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2018 DIGILAW 157 (JHR)

Nathuni Jha v. Bharat Coking Coal Ltd.

2018-01-18

S.N.PATHAK

body2018
JUDGMENT : S.N. PATHAK, J. 1. Heard learned counsel for the petitioner and learned counsel for the respondents. The petitioner has approached this Court with a prayer for quashing the superannuation notice as contained in Memo No. 435 dated 9.10.2013 issued by the respondents, whereby and whereunder, the petitioner has been forced to superannuate prematurely w.e.f. 1.4.2014 while taking into consideration the date of birth of the petitioner as 5.3.1954 and ignoring the correct date of birth of the petitioner as 5.3.1958. 2. Further prayer has been made to continue the services of the petitioner till he attains the age of superannuation as per the date of birth recorded in his matriculation certificate. Further prayer has been made for payment of salary with all consequential benefit from 1.4.2014 to till he resumes the duty since the petitioner is kept out of service due to fault and laches on the part of the respondents. 3. The factual exposition as has been delineated in the writ petition is that the petitioner was appointed as a Dozer Operator in the services of the respondents-M/s. Bharat Coking Coal Ltd. (for short "BCCL") on 11.3.1982. It is the case of the petitioner that in his application form for the above post, he had explicitly declared his date of birth as 5.3.1958 as per his matriculation certificate and in support of that, he has also produced the copy of his matriculation certificate. As per condition laid down in para-1 of Annexure-3, he was asked to submit his matriculation certificate in support of his date of birth, which he had duly submitted. Thereafter, when the Respondent Project Officer wished on his birthday, he came to know that in the records, his date of birth is 5.3.1954 instead of 5.3.1958. The petitioner then reported to the Respondent Project Officer vide letter dated 16.5.2010 for correction of the same on the basis of his matriculation certificate. Thereafter, by seeing the genuine grievance of the petitioner, the respondents itself has forwarded the dispute regarding the date of birth of the petitioner for assessment before the Headquarters' along with the check list on 16.5.2010. Despite the glaring and apparent wrong committed by the Respondent Authorities in relation to the date of birth, the respondents sat tight over the matter in spite of the fact that the petitioner continued to represent before the Respondent Authorities vide letters dated 16.4.2011 and 6.5.2012. Despite the glaring and apparent wrong committed by the Respondent Authorities in relation to the date of birth, the respondents sat tight over the matter in spite of the fact that the petitioner continued to represent before the Respondent Authorities vide letters dated 16.4.2011 and 6.5.2012. On 5.10.2012, the respondent wrote to the Deputy Registrar of Kameshwar Singh Darbhanga University for verification of the testimonials and date of the birth of the petitioner which was verified and found to be as mentioned in the Matriculation certificate of the petitioner i.e. 5.3.1958. But, surprisingly, vide letter dated 9.10.2013, the Respondent Project Director issued superannuation notice to the petitioner by treating his date of birth as 5.3.1954 even after several verification as well as in violation of Implementation Instruction 76. The respondents even verified the status of Madhyama Degree awarded by the aforesaid University and vide letter dated 19.11.2013, the Controller of Examination of the University has affirmed that the aforesaid University is approved by the University Grants Commission. Even after several verifications, the petitioner was forced to retire w.e.f. 1.4.2014 which is much prior of his actual age of superannuation i.e. 1.4.2018. On 16.4.2014 the petitioner filed representation requesting the respondent Authorities to correct his date of birth and allow him to remain in service till 1.4.2018 but no needful was done. Hence, the petitioner has preferred this writ petition for redressal of his grievances. 4. Mr. Rahul Kumar, learned counsel appearing for the petitioner strenuously urges that the petitioner cannot be allowed to retire/superannuate by the respondents authorities four years prior to attaining the age of 60 years by interpolating his date of birth, which has been done by the respondents themselves only to snatch away the right of livelihood of the petitioner. The respondents are bound to consider the date of birth as mentioned in the matriculation certificate of the petitioner. Learned counsel for the petitioner submits that the respondent themselves have appointed the petitioner in the year 1982 on the basis of his matriculation certificate, in which his date of birth was mentioned as 5.3.1958 but his date of birth was wrongly recorded in service book as 5.3.1954. Learned counsel for the petitioner submits that the respondent themselves have appointed the petitioner in the year 1982 on the basis of his matriculation certificate, in which his date of birth was mentioned as 5.3.1958 but his date of birth was wrongly recorded in service book as 5.3.1954. Learned counsel further submits that the Implementation Instruction No. 76 of the NCWA is binding and the matriculation certificate of an employee has to be considered if there is any kind of dispute regarding date of birth and superannuating the petitioner four years prior to his actual date of retirement can be said to be a clear abuse and colourable exercise of power, which is liable to be rejected outrightly by this Court. To buttress his argument, learned counsel has referred to and relied upon the Full Bench decision rendered in the case of Kamta Pandey vs. M/s. BCCL & Ors. reported in (2007) 3 JLJR 726 and M/s. B.C.C.L. & Ors. vs. Gopal Prasad Singh reported in 2012 (2) JLJR 231 . It is submitted by the learned counsel for the petitioner that in the event if the petitioner succeed, he may be granted full back wages and salary along with other admissible benefits considering him as if, he was in continuous service. 