Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 897 (MP)

Awdhesh Kumar Singh v. Director Personnel

2018-10-23

VIJAY KUMAR SHUKLA

body2018
ORDER : In the instant petition filed under Article 226 of the Constitution of India, the petitioner has prayed writ of mandamus commanding respondents/ authorities to treat his date of birth as 15-01-1961 in place of 10-11-1958. 2. Brief facts of the case are that the petitioner joined Colliery service on 10-11-1981. At the time of entering into services, on the basis of initial Medical Examination (IME) in the Form ‘O’ his date of birth was mentioned as approximate age 23 years on 10-11-1981. The services of the petitioner were regularized as per the order dated 23-01-1983. He was promoted to the post of Mining Sardar-Cum-Short-Firer (MS-Cum-SF Tech. Gr.C.) by order dated 21-12-1990. Sardar certificate was issued by the Board of Mining Examinations under the provisions of Coal Mines Regulations, 1957 under the Mines Act, 1952. The petitioner has heavily relied on the said certificate in support of this contention that his date of birth is 15-01-1961 as it was mentioned in the said certificate. It is contended that the date of birth of the petitioner in the mark-sheets Annexures P-1, P-2 and P-3 is recorded as 15-01-1961 but despite the said fact the respondents have recorded approximate age 23 years as on 10-11-1981 in Annexure P-4 in the service record. It is also contended that the respondents have accepted the date of birth of the petitioner as 15-01-1961 and therefore, the same was mentioned in the provisional seniority list of Production-Cum-Safety Asstt. T&S Grade-B issued on 18-06-2015 where the name of the petitioner is at Serial No.29. In another seniority list published on 12-01-2018, again the same date of birth was mentioned. The petitioner has further submitted that after receiving the information relating to wrong entry in Form “B”, the petitioner had given written affidavit in Stamp Paper to the competent officer for correction of date of birth in the year 1987. He has further given representations on 25-12-2002 (P-9) 25-04-2016 (P-10), 16-08-2017 (P-11) and 29-08-2017 (P-12). 3. Learned Senior Counsel appearing for the petitioner vehemently argued that the petitioner was given employment by the respondents on the basis of his registration in the Employment Exchange and while applying for registration in the employment exchange, he had given his mark-sheet in which his date of birth 15.01.1961 was recorded, therefore, the said date of birth was very much within the knowledge of the employer. 4. 4. Learned counsel for the respondents raised preliminary objection regarding maintainability of the petition on the ground of availability of alternative efficacious remedy. The petitioner is a workman and therefore, the remedy for the petitioner lies before the Labour Court. In support of his contention, he referred the judgment passed by the Apex Court in the case of Uttaranchal Forest Development Corpn. And another Vs. Jabar Singh and other (2007) 2 SCC 112 and the judgment passed by this Court in W.P. No. 15026/2007 (S)Noor Mohammad Vs. The Chairman-cum-Managing Director, WCL and others. Against which the writ appeal was also dismissed as withdrawn comprising W.A. No. 592/2017. 5. The law regarding the availability of alternative remedy is well settled that the High Court should not ordinarily entertain the writ petition except where a very strong case is made out for departure from the general rule but there is no absolute bar for exercising writ jurisdiction in such matter. Since the respondents have already filed reply on merit as well and relevant service record has also been filed, I deem it proper to decide the writ petition on merit. 6. On merit it is submitted by the respondents that the petitioner was appointed as General Mazdoor and at that time he had not submitted any document relating to his educational qualification for the reasons that for the post of General Mazdoor uneducated person was entitled to be considered. For the said reasons the competent authority on the basis of petitioner’s information and medical examination has recorded the age of the petitioner as 23 years on 10.11.1981. He has also filled up coal Mines Provident Fund Form at the time of appointment and in the said form also his age was recorded as 23 years as on 10.11.1981. copy of the Form-B has been placed by the respondents as Annexure R-1 on the record. 