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2020 DIGILAW 373 (JHR)

Gopal Ram v. Sail, Bokaro Steel Plant

2020-02-25

APARESH KUMAR SINGH, KAILASH PRASAD DEO

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JUDGMENT 1. Heard learned counsel for the petitioner. 2. The notice of superannuation dated 06.06.2008 as amended vide letter dated 22.01.2010 informing the petitioner that he would retire on completion of 58 years of age on 19.04.2009 was assailed by him through O.A. No. 051/00139/2017 before the learned Central Administrative Tribunal, Patna Bench, Circuit Sitting at Ranchi. Learned Tribunal did not interfere in the impugned notice vide order dated 08.01.2019 for the following reasons:- 1. that the service record of the applicant maintained by the employer showed his date of birth as 20.04.1950 as declared by him at the time of entry in service on 13.05.1974; 2. he had also subscribed his thumb impression on the service book; 3. applicant could not substantiate the claim of his date of birth as 20.04.1954 recorded in his medical book by any contemporaneous document or proof; 4. the dispute regarding the date of birth was raised at the fag end of service, which is not entertainable in the light of the decision rendered by the Apex Court; 5. during his entire service period, he never objected to the entry of his date of birth as 20.04.1950 in his service record. Accordingly relief was declined. 3. Before us petitioner has not been able to improve his case any further in the sense that no other proof in support of his claim of date of birth as 20.04.1954 has been adduced or brought on record. He alleged manipulation in his service record. However extract of his service record have also not been brought on record. Learned counsel for the petitioner has produced a copy of the counter affidavit filed by the respondent SAIL in his earlier writ petition W.P(S) No. 228 of 2010 preferred before this Court for the same relief. The said writ petition was withdrawn to approach the learned CAT. The entry in the date of birth in the first page of personal data form at Annexure-8 to the said counter affidavit relied upon by the petitioner in support of his assertion of manipulation also does not show any apparent manipulation. Moreover, in the second page of the form the same entry 20.04.1950 has again been made with the affixation of LTI of the applicant at the bottom. 4. Moreover, in the second page of the form the same entry 20.04.1950 has again been made with the affixation of LTI of the applicant at the bottom. 4. It is well settled by now by the decision rendered by the Apex Court from time to time and reiterated in the case of Bharat Coking Coal Ltd. and others Vrs. Shyam Kishore Singh reported in 2020 SCC OnLine SC 126 that an employee is precluded from raising the issue of correction of date of birth at the fag end of service. The relevant para 8 and 9 of Bharat Coking Coal Ltd. and others (supra) is quoted hereunder:- ''8. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharashtra and Anr. vs. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder: ''16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [ (2005) 11 SCC 465 : 2006 SCC (L&S) 96] . In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career. 17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [ (2005) 11 SCC 477 : 2006 SCC (L&S) 106 ] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades. 19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. 19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158 59, para 7) ''7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. 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 promotion forever. 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. 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. the onus is on the applicant to prove the wrong recording of his date of birth, in his service book.'' 9. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. the onus is on the applicant to prove the wrong recording of his date of birth, in his service book.'' 9. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as hereunder; ''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 (see Union of India v. Harnam Singh [ (1993) 2 SCC 162 : 1993 SCC (L&S) 375: (1993) 24 ATC 92 ]). 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. 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.'' 5. Petitioner served the organization since his entry in service in 1974 till attaining the age of 58 years and at no point of time raised any protest or made any representation for correction of his date of birth. Petitioner also does not allege malafide against any individual employee or officer for having made manipulation in his date of birth entry in service record. Therefore, the plea of manipulation is untenable on facts. 6. Considered thus, we do not find any reason to interfere in the impugned order. The writ petition being devoid of merits is accordingly dismissed.