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2021 DIGILAW 1077 (JHR)

Bharat Coking Coal Limited v. Sukullah Mian @ Sukrullah Mian, S/o. Lal Mohamad

2021-12-21

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2021
JUDGMENT : 1. The instant intra-court appeal, under Clause 10 of the Letters Patent, is directed against the order/judgment dated 04.12.2020 passed by the learned Single Judge of this Court in W.P.(S) No. 1247 of 2018 whereby and whereunder the writ petition has been allowed by quashing the order dated 13/18.11.2017 passed by the Project Officer, Ena Colliery, Bharat Coking Coal Limited (hereinafter referred to in short as “BCCL”) by which the authority has dismissed the representation of the writ petitioner which was filed for correcting his date of birth recorded in his service record. Further prayer pertains to grant of all consequential benefits to the writ petitioner after correcting his date of birth and to quash the retirement notice dated 03/08.07.2014. 2. The brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated, are as hereunder:- The respondent-writ petitioner was appointed under BCCL on 20.07.1978. The case of the writ petitioner is that since he was not having matriculation certificate at the time of his appointment, could not submit the same at the time of entry in service and while entering in service the age of the writ petitioner was mentioned as 24 years on 26.07.1978. The date of birth of the writ petitioner, as recorded in the matriculation certificate, is 01.07.1958, which was issued on 25.06.1975 and calculating the age from the date which was recorded in the matriculation certificate age of the writ petitioner will be 20 years. It is further case of the writ petitioner that the appellant-authorities was knowing about his date of birth, as was recorded in the matriculation certificate, since on the basis of the matriculation certificate itself he got promoted in Grade-III vide office order dated 20.09.1984. But even thereafter no necessary correction has been made in the service record of the writ petitioner. The writ petitioner’s further case is that when he knew about wrong recording of his date of birth he contacted the clerk concerned who assured him that the necessary correction would be made on the basis of the terms and conditions as referred in Implementation Instruction No.76. The writ petitioner’s further case is that when he knew about wrong recording of his date of birth he contacted the clerk concerned who assured him that the necessary correction would be made on the basis of the terms and conditions as referred in Implementation Instruction No.76. It is further case of the writ petitioner that for one reason or the other no necessary correction has been made in the service excerpts of the writ petitioner while on the other hand retirement notice was served upon the writ petitioner on 03/08.07.2014, communicating him about his date of retirement with effect from 31.07.2014. The writ petitioner has made representation but to no effect, in consequence thereof writ petition being W.P.(S) No. 454 of 2015 was filed which was disposed of vide order dated 03.07.2017 with a direction upon the appellant-authorities to consider the claim of the writ petitioner in terms of the Implementation Instruction No. 76 by taking a decision and accordingly, if the date of birth is being corrected the writ petitioner will be entitled for reinstatement with back wages. The case of the writ petitioner was considered in terms of the aforesaid order dated 03.07.2017 passed in W.P.(S) No. 454 of 2015. However, the case of the writ petitioner was rejected vide order dated 13/18.11.2017, which was assailed by the writ petitioner by filing a writ petition being W.P.(S) No. 1247 of 2018. The learned Single Judge after considering the submissions made on behalf of the BCCL and after considering the fact regarding the date of birth of the writ petitioner which was recorded as 01.07.1958 in the matriculation certificate as also deprecating the action of the said authorities by not acting in pursuance to the bilateral agreement as under Clause B(i)(a) of the Implementation Instruction No. 76, quashed the order dated 13/18.11.2017 with a direction to verify the genuineness of the matriculation certificate of the petitioner, which is a subject matter of the present intra-court appeal. 3. The BCCL has preferred the instant intra-court appeal assailing the aforesaid order on the ground that the writ petitioner has not produced the matriculation certificate at the time of his entry in service. 3. The BCCL has preferred the instant intra-court appeal assailing the aforesaid order on the ground that the writ petitioner has not produced the matriculation certificate at the time of his entry in service. Further, even after the appointment no such matriculation certificate has been produced as such, the writ petitioner cannot be allowed to take the ground of insertion of date of birth in the service record as was recorded in the matriculation certificate. It has further been submitted by refuting the ground agitated on behalf of the writ petitioner about presumption of the matriculation certificate with the possession of the appellant-BCCL on the ground of his promotion to Grade-III. But by referring to the cadre scheme of promotion as under Annexure-5 to the writ petition which has been given in favour of the writ petitioner on the basis of experience and to that effect specific statement has also been made in the counter affidavit as under para-17. According to the learned counsel appearing for the appellant, the learned Single Judge has not appreciated the fact rather the learned Single Judge has gone on premises of recording of date of birth in the matriculation certificate even though such matriculation certificate has not been produced fairly for a long period and hence, the order passed by the learned Single Judge is not sustainable in the eye of law. 4. Mr. L.C.N. Sahadeo, learned counsel appearing for the respondent has submitted that the date of birth which was recorded in the matriculation certificate is said to be conclusive date of birth and considering that aspect of the matter coupled with the fact that the writ petitioner has been granted promotion as Grade-III for which the matriculation certificate is required, the learned Single Judge has passed the order which cannot be said to suffer from an error. 