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2020 DIGILAW 519 (JHR)

Leelawati Devi v. Bharat Coking Coal Ltd.

2020-05-21

S.N.PATHAK

body2020
JUDGMENT : S.N. PATHAK, J. 1. In view of outbreak of COVID-19 pandemic, case has been taken up through Video Conferencing. Concerned lawyers have no objection with regard to the proceeding, which has been held through Video Conferencing today at 11:30 A.M. onward. They have no complaint in respect to the audio and video clarity and quality. 2. Heard the parties. 3. Mr. Anurag Kumar, learned counsel appears on behalf of the petitioner while Mr. Indrajit Sinha, learned counsel assisted by Mr. Vipul Poddar, learned counsel appears for the respondent-BCCL. 4. Petitioner has approached this Court with a prayer for a direction upon the respondents to immediately and forthwith reinstate her in service and pay all arrears admissible to her treating her date of birth as 01.04.1962. 5. Facts of the case in short is that petitioner was initially appointed at Bhurungia Colliery on compassionate ground in the year 1995 in place of her deceased husband namely, Khelu Mahto, who was an employee of respondent-BCCL and died in harness. It is the further case of the petitioner that at the time of her appointment, she had submitted all necessary documents including the service excerpt of her husband, late Khelu Mahto, in which the age of petitioner was shown as 25 years as on 01.04.1987 and as such, her date/year of birth should be 1962. However, the respondents did not accept the same and after one year of her joining, constituted a Medical Board for determining the age of the petitioner. The said Medical Board, on verification, found the petitioner as 38 years old as on 22.03.1996, making her year of birth as 1958. It is the further case of the petitioner that since the petitioner was an illiterate lady, she was unaware of the correction/change of her date of birth made by the respondents and it was only in the year 2015, she came to know that her date of birth has been shifted from the year 1962 to 1958 that too without giving any opportunity of being heard to the petitioner. On getting such information, she herself and through Union of Jharkhand Vikash Sharamik Sangh, gave several representations to the Management of BCCL to rectify and correct the date of birth of the petitioner but the Management of BCCL kept mum over the matter and did not pass any order on her representations. On getting such information, she herself and through Union of Jharkhand Vikash Sharamik Sangh, gave several representations to the Management of BCCL to rectify and correct the date of birth of the petitioner but the Management of BCCL kept mum over the matter and did not pass any order on her representations. Ultimately, treating her year of birth as 1958, she was made to superannuate on 31.03.2018. Aggrieved by the same, petitioner has knocked the door of this Court for redressal of her grievances. 6. Mr. Anurag Kumar, learned counsel appearing for the petitioner, submits that in the service excerpts of petitioner’s husband, which was prepared by respondents themselves, the date of birth of petitioner was mentioned as 08.01.1962 and as such, it is not permissible to the respondents to take a ‘U’ turn at the fag end of the service career of the petitioner, coming with an imaginary date of birth making the petitioner to superannuate 4 years prior to the actual date of retirement. Learned counsel further argues that since the petitioner is an illiterate lady, she was unaware of the correction of date of birth by the respondents and as such, earlier she could not raise any grievances in this regard. It was only in the year 2015, when she came to know through RTI that her date of birth has been shifted from 1962 to 1958, she made representation before the respondent-authorities for correcting her date of birth as per the entry made in the service excerpts of the petitioner’s husband. Learned counsel further submits that in view of the aforesaid facts and circumstances, the respondents may be directed to correct the date of birth of the petitioner and reinstate her in service and pay arrears of salary as well as other benefits to which she was entitled for, if she could have been in service. To buttress his arguments, learned counsel places heavy reliance on the judgment passed in case of Md. Nizamuddin vs. M/s. Bharat Coking Coal Ltd. and Others, (2011) 3 JCR 373 (Jhr). 7. On the other hand, Mr. Indrajit Sinha learned counsel assisted by Mr. Vipul Poddar, learned counsel appearing for the respondent-BCCL vehemently opposes the contention of the learned counsel for the petitioner. Mr. Sinha argues that petitioner has concealed the relevant facts and has not approached this Court with clean hands. 