Ram Balak Pandey vs SECL

The present writ petition has been filed by the petitioner challenging the report of the Age Determination Committee (in short, the Committee) dated 16/17.06.2011 (Annexure P/1) by which the Committee has not found any merit for correction of the date of birth of the petitioner under Implementation Instruction No.76 (in short, I.I. 76) which was submitted in pursuance of the order dated 18.04.2011 passed by this court in WPS No.3452 of 2011 directing the Committee to consider the case of the petitioner in accordance with law on its own merits.

The petitioner is also seeking a direction to the respondents for correction of his date of birth in his service records as 21.01.1955 in place of 28.09.1951.

The petitioner’s case is that, he was appointed on 02.12.1975 by the South Eastern Coalfields Limited (in short, the SECL) on the post of General Mazdoor. His date of birth has wrongly been entered in his service records as 28.09.1951 whereas, his actual date of birth is 21.01.1955 which is correctly recorded in his matriculation certificate also. Since the authorities have not considered his representation for correction of his date of birth, he filed a writ petition bearing WPS No.3452 of 2011 before this court which was disposed of vide order dated 18.04.2011 (Annexure P/2) with a direction to the Committee to consider the case of the petitioner in accordance with law on its own merits.

It is the case of the petitioner that the Committee has not considered the matriculation certificate of the petitioner issued on 06.12.1972 by the Bihar Vidyalaya Pariksha Samiti, in which the date of birth of the petitioner is recorded as 21.01.1955. The matriculation certificate is the an authentic document regarding date of birth as provided under Clause-(B)(i)(a) of the Annexure-1 of I.I. 76, which has not been considered. Further, the petitioner has passed Shot Firer’s and Mining Sirdar’s examination (Annexure P/7 & P/8) conducted by the Mines Department under the Mines Act, 1952 and its certificate issued on 09.07.1980 and 06.05.1986 respectively are also the authentic documents as per Clause-(B)(i)(b) of Annexure-1 of I.I.76, and therefore his date of birth has not been determined by the Committee in accordance with law.

Return has been filed by the respondents-SECL stating therein that the petitioner was appointed on 02.12.1975 and at that time his date of birth was recorded in ‘B’ Form as well as in his service book as 28.09.1951. It is also submitted that at the time of his appointment, the petitioner has not submitted his matriculation certificate and obtained employment as an illiterate person. After about 26 years of service, the petitioner wants to correct his date of birth in his service records which is impermissible and highly belated claim. The Committee has taken all the facts into consideration and comes to the conclusion that there is no merit for correction of his date of birth.

Shri Anshul Tiwari, learned counsel appearing for the petitioner would submit that the Committee has absolutely unjustified in holding that the case of the petitioner cannot be reopened for correction of his date of birth under Clause-5 of I.I.76. He would submit that the matriculation certificate of the petitioner issued on 06.12.1972 by the Bihar Vidyalaya Pariksha Samiti and the Sirdar’s certificate issued on 06.05.1986 under the Mines Act, 1952 are the authentic documents of his date of birth as provided under Clause-(B)(i)(a) & (b) of the Annexure-1 of I.I.76, and therefore, the report of the Committee dated 16/17.06.2011 is liable to be set aside and the respondents may be directed to correct the date of birth of the petitioner in his service records.

On the other hand, Shri Atul Kesharwani, learned counsel appearing for the respondents-SECL vehemently opposes the petition and would submit that in the statutory Form ‘B’ and other service records of the petitioner, his date of birth is recorded as 28.09.1951 on which the petitioner has also signed. In the year, 1987, the details available in the service records of the petitioner was issued by the petitioner and asked him to furnish the other details in the prescribed form which was also signed and submitted by the petitioner on 13.08.1987, but he has not raised any objection at that time regarding his date of birth. In his service records, the matriculation certificate and the Mining Sirdar’s certificate are not available. He was appointed as an illiterate person. He would further submit that at the time of appointment, the petitioner has not submitted the matriculation certificate in order to get an appointment on the post of General Mazdoor and entered into service and therefore, now the petitioner is stopped by the principles of estoppel and cannot claim the benefit on the ground that he is matriculate and his date of birth recorded in the matriculation certificate is the correct date of birth and the same may be entered/corrected in his service records also.

