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Jharkhand High Court · body

2017 DIGILAW 1220 (JHR)

Lallan Prasad v. IISCO Steel Plant

2017-07-21

S.N.PATHAK

body2017
JUDGMENT : S.N. Pathak, J. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. The petitioner has approached this Court with a prayer for correction of his date of birth as maintained by the respondents in the service record of the petitioner in accordance with the implementation instruction No. 76 sub-clause-(B)(i)(a) i.e. from 01.04.1950 to 20.02.1957 as recorded in the School Transfer Certificate issued by Government High School, Baluwa, Bhojpur. Further prayer has been made for quashing the notice of superannuation dated 05.10.2009 issued vide letter No. PD/RTR/09/210, whereby the petitioner has been directed to be released from the services of the Company w.e.f. 31.03.2010. FACTUAL MATRIX 3. The factual exposition as has been delineated in the writ petition is that the petitioner was appointed as a Wage Board Employee in the respondent company and at the time of his joining, inadvertently the date of birth, entered into the Form ‘B’ Register, was mentioned as 01.04.1950. It is the case of the petitioner that immediately after coming to know about the said anomaly, the petitioner prayed for correction of his date of birth on the basis of transfer certificate issued by the Government High School, Baluwa, Bhojpur by pen of District Education Officer, Bhojpur. In the said transfer certificate, the date of birth of the petitioner was mentioned as 20.02.1957. 4. The petitioner was served with the retirement notice on 05.10.2009 on the basis of his incorrect date of birth i.e. 01.04.1950 and on that basis, he was directed to be released from the service of the Company w.e.f. 31.03.2010. It is the case of the petitioner that immediately after service of the retirement notice, the petitioner filed a representation on 13.10.2009 before the respondent No. 2 ventilating his grievances annexing the School Transfer Certificate. The said representation of the petitioner was not considered, whereafter, several reminders were also given by the petitioner. It is the case of the petitioner that similarly situated workman, namely, Paritosh Ojha, having Personnel No. 5592, was given superannuation notice on 20.01.2009, which stood cancelled on the basis of entry of date of birth in the school records. The said representation of the petitioner was not considered, whereafter, several reminders were also given by the petitioner. It is the case of the petitioner that similarly situated workman, namely, Paritosh Ojha, having Personnel No. 5592, was given superannuation notice on 20.01.2009, which stood cancelled on the basis of entry of date of birth in the school records. The petitioner in his representation mentioned several cases in which correction of date of birth was done at the fag end of the service i.e. after retirement but no heed was paid to the said representations and the date of birth was not corrected. Hence, this writ petition was preferred by the petitioner. 5. Mr. Shailesh, learned counsel for the petitioner, submits that respondents-authorities have illegally and arbitrarily not considered the case of the petitioner for correction in the date of birth. Learned counsel emphatically argued that his case comes within the purview of implementation instruction No. 76 sub-clause-(B)(i)(a), which deals with review determination of date of birth in respect of existing employees. Learned counsel submits that the respondents-authorities have discriminated the petitioner as several similarly situated persons have been given the benefit of correction of date of birth at the fag end of their service career and the petitioner has been illegally and arbitrarily denied the same benefits and as such, the petitioner was compelled to move this Hon’ble Court by filing writ petition. 6. Per contra counter-affidavit has been filed. Mr. Vijay Kant Dubey, learned counsel appearing for the respondents vehemently opposes the contention of the learned counsel for the petitioner. Mr. Dubey submits that the in no case date of birth can be corrected at the fag end of the service career that is also after retirement. Mr. Dubey draws the attention of the Court towards several paragraphs of the counter-affidavit. He refers to paras-10 and 11 and submits that after his entry into the service on 01.04.1974, the petitioner in the year 1980 was directed to give declaration for maintaining the record wherein he has stated that his year of birth is 1957. In the said declaration form he has shown himself to be matriculate in the year 1973 itself but till date he has not produced any matriculation certificate neither it has been annexed with the writ application. In the said declaration form he has shown himself to be matriculate in the year 1973 itself but till date he has not produced any matriculation certificate neither it has been annexed with the writ application. At the time of entry in service, his age was assessed as 24 years, which was based on the medical examination report prepared in the year 1974 at the time of his entry in service. 