Telangana High Court
Kambam Venkata Rao vs The Chairman And Managing ... on 1 November, 2022
Bench: Surepalli Nanda
1
WP_8715_2020
SN,J
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 8715 of 2020
Between:
Kambam Venkata Rao
... Petitioner
And
The Chairman and Managing Director,
Singareni Collieries Company and others
... Respondents
JUDGMENT PRONOUNCED ON: 01.11.2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
____________________
SUREPALLI NANDA, J
2
WP_8715_2020
SN,J
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 8715 of 2020
% 01.11.2022
Between:
# Kambam Venkata Rao
..... Petitioner
and
$ The Chairman and Managing Director,
Singareni Collieries Company and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners : Mr Sriman
^Counsel for the Respondents:
Standing counsel for respondents
? Cases Referred:
(2011) 9 SCC page 664,
(2016) 15 SCC 781,
(2020) 3 SCC 411,
[(2005) 11 SCC 477 : 2006 SCC (L&S) 106],
[1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828]
(2011) 9 SCC 664
3
WP_8715_2020
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 8715 of 2020
Heard the learned counsel for the petitioner and learned
standing counsel for the Respondents.
2. PERSUED THE RECORD :
FACTS
NOT IN DISPUTE:
3. The Petitioner joined the Respondent organization on
03.04.1986 as Floating Badli Filler on Piece-Rated wages. At
the time of Petitioner's appointment, Petitioner's age is fixed
at 26 years as on 03.04.1986 by the Respondents basing on
assessment done by the Medical Officer. The Petitioner passed
SSC examination conducted by the Board of Secondary
Education, Andhra Pradesh in the month of October 1986 and
thereafter Petitioner made a representation to the
Respondents to correct the Petitioner's date of birth as per the
entry in the Secondary School Certificate i.e., 09.02.1963.
The Director (P,A&W) vide its ref. No.GC/BPA35/90/969, dt.
31.03.1990 informed that the case of the Petitioner will be
examined in terms of Memo of Settlement dt. 12.03.1990 and
Petitioner was advised to approach General Manager,
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Bellampalli. The 5th Respondent issued Notice vide
Ref.No.KGM/JVR/MGR/WO/PF/270 /1237, dt. 20.03.2020
informing the Petitioner that the Petitioner is going to
complete 60 years as on 30.04.2020 and 30.04.2020 is the
last working day to the Petitioner. The 4th Respondent issued
removal notice vide Ref.No.KGM/JVR/MGR/ WO/PF/270/1333,
dt. 01.04.2020 informing the Petitioner that after working
hours of 30.04.2020 the name of the Petitioner will be
removed from the company rolls.
4. Counter affidavit filed on behalf of the
Respondents filed on 10.09.2020 with certain
documents, paras 6, 7 and 8 read as under :
Para 6 : In this connection, it is submitted that the petitioner
was appointed in the Company as Badli Coalfiller on
13.05.1980 At the time of his appointment, the petitioner
could not submit any proof for his age/date of birth. As per
the rules of th respondent company, he was referred to
Colliery Medic Officer for assessment of his age/date of birth.
The Collicery Medical Officer has assessed his date of birth as
26 years as on 03.04.1986 and accordingly the petitioner's
date of birth was recorded in the service book as well as in
the Initial Medical Examination report (Form-O) as 26 years
as on 03.04.1986 is his date of appointment and based on
which he was issued one month advance superannuation
notice at his place of work Le.. JVR OCP, Sathupalli in
Kothagudem area. It is pertinent to mention that the
petitioner himself has agreed that he did not submit any
proof of his age/date of birth at the time of his appointment.
Para 7 : In reply to averments in para 4 it is submitted that
in reply to his representation submitted to the Director
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(P.A&W). the petitioner was informed that his case will be
examined in terms of memo. Of settlement dated 12.03.1990
and was advised to approach General Manager, Bellampalli
Area, but the petitioner has not approached the General
Manager, Bellampalli Area with regard to correction of his
age/date of birth. The petitioner's claim that he has
approached the General Manager, Bellampalli Area for
correction of his date of birth and subsequently claiming that
his date of birth has been altered as 09.02.1963 is not true
and it is denied and the petitioner is put to strict proof of the
same. As per the JBCCI guidelines, the case of the existing
employees Matriculation Certificate or Higher Secondary
Certificate issued by the recognized Universities or Board or
Middle Pass Certificate issued by the Board of Education
and/or Department of Public Institutions and admit cards
issued by the aforesaid Bodies should be treated as correct
provided they were issued by the said Universities/ Boards/
Institutions prior to the date of employment.