7. In the year, 1987, the employees were given opportunity to fill up the entries to raise their objections in respect of any wrong entry. It is contended by the counsel for the respondents that the petitioner has accepted his age as 23 years on 10.11.1981 and had not raised any objection. They have filed the relevant extract of the copy of service excerpts as Annexure R-2. Specific stand has been taken that the mark-sheets which have been filed by the petitioner were not produced before the Management. They have filed the relevant extract of the copy of service excerpts as Annexure R-2. Specific stand has been taken that the mark-sheets which have been filed by the petitioner were not produced before the Management. So far the mark-sheet Annexure P-3 is concerned, the same is issued on 30th September, 1982 after appointment. Annexure P-5 which has been heavily relied by the petitioner to show that the date of birth of the petitioner is recorded as 10.11.1981. The respondents have contended that the said document is not issued by the employer. The same is certificate which is issued by the Independent Authority Board under the Mines Act on the basis of the information given by the petitioner. Regarding the date of birth, the provisional seniority list cannot be basis for adjudication of the date of birth specially when the petitioner himself has signed the Form-B accepting the age of 23 years as on 10.11.1981. 8. Upon perusal of the record, it is evident that when the petitioner joined the services on 10.11.1981, a Form-B was filled-up, in which the age of the petitioner was recorded as 23 years as on 10.11.1981. The said document has been filed as Annexure R-1. The petitioner had accepted the said entry and had not raised any objection. The certificate Annexure P-5 is not a document issued by the respondents/employer. It is a certificate issued under the Mines Act by the Board. The entry made in the provisional seniority list can also not been considered as a proof of date of birth of an employee. 9. The petitioner has not placed any evidence to show that the mark-sheets which are filed alongwith the writ petition were produced before the respondents at the time of joining of the services. The mark-sheet (Annexure P-3) is issued after the joining of his service. The entry/enrollment in the employment exchange as recorded on the reverse side of Annexure P-1 cannot be a basis for determination of date of birth of an employee. It does not establish the fact that mark-sheet was also produced before the employer at the time of joining of the services. The documents filed by the respondents are signed by the petitioner himself and he has not denied and disputed his signature on these documents where his age of 23 years as on 10.11.1981 is mentioned. 10. It does not establish the fact that mark-sheet was also produced before the employer at the time of joining of the services. The documents filed by the respondents are signed by the petitioner himself and he has not denied and disputed his signature on these documents where his age of 23 years as on 10.11.1981 is mentioned. 10. The petitioner had joined the services in the year, 1981 and the petition was filed in the year, 2018 after a period of about 37 years at the fag-end of service. Thus the petition also suffers from delay and latches as well. 11. The law relating to date of birth is no longer res-integra as Apex Court in the case of Burn Standard Co. Ltd. and others Vs. Dinabandhu Majmdar & another, AIR 1995 SC 1499 , it has been held that the entry in regard to the date of birth in the service record cannot be allowed to be changed at fag end of service. The relevant para is extracted as under : “Ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end-of his service, seeking correction of his date of birth entered in his 'Service and Leave Record' or Service Register with the avowed object of continuing in service beyond the normal period of his retirement”. The same view has been taken in the case of State of Maharashtra Vs. Gorakhnath Sitaram Kamble and others (2010) 14 SCC 423 , Surendra Singh Vs. State of M.P. & Ors. 2007 (1) MPLJ 286 and also by a coordinate Bench of this Court in the case of Shivadan Lakha Vs. State of M.P. & Ors. 2017 (4) MPLJ 349 it was held that date of birth cannot be permitted to be altered at the fag end of the career. The Division Bench in W.A. No. 101/2017 (Suresh Kumar Pitode Vs. Western Coalfields Ltd.) and W.A. No.881/2016 (Shiv Prasad Vs. Westewrn Coalfield Ltd.) also reiterated the same view. 12. In view of the aforesaid facts and enunciation of law, I do not find any case is made out for correction of date of birth in the writ jurisdiction. 13. Accordingly, the writ petition is dismissed.