Parmarth vs Chief General Manager

Ravindra Kumar Agrawal , J

Challenge in the present writ appeal is to the order dated 11.10.2023 passed by the learned Single Judge in WPS No.4305 of 2013 whereby the writ petition filed by the petitioner for correction of his date of birth in his service record has been dismissed.

Brief facts emerges from the pleadings made in the writ petition are that the petitioner was initially appointed on 09.11.1983 as Electrician by the then Western Coalfields Limited and was posted at West Chirmiti Colliery. It is the case of the petitioner that he has passed High School Examination in the year 1980 from Madhyamik Shiksha Parishad, Uttar Pradesh in which his date of birth is mentioned as 01.01.1965, but his service record is carrying two different dates of his birth as 21.10.1955 and 21.07.1955. When the petitioner came into knowledge about wrong entries of his date of birth in his service record, he made his representation to respondent No.4 in the year 1995 itself. On being receiving the application from the petitioner for correction of his date of birth the respondent authorities have made communication dated 15.09.1995 and asked for submission of the documents relating to the application for correction of date of birth. On 13.03.1997 he made his another representation with regard to submission of necessary documents for the same. Further, in the year 1998 the respondent department has prepared the particulars of the family in Form PS3 and also nomination form in Form PS4. In both these documents the date of birth of the petitioner has been made wrongly and there is difference in his date of birth. In Form PS3 his date of birth is mentioned as 21.10.1955 and in Form PS4 his date of birth is mentioned as 21.07.1955. Both these entries are incorrect and have been made by the respondent authorities without any basis and without informing the petitioner of the same. The petitioner has repeatedly moved his representation from time to time for correction of his date of birth and ultimately on 03.10.2001 the respondents have internally made their communication with respect to action taken on the application of the petitioner filed for correction of his date of birth in service record, but, his date of birth has not been corrected. On 05.04.2002 the petitioner again moved his representation to the respondent authorities and submitted that under the Implementation Instruction No.76 (in short ‘the I.I. No.76’) his High School Examination Certificate issued by Madhyamik Shiksha Parishad Uttar Pradesh shall be considered and his date of birth shall be corrected in his service record. Thereafter, he made several representation on regular intervals, but his representations have not been considered by the authorities till 2013. Although they have internally made their communication for the same and since no action has been taken on the representation of the petitioner the instant petition has been filed for correction of his date of birth in his service record with the following prayer:-

“10.1 This Hon’ble Court may kindly be pleased to issue an appropriate writ/direction/order commanding the respondents to correct the date of birth of the petitioner in his service record, according to contents mentioned in his High School Certificate i.e. 01-01-1965.

10.2 Any other relief(s), which may deems fit, looking to the facts & circumstances of the case may be given to the Petitioner.”

Per contra, respondent No.3, SECL by filing their return has submitted that the petitioner was initially appointed as General Mazdoor in West Colliery Chirmiri on 09.11.1983 and in the month of June, 2000 he came to Chirmiri colliery on transfer and working as an Electrician. As per Clause IV of his appointment order, the petitioner was required to submit his certificate with regard to age, such as school certificate or any other documentary proof of age and in absence thereof the colliery medical officer will determine the age. Inspite of condition No.4 in the appointment order the petitioner did not submit any educational certificate in support of his date of birth at the time of his initial appointment and in absence thereof the respondents had assessed the date of birth of the petitioner by initially medical examination (IME) as 21.10.1955 and the same has been entered in his service record and Form B. In the entire service record of the petitioner his date of birth is mentioned as 21.10.1955 and by putting the thumb impression the petitioner has also verified the same. It is also pleaded in their written statement that as per the High School Certificate of the petitioner, he was educated at the time of appointment, but he showed himself to be uneducated and obtained job and now at his fag end of service he is claiming for change of his date of birth in his service record on the basis of High School certificate which is not bonafide.

It is further pleaded by the respondent in their return that in December, 2002, all the employees of Chirmiri are had given option for correction of their date of birth, if there is any discrepancy in their actual date of birth ad their date of birth recorded in their service record, but the petitioner has not represented his claim for correction of his date of birth because of the reason that he himself considered that his correct date of birth is 21.10.1955. The representation made by the petitioner before the respondent authorities have been rejected after making a detailed enquiry in which they have found that the petitioner suppressed the fact at the time of his appointment that he was educated, but has obtained the job has uneducated. As per the company’s rules and regulations, such case in which there is no variation in records, will not be reopened for correction of their date of birth. It is further pleaded by the respondents that the present petition is afterthought and only to avoid his retirement due in the month of October, 2015. As per the provisions of the I.I. No.76, in case any employee who has not submitted any document/certificate in relation to his date of birth the actual date of birth shall be assessed by Initial Medical Examination (IME). The present case is also in the same nature that in absence of any documentary evidence with respect to the date of birth of the petitioner the same has been assessed by IME as per the provisions of Clause IV of the I.I. No.76. They would further pleaded that at the fag end of service the date of birth cannot be changed in the service records and the petition is liable to be dismissed.

