Suraj Lal Chandra vs South Eastern Coalfields Limited and Others

Sanjay K. Agrawal, J.—Petitioner-Suraj Lal Chandra was appointed on the post of Mechanical Fitter on 20/04-1975 his date of birth was recorded as 25/04/1941 whereas his date of birth is 01/03/1946 as mentioned in the mark-sheet, school admission register and certificate issued by the Middle School (Annexures-P/9 to P/11). Invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India, the petitioner has filed this petition questioning the order dated 15/03/2001 (Annexure-P/7) passed by respondent No. 3 herein-Deputy General Manager, SECL declaring his date of retirement as 30/04/2001 on the basis of his date of birth i.e. 25/04/1941.

The respondent-SECL filed counter affidavit stating inter alia that the petitioner was appointed as General Mazdoor Category-I on 20/04/1975 and his date of birth at the time of appointment was 25/04/1941, which was duly recorded in statutory Form B and service register, which bears signature/thumb impression of the petitioner (Annexures-R/1 and R/2). It has been further pleaded that this writ petition has been filed when the notice of retirement was served upon the petitioner and the petitioner has suppressed the fact that he obtained ex parte interim relief on 10/05/2001 by this Court, when he was already superannuated on 30/04/2001, as such, the writ petition deserves to be dismissed.

Mr. B.P. Gupta, learned counsel for the petitioner would submit that petitioner''s date of birth is 01/03/1946, which is apparent from the mark-sheet, school admission register, certificate issued by the Middle School (Annexures-P/9 to P/11) but the respondent-SECL wrongly entered his date of birth in the records as 25/04/1941, therefore, the order dated 15/03/2001 (Annexure-P/7) retiring him with effect from 30/04/2001 deserves to be set-aside. He would further submit that by virtue of interim order of this Court, he had served the SECL as per date of birth 01/03/1946, as such he is entitled for retiral benefit for entire service period.

Mr. Praveen Das, learned counsel for the respondent-SECL would submit that petitioner''s date of birth as recorded in statutory Form-B bearing signature/thumb impression of the petitioner as 25/04/1941 and he has not raised any such dispute during his lifetime as he was promoted time to time on the various posts and at the fag end of his service, such a dispute has been raised, which cannot be entertained in view of the statutory document issued under the provision of Rule 77 of the Mines Rules, 1955. He would further submit that documents submitted by the petitioner were not issued prior to the entry of his service record in view of the Implementation Instruction No. 76 issued on 25/04/1998, as such; the writ petition deserves to be dismissed.

I have heard learned counsel for the parties and perused the record with utmost circumspection.

The short question involved in this writ petition is whether the order dated 15/03/2001 (Annexure-P/7) directing the petitioner to retire on 30/04/2001 holding his date of birth as 25/04/1941 requires interference by this Court or not?

At this stage, it would be appropriate to notice the decisions rendered by their Lord-ships of the Supreme Court relating to importance of date of birth in service record, scope of interference in the date of birth recorded and stage at which the Court should entertain the petition relating to date of birth.

7.1 In Union of India Vs. Harnam Singh, by their Lordships of the Supreme Court has highlighted the importance of the date of birth recorded in the service record of the Government servant at initial stage by observing as under:--

"7. A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the Courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, 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. The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam and Another Vs. Daksha Prasad Deka and Others, a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him."

7.2 In State of Haryana Vs. Satish Kumar Mittal and Another, , their Lordships of the Supreme Court has held as under:--

"14. As recorded above, it has been held time and again that the application for correction of date of birth is also to be looked into from the point of view of the concerned department and the employees engaged therein. The other employees have expectations of promotion based on seniority and suddenly if such change is permitted; it causes prejudice and disturbance in the working of the department. It is, therefore, quite correct for the State to insist that such application must be made within the time provided in the rules, say, two years, as in the present case."

7.3 In State of M.P. and Others Vs. Premlal Shrivas, , by their Lordships of the Supreme Court has held that Courts should be cautious and careful in directing correction of the date of birth, by observing as under:--

"9. 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."

After having examined legal position with respect to the interference in the date of birth reverting back to the factual score, it would appear that petitioner was appointed by the respondent-SECL as General Mazdoor Category-I on 20/04/1975. The petitioner at the time of joining of services did not submit educational certificate and put his signature/thumb impression in the statutory form and gave his date of birth as 25/04/1941, which was duly recorded in the statutory Form B maintained under Section 48(1)(c) of the Mines Act, 1952 read with Rule 77 of the Mines Rules, 1955 Not only this, service book also bears signature/thumb impression of the petitioner. On 02/08/1987, petitioner was served with the service excerpts (Annexure-R/5) with direction to give his comments, but petitioner did not suggest any change including his date of birth and returned the said excerpts by affixing his thumb impression.

