Eastern Coalfields Ltd. vs Gour Chandra Sarkar

Ashok Kumar Mathur, C.J.—This appeal is directed against the judgment and order dated July 27, 1990 of the learned Single Judge in Civil Order No. 13114(W) of 1987 whereby learned single Judge allowed the writ petition and directed the Respondents to correct the date of birth of Petitioner on the basis of school certificate, that is, September 21, 1931. Learned Judge also directed that the Petitioner snail be allowed to continue upto the age of superannuation of 60 years, i.e. upto September 30, 1991. St was also directed he may be allowed to resume his duty and he shall be entitled to all arrears of salaries within 4 weeks of the communication of this order.

Aggrieved against this order this Letters Patent appeal was preferred before this Court which was dismissed being barred by time. Aggrieved against this order the management took up the matter to the Apex Court and Apex Court by its order dated January 15, 1995, set aside the order passed by this Court, condened the delay on October 6, 1993 and remitted the matter to High Court for considering the Letters patent appeal on merits. Hence the present writ appeal has come up before us for consideration.

The Petitioner filed the writ petition before this Court for correction of his date of birth on the basis of School Certificate produced by him. The Petitioner passed his primary (MAKTAB) Final Examination in 1944. The District Inspector of Schools, Burdwan issued a Certificate wherein he recorded the date of birth of Petitioner as September 29, 1931. In 1951 Petitioner was appointed in Sreepur Coliery which was earlier under the private management. After promulgation of Coal Mines Nationalisation Act, 1973, the Petitioner become an employee of the Coal Mines Authority of India Limited which became subsequently vested with the Eastern Coal Fields Ltd. The age of superaamnuation in this institution is 60 years. On April 24, 1987, Manager of Sreepur Colliery by notice dated April 23, 1987 asked the Petitioner to submit a petition, if any, in respect of recording of the date of birth of the Petitioner. By the said communication, Petitioner was informed that as per the record of the authority the date of birth was recorded December 2, 1927. The Petitioner submitted his petition that his date of birth has correctly been recorded in the certificate issued by the District Inspector of Schools, Burdwan and he submitted a certificate issued by the District Inspector of Schools. It is the case of the Petitioner that the Manager, Sreepur Colliery, without considering his objection and without giving any opportunity of hearing issued a memo dated June 9, 1987 to the effect that Petitioner would retire on completion of 60 years and on and from December 2, 1987 on the basis of the birth recorded on December 2, 1927.

Aggrieved against this order the Petitioners filed the present writ petition challenging his retirement on the ground that Petitioner has been retired on the basis of the wrongly recorded date of birth and in breach of principle of natural justice. It is also submitted that the authority has not taken into consideration the School certificate issued by the District inspector of Schools wherein date of birth has been recorded as on 1931.

The writ petition was opposed by the management and it was contended that the date of birth of the Petitioner has been recorded as on July 1, 1928 on the basis of Provident Fund records and in ''B'' Form Register, the date of birth of the Petitioner was recorded as in February, 1927. In the service record, the date of birth was recorded as on December 2, 1927. It was submitted that there was normally in the records of the authority as in one record the date of birth was recorded as on July 1, 1928, in another it was recorded as in February, 1927 and in another it was recorded as on December 2, 1927. As there was varying dates of birth of the writ Petitioner in the office record and the Respondents were not sure about correct date of birth of the writ Petitioner, therefore, on or about December 2, 1980, a medical board was constituted for determination of the age of the Petitioner. The Petitioner appeared before the Medical Board and was duly examined in the presence of the medical Officers of Jamuria Colliery and of Sripur Area, Senior Personnel Officer, Sripur Area and the Welfare Officer (Trainee), Sripur Colliery and the age of the Petitioner was assessed 53 years computing from February, 1927. The writ Petitioner agreed to and accepted the age assessment and also signed the same without raising any objection. This is also reflected from his application for age relaxation to the Personal Manager, Sripur Area, dated September 3, 1987. The Petitioner has admitted in this application/communication that:

I know very well that my age has already been assessed earlier, i.e. on 2.12.80 as 53 years.

The learned Single Judge, however, did not pay much attention to this admission by the Petitioner and held that in view of the certificate issued by the District inspector of Schools, Burdwan, which is a genuine document and the veracity whereof has not been disputed, directed that the Respondents should correct the date of birth of the writ Petitioner on the basis of the School Certificate, i.e., September 29, 1931 and accordingly the Petitioner be reinstated and all consequential benefits should be given,

It may also be relevant to mention here that prior to this, learned Single Judge passed an order and directed constitution of a Medical Board for examination of the Petitioner to ascertain his date of birth. However, this order was set aside in appeal by the Division Bench. Therefore, the learned Single Judge observed that there is no question of say further Medical Board and it is to be determined as to whether the date of birth of the Petitioner on the basis of the School Certificate should be taken as the correct date of birth of the Petitioner (1931) or not.

Aggrieved against this order, the present appeal has been preferred. We have heard the Learned Counsel for the parties and perused the record.

