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2015 DIGILAW 188 (ORI)

Prativa Samant v. Food Corporation of India

2015-03-24

BISWANATH RATH

body2015
JUDGMENT : Biswanath Rath, J. This is a writ petition filed by the petitioner-an ex-employee of the public sector corporation, F.C.I. seeking a writ of mandamus commanding the opposite parties to accept the date of birth of the petitioner to be 29.03.1954 being based on the date of birth recorded in the initial appointment order in conformity with the HSC / Board Certificate and thereby issuing a writ of certiorari quashing the orders/ letters vide Annexure-9 (series) and 10 (series). 2. Fact as revealed from the writ petition as well as the submission of learned counsel for the petitioner is that the petitioner’s father was serving under the Opposite party No.1-Corporation and on his demise while continuing in service the petitioner was provided with an employment in the Food Corporation of India on compassionate ground. As a result of which the petitioner was fitted against a post of picker against a regular vacancy in the year 1969 by virtue of a conditional appointment order dtd.8.12.1969. Petitioner’s claim is that she was 16 years of age at the relevant point of time, considering the sufferings in the family and being a minor the authority was compelled to give her a conditional appointment as clearly borne from Annexure-2 to this writ petition subject to condition that her such services will not be counted as qualifying service till she attains the age of 18 years. 3. Petitioner contended that even though the opposite party-Corporation referred in the order of appointment regarding production of an affidavit by the petitioner in respect of her age, this fact is not correct. Petitioner however had only given a declaration with regard to her age following a direction of the appointing authority in the manner it desired. Petitioner subsequently made an attempt to get a copy of the said affidavit from the opposite parties on application of provision contained in R.T.I Act. However such request of the petitioner was denied on the premises that the concerned file is no more traceable. Further case of the petitioner is that on her attaining the majority as required by the authority she had to compete with other candidates from the open market and being qualified she was appointed as an Assistant Grade-III (Ministerial) post under the Corporation-opposite party No.4 vide an appointment order issued in her favour dtd.21.06.1973 (Annexure-4). Further case of the petitioner is that on her attaining the majority as required by the authority she had to compete with other candidates from the open market and being qualified she was appointed as an Assistant Grade-III (Ministerial) post under the Corporation-opposite party No.4 vide an appointment order issued in her favour dtd.21.06.1973 (Annexure-4). While continuing so, the petitioner by a general order of promotion vide order dtd.4.05.1982 got provisionally promoted to the post of A.G. II (M) (Annexure-5). In due course of time and because of her impeccable service records occupied the post of Manager (General) and posted accordingly in the District Office, Cuttack. 4. Petitioner further contended that in the year 2009, the petitioner came to know that the opposite party No.3-Authority purportedly acting for the opposite party No.2-Authority issued an office order dtd.24.07.2009 notifying therein the dates of superannuation of as many as 80 (Eighty) officers of the Corporation working allthrough in Odisha. But the same did not contain the name of the petitioner. While the matter stood thus in the year 2010, the petitioner received an order dtd.17.03.2010 issued by the competent authority alongwith an enclosure with regard to confirmation of the petitioner’s service in the category-II posts, wherein for the first time, the petitioner found that her date of birth has been mentioned as 29.03.1951 thereby in supersession of her date of birth originally recorded as 29.03.1954. Following the receipt of such order indicating a wrong date of birth in respect of the petitioner, the petitioner had submitted a representation to the opposite party No.2-Authority on 22.03.2010 making a request therein for correction of her date of birth. The competent authorities disposed of the said representation vide their letters dtd.1.06.2010 and 23.06.2010 thereby rejecting the request of the petitioner and an order of rejection was passed without assigning any reason. Thus, the opposite parties-Corporation finally concluded the date of birth of the petitioner as 29.03.1951 as at Annexure-9 (series). Petitioner requested for re-appreciation of her case on the basis of the original documents vide Annexures-1 & 2 which was also turned-down by the opposite party-Authority vide their letters dtd.17.02.2011 and 25.02.2011 as at Annexure-10 (series). The petitioner next contended that there was correct recording of date of birth of the petitioner in the initial appointment order vide Annexure-2 issued in the year 1969. The petitioner next contended that there was correct recording of date of birth of the petitioner in the initial appointment order vide Annexure-2 issued in the year 1969. The date of birth so far recorded was not only based on the information provided by the petitioner but was also in conformity with the Board Certificate issued in favour of