Sayyad Yasin vs South Eastern Coalfields Limited And Ors

@JUDGMENT-JUDGMENT

Parth Prateem Sahu, J

Correctness and sustainability of Order dated 26.09.2019 passed in WPS- 6488 of 2017 are put to challenge by filing this Writ Appeal wherein the

Writ Petition filed by the appellant seeking relief of writ of mandamus, commanding the respondents to correct his date of birth in service record by

quashing Annexure P17, which is a letter on the basis of opinion of Age Determination Committee mentioning therein the age of appellant as 15th July,

1950.

Facts of the case in a nutshell are that appellant was appointed as General Mazdoor on 05.03.1972 in a private Coal Company, named as Dada

Bhai and Company. After nationalisation of Coal sector, services of appellant are merged with South Eastern Company Limited. During the period of

his service, appellant was promoted to the post of Electrician Category IV on 09.02.1979 and in the same year itself, appellant sought for permission

of the authority to appear in Wireman's examination. The appellant thereafter, was promoted on 15.05.1985 to the post of Electrician Category V.

Appellant on 18.09.1987 came to know that his date of birth was wrongly recorded in service book as 15.07.1950 instead of 19.11.1953. He

immediately made a representation on 07.10.1987 for correction of his date of birth in his service book. The respondent authorities pursuant to his

representation, asked him to produce Middle School/Matriculation certificate within the stipulated time, in support of his claim for correcting his date of

birth as 19.11.1953. In compliance of this letter, appellant submitted Annexure P9, his Higher Secondary School Certificate on 15.06.1988.

Appellant again submitted representation on 01.01.1993 for correction of his date of birth by producing his Class 8 th mark-sheet. On 11.11.1995,

Senior Personnel Officer wrote a letter intimating the appellant that certificate (8th mark-sheet)produced by him was not an admissible document

under Implementation Instruction No.76 (for short, 'II No.76'). Suddenly, the claim of appellant for correction of his date of birth was rejected on

04.09.2000. Appellant, thereafter, filed Writ Petition-822 of 2003 before this Court. When the said Writ Petition came up for hearing, WA 564 of 2019

while disposing off the petition, learned Single Judge issued direction to the respondents to refer the case of appellant to the Age Determination

Committee vide order dated 23.07.2007. The General Manager vide letter dated 27.08.2007 wrote letter to Deputy Chief Personnel Manager,

Chirimiri Area, mentioning therein that the Age Determination Committee (ADC) recommends the age of appellant as recorded in Form B Register

and in that letter, date of birth has been shown entered in the Register as 15.07.1947 but subsequently, an endorsement has been made that as per

Form B, date of birth is 15.07.1950. Appellant, aggrieved by that letter, filed Writ Petition (S)-6488 of 2007 on the grounds mentioned therein.

Claim made by the appellant in Writ Petition was rejected by respondent-SECL on the ground that date of birth in Form B register is recorded as

15.07.1950. The certificate of Matriculation issued after his joining in service, cannot be taken into consideration for correction of date of birth.

Learned Single Judge on appreciation of pleadings, documents placed on record and also considering submissions made by learned counsel for the

respective parties, dismissed the Writ Petition by impugned order dated 26.09.2019, taking note of judgment passed by Division Bench of this Court in

SECL and others Vs Sampat Kumar Chauhan (WA-399 of 2014 decided on 27.02.2015)

Learned counsel for the appellant submits that initially appellant was appointed as General Mazdoor in a Private Company ie Dada Bhai Company

and at the time of joining service, there was no requirement of submission of any document for getting appointment as General Mazdoor. His services

have been absorbed by the SECL after nationalisation of the WA 564 of 2019 Coal Company in the year 1972 ie on 05.03.1972. In the year 1979,

appellant was promoted to Electrician Category-IV and after obtaining certificate of Wireman Examination in 1985, appellant was further promoted to