After hearing learned counsel for the parties, the learned Single Judge has dismissed the writ petition vide order dated 11.10.2023 by saying that the petitioner has joined in the year 1983 and he passed the High School Examination in the year 1980, but at the time of his appointment he did not produce his High School certificate before the authorities and therefore, after lapse of about 12 years he produced the same and tried to seek change in the date of birth and therefore, the petitioner cannot be permitted to regal out of all the declarations, endorsements and signatures which he had put on all the statutory forms and the declarations at the time of entry and to seek change after more than 12 years. Hence, this appeal.

Learned counsel for the appellant would submit that the judgment passed by the learned Single Judge is absolutely unjustified. It is not the case that the petitioner at his fag end of service has claimed for change of his date of birth in service record, but in the year 1992 itself when he came to know about the variations in recording his date of birth in service record, he moved his representation for correction of his date of birth. Despite having internal communication by the respondents they have not corrected it. Since 1995 upto 2013 various communications have made with the petitioner as well as their own internal communication and the petitioner was under the legitimate expectations that the authorities would consider his representation and his grievance would be settled and ultimately when his grievance has not been settled he has filed the instant writ petition. The High School certificate issued by Madhyamik Shiksha Parishad, Uttar Pradesh is an authentic document with regard to his age as provided under the I.I. No.76 and if there is high school certificate there is no need to further investigate about the date of birth and the same shall be considered by the authorities, but they did not do so. He would further submit that Form B, Form PS3 and Form PS4 have never been communicated to the petitioner and he was not in knowledge about the entries made in the same with respect to his date of birth. He would further submit that the learned Single Judge has relied upon the judgments passed by the Hon’ble Supreme Court which are not applicable in the facts and circumstances of the present case and the judgment cited by the petitioner has not been considered. In view of the provisions of the I.I. No.76 and also the high school certificate of the petitioner, he is entitled for correction of his date of birth in his service record and for all consequential benefits.

Learned counsel for the respondents have vehemently opposes the arguments advanced by the learned counsel for the petitioner/appellant and has submitted that from 1993 upto 1995 the petitioner considered his date of birth as 21.10.1955 and has not submitted any document of his high school certificate. Later on, he raised dispute for correction of his date of birth which is not bonafide. At the time of entry in service he showed himself to be illiterate and obtained job and has not produced his high school certificate at that time, though as per the document, he was having the high school certificate. He would further submit that in the year 1998 the Form PS3 and PS4 were filled in which the petitioner has signed the documents and verified the same after accepting his date of birth as 21 October, 1955. Learned counsel for the respondents has placed reliance on the judgment of this High Court dated 30.11.2023 passed in WA No.384 of 2021 (South Eastern Coalfields Limited and others Vs. Ikramuddin).

It is not in dispute that the petitioner is having high school certificate of the year 1980 which is filed along with the writ petition as Annexure-P/2, i.e., prior to his entry in service. Moreover the fact that the petitioner had passed his high school examination prior to his entry in service. Clause (B)(i)(a) of the I.I. No.76 reads as follows:-

“(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 Instruction 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.”

Once the petitioner has passed his high school examination prior to his employment in all fairness the respondents should have treated his date of birth as 01.01.1965 as per clause (B)(i)(a) of the I.I. No.76.

The dispute in the instant case is very short one, i.e. what is actual date of birth of the petitioner/appellant. According to him, it was 01.01.1965, in the service record of the petitioner maintained by the respondent his date of birth has been reported as 21.07.1955 and 21.10.1955. The basic grievance of the respondent are that the petitioner has approached the Court almost at the fag end of his service career, whereas, the petitioner’s case is that at the initial stage of his service career, he moved his representation for correction of his date of birth, i.e., in the year 1995 itself he raised his grievance by making his representation,but the same has not been considered/communicate till filing of the petition despite making various representation and efforts.

Learned counsel for the petitioner/appellant would further submit that despite clear instruction given in clause (B)(i)(a) of the I.I. No.76 the petitioner produced his high school certificate issued by the Madhyamik Shiksha Parishad, Uttar Pradesh in the year 1980 wherein date of birth of the petitioner is mentioned as 01.01.1965, the respondents SECL has not considered the petitioner’s prayer for correction of his date of birth. The learned counsel for the petitioner has placed reliance on the judgment of the Hon’ble Supreme Court in the matter of M/s Bharat Coking Coal Ltd. and others Vs. Chhota Birsa Uranw, 2014 AIR SCW 2634 and prayed for a direction to correct his date of birth in his service record.