Para 8 : In reply to averments in Para 5, it is submitted the
petitioner has appeared as private candidate for SSC
examination in October 1986, whereas he has appointed in
the respondent company on 13.05.1986 which indicates that
the petitioner did not produce any proof of his age/date of
birth at the time of his appointment and he admitted the
same. Due to non-submission of any proof to his age/date of
birth, the petitioner was referred to Colliery Medical Officer
for assessment of his age. Accordingly, the Colliery Medical
Officer has assessed the age of the petitioner to be 26 years
as on 03.04.1986, to which the petitioner has agreed and
joined in the respondent company. As per the JBCCI
guidelines, the case of the existing employees Matriculation
Certificate or Higher Secondary Certificate issued by the
recognized Universities or Board or Middle Pass Certificate
issued by the Board of Education and/or Department of Public
Institutions and admit cards issued by the aforesaid Bodies
should be treated as correct provided they were issued by
the said Universities/ Boards/ Institutions prior to the date of
employment. The Petitioner has passed SSC after his
appointment in the Respondent Company and as such, his
request for change of date of birth as per his SSC Certificate
was not considered. Further, while verifying the service
records of the petitioner, it was noticed that there was
difference in date of birth of the Petitioner in the Employee
Personal Record and Service book and clarification was
sought from the higher authorities in this regard. The
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competent authority, vide letter No. CRP/PER/PM/4/EPR/563,
dt. 11.04.2020 has clarified and confirmed the correct date of
birth of the petitioner as 03.04.1960 and also advised to
correct the date of birth of the petitioner in all the records of
the respondent company accordingly. Based on the above,
the petitioner was issued one month advance notice of
superannuation vide letter no.
KGM/JVROC.I/MGR/PF/270/1333, dtd. 01.04.2020 informing
him that he would be attaining the age of superannuation on
30.04.2020 and to which the petitioner has received the
letter and acknowledged the same. Accordingly, the
petitioner has retired from the services of the company after
the duty hours of 30.04.2020. Subsequent to this, the
petitioner has received all his Terminal Benefits as follows.
CMPF : Rs. 15,18,213.00
Pension : Rs. 16,187.00 (Per Month)
Gratuity : Rs. 15,19,231.00
FBIS (A) : Rs. 11,856.00
DISCUSSION & CONCLUSION :
5. The main contention of the Petitioner is that in
pursuance to the letter of the Director dated
31.03.1990, in response to the petitioner's
representation to correct the petitioner's date of birth
as per the entry in the Secondary School Certificate i.e.,
09.02.1963, the petitioner met the General Manager
and the date of birth of the petitioner is corrected as
09.02.1963 and this correction is entered in the Service
Register of the petitioner and the retirement of the
Petitioner is due in the month of February, 2023. This
contention of the petitioner is specifically denied in
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para 7 of the counter affidavit filed on behalf of the
respondents on 10.09.2020 (extracted above) and it is
stated that it is totally incorrect to state that the
petitioner approached the General Manager, Bellampalli
area for correction of his date of birth and further that
his date of birth is altered as 09.02.1963 in the Service
Register. In fact, at para 8 of the counter affidavit
(extracted above), it is specifically pleaded that while
verifying the service records of the petitioner it was
noticed that there was difference in date of birth of the
petitioner in the employee personal record and service
book and clarification was sought from higher
authorities in this regard and further the competent
authority, vide letter No. CRP/PER/PM/4/EPR/563, dt.
11.04.2020 has clarified and confirmed the correct date
of birth of the petitioner as 03.04.1960 and also
advised to correct the date of birth of the petitioner in
all the records of the respondent company accordingly.
6. The very fact that the Petitioner did not chose to
challenge the letter dated 11.04.2020 vide Ref. No.
CRP/PER/PM/4/EPR/563, after having acknowledged
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the same itself indicates that the present writ petition
is only an afterthought of the Petitioner after his due
retirement on 30.04.2020. There is no material on
record i.e., a representation or notice or any
communication filed by the Petitioner to establish that
the petitioner corresponded with the Respondent
authorities for correction of date of birth except for the
letter dt. 31.03.1990 of the Director (P, A&W) issued by
the Director to the Petitioner, informing the Petitioner
to meet the General Manager, Bellampalli, for
correction of Petitioner's date of birth.