Electrician Category-V w.e.f.15.05.1985. Thereafter, he was promoted to the post of Electrician/Electric Fitter Category-VI on 24.07.1995. Learned

counsel submitted that as soon as appellant got knowledge of wrong entry of date of birth in his service record, he made application in the year 1987

itself for correction of the same. Submission of representation by appellant is also acknowledged by the authorities concerned on 09.06.1988 which is

a letter written by respondent-SECL in which reference of letter dated 07.10.1987 written by the appellant is mentioned. The appellant was asked to

submit some relevant documents such as Middle School/Matriculation certificate. Appellant submitted matriculation certificate but proper order was

not passed at that time. Suddenly on 04.09.2000, his application for correction of date of birth was dismissed mentioning therein that there is no

possibility of correction of date of birth.

Learned counsel further contended that appellant is making request since 1987 ie the first day when he came to know about wrong mentioning of

date of birth in service record but learned Single Judge dismissed Writ Petition by taking into consideration opinion of ADC, wherein appellant was

ranged in between 55-60 years and on that basis, date of birth recorded in Form-B Register as 15th July, 1950 held to be correct. She also contended

that during the pendency of Writ Petition, writ Court on 01.09.2014, directed respondent- SECL to get the Class 8th mark-sheet as well as Transfer

Certificate placed on record, verified from concerned School. Learned Single Judge in the said order has also given liberty to the appellant to WA 564

of 2019 seek information under RTI also and it is the appellant who obtained the said document which was issued on 08.12.2015 under RTI Act

mentioning therein that since 01.07.1964 to 31.07.1969, the school was running in the name of Lady Dadabhai Middle School, Chirimiri, District

Surguja and thereafter, on 01.08.1969 the name of school was changed as Girls/Boys Middle School, Haldi Bazar, Chirimiri. The copy of Admission

Register is also issued under RTI by the School showing the dat eof birth of appelalnt as 19.11.1953. She also points out that the respondent has not

taken any step in pursuance of order dated 01.09.2014 passed by learned Single Judge.

Learned counsel for the respondents submitted that the date of birth is mentioned as 15.07.1950. The appellant is educated person and he put his

signature on the service record, ie Form B Register in English. Documents prepared in 1987 also mentioned date of birth as 15.07.1950. Appellant was

asked to submit relevant mark-sheet but he submitted mark- sheet of Matriculation and not of his Middle School Board examination. As per II No.76,

documents which are obtained and possessed by the employee prior to their employment can only be considered for correction of date of birth, if

wrongly recorded in service records. The claim of correction of date of birth of the appellant was rejected on 04.09.2000 but he filed Writ Petition

only in the year 2003 belatedly. It is also contended on behalf of the respondents that documents Ex.P1 and P2 have not been produced before the

ADC but for Matriculation Certificate which is a document issued after entering into service. It is pointed out that as per order passed in earlier Writ

Petition ie Writ Petition No.822 of 2003, the appellant was referred to ADC and on the basis of the opinion given by the WA 564 of 2019 Committee,

his request for correction of dat eof birth was rejected. He points out the Clauses mentioned in the II No.76 to support his submission. He also

contended that even otherwise the claim made by the appellant for correction of date of birth is at the fag end of his service, which cannot be

considered and entertained.

We have heard learned counsel for the parties and perused records.

Appellant's application reached to the Office of respondent-SECL in the month of October 1987 and in response to it, they asked him to submit

relevant documents in proof of his age to which appellant submitted his Higher Secondary School Certificate on 15.06.1988, few days after receipt of

said letter. Claim of correction of date of birth was rejected by respondent-SECL only in the year 2000 ie on 04.09.2000 vide Annexure P10, in which

it is only mentioned that his case was examined and did not find any merit and therefore, it is not possible to correct his date of birth in service record.

