Amarjeet Singh vs S.E.C.L. and Others

Navin Sinha, Actg. C.J.

The present appeal arises from order dated 08.01.2014 dismissing Writ Petition(S) No. 2415 of 2009. The learned single Judge held (that the appellant could not be permitted to reopen the issue regarding his date of birth at the fag end of his service; It was further held that in G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others, : ( G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others, no absolute proposition had been laid down that even in absence of a very glaring and apparent wrong entry, the matter should be referred to the Age Determination Committee under Clause (B)(ii) of the Implementation Instruction No. 76 (hereinafter referred to as (II-76) issued by the authorities pursuant to a settlement. Learned Counsel for the appellant submits that his father was also in the service of the respondents. The latter''s date of birth has not been disputed by the respondents. The age difference between the appellant as mentioned in the records correction of which is sought and that of his father was only nine years. It per se demonstrates that it was a very glaring and apparent wrong entry of his date of birth. The appellant had not been negligent in raising the issue in time as he did so on 20.12.2002, 10 years before his superannuation in 2012 when he first became aware of the wrong entry of his date of birth. He pursued the matter by a repeat representation also on 01.02.2007. Reference was also made to the school leaving certificate dated 28.9.1999 and his driving licence to submit that his correct date of birth was 6.2.1960. Correction had been sought accordingly. On 16.9.1987 the appellant in the information furnished about himself to the employer mentioned his date of birth as 6.2.1960. It was therefore a fit case for referring the matter to the Age Determination Committee constituted under II-76. It is submitted that a direction may be issued to the respondents to determine the age of the appellant by referring the matter to the Age Determination Committee.

Counsel for the respondents has opposed the application submitting that the order under appeal calls for no interference as it is well reasoned and discussed.

The appellant joined the service of the respondents, on 23.10.1980. In the statutory register filled at the time of his appointment, his date of birth recorded was 12.04.1952. This date of birth obviously could not be a figment of imagination by the respondents but had to be based on some information furnished to them either by the appellant or his father There is no pleading in the writ application with regard to the fact how a specific date of birth was recorded in the register and that the appellant had nothing to do with the same.

The father of the appellant was issued a letter on 08.07.2002 that he would be attaining the age of 60 years, on 1.1.2003 and would retire on 31.12.2002. Ten days prior to the same on 20.12.2002 the appellant represented for the first time with regard to his age purporting to enclose his class Vth and Class VIIth certificate contending that his date of birth was 06.02.1960. At this stage, it is relevant to refer to his nomination wherein the appellant himself furnished his date of birth as 12.04.1962. Again in the form furnishing particulars about his family the appellant furnished his date of birth as 12.4.1962. Further more, in the pleadings of the writ application no statement has been made how and in what manner he discovered for the first time after 22 years of his service that his date of birth had been wrongly recorded at the time of entering into service. Quite obviously, the father and son thought it safe not to rake up the issue of the date of birth as in that event it would certainly have jeopardized the service of either of them. An opportune time of ten days before the retirement of the father was thoughtfully chosen. Even if no time was prescribed in Implementation Instruction No. 76 for seeking correction, it had to be done within a reasonable time from the date of joining of service. In our opinion, 22 years was an extreme and inordinate long period of time to raise the issue by the appellant. Having represented on 20.12.2002 he again went to sleep for 5 years and represented on 01.02.2007.

In the facts of the case, we are satisfied to hold that the issue for correction of his date of birth was not raised bona fide by the appellant and it becomes a seriously disputed question. of fact whether his date of birth is 12.04.1952 or 6.2.1960 or 12.4.1962. Such a disputed question of fact cannot be examined in the writ jurisdiction.

In G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and Others, relied upon by the appellant, the facts were entirely different. The age as determined by the Medical Committee under II-76 was sought to be questioned. The observations in paragraph 17 are apposite in the facts of the present case:--

"17. The date of birth of an employee is not only important for the employee but for the employer also. On the length of service put in by the employee depends the quantum of retiral benefits he would be entitled to. Therefore, while determining the dispute in such matters courts should bear in mind that a change of the date of birth long after joining service, particularly when the employee is due to retire shortly, will upset the date recorded in the service records maintained in due course of administration should not generally be accepted. In such a case the burden is heavy on the employee who comes to the court with the case that the date of birth in the service record maintained by the employer is untrue and incorrect. The burden can be discharged only by producing acceptable evidence of a clinching nature.... Anticipated vacancy for which the employee next in the line has been waiting does not materialise, on account of which the junior is denied promotion which he has all along been led to believe will be his due on the retirement of the senior."

In Union of India (UOI) Vs. Ram Suia Sharma, , a delay of 25 years was considered as inordinate and belated to entertain a claim for correction of the date of birth and the order of the Tribunal allowing the same was set aside.

The law that a belated claim of birth should not be entertained has been repeated time and again in judicial precedents. In State of M.P. and Others Vs. Premlal Shrivas, where also the correction of the date of birth was sought 25 years later it was held as follows--

"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."

We find no reason to interfere with the order of the appeal. The appeal is dismissed.