In M/s Bharat Coking Coal Ltd. (supra), the Supreme Court while dealing with the I.I. No. 76 held thus:

“11…….. Admittedly, the appellant as the employer in view of its own regulations being Implementation Instruction No. 76 contained in the National Coal Wage Agreement III, gave all its employees a chance to identify and rectify the discrepancies in the service records by providing them a nominee from containing details of their service records. This initiative of the appellants clearly indicated the existence of errors in service records of which the appellants were aware and were taking steps to rectify the same. Against this backdrop, the stance of the appellant that the records in the Form ‘B’ register must be relied upon does not hold good as it is admitted by the appellant that errors existed in the same. Even a perusal of the nominee from exhibits the ambiguity regarding the date of birth and date of joining. It was due to the discrepancies which subsisted that the appellants gave all its employees a chance to rectify the same. In such circumstances, the appellants are bound by their actions and their attempt to deny the claims of the respondent is incorrect. The respondent in this case duly followed the procedure available and the attempt of the appellant to deny the claim of the respondent on the basis of technicality is incorrect. We, therefore, fell that the learned Single Judge has correctly held that:

‘11. Having given the petitioner, like all employees, the benefit of seeking correction of the entries contained in their service records including their date of birth, the petitioner’s claim cannot be denied, merely because he had signed upon the Form ‘B’ Register at the time of its opening and containing the entry of date of birth as recorded therein.”

(Emphasis supplied)

The appellant in the present case should have followed the procedure as laid down by Implementation Instruction No. 76 to determine the date of birth of an existing employee. The provisions of which read as follows:

“(B) Review determination of date of birth in respect of existing employees.

(i)(a) In the case of the existing employees Matriculation Certificate of (sic: or) Higher Secondary Certificate issued by the recognized Universities of 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/Boards Institutions prior to the date of employment.

(i)(b) Similarly,  Mining  Sardarship,  winding  engine  or similar other statutory certificate where the Manager had to certify the date of birth will be treated as authentic.

Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.

(ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merits of the case will take appropriate action for correction through determination committee/medical board.

(C) 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, CMP Records and Identity Cards (untampered) will be treated as final. Provided that where there 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 the determination of age.

(D) Age determination: by the Age Determination Committee/Medical Board referred to above may consider their evidence available with the colliery manangement; and/or

(E) Medical Board constituted for determination of age will be required to manage (sic assess) the age in accordance with the requirement of medical jurisprudence and the Medical Board will as far as possible indicate the accurate age assessed and not approximately.”

In another case, being G.M. Bharat Coking Coal Ltd. Vs. Shib Kumar Dushad (supra) where the date of birth of an employee of the Bharat Coking Coal was in dispute and the same set of instructions were applicable, this court referring to the Implementation Institution held that:

“20. From the provisions in the instructions referred to above, it is clear that in case of dispute over the date of birth of an existing employee who has neither a Matriculation Certificate/Secondary School Certificate nor a statutory certificate in which the Manager has certified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board.”

(Emphasis supplied)

We give due regard to the sensitive nature of date of birth disputes and fully agree with the approach laid down in R.Kirubakaran Case, (AIR 1993 SC 2647 : 1993 AIR SCW 3333) (supra). However, with an aim to prevent the cascading inconveniences caused by a change of date of birth, a wronged employee should not be denied of his rights especially when he has adhered to the procedure laid down and attempted to avoid litigation by resorting to in-house mechanisms. Public Corporations/Departments, should not benefit from their own omission of duty. In the present case, the appellant-company failed to follow the procedure as laid down in the Implementation Institution. It is the appellant’s omission and not the inaction of the respondent which led to the dispute being raised in the courts at such a delayed stage. The attitude of such corporations wherein to avoid the rectification of a date of birth; litigation is unnecessarily prolonged just because they have number of resources at their command, goes against the grain of equity and duty towards society at large.

As noted by us, the respondent in 1987 on coming to know of the wrong recording of his date of birth in his service records from the nomination form sought rectification. Therefore, such rectification was not sought at the fag end of his service. We have further noticed that the High Court duly verified the genuineness of the school leaving certificate on the basis of a supplementary affidavit filed by Shri Dilip Kumar Mishra, legal inspector of the appellant company on September 6, 2010 before the High Court. It has been admitted in the said supplementary affidavit that the school leaving certificate has been verified and has been found to implementation Instruction No. 76 clause (i)(b) permits rectification of the date of birth by treating the certificate to be correct provided such certificates were issued by the educational institution prior to the date of employment. The question of interpreting the words ‘were issued’ was correctly interpreted, in our opinion, by the High Court which interpreted the said words for the purpose of safeguarding against misuse of the certificates for the purpose of increasing the period of employment. The High Court correctly interpreted and meant that these words will not apply where the school records containing the date of birth were available long before the starting of the employment. The date of issue of certificate actually intends to refer to the date with the relevant record in the school on the basis of which the certificate has been issued. A school leaving certificate is usually issued at the time of leaving the school by the student, subsequently a copy thereof also can be obtained where a student misplaces his said school leaving certificate and applies for a fresh copy thereof. The issuance of fresh copy cannot change the relevant record which is prevailing in the records of the school from the date of the admission and birth date of the student, duly entered in the records of the school.