Further submission of the counsel for the SECL is that, the petitioner entered into service in the year 1975 and he raised the dispute of his date of birth for the first time in the year 2001 which is after about 26 years and such a belated claim for correction of date of birth in his service record cannot be considered. It is further submitted that the letter dated 26.11.2002 does not help the petitioner because the letter itself states that only those cases would be referred for consideration where the similarities are not found in the entries of Form ‘B’ register, CMPF record, service records and the service book of the employee. In the instant case, the Form ‘B’ of the petitioner, CMPF record, service record and the service book contains the entry of date of birth of the petitioner as 28.09.1951 and therefore, the petition deserves to be dismissed.

I have heard the counsel for the parties and considered their submissions and perused the records with utmost circumspection.

In order to appreciate the entries made in the service records at the time of appointment of the petitioner, it appears that the petitioner has not submitted his matriculation certificate at the time of his appointment. The reasons best known to the petitioner that why he has not submitted his matriculation certificate when the same was available with him. It is not the case of the petitioner that at the time of appointment he submitted his matriculation certificate before the authorities or the copy of marksheet is very much available in the service records. The only contention of the petitioner in the petition is that they have submitted the matriculation certificate at the time of appointment, but the same has not been accepted.

In the matter of Eastern Coalfields Limited and Others Vs. Bajrangi Rabidas, 2014(13)SCC 681, the Hon’ble Supreme Court has held that when the respondents had taken undue advantage by not producing matriculation certificate solely with an intention to get entry in the service, the principles of estoppel clearly applicable, and in paragraphs 16 to 19 held as under:

“16. Para (A)(v) deals with revision of determination of date of birth in respect of existing employees. Paras (A)(v)(i)(a) and (b) are as follows: -

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

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.

(b) Similarly, Mining Sirdarhip, Winding Engine or similar other statutory certificates 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.”

On an apposite reading of the instructions there can be no iota of doubt that the date of birth mentioned in Matriculation or Higher Secondary certificate has to be accepted as authentic. But, a pregnant one, as has been indicated hereinbefore, the case at hand depicts a different picture. The respondent did not produce the Matriculate Certificate, though he had passed the said examination. It is because, we are inclined to think, had he produced the said certificate, he could not have undertaken the examination and consequently could not have been appointed. To secure an appointment, as has been found in the enquiry, he made a statement that he had not obtained the certificate though he had passed the examination and the same was accepted by the Welfare Officer of the then private company.

The question that arises for consideration is that once he had availed the benefit by not stating the correct fact, whether the equitable jurisdiction under Article 226 of the Constitution of India should be extended to him. The Division Bench has recorded a finding the respondent could not have been allowed to participate in the examination without producing the Matriculation certificate. The said finding is based on an assumption and has been arrived at totally being oblivious of the enquiry report which records the statement of the respondent. In this context, we may profitably reproduce a passage from Union of India v. C. Rama Swamy and others[1]: -

“25. In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to access suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned.” [Underlining is ours]

The controversy can be viewed from another angle. Thereafter, the learned Judges opined that there is no justification in the proposition that principle of estoppel would not apply in such a situation. As is manifest, in the case at hand the respondent stated this on the higher side to gain the advantage of eligibility and hence, we have no trace of doubt that principle of estoppel would apply on all fours. It is well settled in law that jurisdiction of the High Court under Article 226 of the Constitution is equitable and discretionary. The power of the High Court is required to be exercised “to reach injustice wherever it is found”. In Sangram Singh v. Election Commissioner, Kotah and another[2], it has been observed that jurisdiction under Article 226 of the Constitution is not to be exercised whenever there is an error of law. The powers are purely discretionary and though no limits can be placed upon that discretion, it must be exercised along recognized lines and not arbitrarily and one of the limitations imposed by the courts on themselves is that they will not exercise jurisdiction in such class of cases unless substantial injustice has ensued or is likely to ensue. That apart, the High Court while exercising the jurisdiction under Article 226 of the Constitution can always take cognizance of the entire facts and circumstances and pass appropriate directions to balance the justice. The jurisdiction being extraordinary it is required to be exercised keeping in mind the principles of equity. It is a well-known principle that one of the ends of equity is to promote honesty and fair play. If a person has taken an undue advantage the court in its extraordinary jurisdiction would be within its domain to deny the discretionary relief. In fact, Mr. Singh, learned senior counsel for the appellants, has basically rested his submission on this axis. In our considered opinion, the Division Bench has erred in extending the benefit to the respondent who had taken undue advantage by not producing the Matriculation Certificate solely on the motive to get an entry into service. It is apt to note here that this Court in G.M., Bharat Coking Coal Ltd., West Bengal v. Shib Kumar Dushad and others[3] has ruled that the decision on the issue of date of birth of an employee is not only important for the employee but for the employer also.”

