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2010 DIGILAW 57 (JHR)

Bishwanath Singh v. Bharat Coking Coal Limited

2010-01-08

DABBIRU GANESHRAO PATNAIK

body2010
JUDGMENT : D.G.R. PATNAIK, J. 1. Heard counsel for the parties. 2. The petitioner in this writ application, has prayed for quashing of the order dated 17.5.2002 (Annexure-7) passed by the respondent No. 3, whereby the representation of the petitioner for correcting his date of birth in the service records, was rejected on the ground, that his age was assessed as 22 years as on 23.12.1965 i.e. the date on which Medical Board had examined him. 3. As it appears from the rival submissions, the petitioner had earlier approached this Court with the same grievance by filing writ application vide W.P.(S) No. 1712 of 2002, praying therein for a direction upon the respondents to correct the entry of his date of birth in the service records. This Court while disposing of the writ application vide order dated 14.3.2002, had considered the claim of the petitioner including the claim that he had passed his matriculation examination in 1963 and had joined service in the year 1965. It however appears that while disposing of the writ application, this Court had remitted the matter back to the concerned authorities of the respondents with a liberty to the petitioner to file a fresh representation and with a direction to the concerned authorities of the respondents to find out the original service record/roll wherein the first date of birth/age of the petitioner is recorded and wherein the petitioner had put his signature/thumb impression and to treat the said date of birth of the petitioner, as recorded in the service record/roll, as final and forward a photocopy of such record to the petitioner within the period stipulated in the order. It was also observed that in the event the date of birth of the petitioner is found different in the original record than 23rd December 1943, the respondents shall issue appropriate corrigendum and communicate the same to the petitioner within six weeks from the date of receipt of representation and pay consequential benefits, if any, to him. 4. The petitioner's contention is that he had passed his matriculation examination in the year 1963 and at the time of seeking appointment under the respondents in the year 1965, he had not only declared his date of birth, but had also submitted a copy of his matriculation certificate. 4. The petitioner's contention is that he had passed his matriculation examination in the year 1963 and at the time of seeking appointment under the respondents in the year 1965, he had not only declared his date of birth, but had also submitted a copy of his matriculation certificate. He had all along remained under the bonafide belief and impression that his date of birth was recorded correctly as per his matriculation certificate. After putting in over 35 years of service, he opted for voluntary retirement which was accepted by the respondents. However, when the retiral benefits of the petitioner were calculated, the petitioner was informed that the year of his birth was recorded as 1943 instead of 1944. The petitioner promptly filed his objection and thereafter, the writ application which was disposed of with the observation mentioned above. 5. Learned Counsel for the petitioner submits that the present writ application has been filed against the order passed by the respondents on the petitioner's representation which he had filed pursuant to the direction contained in the order in his earlier writ application. Learned Counsel explains that though, the respondents have claimed that the entry in respect of his date of birth in the service records was made on the basis of Medical Board's report as 23rd December 1943, yet the respondents have themselves forwarded the matriculation certificate for scrutiny and verification to the concerned authorities and have received an assurance that the certificate produced by the petitioner is genuine and that, his date of birth as recorded in the matriculation certificate, was 23rd December 1944. Learned Counsel adds that the respondents cannot possibly deprive the petitioner of his legitimate claim in the light of the settled principle of law which has been expressed in the Full Bench Judgment of this Court passed in the case of Kamta Pandey v. BCCL, 2007 (3) JLJR 726 . Learned Counsel adds further that even though, the order of this Court passed in the earlier writ application, directions may have been given to the respondents to act in a particular manner, but while taking a final decision on the petitioner's representation, the respondents are bound to act in accordance with the settled principle of law treating the matriculation certificate as a genuine document and proof of the date of birth of the petitioner. 6. 6. Counsel for the respondents, by referring to the several paragraphs of the counter-affidavit, would submit on the other hand, that in compliance with the direction of this Court, as contained in the order passed in the earlier writ application, the respondents had considered the petitioner's representation and had verified his date of birth from the original service records, which was recorded as 23rd December 1943. This was duly communicated to the petitioner, as per the court's order. Learned Counsel adds that the respondents cannot possibly disobey the direction as contained in the earlier order, nor can make interpretation of their own in the light of the ratio decided in Kamta Pandey case (Supra). 