Shobit Ram vs South Eastern Coalfields Ltd

Proceedings of this matter have been taken up through video conferencing.

The petitioner herein calls in question the notice dated 07.02.2009 (AnnexureÂP/5) issued by the respondentÂauthority proposing petitioner's

retirement w.e.f. 31.07.2009.

Mr. Kawaljeet Singh Saini, learned counsel for the petitioner, would submit that the petitioner's correct date of birth is 31.03.1953 which has been

recorded in Annexure P/4 i.e. ClassÂV certificate issued by the Principal Government Primary School, Ratanpur, BlockÂSurajpur, Surguja, C.G.

which has not been considered by the respondents and he has been proposed to be retired w.e.f. 31.07.2009 taking his date of birth as 30.07.1949

which is unsustainable and bad in law.

Mr. Atul Kesharwani, learned counsel for the respondents, would submit that petitioner has raised the dispute about his date of birth after

completing 34 years of the service and i.e. fag end of his service and secondly that Annexure P/4 is not a document earmarked under the

Implementation Agreement and also documents filed alongwith Annexure RÂ1/1 RÂ1/2 would show that the petitioner's date of birth is 30.07.1949

and, as such, writ petition deserves to be dismissed.

I have heard learned counsel for the parties, considered their rival submission made hereinÂabove and went through the records with utmost

circumspection.

In order to consider the plea raised at the Bar, it would be appropriate to notice the relevant provision contained in Implementation Instruction No.76

which is a part of National Coal Wage Agreement III and which provides procedure for determination/verification of the age of the employees, and

for resolution of disputed cases of Service Records, framed by the Joint Bipartite Committee for the Coal Industries of Coal India Limited. In

Implementation Instruction No.76, the procedure is divided in two parts, Para (A) provides for Determination of the age at the time of appointment

whereas Para (B) provides for Review/determination of date of birth in respect of existing employees. In order to consider the plea raised at the Bar,

it would further be appropriate to reproduce Para (A) (ii) which provides for determination of the age at the time of appointment. It reads as follows:

Â​

“ii) NonÂ​matriculates but educated.

In the case of appointees who have pursued studies in a recognised educational institution, the date of birth recorded in the School Leaving Certificate,

shall be treated as correct date of birth and the same will not be altered under any circumstances.â€​

Para (B) of Implementation Instruction No.76 provides for Review/determination of date of birth in respect of existing employees which we are

concerned here. Para (B) (i) (a) of the said Instruction reads as follows: Â​

“i) (a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognised 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.â€​

A careful and critical reading of Para (B) (i)(a) of Implementation Instruction No.76 would show that in case of existing employees, following

documents issued prior to the date of employment shall be treated as correct: Â​

Matriculation certificate.

Higher Secondary Certificate issued by the recognized University or Board.

Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction.

Admit cards issued by the aforesaid Bodies.

Thus, four kinds of documents are deemed to be correct if they are available and they must have been issued by the said University, Board or

Institution prior to the date of employment.

Reverting to the fact of the present case in light of the aforesaid provisions of the Implementation Instruction it would appear that the document

Annexure P/4 i.e. ClassÂV certificate issued by the Principal Government Primary School, Ratanpur, Block Surajpur, Surguja, C.G. is not the

document within the meaning of Implementation Instruction No.76, therefore, the said document cannot be relied upon to hold the date of birth of the

petitioner is 31.03.1953. The petitioner has completed 34 years of his service and due to retirement w.e.f. 31.07.2009, now in 2008 he has raised the

dispute belatedly i.e. fag end of his service.

The Supreme Court in the matter of Bharat Coking Coal Limited and others v. Shyam Kishore Singh (2020) 3 SCC 411 placing reliance upon its

earlier judgment in the matter of State of Madhya Pradesh and others v. 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: Â​

“10. 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 Shrivas4 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 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).

* * *

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 timeÂlimit within which

an application is to be filed, the appellants were dutyÂ​ bound to correct the clerical error in recording of his date of birth in the service book.â€​

Similarly, the Supreme Court in Shyam Kishore Singh’s case (supra) as well as in the matter of Eastern Coalfields Limited and others v. 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.

Coming to the facts of the present case the document Annexure P/4 is not a document earmarked under the Implementation Instruction No.76 and

on that basis correction in date of birth cannot be directed and further more the petitioner has filed writ petition at the fag end of his service i.e. after

completing 34 years of his service. I do not find any good ground to entertain the instant writ petition.

Accordingly the instant writ petition is dismissed.