(emphasis supplied)

In Manoj Kumar Vs. Government of NCT of Delhi and Others, (2010) 11 SCC 702, it has been held by the Hon’ble Supreme Court that the matriculation certificate is a strong material to prove the date of birth.

On the basis of the provisions contained in the I.I. No.76 and the judgment rendered by the Hon’ble Supreme Court in Ms. Bharat Coking Coal Ltd. and others (supra) it is manifested that when the petitioner is seeking correction of date of birth in his service record on the strength of high school certificate which was issued to him in the year 1980, much prior to joining his service in the month of November, 1983, the same ought to be accepted and acted upon for making review/correction of his date of birth in terms of clause (B)(i)(a) of the I.I. No.76 and by not doing so the respondents have committed serious illegality and more so when the said high school certificate has got verified by the respondents and its verification report has been submitted on 04.10.2021 in the writ petition by the respondents.

So far as his claim raised at highly belated stage and at the fag end of service is concerned, from perusal of the record of the writ petition it reveals from the document Annexures - P/3 and P/4 that the petitioner has already raised his grievance for correction of date of birth in his service record in the year 1995 itself for which certain correspondence have also been made by the respondent authorities. In the year 2011 also they have made internal communication which is filed by the petitioner vide Annexure-P/9 and for the reasons best known to the respondents, the grievance of the petitioner was not settled by the respondents, thus, it is quite vivid that the petitioner has not raised his dispute at the fag end of his service, but after initial years of his service he raised his dispute/grievance for correction of his date of birth in the service record. He continuously pursuing his cause by making various representations and when his representation has been ultimately decided on 06.04.2012 (Annexure-R/10) he filed the writ petition for redressal of his grievance.

The high school certificate issued in favour of the petitioner by Madhyamik Shiksha Parishad, Uttar Pradesh has got verified by the respondent authorities in which it was found genuine. From the certificate itself it is shown that the petitioner has passed his high school certificate examination in year 1980. In normal way of life, a student who is having 15-16 years of age is appeared in class 10-11 of his school examination and if date of birth of the petitioner is taken to be correct as mentioned in his service record, i.e., 21.07.1955 or 21.10.1955 then it would be stated that he appeared in high school certificate examination at the age of 25 years.

The Implementation Instruction No.76 is having binding upon the parties. As per clause (B)(i)(a) of the I.I. No.76 with respect to existing employees the date of birth mentioned in the high school certificate issued by a recognized University/Board should be treated as correct provided that they were issued by the said Universities/Boards prior to date of employment. This proposition can also not be disputed by the respondents that the petitioner came into service in the month of November, 1983, whereas, the said certificate of high school examination was issued in the year 1980, so the respondents ought to have treated the date of birth of the petitioner as 01.01.1965 as his correct date of birth and when the service record of the petitioner bears with wrong date of birth the same ought to have been corrected as and when the request made by the petitioner for correction of the same after following due process. The respondents have contested the case on the ground that at the time of entering into service the petitioner has not produced his high school certificate and obtained job and after enjoying for a considerable period of 12 years he cannot made any application for correction of his date of birth. The submission of learned counsel for the respondents is found unfounded in view of the provisions of clause (B)(i)(a) of the I.I. No.76 that too after initial years of service he raised the dispute/prayer for correction of his date of birth. Therefore, the judgment cited by learned counsel for the respondents are on different footing than the present case of the petitioner.

The respondents employer who also have considered that in Form PS3 the date of birth of the petitioner is mentioned as 21.10.1965, whereas in Form PS4 his date of birth is mentioned as 21.07.1965. The employer was under obligation to clarify or to correct these variations in their office record because these are records maintained by the employer itself, if they came into knowledge that two different dates of birth in two different documents are appeared in service record of the petitioner, then they have to clarify it that which one is correct and to correct it on the basis of admissible document if wrong entries have been made.

For the foregoing reasons, the present writ appeal is allowed. Impugned order dated 11.10.2023 passed by learned Single Judge is set aside. Consequently, WPS No.4305 of 2013 is allowed. The respondents are directed to correct the date of birth of the petitioner in his service record in view of the Implementation Instruction No.76 and also the high school certificate of the petitioner. The petitioner is also entitled for consequential benefits. No order as to cost.