7. It appears from the order dated 14.3.2002 passed by this Court in the earlier writ application vide WP(S) No. 1712 of 2002 that though, certain directions were issued to the respondents, but it was also observed in the order that this Court has not determined the claim of the parties in one way or other. It is manifest therefore that this Court had not ventured to discuss or give any finding on the petitioner's claim for acceptance of his date of birth as per his matriculation certificate. It is inferred that the issue is still open for the petitioner to raise and get adjudicated. 8. The petitioner appears to have filed a writ application vide W.P.(S) No. 4853 of 2002 against the aforesaid order, but it also appears from Annexure-D that the petitioner had himself withdrawn the writ application and the same was dismissed as withdrawn on 13.1.2004. Since the dispute raised by the petitioner was not adjudicated by this Court in the earlier writ application which was withdrawn, the petitioner had filed the present application on 21.7.2004. 9. From the rival submissions, it appears that the petitioner, in the earlier writ application as also in the present writ application, has based his claim on his matriculation certificate. Since the dispute raised by the petitioner was not adjudicated by this Court in the earlier writ application which was withdrawn, the petitioner had filed the present application on 21.7.2004. 9. From the rival submissions, it appears that the petitioner, in the earlier writ application as also in the present writ application, has based his claim on his matriculation certificate. The issue relating to the value of the matriculation certificate as proof of the date of birth, was raised on several occasions before this Court and before the Supreme Court also and upon considering such decisions of the various courts, this Court in the case of Kamta Pandey (Supra) had laid to rest the controversy by declaring that the date of birth as entered in the matriculation certificate, shall be treated as valid and genuine proof of the date of birth of the candidate/employee. The petitioner, who has been raising this dispute ever since the date of acceptance of his voluntary retirement, cannot be denied his right to raise this ground time and again only on the ground that in the order passed in the earlier writ application, this Court had observed that the respondents shall treat the date of birth as entered in the original service records as final. Such direction, as it would appear from the bare reading of the order, was passed without going into the merits of the case and without deciding the merit of either of the parties. 10. It is not denied that the petitioner had passed his matriculation examination in the year 1963. In fact, after calling upon the petitioner to submit his matriculation certificate, and subjecting the certificate to scrutiny and verification, the respondents have themselves obtained satisfaction that the matriculation certificate of the petitioner was genuine and the date of birth as entered therein, was correct and corresponding to the claim made by the petitioner. Accordingly, the impugned order dated 17.5.2002 (Annexure-7) is quashed. 11. It may also be noted that while disposing of the earlier writ application, this Court had also given the petitioner a liberty to submit his representation afresh before the concerned authorities of the respondents in the context of his prayer for correction of the entry of his date of birth in the service records. 11. It may also be noted that while disposing of the earlier writ application, this Court had also given the petitioner a liberty to submit his representation afresh before the concerned authorities of the respondents in the context of his prayer for correction of the entry of his date of birth in the service records. It implies thereby that the respondents were also vested with the authority to reexamine the entire case in the context of the petitioner's claim including the claim on the basis of his matriculation certificate. Though, counsel for the respondents would argue that the petitioner had not submitted his matriculation certificate prior to the date of his voluntary retirement, but it is not denied that subsequently when the case of the petitioner was reconsidered on the basis of his representation, the respondents had themselves called upon the petitioner to submit the matriculation certificate and had subjected the same to scrutiny and verification. As it appears from the petitioner's uncontroverted assertion, the occasion for demanding correction of his date of birth arose only after his retirement when the retrial benefits were sought to be calculated from the disputed date. The petitioner cannot therefore be faulted on the ground that his prayer for correction of the entry of his date of birth, was made at the fag end of his service. 12. After hearing the rival submissions and considering the facts and circumstances of the case, this writ application is disposed of with a liberty to the petitioner to file a fresh representation before the concerned authorities of the respondents and, within three months from the date of receipt of the representation, the respondents shall reconsider the petitioner's case in the light of his claim for correction of entry of his date of birth in the service records by referring to his matriculation certificate and any other supportive documents which the petitioner may produce, if any, and in the light of the Full Bench Judgment of this Court passed in the case of Kamta Pandey (Supra). The decision taken on the representation shall be effectively communicated to the petitioner. With these observations, this writ application is disposed of. Let a copy of this order be given to the counsel for the respondent State.