the petitioner. The date of birth so recorded in the service documents of the petitioner could not have been altered at the fag-end career of the petitioner. Further in view of the conditions contained in the initial appointment order of the petitioner vide Annexure-1, the authority was well aware that the petitioner was a minor at that point of time. The petitioner was appointed being conscious of the fact that she had not attained the majority at that point of time and a condition was also put therein restricting the petitioner from claiming counting of such period for the purpose of service. This being an agreed condition between the two parties neither of the parties are permitted to resign from such condition. Further the date of birth of the petitioner as recorded during initial appointment in her service as 29.03.1954 having recorded about four decades back could not have been altered after such a long period. Further the date of birth recorded in respect of the petitioner having stood in consonance with the date of birth recorded by the competent authority like Board of Secondary Education, Odisha in the H.S.C. Certificate, a certificate concerning the petitioner, there was no occasion to once again get in the matter of date of birth in relation to the petitioner. 5. During pendency of the writ petition, the petitioner in support of her case filed some additional averments to the writ petition by placing reliance therein on two documents under Annexures-11 & 12. The document vide Annexure-11 is an office order dtd.1.12.2008 belonging to the F.C.I. At Sl.No.5 in the table contained therein originally mentioned the date of birth of the petitioner as 29.03.1951 but subsequently corrected the date of birth of the petitioner as 29.03.1954. And by subsequent communication by the F.C.I. on 17.12.2008, the Corporation appropriately reflected the date of birth of the petitioner as at Column-4 of the said document as 29.03.1954. 6. During pendency of the case, the petitioner also filed another affidavit. And by subsequent communication by the F.C.I. on 17.12.2008, the Corporation appropriately reflected the date of birth of the petitioner as at Column-4 of the said document as 29.03.1954. 6. During pendency of the case, the petitioner also filed another affidavit. By filing such affidavit the petitioner justified her claim regarding her date of birth as 29.03.1954. This time petitioner filed a further document called as History Card in relation to her as maintained by the F.C.I. at Annexure-13 clearly disclosing the date of birth of the petitioner as 29.03.1954. Petitioner also filed a document i.e. a pay slip bearing No.17/16 for month of February, 2011 also clearly disclosing the date of birth of the petitioner as 29.03.1954 and consequently the date of retirement of the petitioner mentioned therein as 31.03.2014 available at Annexure-14 which was followed by some other documents in relation to the service of the petitioner pertains to the year 2005-2006, 2006-2007 & 2008-2009, which documents also clearly reflected the date of birth of the petitioner as 29.03.1954. 7. Per contra, the opposite parties on their appearance filed a counter affidavit inter alia admitting therein that the petitioner was provided with an employment under compassionate appointment scheme in view of death of her father while in service. On the question of giving appointment to the petitioner when she was underage the opposite parties contended that in view of clear provision in the regulation 5 (a) of the Staff Regulation of F.C.I., she was not eligible to get an employment unless she attended the age of 18 years and claimed that it is false to claim that petitioner was appointed underage. The opposite parties claimed that under the circumstances, the petitioner keeping aside here H.S.C. / Board Certificate made a declaration that she is 18 years and 6 months old and her date of birth as 29.03.1951. It is on the basis of the above, she was provided with an employment in the F.C.I. under the compassionate appointment. 8. The opposite parties further contended that she was re-designated as Messenger from the date of her initial date of appointment vide order dtd.13.03.1970 her service was confirmed as Messenger w.e.f. 9.12.1970 thereafter she was given promotion to the post of Assistant Grade-III (Ministerial) w.e.f. 25.06.1973. 8. The opposite parties further contended that she was re-designated as Messenger from the date of her initial date of appointment vide order dtd.13.03.1970 her service was confirmed as Messenger w.e.f. 9.12.1970 thereafter she was given promotion to the post of Assistant Grade-III (Ministerial) w.e.f. 25.06.1973. She was continuing in the regional office from 29.05.1989 till 19.04.2008 and again from 5.08.2009 till date of filing of the counter her date of birth all along was maintained as 29.03.1951. Following the instruction from the Zonal Office (East) at Calcutta asking the General Manager (Region) in all regional offices circulating a provisional seniority list mention the date of birth and all other information therein instructed the Regional Managers to call for the representation from any member pointing out any deficiency or difficulty in the provisional seniority list for the purpose of a preparation of a final seniority list at this stage. It is next contended by the opposite parties that the petitioner’s name find place at Sl.No.61 of the said list disclosing her date of birth as 29.03.1951. Petitioner having not availed opportunity given to her, she is precluded from claiming otherwise. The opposite parties further contended that vide order dtd.1.12.2008, the petitioner was given promotion to the post of Manager (General). Similarly, the petitioner was also confirmed in the post of Manager (General) as intimated to her vide order dtd.24.07.2009 and 1.03.2010 indicating her date of birth as 29.03.1954 and the same were made under a bona-fide impression on the information available in the history card in relation to the petitioner. 