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2016 DIGILAW 978 (JHR)

Kala Nayak v. Central Coalfields Ltd.

2016-06-27

SHREE CHANDRASHEKHAR, VIRENDER SINGH

body2016
ORDER : I.A. No. 3679 of 2016 For the reasons carved out in the application and there being no serious objection from Mr. Das appearing for respondent-C.C.L, the delay of four days in filing the accompanied appeal is condoned. I.A. No. 3679 of 2016 is disposed of accordingly. L.P.A. No. 275 of 2016 Aggrieved of order dated 02.05.2016 in W.P.(S) No. 3342 of 2015, the present Letters Patent Appeal has been preferred by the appellant-writ petitioner. 2. Heard the learned counsel for both the sides and perused documents on record. 3. Mr. Arpan Mishra, the learned counsel for the appellant submits that the date of birth of the appellant recorded in the Matriculation Certificate must be taken as a conclusive proof of the date of birth. It is further submitted that on the basis of qualification of the appellant, that is, matriculation, the appellant was promoted to the post of Shovel Operator and thus, it stands admitted that the respondent-C.C.L accepted the Matriculation Certificate of the appellant and while so, the date of birth recorded in the Matriculation Certificate of the appellant is binding on the respondents. 4. As against the above, the learned counsel for the respondent-C.C.L reiterating the stand taken before the Writ Court submits that the service record and other contemporaneous documents disclose the date of birth of the appellant as 17.01.1957 which are binding on the appellant. 5. From the materials brought on record, it stands admitted that in the service record the date of birth of the appellant is recorded as 17.01.1957 and it bears the signature of the appellant. The appellant was appointed as Driver Category V and at the time of his entry in service, on the basis of a medical examination his age was assessed and it was entered in the service book as 27 years as on 17.01.1984. The subsequent payment slips issued to the appellant also disclose his date of birth as 17.01.1957. Not only that P.S. III and P.S. IV forms also bear the date of birth of the appellant as 17.01.1957. The Matriculation Certificate and the School Leaving Certificate on which the appellant has placed reliance, were obtained subsequently. On the basis of his date of birth recorded in the service record he was made to superannuate from service in January, 2017. The Matriculation Certificate and the School Leaving Certificate on which the appellant has placed reliance, were obtained subsequently. On the basis of his date of birth recorded in the service record he was made to superannuate from service in January, 2017. The fact that the appellant was promoted on the post of Shovel Operator for which matriculation is the minimum qualification, does not go to establish any error in the service record of the appellant in so far as his date of birth is concerned. Had the appellant cleared the matriculation examination prior to his entry in the service, no doubt, the date of birth recorded in the Matriculation Certificate would have been treated as conclusive proof of his age however, the situation is entirely different in the present case. Moreover, the dispute regarding date of birth was raised by the appellant only in the year, 2015 that is, at the fag end of his service. All through his career the appellant did not raise a grievance as to correctness of his date of birth recorded in the service record which, at appropriate time, could have been resolved in terms of extant Rules. In “Home Deptt. Vs. R. Kirubakaran” reported as 1994 Supp (1) SCC 155, the Hon'ble Supreme Court has observed as under; “7. .............. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth............” 6. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth............” 6. Finding no infirmity in the impugned order passed by the Writ Court on any count, we, find no merit in the instant Letters Patent Appeal which merits dismissal. Ordered accordingly.