The question of determination of date of birth is normally not to be taken in exercise of Article 226 of the Constitution. Since the determination of the date of birth is always factual controversy and such factual exercise is not undertaken in extraordinary jurisdiction because it requires necessary evidence to determine this factual controversy. However, the learned single Judge, in the present case, has undertaken this exercise, but unfortunately, totally missed the very important aspect that the date of birth of the Petitioner was recorded on the basis of the medical examination. It is not disputed by the Petitioner that in order to determine his date of birth on account of the varying dates of birth recorded by the Respondents, he was referred to the Medical Authorities and the Medical doctors of the colliery, after examination of the Petitioner recorded his date of birth to be in 1927, This was categorically stated by the Respondents, Appellants herein, in their affidavit-in-opposition and this fact was admitted by the writ Petitioner in his application for correction of his date of birth in the writ petition. He has admitted that it is well known to him that his age has already been assessed earlier, i.e. on December 2, 1980 as 53 years. But, despite that, he insisted that his date of birth as recorded in Form ''B'' as in February 1927 should not be accepted and he should be retired taking this to be the correct date of birth and in support of this, he pressed a certificate issued by the District inspector of Schools, Burdwan, Since his age as in 1980 has already been, assessed as oiling 53 years, the Petitioner did not take any steps to challenge this date of birth upto September 3, 1987 when a notice dated June 9, 1987 was served on him that he is likely to be superannuated in 1987 on attaining the age of 60 on the basis of the date of birth, being December 2, 1927. Since the writ Petitioner-Respondent herein himself admits that his date of birth has already been recorded on the basis of the medical evidence as being in 1927, there was no occasion for him to have waited till he received the communication informing him his date of superannuation on attaining the age of 60 years. The production of the certificate from the District Inspector Schools, Burdwan for the purpose that the date of birth of the Petitioner is to be taken as in 1931 in support of his application dated September 3, 1987 is extremely belated, if he genuinely doubted the finding of the Medical Board which was recorded on December 2, 1980, he should have moved the writ application in proper time with the so-called Certificate for necessary correction. But he did not do so and allowed the time to pass on and when the last date of his superannuation was about to reach, he woke up to submit the application for relaxation of his age. Such after-thought exercised by the Petitioner cannot be countenanced.

In this connection, our attention was invited to a decision of the Apex Court in State of T.N. Vs. T.V. Venugopalan, It was observed by the Apex Court therein that:

The Supreme Court has, repeatedly, been holding that inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. 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 a-s regards the correctness of the entries in the service register.

It was further observed that:

It is common phonomenon that just before superannuation, an application would be made to the Tribunal or Court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the Government employees or public-employees to remain in office, which is adding an impetus to resert to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on ground of technicalities, question then and remain in office till the period claimed for, gets expired, this case is one such stark instance the Tribunal has gressly erred in showing over-indulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the gressest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground. The appeal is accordingly allowed with costs quantified as Rs. 3000/- .

Similarly in the case of Burn Standard Co. Ltd. and Others Vs. Dinabandhu Majumdar and Another, It was observed that:

The extraordinary nature of the jurisdiction vested in the High Court under Article 226 of the Constitution is not meant for enabling the employees of Government or its instrumentalities to continue in service beyond the period, of their entitlement according to dates of birth accepted by their employers, placing reliance on the re-called, newly-found material. The fact that an employee of Government or its instrumentalities who remained in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudeen comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if ft entertains such writ application. Therefore, there should be no hesitation in holding that ordinarily High Court should not, exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his ''Service and Leave Record'' or Service Register with the avowed object of continuing in service beyond the normal period of his retirement.

Prudence on the part of every High Court should prevent ft from granting interim relief in a petition for correction of the date of birth filed under Article 226 of the Constitution by an employee in relation to his employment.

Therefore, in view of the law laid down by Their Lordships of the Apex Court it is more than apparent that normally such request at the fag end of the career of the incumbents for altering date of birth should not be lightly interfered. In the present case, the writ Petitioner moved an application at the fag end of his career notwithstanding the fact that his date of birth has already been determined on account of the varying dates of birth recorded in the service record on the basis of medical examination which the Petitioner accepted without any demur and continued to serve the management till 1987, when he was deemed for superannuation, if the Petitioner wanted to protest against the recording of his date of birth in 1980, he could have moved the management well in time or could have approached this Court for redress of his grievance. But he deliberately allowed the time to pass and when he received the notice for his due date of superannuation, approached the Court by filing the writ petition. Such approach has already been deprecated by the Apex Court, Simply because he had been able to manage a Certificate from the District Inspector of Schools, Burdwan of his passing the primary examination, cannot be said to contain gospel of truth specially in view of the fact that he has been put to medical examination and his age had been recorded by a scientific method of medical examination. Therefore, no credence can be given to a certificate obtained from the District Inspector of Schools of passing the primary examination and recording of his date of birth.

Hence, we are of the view that the view taken by the learned Single Judge cannot be sustained. Hence, we allow the appeal and set aside the order of the learned Single Judge and dismiss the writ petition Civil Order No. 13114(W) of 1987.

There will be no order as to costs.

Satyabrata Sinha, J.

I agree.