Erki Ramulu vs Singareni Collieries Company Ltd.

This writ appeal challenges the order of the learned Single Judge dated 11.06.2019 in WP.No.2866 of 2018, whereby the writ petition filed by the

appellant was dismissed.

The parties herein are referred to as arrayed before the learned Single Judge. The brief facts of the case are as under:

(a) The petitioner was initially appointed as a Badli Filler on 9. 07.1981. He was promoted as a Timberman in Category IV on 01.07.1982 and further

promoted to Category V on 01.07.1992. In June 2009, the petitioner was declared medically unfit by the medical officers of the respondent company

in terms of a report Ref.No.CRP/MED/C/049/2374 dated 13.06.2009. The case of the petitioner was referred to the Corporate Medical Board as he

was not fit to carry on underground duties as a Timberman. On the request of the petitioner, his case was referred to the Broad Based Corporate

Medical Board, who opined that he was unfit to work as a Timberman but fit to work as a General Mazdoor on the surface. Accordingly, the

petitioner was posted as General Mazdoor vide order dated 4.11.2009. Since then the petitioner continued working as a General Mazdoor on the

surface in Ramagundam area.

(b) It is the case of the petitioner that in the year 1981 when he joined the respondent company, there were no age determination rules. Merely by

looking at a person, the officials of the respondent company would record his age and they did not give any opportunity to the employee to submit the

documents, as per the prevailing rules. The age determination rules were framed by JBCCI (Joint Bipartite Committee for the Coal Industry) in the

year 1988. As per the said rules, if an employee is in possession of a school leaving certificate, wherein the date of birth is recorded, that will be taken

into consideration for a change of the date of birth. Prior to the JBCCI age determination rules, there was no practice of looking into the records for

establishing the date of birth. The respondent company has not considered the school leaving certificates at all. This issue was raised several times by

the Trade Union as well as the workmen in some cases. On the suggestion of the Union, on 03.09.2012 the petitioner had submitted an application for

a change of his date of birth along with a copy of his school leaving certificate which was earlier to his joining duty and sought a change of his date of

birth in the records.

(c) Vide reference No.RG-III/W-26/1181 dated 19.05.2013 the petitioner was informed that in pursuance to the Circular No.CRP/PAR/IR/A/51/1864

dated 16.08.2012, his application was scrutinized but there was insufficient proof for covering him within the purview of the JBCCI rules. As a result,

his application was considered and he was informed that the date of birth mentioned on the Notice board would be enforced henceforth, as per the

records i.e., 06.06.1956. The petitioner submitted representations against the said decision several times, but the Management did not consider his

case. The petitioner also sought necessary information from the Management. Ultimately, he applied under the RTI Act on 23.02.2015 and received a

copy of the Circular dated 16.08.2012, on 28.02.2015, which is an interdepartmental Circular issued by the respondent No.1/Management to all Mines

and Departments calling upon them to display the age/date of birth particulars of the employees on the Notice board, to avoid age disputes and to

collect back duly singed EPR printouts, but the said Circular did not disclose as to what documents were required for a change of the date of birth.

(d) On 28.02.2015, the petitioner filed another application through RTI, to furnish him a copy of his service book. A Xerox copy of the same was

furnished to him vide Ref:RGII/OCP2/W-32/621 dated 14.03.2015. The petitioner claims that only then did he realize that wrong entries were made in

the records with regard to his date of birth and the Management wanted to stick to the wrong entries, contrary to the JBCCI rules.

(e) The petitioner stated that his father is a native of Allur village, Ramagundam Mandal, Karimnagar District. He submitted his school leaving

certificate to the authorities and also obtained study, conduct and date of birth certificate on 27.08.2013 to prove that his date of birth was recorded

therein as 04.07.1962. The same date of birth was mentioned in his Transfer certificate. However, at the time of his appointment, the petitioner’s

age was recorded as 25 years as on 06.08.1981, without calling for any document as proof for his date of birth. The date of birth was recorded as

06.06.1956 based on the assumption that the petitioner was born on the said date, month and year. As per the said assumed date of birth, the petitioner

was to retire on 30.06.2016. But in fact, he was born on 04.07.1962, the current date of birth recorded in the birth certificate issued by the Registrar of

Births and Deaths and the very same date of birth was recorded in his School Transfer certificate No.012263 with Admission No.2512, in terms of the

certificates issued by the school authorities in Godavari Khani. The petitioner had studied from Class II to VII whereafter he dropped out because of

his financial circumstances.

(f) The petitioner contended that the respondent-company has adopted a discriminatory approach and failed to correct his date of birth. In an arbitrary

manner, the respondent/company proceeded to retire the petitioner on 30.06.2012, vide proceedings No.RG3/OP-2/W.O/P/014/1542 dated 08.06.2015.

Claiming that the action of the respondent/company is violative of Articles 14, 16 and 19(1) of the Constitution of India and Section 12(3) of the

Industrial Disputes Act, the petitioner filed the writ petition.

