to be 34 years as on 09.02.1996. Learned Division Bench, after referring few judgments of the Hon'ble Supreme Court, held that correction in the date of birth would not be allowed at the fag end of service."

13. Learned counsel for the respondents puts further

reliance on a judgment rendered by the Hon'ble Supreme Court

in the case of Bharat Coking Coal Limited & Others Vs.

Shyam Kishore Singh reported in (2020) 3 SCC 411

wherein it has been held as under: -

"13. On the other hand, in the instant case, as on the date of joining and as also in the year 1987 when the respondent had an opportunity to fill up the nomination form and rectify the defect if any, he had indicated the date of birth as 4-3-1950 and had further reiterated the same when Provident Fund nomination form was filled in 1998. It is only after more than 30 years from the date of his joining service, for the first time in the year 2009 he had made the representation. Further the respondent did not avail the judicial remedy immediately thereafter, before retirement. Instead, the respondent retired from service on 31-3-2010 and even thereafter the writ petition was filed only in the year 2014, after four years from the date of his retirement. In that circumstance, the indulgence shown to the respondent by the High Court was not justified."

14. In the present case also, the entire service record

suggests that the date of birth of the petitioner is 03.08.1961

and he never made any objection regarding the said entry of his

date of birth in the service record for more than 32 years from

the date of appointment despite acknowledging such entry by

putting his signature on the service records. The petitioner has

claimed that he got knowledge about recording of wrong date of

birth only in the year 2013 when he saw the promotion list. The

said claim of the petitioner is not tenable in view of the fact that

he had already put his signature in the service record. The

petitioner made first representation for correction of date of

birth in the year 2013 and thereafter kept on representing till his