The appellant thereafter, approached the High Court by filing Writ Petition- 822 of 2003. Copy of the Writ Petition is filed as Annexure P14. In the

above mentioned Writ Petition, it was specifically pleaded about passing of 8th class from Lady Dada Bhai Middle School, Pendri Hill Chirimiri,

Sarguja and also annexed the copy of Mark-sheet as also the copy of School Leaving Certificate. The respondent filed reply to the Writ Petition and

raised suspicion on both the documents as name of School is differently mentioned. The Writ Petition was disposed off with direction to refer the case

of appellant to ADC. The ADC considered the age of WA 564 of 2019 appellant on the basis of entry made in the Form-B register, radiology test

found age range between 55-60 years. The mark-sheet of 8 th class and School Leaving Certificate though part of earlier Writ Petition-822 of 2003

and available with the respondent was not considered.

During the proceedings of the Writ Petition subject matter of this appeal the learned Single Judge taking note of Annexure P14, copy of earlier

Writ Petition and the reply of respondent submitted to that Writ Petition where doubt is raised with regard to the name of school mentioned in School

Leaving Certificate as also the Class 8th marksheet which was issued in 'Duplicate' directed respondent vide order dated 01.09.2014 to get both the

documents verified from that school. Relevant portion of order is extracted below for ready reference:

Learned counsel for SECL would submit that the Middle School mark-sheet filed by the petitioner as Annexure P/1 and his transfer certificate filed

as Annexure P/2 has been issued by two different schools.

Considering the nature of controversy, respondent-SECL is directed to get the petitioner's Class VIII mark-sheet as well as the transfer certificate

verified from the concerned schools where from they have been issued.

In the above order, appellant was also granted liberty to obtain information under Right to Information Act about the name of School, etc.

The respondent did not verify the document as directed by learned Single Judge in order dated 01.09.2014 in Writ Petition proceeding. The inaction

and non-compliance of the order of High Court is sufficient to draw adverse inference against the respondent employer. Along with the memo of

appeal, appellant submitted copy of the admission register issued under WA 564 of 2019 RTI Act. The relevant portion of information supplied about

name of school is extracted below from Annexure A5.

01 1964 31 1969 . .. , ., ..-. 01

1969 .. ( ) / ( ), - ,

- ( )

Perusal of copy of Admission Register issued under RTI shows that name of appellant is entered at Sl No.622 and date of birth is mentioned as

19.11.1953 in figures and also in words and also the fact about the change of name of school.

The document Annexure A5 is filed along with Writ Appeal but was not controverted by appellant by filing any affidavit or other document.

Now, if facts of the case are considered, appellant filed application for correction of date of birth on 15.10.1987, much prior to the date of his

retirement. In the Writ Petition filed in the year 2003, copy of school leaving certificate and mark-sheet of middle school board examination was filed.

Though the duplicate mark-sheet was issued in the year 1996, but the school leaving certificate was issued in the year 1968 prior to the date of joining

service.

The learned Single Judge looking to the reply of respondent in earlier Writ Petition, doubting the documents Annexure P1 and P2, only on the

ground that they were not submitted along with the first representation on 07.10.1987, does not appear to be a correct approach. The letter written by

the respondent in pursuance of the application / representation dated 07.10.1987 does not specifically mention that for age proof, mark-sheet of WA

564 of 2019 Middle/Higher Secondary issued prior to the date of appointment was to be submitted but only mentions that age proof or mark-sheet of

Middle/Matriculation.

The appellant when first time came into the contact of the advocate after rejection of his application for correction of date of birth only in the year

2003 and the documents mentioning the date of birth ie school leaving certificate of the year 1968 was filed. The School leaving certificate was of ,

prior to the date of employment. The doubt raised on the said document only on the ground that it was not produced earlier in 1987 or 1988 in the

opinion of this Court is not justifiable because in the letter dated 09.06.1988 respondent has not specifically mentioned that the document asked by

employer should be prior to the date of employment.

The procedure for correction of date of birth of any employee working with the respondent is provided under Implementation Instruction No.76. It

is produced before this Court during the course of argument.