(g) In the counter affidavit filed by the respondents, it was stated that there is no violation of any statutory rule or a regulation having any statutory

force for invoking the jurisdiction of this court under Article 226 of the Constitution of India. The petitioner did not submit any documentary evidence

as proof of his date of birth, as per the JBCCI rules. In the Initial Medical Examination, the then Colliery Medical Officer had assessed the age of the

petitioner as 25 years, as on 06.06.1981, which is an authentic document and the same age/date of birth was incorporated in his service records, duly

acknowledged as correct by the petitioner in token of acceptance of the entries made therein. It was averred that the petitioner was to attain the age

of superannuation on 06.06.2016. The Management has issued a Circular dated 16.08.2012, to display the details of the date of birth/age and date of

retirement etc. in respect of the employees on the Notice boards of the respective mines and departments, so as to make them aware of their service

details and to appeal for correction of errors if any, as per the set procedure and guidelines of the company.

(h) In response thereto, a representation dated 03.09.2012 was submitted by the petitioner requesting for a change of his date of birth as 04.07.1962,

instead of 06.06.1956. The petitioner was intimated vide proceedings No.RG.3/W26/1181 dated 19.05.2013 that his representation was duly examined

and it was opined that there was no merit in his claim for a change of his date of birth, as per the JBCCI guidelines. The date of birth of the petitioner

displayed on the Notice board, in pursuance to the Circular dated 16.08.2012, remains in force. It was stated that vide order dated 21.03.2001 passed

by the Supreme Court in a Civil Appeal No.1720 of 1999 in HINDUSTAN LEVER LIMITED v. S.M. JADHAV, it has been held that employees

cannot raise a dispute at the fag end of their service about the age recorded the service record, maintained by the employer.

After hearing the parties, the learned Single Judge opined that the application submitted by the petitioner for correction of his date of birth during the

month of September 2009, was duly considered by the respondents and was rejected on 19.05.2013. But the petitioner did not choose to challenge the

rejection orders. It was only in January 2016, that the petitioner filed the writ petition knowing fully well that the respondents were taking steps to

retire him on 03.06.2016. The petitioner had approached the Court at the last minute, seeking correction of his date of birth. Though the respondents

had considered his case and rejected the same, the said proceedings were not challenged by the petitioner till the eleventh hour, thus disentitling him to

any relief.

Learned counsel for the appellant submitted before us that the action of the respondents is arbitrary and unconstitutional. The petitioner had

produced his school record, an authentic public document to prove that his age and date of birth had been wrongly recorded in the official records of

the respondent/company, but the same was ignored. It was asserted that the petitioner’s application for correction of his date of birth cannot be

treated as belated.

On the other hand, the learned Standing counsel for the respondent/company supported the impugned judgment and submitted that there is no merit

in the writ appeal. The petitioner has approached the authorities at the fag end of his career. His date of birth was entered in the records, in

accordance with the JBCCI rules, which was never objected to by the petitioner at any point of time. Therefore, there is no merit in the writ appeal.

Before dealing with the submissions made by learned counsel for the parties, it would be apt to refer to two recent judgments of the Supreme Court

on this subject wherein it has been categorically held that an application filed by an employee for correction of his date of birth at the fag end of his

career, cannot be entertained and even if there is good evidence to establish that the recorded date of birth is erroneous, a correction cannot be

claimed as a matter of right.

In FACTORY MANAGER KIRLOSKAR BROTHERS LTD. v. LAXMAN (2020) 3 SCC 419, the Supreme Court held as under:-

“4. The affidavit filed by the employee indicated that he was well aware that his date of birth had not been corrected by the employer on the basis

of representation that was allegedly filed in the year 2003. Thus, it was not open to him to have waited for ten years i.e. till his date of retirement and

to file a representation again and to approach the Labour Court. He slept over his right and it is also doubtful whether he had submitted representation.

Even if he has submitted his representation, he could not have waited for ten years for seeking correction in the date of birth after his retirement. A

perusal of the record also indicated that once the Respondent himself had declared his date of birth as 01.01.1956. There is no document in service

book indicating that he has ever declared his date of birth as 01.12.1956.â€​

In BHARAT COKING COAL LTD. v. SHYAM KISHORE SINGH (2020) 3 SCC 411, the Supreme Court has made the following observations:-

“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 and Anr. 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:

“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 [(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.

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. 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.

* * *

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 reads as under: (SCC pp. 158-59, para 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.

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:

“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 : 1993 SCC (L & S) 375].â€​

(emphasis added)

As is evident from the record, in the present case the application of the appellant for correction of his date of birth was submitted on 03.09.2012, for

seeking a change of his date of birth to 04.07.1962, instead of 06.06.1956. Vide proceedings dated 19.05.2013, the appellant was intimated that there

was no merit in his claim for a change in his date of birth, as per the JBCCI guidelines and that his date of birth was displayed on the notice board in

pursuance of the Circular dated 06.08.2012 that remains in force. After receiving a response from the respondent/company on 19.05.2013, rejecting

his claim, the appellant did not choose to seek any legal recourse and only at the fag end of his career, did he elect to file a writ petition in the year

2016. We are in agreement with the view expressed by the learned Single Judge that it was too late in the day for the appellant to seek a change in his

date of birth. The application for correction of his date of birth was filed by the appellant just before his retirement, despite the fact that he had

received the rejection orders in the year 2013 itself. No foundation has been laid by the appellant to explain the delay in filing a belated writ petition.

In view of the aforesaid facts and circumstances, the impugned judgment is upheld and the writ appeal is held to be devoid of merits and is

accordingly dismissed. Pending miscellaneous petitions, if any, shall stand closed with no order as to costs.