7. A bare perusal of Clause B of Implementation
Instruction No. 76 of the Joint Bipartite Committee for
Coal Industry (JBCCI) which deals with the procedure
in determination of the age/date of birth at the time of
appointment or in respect of existing employees reads
as under :
(B) Review/determination of date of birth in respect
of existing employees :
(i) a) In the case of the existing employees
Matriculation Certificate or Higher Secondary
Certificate issued by the recognized Universities or
Board or Middle Pass Certificate issued by the Board of
Education and/or Department of Public Institutions
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and admit cards issued the aforesaid Bodies should be
treated as correct by the aforesaid bodies should be
treated as correct provided they were issued by the
said Universities/ Boards/Institutions prior to the date
of employment.
8. Here even as per the petitioner's own affidavit, it
is averred at para 3 that the petitioner joined the
respondent organization on 03.04.1986 and thereafter,
in the month of October, 1986 the Petitioner passed
SSC examination conducted by the Board of Secondary
Education, Andhra Pradesh. Therefore, as per Clause-B
the petitioner's SSC certificate cannot be relied upon by
the petitioner.
9. In the case of State of M.P. v. Premlal Shrivas,
reported in (2011) 9 SCC page 664, in paragraph 8 and
12, it is observed and held 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
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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 : 1993 SCC (L&S) 375 : (1993) 24
ATC 92] ).
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. In the case of Life Insurance Corporation of India
v. R. Basavaraju (2016) 15 SCC 781, it is observed as
under:--
"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
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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"
11. In the case of M/s Bharat Coking Coal Limited v.
Shyam Kishore Singh reported in (2020) 3 SCC 411 - of
which one of us (Justice A.S. Bopanna) was a party to
the bench has observed and held in paragraph 9 & 10
as under:--
"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 the case of State of
Maharashtra v. Gorakhnath Sitaram Kamble (2010) 14
SCC 423 wherein a series of the earlier decisions of
this Court were taken note and was held as hereunder:
"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 [(2005) 11 SCC 465 : 2006 SCC (L&S)
96]. 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.
12. In another judgment in State of Uttaranchal v.
Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC
(L&S) 106] relief was denied to the Government
employee on the ground that he sought correction in
the service record after nearly 30 years of service.
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While setting aside the judgment of the High Court, this
Court observed that the High Court ought not to have
interfered with the decision after almost three decades.
13. 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 : 1994
SCC (L&S) 449 : (1994) 26 ATC 828] 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
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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."
14. 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, reported in (2011) 9 SCC 664 - it is
held as hereunder:--
" 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
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date of birth is clearly erroneous. No court or the
tribunal can come to the aid of those who sleepover
their rights" (see Union of India v. Harnam Singh
[(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993)."
15. In view of the fact that there is no request on
behalf of the Petitioner for correction of date of birth in
pursuance to the letter of the Director dated
31.03.1990, nor Petitioner has filed any representation,
legal notice or correspondence or any material on
record in this regard evidencing the steps initiated from
his end for correction of Petitioner's date of birth
anytime after 31.03.1990, it is evident that Petitioner's
request by filing the present Writ Petition for the relief
as prayed for herein is only an afterthought entertained
by the Petitioner at the fag end of his career, more so
when admittedly the Petitioner did not chose to
challenge the letter of the Competent Authority dt.
11.04.2020 which clarified and confirmed the correct
date of birth of the Petitioner as 03.04.1960 vide
Ref.No.CRP/PER/PM/4/EPR/563 after having
acknowledged the same.
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16. Taking into consideration the circumstances
referred to and discussed above and also Clause-B of
Implementation Instruction No.76 of the Joint
Bipatriate Committee for Coal Industry (JBCCI) and the
fact that the petitioner passed SSC examination
subsequent to joining the respondent organization as
per the petitioner's own averments in the affidavit filed
in support of the present Writ Petition and duly
considering the law laid down by the Apex Court on the
subject issue in State of M.P. v. Premlal Shrivas,
reported in (2011) 9 SCC page 664, Life Insurance
Corporation of India v. R. Basavaraju reported in
(2016) 15 SCC 781, M/s Bharat Coking Coal Limited v.
Shyam Kishore Singh reported in (2020) 3 SCC 411,
State of Uttaranchal v. Pitamber Dutt Semwal reported
in (2005) 11 SCC 477 : 2006 SCC (L&S) 106], Home
Deptt. v. R. Kirubakaran reported in 1994 Supp (1) SCC
155 referred to, discussed and extracted above this
Court opines that the petitioner is not entitled for the
relief as prayed for in the present Writ Petition and the
same is dismissed.
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Miscellaneous petitions, if any, pending shall stand
dismissed.
_________________
SUREPALLI NANDA, J
Date: 01.11.2022
Note: L.R. Copy to be marked
b/o
kvrm