9. The opposite parties also tried to justify the rejection of the representation of the petitioner. By filing a document vide Annexure-D, the opposite parties have made an attempt that the petitioner was fit enough as found by the doctor assigned for the purpose to be engaged in the year 1969 and since the age of the petitioner in the medical certificate was shown as 18 years, her age at the time of employment should be accepted as has been given to the petitioner on her attaining the age of 18 years. It is on the premises that the petitioner never submitted a copy of the matriculation certificate / Board Certificate before the opposite parties, the opposite parties claimed that the date of birth as recorded in the matriculation certificate cannot be accepted for any purpose. It is on the premises that the petitioner never submitted a copy of the matriculation certificate / Board Certificate before the opposite parties, the opposite parties claimed that the date of birth as recorded in the matriculation certificate cannot be accepted for any purpose. The opposite parties submitted that no such document as at Annexure-2 is found from service record. 10. There is no denial to the fact that the initial appointment in favour of the petitioner was an appointment under the compassionate appointment scheme. 11. Reading of the documents vide Annexure-2 discloses that “her services will not be counted as qualified service till she attains the age of 18 years. The affidavit produced by her in respect of her age proof cannot supersede the date of birth shown in her matriculation certificate”. Reading the above, it clearly establishes that the opposite party-Corporation was aware that the petitioner was given appointment below age of 18 years and further at the time of the appointment of the petitioner there existed a different date of birth as available in her matriculation certificate. If the petitioner had already attained majority, then there was no possibility of keeping a condition for not claiming the counting of service till she attains majoring as appearing in Annexure-2. 12. The opposite parties-corporation neither in the counter affidavit nor during course of argument could bring the affidavit as referred to in the order of appointment vide Annexure-2. On the other hand on demand of the petitioner for supply of any such affidavit as she was allthrough denying submission of any such affidavit, she was responded by the opposite party-Corporation by the document vide Annexure-3 (series) a letter dtd.1.12.2010 saying that the concerned file is not traceable after so many years. Therefore there is no such affidavit available for being considered in the matter. On the other hand, from the disclosure regarding the date of birth indicated in the matriculation certification in the order of appointment dtd.8.12.1969 and in view of existence of a matriculation certificate / Board certificate concerning the petitioner disclosing the date of birth of the petitioner as 29.03.1954 cannot be lost sight of. On the other hand, from the disclosure regarding the date of birth indicated in the matriculation certification in the order of appointment dtd.8.12.1969 and in view of existence of a matriculation certificate / Board certificate concerning the petitioner disclosing the date of birth of the petitioner as 29.03.1954 cannot be lost sight of. Further from the document at the instance of petitioner as at Annexure-11 a letter from the F.C.I dtd.1.12.2008 it is apparent that the opposite party-Corporation made necessary corrections in the column made for the date of birth concerning the petitioner as at Sl.No.5 of the Office Order dtd.1.12.2008 as at Annexure-11 and made an attempt to correctly reflecting the date of birth of the petitioner as 29.03.1954. Similarly the next document i.e. the Office Order dtd.17.12.2008 as at Annexure-12 to the writ petition, this also makes it clear at Sl.No.4 that the date of birth of the petitioner as maintained by the F.C.I. is 29.03.1954. Similarly from the document at Annexure-13 which appears to be the History Card in relation to the petitioner as maintained by the F.C.I clearly discloses the date of birth of the petitioner as 29.03.1954 and this document not only contained the signature of several officers of the F.C.I. but also certifying the date of birth aspects in relation to the petitioner. There is no denial by the opposite parties regarding existences of any such documents. Similarly on the documents at the instance of the petitioner as at Annexure-14 (series), these documents contained a pay slip concerning the petitioner for month of February, 2011 indicating the date of birth of the petitioner as 29.03.1954. Similarly, the date of retirement of the petitioner as mentioned therein is 31.03.2014. The documents thereon and part of Annexure-14 (series) is a statement of account of the members of the contributory provident fund for the years 2005-2006, 2007-2008 & 2008-2009 as maintained by the Manager, Contributory Provident Fund. Each of the documents clearly discloses the date of birth of the petitioner as well as the date of retirement of the petitioner as 29.03.1954 and 31.03.2014 respectively. I do not find any denial to the existence of any such document by any of the opposite parties. 