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Jharkhand High Court · body

2018 DIGILAW 780 (JHR)

Surendra Nath Singh, son of late Ram Ayodhya Singh v. Bharat Coking Coal Ltd. represented through Managing Director

2018-04-06

S.N.PATHAK

body2018
ORDER : 1. Heard learned counsel for the petitioner and learned counsel for the respondents. 2. Petitioner has approached this Court with a prayer for quashing the letter dated 30.05.2012, whereby the petitioner has been given information regarding his superannuation on 30.11.2012, ignoring the fact that petitioner is regularly raising objection in this regard since 1994, when he was transferred to Sudamdih Coal Washery from Sudamdih Shaft Mines Area. 3. The facts of the case lies in a narrow compass. The petitioner joined the services of the Bharat Coking Coal Ltd. on 27.12.1974 and was posted as Time Rated Worker in Sudamdih Shaft Mines of BCCL, Dhanbad. In the year 1980, he had been transferred to Sudamdih Coal Washery and in the year 2006 he was granted the 1st ACP. However, the service records of the petitioner did not come to Sudamdih Coal Washery and in the excerpt of attendance register, the date of appointment of the petitioner is mentioned as 27.12.1974 and date of birth is given as 08.12.1954 at Sl. No. 96. The petitioner was also issued ID Card wherein the column of date of birth has been kept vacant due to which the petitioner has the impression that his date of birth has not been mentioned in the service records. It is the further case of the petitioner that the Nominee Form of the petitioner was prepared on 26.06.1987 and in that also the date of birth of the petitioner is given as 08.12.1954 and hence, petitioner has no any suspicion regarding his date of birth at that very time. Subsequently, when he was transferred to Sudamdih Coal Washery, a new Form ‘B’ was prepared by the respondent-Management and then the petitioner got the information regarding change of his date of birth. Upon getting such information, petitioner represented before the respondent-authorities to correct his date of birth as per CMPF Record of 13.07.1994. However, the respondents were sitting tight over the matter for several years and finally, vide letter dated 30.05.2012, the respondents informed the petitioner that he is going to retire on 30.11.2012. Thereafter, vide letter dated 05.07.2013, the petitioner was informed to appear before the Medical Board, Koyla Nagar Hospital on 10.07.2013 at 09:30 AM, after a year of his retirement, which create a panic in the mind of the petitioner and high hand-nesses of the respondents. Thereafter, vide letter dated 05.07.2013, the petitioner was informed to appear before the Medical Board, Koyla Nagar Hospital on 10.07.2013 at 09:30 AM, after a year of his retirement, which create a panic in the mind of the petitioner and high hand-nesses of the respondents. Hence, the petitioner has no option but to knock the door of this Hon’ble Court by filing the instant writ application for redressal of his grievances. 4. Mr. Jitendra Tripathi, learned counsel appearing for the petitioner strenuously urges that any entry made at the time of joining of an employee can only be changed after proper verification but in the instant case, the same rule has not been followed and the new date of birth has been entered inspite of clear cut entry made in the CMPF record. It is further submitted that the case of the petitioner has not been considered by the respondents in proper perspective, inspite of the fact that the petitioner was running from pillar to post for making correction of his date of birth in his service records. Learned counsel lastly submits that the action of the respondents is grossly illegal and violative of Articles 14 and 21 of the Constitution of India. 5. Per contra, no counter-affidavit has been filed by the respondents. However, Mr. Indrajit Sinha, learned counsel appearing for the respondents vehemently, opposes the contention of the learned counsel for the petitioner. Mr. Sinha argues that this writ is barred by law of limitation. The petitioner has approached this Hon’ble Court after gross delay of three years since his superannuation in the year 2012 and the instant writ application has been filed in the year 2015. No cogent reason has been assigned by the petitioner for such delay in filing the instant writ application and on this score only, the writ petition is liable to dismissed. Learned counsel further submits that there is misrepresentation of facts by the petitioner inasmuch as the date of birth mentioned in the CMPF record is concerned, it cannot be taken as a valid proof of date of birth and the date of birth mentioned in Form ‘B’ of an employee can only be accepted as a valid proof of date of birth. Learned counsel accordingly submits that there is no merit in the instant writ application and the same may be dismissed out-rightly. 6. Learned counsel accordingly submits that there is no merit in the instant writ application and the same may be dismissed out-rightly. 6. Be that as it may, having gone through the rival submissions of the learned counsel for the parties and after perusing the records of the case, this Court is of the considered view that no case is made out for interference in the instant writ application. The petitioner has approached this Hon’ble Court three years after his superannuation and no valid reason has been assigned by him for such delay. This issue has already been decided by the Hon’ble Apex Court in case of Naib Subedar Lachhman Dass Vs. Union of India, reported in AIR 1977 SC 1979 , in which while dismissing the writ petition, the Hon’ble Apex Court has observed that “for the first time in September, 1970 the appellant invoked the extra-ordinary powers of the High Court under Article 226 of the Constitution for challenging the legality of an order dated 21.12.1966. The writ petition was filed after a gross delay for which there is no satisfactory explanation and, therefore, the High Court was justified in dismissing it summarily.” 7. Further, it is a settled principle of law that at the fag end of the service career and also that of after retirement, no interference is warranted on the ground of change of date of birth. Entry made in the CMPF is not considered to be a valid proof of date of birth and the entry made in the Service Excerpt and Form ‘B’ has been considered to be a valid proof with respect to date of birth of an employee. 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. 8. 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 letter dated 30.05.2012 does not suffer from any legal infirmity. 9. Resultantly, the writ petition merits dismissal and is hereby dismissed.