The statutory Form ‘B’ of the petitioner contains the signature of the petitioner in which also the date of birth of the petitioner has been mentioned as 28.09.1951 (Annexure P/6). The Shot Firer’s Certificate was issued on 09.07.1980 (Annexure P/7) after successfully clearing the examination under the Coal Mines Regulations, 1957. Likewise, the Mining Sirdar’s certificate (Annexure P/8) was issued on 06.05.1986 after passing the examination under the said Coal Mines Regulations, 1957. The petitioner has not contended that at any point of time he has submitted his certificates before the authorities and claimed for entry of his correct date of birth at the time when he obtained the said certificates.

On 23.07.1987, when the details of service records of the petitioner (Annexure P/5) was issued, then also the petitioner neither submitted his matriculation certificate nor raised any dispute with regard to his date of birth and signed it on 13.08.1987 and submitted the same before the respondents. The representation of the petitioner submitted on 27.12.2002 (Annexure P/13) shows that in the Form ‘B’, service records, service book as also in the CMPF records the date of birth of the petitioner is recorded as 28.09.1951.

Earlier, the petitioner has filed a writ petition being WPS No.3452 of 2011 before this court claiming correction of his date of birth in his service records. The said writ petition was disposed on 18.04.2011 with a direction to the Committee to consider the case of the petitioner in accordance with law. Thereafter, the Committee has examined the case of the petitioner and observed as follows:

“1 Date of appointment : 02.12.1975

2 Date of birth as per form B and Service Book : 28.09.1951

3 Date of birth as per service excerpts issued in the year 1987 : 28.09.1951

4 Date of birth as per IME  :  24 years as      on 28.09.1975

5 Date of birth as per shot firer/ Mining 20.01.1955  Sirdar Certificate Dt. 9.7.1980   &   6.5.1986 respectively

6 Date of  birth  as per Bihar  School 21.01.1955 Examination  Samithi  Certificate  dated 6.12.1972

7 He has not raised by dispute regarding his date of birth as recorded in service excerpts issued in the year 1987.

8 He has submitted before ADC on 6.6.2011 that he was appointed as Loader as illiterate and he has not submitted his educational qualification certificate containing his date of birth at the time of appointment.

From the above observation the following is established :-

iv). He has secured employment in the company as illiterate.

v). Though he was in possession educational and mining Sirdar certificate prior to the issue of service excerpts in the year 1987 inviting objections over entries made therein, he did not raise any dispute regarding correction of his date of birth in service excerpts as per educational/ mining sirdar certificate.

vi). Since he has not raised any dispute in the year 1987 over the date of birth recorded in service excerpts as 24 years as on 28.09.1975 i. e. 28.9.1951, his case can not be reopened for correction of his date of birth under clause 5 of I.I.76.

In view of above, there is no merit for correction of his date of birth under I.I.76.”

At this stage, it would be appropriate to notice the scope of interference in the order of Age Determination Committee.

Way back in the year 2000, in the matter of G.M., Bharat Coking Coal Ltd., West Bengal Vs. Shib Kumar Dushad and others, 2000(8)SCC 696, their Lordships of the Supreme Court held that once enquiry is made by the age determination committee following the procedure laid down in Implementation Instruction No.76 then the scope of interference by the writ court is quite limited and the High Court should not interfere with the date of birth as determined by the employer/SECL and issue a writ of mandamus i.e. claimed by the employee. Paragraphs 17, 18, 19, 20 and 24 of the report read as follows: -

"17. The date of birth of an employee is not only important for 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. We are constrained to make this observation as we find that in a large number of cases employees who are on the verge of retirement raise a dispute regarding correctness of the date of birth entered in the service record and the courts are inclined to pass an interim order for continuance of such employee beyond the date of superannuation on the basis of the entry of date of birth in the service record. Such a situation cannot be commended for the reason that the court in passing such an interim order grants a relief to the employee even before determining the issue regarding correctness of the date of birth entered in the service record. Such interim orders create various complications. 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.

At this stage we may take note of certain instructions which were issued by the appellant laying down the procedure for determination/ modification of date of birth of employee. The document is styled as:

"Implementation Instruction No.76 Procedure for Determination Verification of Age of Employees".