5. Per contra, counter-affidavit has been filed by the respondents. Learned counsel appearing for the respondents vehemently opposed the contention of the learned counsel for the petitioner and submitted that the instant writ application is not maintainable in the eyes of law and liable to be rejected on the ground of delay and laches. A dispute relating to date of birth cannot be raised at the fag end of service and in the instant case, the dispute relating to date of birth has been raised just four years prior to the retirement of petitioner and therefore, the writ petition is liable to be dismissed in limine. Learned counsel further argues that the petitioner has not submitted his matriculation certificate at the time of his appointment or even at the time of preparation of his Statutory Form-B Register. Learned counsel further argues that the petitioner has not submitted his matriculation certificate at the time of his appointment or even at the time of preparation of his Statutory Form-B Register. It is further stated that date of birth of the petitioner was 5.3.1954 and the same has been recorded in his service excerpts as well as in Form-A of CMPF and when the workmen were called upon to submit their objection with regard to entry made in the service excerpts as well as in Form-A of CMPF, the petitioner did not raise any objection with regard to his date of birth which was recorded as 5.3.1954 rather, he had put his signature in declaration form, accepting and acknowledging his date-of-birth as 5.3.1954. 6. Learned counsel for the respondents argued that the service excerpt of the petitioner has been prepared in the year 1987 and in the service excerpt his date of birth is recorded as 5.3.1954. However, in the column of no objection, nowhere it has been pointed out by the petitioner that his date of birth has been wrongly mentioned. To buttress his argument, learned counsel draws the attention of the Court towards judgment rendered in case of Ram Pyare Singh vs. BCCL & Ors., reported in 2014 (3) JCR 679 , wherein it has been held that the entry of date of birth in Form 'B' would prevail over matriculation certificate and statutory documents and records of service shall be given priority over the matriculation certificate. From the documents annexed with the writ petition, it is crystal clear that petitioner has approached the respondents for correction of his date of both on 16.5.2010, that too when the petitioner was to retire on attaining the age of superannuation on 1.4.2014. 7. Be that as it may, having gone through the rival submissions of the parties, this Court of the considered view that admittedly, the petitioner for the first time raised his objection regarding the correction in the date-of-birth in the year, 2010. On receipt of such objection, the respondents-authorities vide letter dated 16.5.2010 for correction of the same on the basis of his matriculation certificate forwarded the dispute for assessment before the Headquarters' along with the check list on 16.5.2010. When the respondent did not pay heed to the representation or the recommendation of the respondents, the petitioner again represented on 16.4.2011 and 6.5.2012. When the respondent did not pay heed to the representation or the recommendation of the respondents, the petitioner again represented on 16.4.2011 and 6.5.2012. On his representation, the respondents verified the testimonials and date-of-birth of the petitioner from Deputy Registrar of Kameshwar Singh Darbhanga University and same was found to be true as mentioned in the matriculation certificate of the petitioner i.e. 5.3.1958. The petitioner has been superannuated on the basis of declaration made by the petitioner in Form-A of CMPF and the Statutory Form-B Register. No reasons have been assigned whatsoever for raising the objection regarding his date-of-birth recorded as 5.3.1954 at any point of time until in the year, 2010 i.e. after 28 years of remaining in service. 8. The qualification and experience required against cadre posts are laid down in the respective implementation instructions issued from time to time in different NCWAs. By Implementation Instruction No. 36 dated 2.2.1981, under NCWA-II, the grading job description etc. of excavation as agreed by the standardization committee had been finalized. Dozer Operators fall under Group-B and the qualification required under said Implementation lnstruction-36 is as under:-- "2. Tractor/Dozer Operator Grade. I: A skilled workman possessing not less than 5 years' of experience in the operations and handing of Crawler of wheel type dozers of not less than 150 hp. He should have general knowledge of the mechanism of the Tractor and undertakes minor running repairs. He should hold license of Tractor driving." 9. The petitioner was appointed as Trainee Dozer Operator in the year, 1982 and at that time there was no requirement of having matriculation qualification. It is only under NCWA-VII vide Implementation Instruction No. 21 dated 31.8.2007, cadre scheme for Excavation Personnel (Operation) has been formulated vide Annexure-XXVIII-1 to XXVHI-8 and in the said Implementation Instruction No. 21 of NCWA-VII, the educational qualification for new recruitees has been fixed as matriculation. However, as regards existing employees, qualification required is Class-VIII pass with HMV license and endorsement for Tractor Driving. 