13. The recording in the matriculation certificate / Board certificate being issued by the statutory authorities remaining unchallenged is bound to supersede any other information in the matter of date of birth. I do not find any denial to the existence of any such document by any of the opposite parties. 13. The recording in the matriculation certificate / Board certificate being issued by the statutory authorities remaining unchallenged is bound to supersede any other information in the matter of date of birth. Law is well settled that the matriculation certificate has a supernumerary value as against any other document so far as the date of birth of a person. 14. From the chain of instance referred to hereinabove, it appears the recording of the date of birth of the petitioner is 29.03.1954 is consistent right from the beginning at least till 2010 when the F.C.I. authority made an attempt to reduce the service period of the petitioner by introducing a new date of birth as 29.03.1951. Law is well settled that any attempt for change of date of birth of an employee at the fag-end of career of an employee is wholly impermissible. Law as laid down in : (1) In (2001) L.I.C. 1400 (SC) in the matter of Hindustan Lever Ltd. Vs. SM. Jadhav & another. The Hon’ble Apex Court has deprecated change of date of birth at the fag-end of career. (2) Similarly in another decision in AIR 1995 (SC) 850 in the matter of Chief Medical Officer Vs. Khadeer Khadri The Hon’ble Apex Court also held that the correction sought for after several years of recording of a date of birth is not permissible on the ground of taking a step at a much belated stage. (3) In similarly situation the Hon’ble Apex Court in a catena of decisions such as 1966 (1) LLJ 407 , 1972 (1) LLJ 472 , 1972 (I) LLJ 9. The Hon’ble Apex Court is of the view that there cannot be two age of superannuation in one establishment. (4) Similarly in AIR 1967 (SC) 1269 the case in between the State of Orissa vs. Dr. (Miss) Binapani Dei & Ors. Considering the case of superannuation on the ground of misstatement of date of birth the Hon’ble Apex Court opined the revision in the date of birth have been taken place without proper notice & inquiry. There is violation of natural justice and fare play in the present case. The present dispute also involved another aspect i.e. on the asking of the Court to the opposite parties to produce the original of Annexure-13. There is violation of natural justice and fare play in the present case. The present dispute also involved another aspect i.e. on the asking of the Court to the opposite parties to produce the original of Annexure-13. The opposite parties in spite of the direction of this Court not only failed to produce the documents but submitted that the document is not available in their custody even. Following the decisions in AIR 1970 (SC) page 688 in the matter of Mohd. Shafi & anr. Vs. State of Jammu & Kashmir and (2003) 8 SCC page 673 in the matter of Sushil Kumar vs. Rakesh Kumar adverse inferences can also be drawn against the opposite parties on the above particular aspect. 15. Further in the order promoting the petitioner to the post of Manager (General) her date of birth was recorded as 29.03.1951 but during communication of the petitioner by the Regional Office her date of birth was shown to be 29.03.1954 itself establishes two sets of records concerning the petitioner. Similarly from the submissions made by the opposite parties in paragraph 14 of their counter affidavit that during the intimation of the confirmation in the post of Manager (General) as communicated on 24.07.2009 name of the petitioner did not find place as the officer preparing the list was not aware of the actual date of birth of the petitioner and relying upon the date of birth mentioned in the service record goes to show that the opposite parties was although remain in two minds in relation to the date of birth of the petitioner. 16. Be that as it may, all these actions have been taken place at the fag-end career of the petitioner. Under law both the employee and the employer are precluded from making any alternation in the matter of date of birth of an employee at the fag-end of the career. The opposite parties further contended that there was some confusion with regard to entry of the date of birth of the petitioner and therefore there was some confusion at some point of time. The opposite parties alleged that there have been some manipulations at the instance of the petitioner in her service record as she was serving in the regional office and had access to the records of the corporation. The opposite parties alleged that there have been some manipulations at the instance of the petitioner in her service record as she was serving in the regional office and had access to the records of the corporation. On the submission of the opposite parties that the petitioner was continuing in the Regional Office of the opposite parties had access to the documents and therefore she was able to manipulate her service records I am of the view that if this was the case nothing prevented the authority to prosecute the petitioner during her service period. Thus it is apparent that the Management is trying to blow cold and hot together to avoid the complications to be arising there-from and such replies have been made may be in an attempt to cover up their lacuna. 