Its authenticity is not disputed by the parties. Indeed the respondent employee has filed this document as Annexure R-7 to the counter-affidavit filed in this court. Under para 'A' the manner of determination of age at the time of appointment is laid down. Under para 'B' are laid down the procedures to be followed in cases of determination of date of birth in respect of existing employees. Under sub-para (i) of para 'B' the case of the existing employee having a Matriculation Certificate or Higher Secondary Certificate issued by the recognised University or Board or Middle Form Certificate issued by the Board of Education and/or Department of Public Instruction should be treated as the correct date of birth provided the documents are issued by the University/Board prior to the date of the employment. Under sub-para (i) (b) of para 'B' it is provided that mining sirdarship, wind up 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 the documents mentioned in (i)(a) and (i)(b) above are available the date of birth in (i)(a) will be treated as authentic. In clause (ii) of para 'B' it is specifically stated that 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 merit of the case will take appropriate steps for corrections through the Age Determination Committee/Medical Board. In 'C. 'D' and 'E' the procedures to be followed by the Age Determination Committee/Medical Board for determination of age of an employee are laid down. The provisions read as follows:

"(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, CMPF Record and Identity Cards (untampered) will be treated as final, provided that where there is a nomination 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.

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

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 Icertified the entry regarding the date of birth to be authentic the employer is to refer the matter to the Medical Board. Therefore, no fault can be found with the action taken by the appellant to refer the case of the respondent to Medical Board. The Medical Board as laid down in the instructions is to consider the matter on the evidence available with the colliery management and in accordance with the requirement of medical jurisprudence. As noted earlier, in the present case the Medical Board determined the age of the respondent to be 52 years in 1988 and the employer (appellant) accepted such determination. In the circumstances there was hardly any scope for the High Court to interfere with the date of birth as determined by the employer (appellant herein) and issue a writ of Mandamus that the date as claimed by the employee (the respondent herein) should be accepted.

On the analysis and the discussions in the foregoing paragraphs, we have no hesitation to hold that the High Court erred in interfering with the date of birth/age of the respondent as determined by the appellant. Accordingly, the appeal is allowed. The judgment of the Single Judge in Writ Petition No.2717 of 1994 and the judgment of the Division Bench, confirming the judgment of the Single Judge with a modification, are set aside. Writ petition stands dismissed.…"

The Hon’ble Supreme Court in the matter of Bharat Coking Coal Limited and others v. Shyam Kishore Singh, 2022(3)SCC 411, placing reliance upon its earlier judgment in the matter of State of Madhya Pradesh and others Vs. Premlal Shrivas, 2011 (9)SCC 664, in which it has been held that even if there is good evidence to establish that the recorded date of birth is clearly erroneous, correction cannot be claimed as a matter of right, held in paragraph 10 as under: -

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. Premial Shrivas' it is held as hereunder: (SCC pp. 667 & 669, paras 8 & 12)

"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 I 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').

XXX XXX XXX

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."

Similarly, the Supreme Court in Shyam Kishore Singh's case (supra) as well as in the matter of Eastern Coalfields Limited and others Vs. Ram Samugh Yadav and others, 2020(3)SCC 421, held that prayer for correction in the date of birth at the fag end of career is totally impermissible.

Reverting to the facts of the present case, it is quite vivid that the question of date of birth is a pure and simple question of fact. The petitioner has failed to bring documents of his matriculation certificate at the time of his appointment and appointed as an illiterate person as observed by the Committee. In view of the clinching evidence available in the shape of Form ‘B’ register, under Section 48 of the Mines Act, 1952, service records, service book as also in the CMPF record, the date of birth of the petitioner is recorded as 28.09.1951, this court is unable to interfere with the decision taken by the Committee duly accepted by the employer SECL. Not only this, the petitioner entered into the service on 02.12.1975 and he first time raised the dispute in the year 2001 i.e. after about 26 years of entering into service i.e. after a considerable lapse of time and service tenure.

Raising such a dispute after a considerable lapse of time of induction in service and that too at the fag end of service career is highly belated claim, though no time limit is prescribed in the applicable rules and regulations for correction in date of birth, yet the petitioner kept sleeping over his right, if any, and such a belated claim is ex facie illegal as held by the Supreme Court in Shyam Kishore Singh’s case (Supra) and correction of date of birth cannot be claimed as a matter of right, even if sufficient evidence is available to show that the recorded date of birth is erroneous as held in Premlal Shrivas case and followed in Shyam Kishore Singh’s case.

In the considered opinion of this court, the petitioner has failed to make out a case for interference in the date of birth as determined by the Committee duly accepted by the respondents-SECL. I do not find any infirmity in the decision making process of the Committee which is a finding of fact.

As a fallout and consequence of the above-stated discussion, the writ petition deserves to be and is accordingly dismissed, leaving the parties to bear their own costs.