It would appear that the petitioner made half-hearted attempt in the year 1997 for correction of his date of birth, but did not take the same to its logical end and allowed the date of birth mentioned in the statutory Form B to become final as 15/04/1941 and when he was served with a notice of retirement dated 15/03/2001 informing that he will be retired on 30/04/2001, thereafter, the petitioner filed a Civil Suit No. 107-A/2001 (Suraj Lal v. Chairman. SECL and others), which was not entertained and the plaint was returned by order dated 25/04/2001 and finally, he retired on 30/04/2001.

The petitioner filed this writ petition on 02/05/2001 after his retirement questioning the notice dated 15/03/2001 (Annexure-P/7) and also seeking mandamus that he is entitled to continue in service till his retirement according to his date of birth as 01/03/1946, in which, interim order was granted by this Court on 10/05/2001 that he was allowed to work and he completed his services according to the date of birth which he claimed as 01/03/1946.

It would also appear that in support of his case, the petitioner has filed the mark-sheet, school admission register, certificate issued by the Middle School (Annexures-P/9 to P/11), in which, petitioner''s date of birth is recorded as 01/03/1946, whereas, respondent-SECL has relied upon the statutory documents i.e. Form B issued under Ruler, 48(3), 51, 77 and 77A(2) of the Mines Rules, 1955 as well as service register maintained by National Coal Development Corporation Limited, in which, petitioner''s date of birth is recorded as 25/04/1941.

The fact remains that in the statutory documents i.e. Form B and service register, the petitioner''s date of birth is recorded as 25/04/1941, which bears signature/thumb impression of the petitioner. Petitioner was put to notice by the respondent-SECL (Annexure-R/5) giving him service excerpts including his date of birth as 25/04/1941, but he did not make any objection upon receipt of the service excerpts and put his signature/thumb impression after acknowledging the same.

Thus, bearing in mind the principles of law laid down by their Lordships of the Supreme Court in above-stated cases and taking into consideration the date of birth duly recorded in the statutory documents i.e. Form B and service register maintained by the respondent-SECL under the Mines Rules, 1955 and the fact that the petitioner has not raised any objection about his date of birth even when the service excerpts were notified to him and filed this writ petition after his retirement on 02/05/2001. In the considered opinion of this Court, the petitioner has failed to make out a case of correction of his date of birth recorded in the statutory documents i.e. Form B and service register (Annexures-R/1 & R/2) and his writ petition deserves to be and accordingly dismissed.

Learned counsel for the petitioner would further submit that since the petitioner has already worked and retired after completing his services as per date of birth he claimed i.e. 01/03/1946, therefore, he is entitled for all pensionary benefits taking into account the said period of service, whereas, learned counsel for the respondent-SECL would submit that in the event of dismissal of the writ petition, the salary and other allowances taken by the petitioner be directed to be refunded.

So far as the excess payment of emolument is concerned, since the petitioner has worked on the said post by interim order of this Court, the respondent-SECL would not be entitled for refund of the said amount.

In this context, very recently, in State of Punjab Vs. Rafiq Masih, , their Lordships of the Supreme Court has laid down the law regarding recovery of excess payment from the employees, who have retired from the service and held as under:

"12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to hereinabove, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:

(i) Recovery from employees belonging to Class-III and Class-IV service (or Group ''C'' and Group ''D'' service).

(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.

(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.

(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.

(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer''s right to recover."

The next question would be whether the petitioner''s retiral benefits should be computed taking into account the original date of birth recorded in the service book or as per date of birth given by the petitioner as he has served by the interim order of this Court.

This question stands decided authoritatively in the matter of Collector of Madras and Another Vs. K. Rajamanickam, , in which, the Supreme Court has held that period of service rendered after the date of superannuation under a decision of Court should not be counted and observed as follows:--

"3.........For the period for which he had continued, there shall be a direction not to recover any amount paid to him during that period. In other words, his retiral benefits should be computed as if he had retired on 31-1-1993 only."

The aforesaid decision has been followed by the Supreme Court subsequently in State of Jammu & Kashmir Vs. Pirzada Ghulam Nabi, thus the petitioner is entitled for computation of his retiral benefits as if he had retired on 30/04/2001. Thus, as an upshot, the writ petition deserves to be and is accordingly dismissed. However, it is directed that no recovery shall be made from the petitioner and his retiral benefits should be computed as if he had retired on 30-04-2001 as per his date of birth 25-04-1941. No costs.