17. On the submission of the opposite parties that there is no such record as at Annexure-2 available in the service record of the petitioner in view of the disclosures regarding the petitioners services will not be counted as qualifying the service till she attains the age of 18 years and further in view of containing signature of a responsible officer of the rank of District Manager as contained in Annexure-2 and this being a document from the public authority further in view of the reply of the opposite parties calling for the affidavit from the service record which is replied by the opposite parties saying that no such record is traceable, the mere denial of existence of document vide Annexure-2 is not sufficient and has to be rejected. Further when on the direction of the Court to the opposite parties in the matter of production of record, the opposite parties produced a set of record in original concerning the petitioner it is strange to note that the opposite parties are unable to trace all records concerning the petitioner. It appears that the opposite parties are in attempt of hiding in certain document from the Court. 18. From the counter affidavit of the opposite party as at paragraph (I) & (II) & (III) it clearly appears that the opposite parties have made a desperate attempt to cover up their lacuna in the matter of giving an appointment to the petitioner when she was underage as it was impermissible in law. 18. From the counter affidavit of the opposite party as at paragraph (I) & (II) & (III) it clearly appears that the opposite parties have made a desperate attempt to cover up their lacuna in the matter of giving an appointment to the petitioner when she was underage as it was impermissible in law. Further if the petitioner indicated in the form of declaration that her date of birth as 29.03.1951 nothing prevented the opposite parties to remain consistent in disclosing the date of birth of the petitioner as 29.03.1951. It is on the other hand from the series of documents referred to hereinabove, it appears the opposite parties-Corporation maintained the date of birth of the petitioner as 29.03.1954 in almost all documents which again is in conformity with the matriculation certificate / Board certificate of the petitioner itself. The original records produced during course of argument though discloses recording the date of birth of the petitioner in some of documents concerning the petitioner as 29.03.1951 but looking to the date of birth of the petitioner as recorded in her Matriculation certificates as well as in the offer of appointment vide Annexures-1 & 2 it appears that the petitioner had not attended the age of 18 years at the time of employment in the year 1969 and may be to overcome the age constrain concerning the petitioner at the particular time while providing the employment the Management has maintained some records with a different date of birth which are all found to be wholly against their own documents vide Annexures-1 & 2 and the conditions made therein establishes a different story. 19. The opposite parties being a public sector, it is not expected that the public sector maintaining two sets of date of birth and further assuming that the petitioner was possessing a matriculation certificate and the matriculation certificate was reflecting the date of birth of the petitioner as 29.03.1954 in no circumstances the opposite parties could have maintained the date of birth of the petitioner as 29.03.1951 being contrary to the recording in the Board Certificate. This further establishes from the beginning of the service career of the petitioner the Management being conscious was maintaining two sets of date of birth but never acting on the date of birth of the petitioner as 29.03.1951. This further establishes from the beginning of the service career of the petitioner the Management being conscious was maintaining two sets of date of birth but never acting on the date of birth of the petitioner as 29.03.1951. Since the matriculation certificate vide Annexure-1 discloses the date of birth of the petitioner as 29.03.1954 and since this document is a valid document in the eye of law, the date of birth of the petitioner for all purpose be treated as 29.03.1954. Consequently, the petitioner’s date of retirement also be treated as 31.03.2014 for all purposes thereby. She may be granted all service benefits treating her to have been retired from service on 31.03.2014. But under the circumstances that the petitioner has not worked for the period from 2011 to 2014 though prevented for no fault of her, she may be paid 50% of her back wages for this period except for the purpose of pension and retiral benefits which may be released considering her date of birth as 29.03.1954 and the date of retirement or superannuation as 31.03.2014. 20. The writ petition succeeds to the extent directed hereinabove. However, there shall be no order as to cost.