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Madhya Pradesh High Court · body

2018 DIGILAW 400 (MP)

Prabhat Kumar Dwivedi v. Union of India

2018-04-13

SUJOY PAUL

body2018
ORDER 1. In this petition filed under Article 226 of the Constitution, the petitioner has prayed for issuing a writ of mandamus commanding the respondents to correct the date of birth of the petitioner in his service record according to certificate of Higher Secondary School Certificate Examination, 1978 (Annexure P-2) issued on 24.6.1978. It is prayed that his date of birth for all the purposes be treated as 1.1.1961 in place of 22.11.1957. 2. The petitioner was appointed as General Mazdoor on 13.1. 1982. In the service record, the date of birth of the petitioner was wrongly recorded by mentioning that age of petitioner is 24 years as on 22.11.1981. Aggrieved, the petitioner preferred a representation dated 26.2.1996 (Annexure P-5) followed by another representation Annexure P-6. The petitioner obtained information (Annexure P-7) under the RTI Act wherein it is mentioned that one Jalim Singh’s age was corrected pursuant to the finding of Age Determination Committee (ADC). It is urged that the date of birth mentioned in Annexure P-2 may be treated as corrected date of birth. 3. The respondents in the return contended that the petition suffers from delay and latches. The petitioner being a “workman” under the Industrial Disputes Act, 1947 has an alternative remedy. The disputed questions of facts are involved, which cannot be decided in writ jurisdiction. The petitioner is “estopped” from challenging the date of birth, which was accepted by him during the service career. The copy of service register (Annexure R-1), service excerpts of petitioner and relevant copy of Form-B register are filed as Annexure R-2 and R-3. In addition, copy of statutory forms PS-3 and PS-4 (Annexure R-4 and R-5 respectively) are also filed to show that the date of birth of the petitioner is consistently recorded as 22.11.1957 in all the records. In reply to Para 5.2, it is urged that on the basis of 9th Class marksheet, the date of birth cannot be altered. Reliance is placed on Implementation Instructions No. 76 (I.I. No. 76) (Annexure R-6). It is candidly admitted in this para that said I.I. No. 76 is binding agreement between the employer and employee. The petitioner has never submitted the certificate (Annexure P-2) at the time of entering the service. Annexure P-5 does not bear the seal and signature of the department which creates doubt about genuineness of the said document. It is candidly admitted in this para that said I.I. No. 76 is binding agreement between the employer and employee. The petitioner has never submitted the certificate (Annexure P-2) at the time of entering the service. Annexure P-5 does not bear the seal and signature of the department which creates doubt about genuineness of the said document. The statutory forms were prepared under various provisions of enactments including Mines Rules, 1955. There is no reason to deviate from the constant by recorded date of birth avaiable in various records. The petitioner did not raise any objection when Annexure R-2 was brought to his notice. 4. In the rejoinder submission, the petitioner reiterated his stand and ontended that he is claiming change in the entry relating to date of birth on the basis of Annexure P-2 and not on the basis of Class 9th certificate. 5. The employer has filed written arguments in the present case. Reliance is placed on an order of Division Bench passed in Writ Appeal No. 881/2016 (Shiv Prasad v. WCL) wherein the interference was declined on the ground of delay and on the ground that the date of birth of the workman is consistently shown in various service records as 1.1.1953. The employer relied upon the order dated 21.12.2016 passed in Writ Petition No. 15180/11 (Ram Prasad v. SECL) wherein interference was declined on the ground that the petitioner therein was unable to show that at the time of entering into the service, he produced the educational qualification certificate. 6. No other point is pressed by the parties. 7. I have carefully perused the record. 8. At first, I deem it apposite to deal with the question of delay in filing this petition which goes to the root of the matter. The petitioner was admittedly appointed in the year 1981 and he filed the present petition seeking alteration of date of birth in October, 2013. The employer by placing reliance on various documents filed with the return stated that the petitioner is signatory to various documents including service register, copies of other statutory forms which show that he was aware since beginning of his career about the date of birth i.e., 22.11.1957. The employer by placing reliance on various documents filed with the return stated that the petitioner is signatory to various documents including service register, copies of other statutory forms which show that he was aware since beginning of his career about the date of birth i.e., 22.11.1957. The petitioner by way of rejoinder refuted the same and contended that when the factum of recording of incorrect date of birth came to the knowledge of the petitioner, he immediately send a representation to the respondents on 26.2.1996 alongwith relevant documents. Thus, it cannot be said that petition suffers from delay and latches. 9. Before dealing with this aspect, it is condign to consider the legal position on this aspect. In 1994 Suppl. (1) SCC 155 [Home Deptt. v. R. Kirubakaran], the apex Court opined as under : “7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the Court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. 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. 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. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.” (Emphasis supplied) 10. A cursory reading of this para shows that even if there is no provision which prescribes the period of limitation within which application seeking alteration of date of birth can be filed, the application seeking correction must be filed within reasonable time otherwise delay alone can be a ground to decline the relief claimed. 11. A cursory reading of this para shows that even if there is no provision which prescribes the period of limitation within which application seeking alteration of date of birth can be filed, the application seeking correction must be filed within reasonable time otherwise delay alone can be a ground to decline the relief claimed. 11. In the present case, respondents have filed service particular (Annexure R-2) which contains petitioner’s date of birth as 22.11.1981. The petitioner has received this document in July, 1987. In the said document, a column is earmarked to raise objection or put comments upon various entries mentioned in the document. The petitioner who came to know about this document in June, 1987 did not raise any objection in the said column. As per petitioner’s own saying in rejoinder, he raised objection by sending representation on 26.2.1996. Thus, petitioner awake from his deep slumber after about 10 years’ and preferred representation in the year 1996 and thereafter filed this petition in the year 2013. Thus, the delay is fetal in the present case. The apex Court in case reported in (1993)2 SCC 162 [Union of India v. Harnam Singh] opined as under : “A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, 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. The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or Tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire.” [Emphasis Supplied] 12. A combined reading of judgments of Apex Court in R. Kirubakaran (supra), and Harnam Singh (supra), makes it crystal clear that whether or not a limitation is prescribed for preferring an application seeking correction of date of birth, application must be preferred within reasonable time, failing which such delay itself can be a ground to deny the relief. I find support in my view from the orders passed by this Court in the case of Shiv Prasad and Ram Prasad (supra). I find support in my view from the orders passed by this Court in the case of Shiv Prasad and Ram Prasad (supra). Thus, it can be safely concluded that when employee raised objection about date of birth after an unreasonable period and then approached this Court with further unreasonable delay, no relief is due to the petitioner. Hence, the question of dealing with merits of the case does not arise. No case is made out by the petitioner for exercising discretionary and equity jurisdiction by this Court in exercise of power under Article 226 of the Constitution of India. Petition suffers from delay and latches and is hereby dismissed.