10. From perusal of the records of the case, it is apparent that the dispute relating to date-of-birth arises at the fag end of service. However, as regards existing employees, qualification required is Class-VIII pass with HMV license and endorsement for Tractor Driving. 10. From perusal of the records of the case, it is apparent that the dispute relating to date-of-birth arises at the fag end of service. It is specifically mentioned by the respondents in the counter-affidavit that at the time of his appointment, the petitioner did not disclose the fact that he has passed Madhyama Examination and he did not produced the certificate and the mark-sheet rather he disclosed his date-of-birth as 5.3.1954 and accordingly, the said date of birth has been entered in the Statutory Form-B Register and the same has also been accepted and authenticated by the petitioner by putting his signature at the relevant column. Similarly, the petitioner has also submitted declaration in Form-A under the CMPF at the time of being enrolled as member of CMPF. In Form-A, the petitioner has declared his date of birth as 5.3.1954 and he has also put his signature in the declaration form accepting and acknowledging his date-of-birth as 5.3.1954. Had the petitioner produced his matriculation certificate at the time of his appointment, the same would have been recorded in the Form-B Register as well as Form-A of CMPF. No objection, whatsoever was made by the petitioner regarding his date-of-birth recorded as 5.3.1954. The service excerpt of the petitioner has been prepared in the year, 1987 and in the service excerpt his date of birth is recorded as 5.3.1954. However, in the objection column, no objection whatsoever has been made by the petitioner to that effect that his date-of-birth has wrongly been entered as 5.3.1954 instead of 5.3.1958. The argument of the learned counsel for the petitioner that there has been wrong entry/interpolation, nothing has been brought on record. The case relied by the learned counsel for the petitioner is of no help to him. 11. In the instant case, the matriculation certificate was not produced at the time of appointment by the petitioner. As per the Implementation Instruction No. 76 of the NCWA, the case of the petitioner cannot be considered as there has been no alteration in the date-of-birth. The Hon'ble Apex Court in case of Bharat Coking Coal Ltd. & Ors. 11. In the instant case, the matriculation certificate was not produced at the time of appointment by the petitioner. As per the Implementation Instruction No. 76 of the NCWA, the case of the petitioner cannot be considered as there has been no alteration in the date-of-birth. The Hon'ble Apex Court in case of Bharat Coking Coal Ltd. & Ors. vs. Chhota Birsa Uranw, reported in 2014 (3) JLJR (SC) 182, it has been held that statutory documents like Form-'B' Register is binding and School Leaving Certificate prevail over records and statutory documents of the company. The petitioner should have produced the matriculation certificate at the time of appointment since he has stated that he had passed matriculation examination in the year, 1972, which was prior to joining of his service. In case of Ram Pyare Singh vs. BCCL & Ors., reported in 2014 (3) JCR 679 , wherein it has been held that the entry of date-of-birth in Form-'B' would prevail over matriculation certificate and statutory documents and records of service shall be given priority over the matriculation certificate. In the year, 1982 the petitioner never disclosed, that he is a matriculate and has passed matriculation examination from any Board as is evident from counter-affidavit. From the documents annexed with the writ petition, it is clear that petitioner has approached the respondents for correction of his date-of-birth in the year, 2010, that too when the petitioner was to retire on attaining the age of superannuation in the year, 2014 itself. In case; of Ram Pyare Singh vs. BCCL & Ors. in LPA No. 327 of 2006 in which it has been held that Form-B which was prepared at the time of joining of the petitioner, is a statutory document and record of service as the same has duly been signed and authenticated by the petitioner. It is not a case of the petitioner that Forms-B and A were prepared much after appointment. From the records, it is clear that Forms-B & A were prepared in the year, 1982/87 itself and the petitioner was appointed on 11.3.1982, even the judgments cited by the learned counsel for the petitioner in case of Kamta Pandey vs. M/s. BCCL & Ors., reported in (2007) 3 JUR 726 and M/s. BCCL & Ors. From the records, it is clear that Forms-B & A were prepared in the year, 1982/87 itself and the petitioner was appointed on 11.3.1982, even the judgments cited by the learned counsel for the petitioner in case of Kamta Pandey vs. M/s. BCCL & Ors., reported in (2007) 3 JUR 726 and M/s. BCCL & Ors. vs. Gopal Prasad Singh, reported in 2012 (2) JUR 231 is of no help to him as the facts of the cases are different from this case. 12. The reliance of the petitioner in W.P.(S) No. 6172 of 2014 is also of no help to him as in the said case there was a clear cut interpolation in the date-of-birth mentioned in the service excerpts whereas in the instant case, on perusal of records of the case, it appears that no interpolation has been made. 13. As a cumulative effect of the aforesaid rules, guidelines and judicial pronouncement, this Court is of the considered view that no case is made out for interference in the date-of-birth at the fag end of service. There is no merit in this case. Resultantly, the writ petition merits dismissal and is hereby dismissed.