7. Mr. Dubey further submits that petitioner is relying on his school transfer certificate issued by the Government High School, Baluwa, Bhojpur, which was obtained in the year 1998, in which the date of birth has been shown as 20.02.1957 but the same has not been mentioned in the declaration form filled in the year 1980. Learned counsel for the respondents strenuously urges that false and fabricated certificate has been obtained to misguide the Hon’ble Court. Learned counsel further submits that the petitioner is trying to draw parity with the case of Paritosh Ojha, who was a matriculate and as such, his case was considered on the basis of matriculation certificate but in the instant case no such certificate was ever produced and as such, no parity can be given to the petitioner. Mr. Dubey submits that as the certificate of the petitioner is forged and fabricated and in view of the fact that he never produced those certificates at the time of his appointment, neither any matriculation certificate was every produced and it is only at the time of retiral notice, the petitioner has relied on his school leaving certificate, which cannot be termed to be a certificate in the eyes of law, as the said certificate was issued in the year 1988, containing erroneous date of birth. Learned counsel further argues that the case of the petitioner is not at all covered with the implementation instruction No. 76 sub-clause-(B)(i)(a). 8. Be that as it may, having gone through the rival submissions of the parties and after careful consideration of the relevant documents and implementation instruction No. 76 sub-clause-(B)(i)(a), which deals with review of determination of date of birth, this Court is of the considered view that no illegality has been committed by the respondents. There is no infirmity in the impugned order. The case of the petitioner deserves to be quashed and set aside on the following grounds:- (i) There is no infirmity in the impugned order. There is no infirmity in the impugned order. The case of the petitioner deserves to be quashed and set aside on the following grounds:- (i) There is no infirmity in the impugned order. (ii) The petitioner failed to produce the matriculation certificate at the time of appointment though at that time, he claimed to be a matriculate. (iii) Even the school leaving certificate on which the petitioner is harping, has been issued in the year 1998. (iv) The claim of the petitioner for correction in the date of birth was made in the year 2009, at the time of retiral notice, which is not tenable in the eyes of law, as the said claim made at the fag end of his service career. (v) The case of the petitioner does not cover within the purview of implementation instruction No. 76 sub-clause-(B)(i)(a) which deals with the review determination. Implementation instruction No. 76 sub-clause-(B)(i)(a) is reproduced herein below:- “In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the reorganized universities or board of 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 aforesaid bodies should be treated as correct provided they were issued by the said University/ Board/ Institutions prior to the date of employment.” The Hon’ble Apex Court in its various decisions has clearly held that no correction in the date of birth can be done at the fag end of the service career. The Hon’ble Supreme Court in the case of State of M.P. v. Premlal Shrivas, reported in (2011) 9 SCC 664 has held as under:- “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. 12. 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 time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book.” The same views have also been reiterated by the Hon’ble Apex Court in the case of State of Maharashtra v. Gorakhnath Sitaram Kamble, reported in (2010) 14 SCC 423 . In case of State of Tamil Nandu Vs. In case of State of Tamil Nandu Vs. T.V.Venugopalan, reported (1994) 6 SCC 302 , the Hon’ble Apex Court was clearly of the opinion that the government servant should not be permitted to correct the date of birth at the fag end of his service career. The Court, in very strong terms, observed as under:- ".....The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. 9. As a cumulative effect of the aforesaid rules, guidelines and legal propositions, I am of the considered view that no illegality has been committed by the respondents. The impugned order does not suffer from any legal infirmity. 10. Resultantly, the writ petition merits dismissal.