PROCEDURE FOR DETERMINATION/ VERIFICATION OF AGE OF EMPLOYEES [A] Determination of the age at the time of appointment i]

Matriculates: In the case of appointees who have passed matriculation of equivalent examinations the date of birth recorded in the said certificate shall

be treated as correct date of birth and the same will not be altered under any circumstances. ii] Non-matriculates but educated: In the case of

appointees who have pursued studies in a recognized educational institution the date of birth recorded in the school leaving certificate shall be WA 564

of 2019 treated as correct date of birth and the same will not be altered under any circumstances.

iii] Ex-servicemen: In the case Ex-servicemen who are not matriculates the date of birth recorded in the Army Discharge Certificate shall be treated

as correct date of birth and the same will not be altered under any circumstances. In the case of Ex- servicemen who have passed matriculation

examination the date of birth recorded in the matriculation certificate will be treated as correct date of birth provided they have passed the

matriculation examination before entering the defence services otherwise the date of birth recorded in Army Discharge Certificate will be taken as

correct date of birth.

iv] Illiterate: In the case of appointees not covered under the foregoing clauses the date of birth will be determined by the Colliery Medical Officer

keeping in view any documentary and other relevant evidence as produced by the appointee. Date of birth as determined shall be treated as correct

date of birth and the same will not be altered under any circumstances. [B] Review/ Determination of date of birth in respect of existing employees.

[i] [a] In the case of existing employees matriculation certification of Higher Secondary Certificate issued by the recognized Universities or Board of

Middle Pass Certificate 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.

[ii] [b] Similarly mining sirdarship winding engine or similar other statutory certificates where the manager had certify the date of birth will be treated

as authentic.

Provided that where both documents mentioned in [i] [a] and [ii] [b] above are available the date of birth recorded in [i] [a] will be treated as

authentic.

[iii] 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 WA 564 of 2019 management after being satisfied on the merits of the case will take appropriate action for correction

through Age 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] [ii][b] above the date of birth recorded in the records of

the company namely Form B register CMPF Records and Identity Card [untampered] will be treated as final provided that where there is a variation

in the 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] For determination of the age the committee/ medical board referred to above may consider the evidence available with the colliery management

and / or adduced before in by the employee concerned. [E] Medical Board Constituted for determination of age will be required to 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.

[F] Where the management [i.e.] Area Age Assessment Committee consisting of General Personnel Manager and Medical Officer-in- charge of the

Area is satisfied that there is a glaring disparity between the date of birth recorded in the company records and the apparent age of the employee the

cases may be referred to the Apex Medical Board located at Headquarters of the company for determination of age.

[H] After the assessment of the age by the Age Determination Committee/ Medical Board the same will be computerized and print out of the same

will be given to the employee concerned and the unit for where the reference was received within a month. If age is not however computerised still

the same will be intimated to the employee concerned and the unit within a month.

[I] It was agreed that in cases where instead of date of birth year has been recorded 1st July of the year will be deemed to be the date of birth.

As per II No.76, at the time of entry in service /appointment, age is to be determined on the basis of Matriculation certificate, if employee is non-

matriculate, then the date of birth mentioned in school leaving certificate. For existing employees, Matriculation certificate or Middle pass certificate

issued prior to date of employment.

In one of the cases Ashok Kumar Thakur Vs SECL and others (WPS-138 of 2016), respondent in their reply stated that for appointment of

General Mazdoor, no document is required at the time of their appointment and we have an occasion to go through the same while deciding the Writ

Appeal-filed by employer. In this case also appellant was initially appointed as General Mazdoor on 05.03.1972. On 18.09.1987, respondent

department vide Annexure P7, issued a printed form mentioning that the details of blank column are not available with the department and it is

required to be filled up and submitted with the respondent office. In the said form, date of birth is mentioned as 15.07.1950. It appears that by this, the

appellant came to know about what date of birth was recorded in service book and immediately made an application for its correction on 07.10.1987.

Within one month from getting knowledge of entry of wrong date of birth as appearing from Annexure P8.