7. On the other hand, Mr. Indrajit Sinha learned counsel assisted by Mr. Vipul Poddar, learned counsel appearing for the respondent-BCCL vehemently opposes the contention of the learned counsel for the petitioner. Mr. Sinha argues that petitioner has concealed the relevant facts and has not approached this Court with clean hands. It was in year 1996 itself, after medical verification, the date of birth of the petitioner was changed from 1962 to 1958, on the basis of medical report. The petitioner duly accepted the said date of birth in all along her service tenure and it was only in the year 2015 i.e. at the fag end of service career, she made a representation for correction of date of birth, as entered in the service excerpts of petitioner’s deceased husband. Learned counsel further argues that neither of the parties are permitted to raise any dispute regarding correction in the date of birth at the fag end of service career. Learned counsel submits that the said issue is no more res integra and in catena of decisions of the Hon’ble Apex Court as well as of this Hon’ble Court, it has been held that applications regarding corrections of date of birth cannot be entertained at the fag end of service career. Learned counsel submits that in the facts and circumstances, it is crystal clear that petitioner was not aggrieved by the date of the birth during the entire service period and it was only at the fag end of service, she has raised objection regarding correction of date of birth, which is not permissible in the eyes of law. 8. To strengthen his arguments, learned counsel for the respondent-BCCL places heavy reliance on the judgment passed by the Hon’ble Apex Court in case of Bharat Coking Coal Ltd. and Others vs. Shyam Kishore Singh, (2020) SSC Online SC 126 and submits that no claim can be entertained after a long delay and as such, the writ petition is fit to be dismissed in limine, as admittedly, the petitioner made a representation for correction of date of birth after delay of two decades, which is ex facie fatal to the case of the petitioner. 9. 9. Be that as it may, having gone through the rival submissions of learned counsel for the parties, this Court is of the considered view that no case is made out for interference in the instant writ petition for the following facts and reasons: (i) Petitioner was fully aware of the correction made in her date of birth after medical verification. No objections were raised in the year 1996, when her medical examination was conducted for determining her age. (ii) Petitioner accepted the said date of birth all along her service career and it was only in the year 2015 i.e. at the fag end of service career, she made an application for correction in the date of birth based on the entry made in the service excerpts of her deceased husband. (iii) Nothing has been brought on record to show that at the time of appointment of the petitioner what was her date of birth and petitioner has also failed to bring on record the letter of appointment showing the date of birth as she was very much aware that in the letter of appointment, the correct date of birth was mentioned. (iv) The Hon’ble Apex Court as well as this Court in catena of decisions has held that request for change of date of birth in service records at the fag end of service career is not sustainable. In case of Secretary and Commissioner, Home Department and Others vs. R. Kirubakaran, 1994 Supp. (1) SCC 155, the Hon’ble Apex Court has held as under: “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. 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.” In case of State of Tamil Nandu vs. T.V. Venugopalan, (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. The Hon’ble Apex Court in the case of State of Maharashtra vs. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423 has held that: “16. The Hon’ble Apex Court in the case of State of Maharashtra vs. Gorakhnath Sitaram Kamble, (2010) 14 SCC 423 has held that: “16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad vs. 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 grievances 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 vs. 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.” Further, the Hon’ble Apex Court reiterating the same view in case of State of M.P. vs. Premlal Shrivas, (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.” In case of Union of India vs. Harnam Singh, (1993) 2 SCC 162 , the Hon’ble Apex Court has held that “No Court or the Tribunal can come to the aid of those who sleep over their rights.” (v) Similar view has been expressed by the Hon’ble Apex Court in case of Bharat Coking Coal Ltd. vs. Shyam Kishore Singh, (2020) 2 Supreme Today 189, wherein the Hon’ble Apex Court has held that “request for change of the date of birth in the service records at the fag end of service is not sustainable.” (vi) Time and again it has been held that if government servants sleep over their right and are not vigilant, the Court cannot come to their rescue/ aid and grant relief only because they were ignorant of the Rules. (vii) These decisions lead to a different dimension of the case that correction of date of birth at the fag end would be at the cost of large number of employees, therefore, any correction at the fag end must be discouraged by the Court. 10. As a sequitur to the aforesaid observations, rules, guidelines and judicial pronouncements, no case is made out for interference and hence, the writ petition being devoid of any merit, is hereby dismissed.