Amar Singh vs Sub Area Manager and Others

Pritinker Diwakar, J.—By this petition, the petitioner seeks correction of his date of birth in the service record on the basis of his Higher Secondary School Certificate, 1965 vide Annexure P-1, National Trade Certificate and mark sheet issued in April, 1967 vide Annexures P-3 respectively. The undisputed facts in nutshell are that the petitioner was appointed as Trainee Electrician and the relevant posting order dated 31.05.1967 is Annexure P-4. In the year 1988, the respondents prepared service excerpt Annexure P-5 giving details of the employees such as name, father''s name, permanent address, marital status, date of birth, date of appointment, education qualification etc. According to the petitioner, as in the service excerpt, his date of birth was correctly shown as 12.09.1945, he accepted the same and did not furnish any document including that of matriculation mark sheet.

Further case of the petitioner is that after coming to know about his date of birth in the year 2002 through his salary slip as 01.01.1944, he immediately submitted his representation vide Annexure P-6 on 28.12.2002 along with documents including that of matriculation certificate showing his correct date of birth as 12.09.1945. As retirement notice was served to the petitioner on 01.08.2003. vide Annexure P-7 mentioning the fact that after attaining the age of superannuation, he would retire on 31.12.2003, he again submitted a representation Annexure P-8 on 19.09.2003 along with other documents requesting authorities that as his correct date of birth is 12.09.1945 he would be entitled to continue in the job till 30.09.2005. Further contention of the petitioner is that his matriculation certificate was duly verified by the respondents and vide communication dated 16.12.2003, Board of Secondary Education, Madhya Pradesh, Bhopal (here in after referred to as the "Board") informed the respondents through a letter dated 16.12.2003 Annexure P-9 that the petitioner had passed his matriculation examination in the year 1965 and in the document so issued his date of birth has been shown as 12.09.1945.

According to the petitioner it is not in dispute that the said document was received by the respondents before the date of his retirement. From the record, it is apparent that on 24.12.2003 i.e. just seven days prior to his retirement, the petitioner was asked to appear before the age Determination Committee along with the testimonials on 26.12.2003 vide Annexure P-10.

Contention of learned counsel for the petitioner is that as on 26.12.2003, nothing was done by the Age Determination Committee, the petitioner was again asked to appear before the said Committee on 27.12.2003. On 27.12.2003, on the basis of radiological test of the petitioner, his age has been determined between 55 and 60 years and based on that, the petitioner was retired on 31.12.2003. Further contention of the petitioner is that as he was not allowed to join his duties after 31.12.2003 vide Annexure P-11, Which is a copy of letter, he filed the present petition before this Court on 07.01.2004.

Learned counsel for the petitioner submits that the matriculation certificate is the authentic document for determining the age of the employee and undisputedly, the petitioner here in had passed his matriculation examination in the year 1965 which has been verified by the respondents from the Board vide communication dated 16.12.2003 (Annexure P-9) to the effect that the date of birth of the petitioner is 12.09.1945. He further submits that the petitioner has also obtained National Trade Certificate from the Ministry of Labour and Employment prior to his date of appointment under the respondents in which also, the date of birth of the petitioner has been mentioned as 12.09.1945 and that being so, under no circumstances, his date of birth can be treated as 01.01.1944 as has been done by the respondents.

It has been further argued that as per implementation instruction No. 76 i.e. a procedure for determination/verification of age of employees of the S.E.C.L Annexure P-12, which is applicable to all the employees working in the Coal Industry, the case of the petitioner was not required to be referred to the age determination Committee because as per Clause-B(i)(a), his date of birth should have been determined on the basis of his matriculation certificate and no radiological test etc was required as the petitioner had acquired the matriculation certificate prior to his entry in service.

Replying to the arguments of learned counsel for the petitioner, it has been argued by Shri Agrawal that in form-B Annexure R-1 and R-2, the date of birth of the petitioner has been shown as 01.01.1944 and therefore, the petitioner was rightly retired on 31.12.2003 after attaining age of superannuation. He further submits that at the fag end of service, the date of birth of the petitioner cannot be corrected and the petitioner should have been vigilant while giving his date of birth to the respondents at the earlier point of time.

Replying to these arguments of Shri Agrawal, it has been argued by Shri Mukhopadhyay that Annexures R-1 and R-2 were not prepared at the time of entry of the petitioner in service but B-forms were made subsequently i.e. on transfer from his original place of posting. He submits that document Annexures R-l & R-2 bear neither the signature nor thumb impression and therefore, based on the said document of the petitioner, it cannot be said that the date of birth of the petitioner is 01.01.1944.

Having heard learned counsel for the parties, perused the pleadings and the documents appended there to as also the original record, produced before this court, it becomes evident that the petitioner entered in service on 16.07.1967 and prior to that he had passed his matriculation in the year 1965 and in the said certificate his date of birth has been mentioned as 12.09.1945. The respondents have neither filed the original Form-B nor have produced any entry of the petitioner in his service at Bankimongra. The entire record filed by the respondents pertains to Dipka, Gevra and Kusmunda areas where as it appears that the petitioner started his service from Banki colliery and there after he was transferred to different places like Dipka, Gevra and Kusmuda.

It is not disputed by the respondents that the petitioner had passed his matriculation in the year 1965 vide Annexure P-1 i.e. prior to his entry in service. Moreover, the fact that the petitioner had passed his matriculation prior to his entry in service was also verified by the respondents from the Board vide Annexure P-9 dated 16.12.2003 and it has been confirmed by the Board that the petitioner has passed his matriculation in the year 1965 and his date of birth has been shown in the certificate as 12.09.1945. 10. Clause-B (i)(a) of the Instruction No. 76 reads as follows :-

In the case of 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 instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Board/institution prior to the date of employment.

Once the petitioner has passed his matriculation prior to his employment, in all fairness, the respondents should have treated his date of birth as 12.09.1945 as per Clause-B(i)(a) of instructions No. 76.

I find sufficient force in the arguments of Shri Mukhopadhyay that the case of the petitioner was not required to be referred to the Age Determination Committee because of the fulfillment and compliance of Clause-B (i)(a) of instruction No. 76 by the petitioner, Clause-C of Instruction No. 76 reads as under :-

Age Determination Committee/Medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or B(I(b) above, the date of birth recorded in the records of the company namely form B register, CMPF records and identity cards (untampered) will be treated as final. Proved that where is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination committee/Medical Board constituted by the Management for determination of Age.

From Clause B & C it is apparent that the case of the petitioner was not required to be referred to the Age Determination Committee because the petitioner had submitted the conclusive evidence in respect of his date of birth by submitted the conclusive evidence in respect of his date of birth by submitting the matriculation certificate which was duly verified by the respondents. Further, the respondents have not produced the original Form-B in relation to the Service of the petitioner because admittedly he entered in the employment at Banki Colliery whereas, Annexures R-1 and R-2 relate to Gevra and Deepika. Further more, Annexures R-l & R-2 do not bear signature or thum impression of the petitioner, Therefore, the argument of the petitioner that these documents were prepared subsequently after the transfer of the petitioner to Gevra and Deepika areas appears to be justified. In view of what has been discussed here in above, the petition is allowed and the retirement notice dated 01.08.2003 (Annexure P-7) and 26.12.2003 (Annexure P-11) are quashed. The respondents are directed to correct the service record of the petitioner treating his date of birth as 12.09.1945. Accordingly, the petitioner will be entitled to all the consequential benefits till the date of his retirement and he is also entitled to receive cost of litigation amounting to Rs. 10,000/- from the respondents.