The appellant immediately made application for correction of date of birth without any delay from the date of knowledge. Though application is

made after about 15 years from the date of entry into service but what cannot be overlooked is, the fact that the appellant entered into service as WA

564 of 2019 General Mazdoor, department gave a form to fill up the blank details mentioning the date of birth as Annexure P7, which was submitted

on 18.09.1987 and on 07.10.1987 application for correction of date of birth is submitted (as mentioned in Annexure P8).

There is no specific time prescribed for making an application for correction of date of birth, but it should be within reasonable time. What will be

the reasonable time, if not specifically proved, can be taken from the date when it comes to the knowledge. In this case, appellant within a month of

knowledge submitted his application for correction and that date is about 23 years before the date of superannuation as per recorded dated of birth.

In view of above facts, in the opinion of this Court we do not find that the application is highly belated or has been filed at the fag end of his

service, more so, when the respondent had not mentioned as to on what basis the date of birth of appellant was recorded in service book at the time of

appointment.

The Hon'ble Supreme Court in case of Bharat Coking Coal Limited and others Vs Shyam Kishore Singh reported in 2014 (12) SCC 57 0while

dealing with similar issue, has held as under :

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 WA 564 of

2019 Inspector of the appellant Company on 6-9-2010 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 be genuine. We have further noticed that Implementation Instruction No.76 clause (i)(a)

permits rectification of the date of birth by treating the date of birth mentioned in the school leaving 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.

Now, coming to the facts of the case, the appellant immediately after getting knowledge, made application for correction of date of birth about 23

years prior to the date of his superannuation. On demand he submitted his Matriculation certificate and subsequently Middle pass certificate also, as

appearing from letter Annexure 'A' in Writ Appeal. This document was not considered by the respondent. Appellant's application was rejected in the

year 2000 and in the Writ Petition filed in the year 2003 also, appellant submitted school leaving certificate, Middle pass certificate and WA 564 of

2019 Matriculation certificate showing his date of birth as 19.11.1953. In School leaving certificate, it is mentioned as 8th passed in the year 1968,

mark- sheet of Middle School Board is showing pass out year as 1968 though the copy of mark-sheet is showing as duplicate issued in the year 1996.

The School leaving certificate of the year 1968, and copy of admission register obtained under RTI clearly shows the date of birth of appellant as

19.11.1953. Matriculation certificate also shows the same date of birth as recorded in school leaving certificate, admission register, middle pass

certificate. As per information supplied under RTI Act, the name of Lady Dada Bhai School is changed to Government (Tribal) Boys Middle School,

Haldibadi, Chirimiri. School leaving certificate filed in Writ Petition of 2003 was issued in the year 1968. When the appellant and his claim were

examined by Age Determination Committee, none of the documents were considered though having with them as part of the Writ Petition on the basis

of which appellant was referred before the ADC.

The respondents were directed by the learned Single Judge to verify the documents from the School to which they did not comply. The action of

the ADC and also the respondent in not taking into consideration the date of birth mentioned in school leaving certificate, middle school certificate but

taking note of only date of birth recorded in service book is arbitrary exercise of power on the part of the respondent particularly when the

respondents failed to show as to on what basis date of birth was recorded. The appellant on the date of initial appointment was about 18 years, 4

month & 11 days as per the date of birth recorded in School records.

For the foregoing discussions and the law laid down by Hon'ble Supreme Court, we are of considered opinion that the appellant has made out a

case for correction of his date of birth in service record by producing irrefutable piece of evidence (documentary) ie Annexure P1 and P2 (in Writ

Petition-822 of 2003), PB of Writ Petition(S)-6488 of 2007 (Copy of Wire Mechanic application obtained from MP Licensing Board) and Annexure

A5 filed with this appeal.

The appeal is allowed and order impugned is set aside. The appellant date of birth is held to be 19.11.1953 and his service records are directed to

be corrected accordingly. The appellant during the pendency of proceeding, before this Court, superannuated from service. He will be entitled for all

consequential benefits treating the appellant to be superannuated on the basis of date of birth as 19.11.1953. The appellant will also be entitled for 25%

of back wages for the period which he could not be able to work due to his pre-mature retirement.