5. We have heard learned counsel for the parties, perused the documents available on record as also the findings recorded by the learned Single Judge in the impugned order. 6. The fact which is not in dispute in this case is that at the time of appointment of the writ petitioner even though the writ petitioner claims to be a matriculate but no matriculation certificate has been produced. 6. The fact which is not in dispute in this case is that at the time of appointment of the writ petitioner even though the writ petitioner claims to be a matriculate but no matriculation certificate has been produced. The writ petitioner has claimed his date of birth as 01.07.1958 which according to him is recorded in the matriculation certificate and he had appeared in matriculation exam prior to his entry in service. It further appears from the record that the writ petitioner in order to make a claim of laches committed on the part of the appellant-BCCL, since according to him the matriculation certificate was in possession of the appellant-BCCL as on the basis of that matriculation certificate he was granted promotion on Grade-III for which the matric is minimum educational qualification. 7. Learned Single Judge has accepted the aforesaid contention by negating the grounds agitated by the appellant-BCCL by taking into consideration the condition as incorporated under Clause B(i)(a) of the Implementation Instruction No. 76. We, in order to appreciate the findings recorded by the learned Single Judge, have considered the fact of applicability of Clause B(i)(a) of the Implementation Instruction No. 76 which is quoted hereunder as : “B(i)(a) In the case of the existing employees Matriculation Certificate of Higher Secondary Certificate issued by the recognized Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid bodies should be treated as correct provided they were issued by the said Universities/Boards/Institutions prior to the date of employment.” It is evident that in the case of the existing employees Matriculation Certificate of Higher Secondary Certificate issued by the recognized Universities or Board or Middle Pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid bodies should be treated as correct provided they were issued by the said Universities/Boards/Institutions prior to the date of employment. It is, thus, evident that the aforesaid clause applies to the existing employees. It further reflects that the certificate as referred therein including the matriculation certificate, if issued prior to the date of employment, will be the admissible document to recognize the date of birth of an employee. 8. It is, thus, evident that the aforesaid clause applies to the existing employees. It further reflects that the certificate as referred therein including the matriculation certificate, if issued prior to the date of employment, will be the admissible document to recognize the date of birth of an employee. 8. Admittedly, herein, on the date of entry in service no matriculation certificate had been produced by the writ petitioner since it is a specific case of the writ petitioner that for the first time the objection about entry of his date of birth has been made sometime in the year 2011-2012. However, the writ petitioner claims that the matriculation certificate was prior to the entry in service, even accepting that the matriculation certificate is prior to his entry in service then why such certificate was not produced by the writ petitioner, there is no explanation to that effect available in the pleadings made on behalf of the writ petitioner. It is very surprising that when the writ petitioner claims that he had passed matriculation examination prior to entry in service, what prevented him to produce the matriculation certificate immediately after his employment or within reasonable period from the date of his employment. Rather herein, the writ petitioner has tried to take inference by citing the example of his promotion granted to the post of Grade-III for which, according to the writ petitioner, the minimum educational qualification is matriculation. We have considered Annexure-5, i.e., the order of promotion wherein under a column the educational qualification has been reflected to have matriculate or equivalent but in the ‘footnote’ it has been stipulated therein that in absence of matriculation certificate also the promotion can be given on the basis of experience. For ready reference the contents of Annexure-5 read hereunder as: “CADRE SCHEME FOR TRIPMAN, DUMPMAN/PITMAN Sl. No. Designation Category/ Grade Qualification Eligibility for Promotion Mode of Selection /Promotion 1. Tripman, Dumpman/Pitman/Pitmunsi/Traffic Munsi Clerical Gr-III Matriculate or equivalent 3 years services in the company Selection 2. Tripman, Dumpman/Pitman/Pitmunsi/Traffic Munsi Clerical Gr-II Matriculate or equivalent 3 years experience in Clerical Gr.-III DPC 3. Tripman, Dumpman/Pitman/Pitmunsi/Traffic Munsi Clerical Gr-I Matriculate or equivalent 3 years experience in Clerical Gr.-II DPC 4. Sr. Tripman, Dumpman/Pitman/Pitmunsi/Traffic Munsi Clerical Spl Gr. Matriculate or equivalent 5 years experience DPC NOTE: Qualification will not be a bar for promotion for existing employees upto Gr. I” 9. Tripman, Dumpman/Pitman/Pitmunsi/Traffic Munsi Clerical Gr-I Matriculate or equivalent 3 years experience in Clerical Gr.-II DPC 4. Sr. Tripman, Dumpman/Pitman/Pitmunsi/Traffic Munsi Clerical Spl Gr. Matriculate or equivalent 5 years experience DPC NOTE: Qualification will not be a bar for promotion for existing employees upto Gr. I” 9. Further, we have gone across the specific pleadings to that effect in the counter affidavit as under paragraph nos. 17 & 18 wherein it has been stated that the case of the writ petitioner for promotion in Grade-III was considered not on the basis of matriculation certificate rather on the basis of experience, the aforesaid passage is quoted hereunder : “17. That in reply to the statements made in paragraphs 9 and 10 of the writ application, it is stated that the statements made therein are not correct and hence denied. The petitioner was never promoted on the basis of his Matriculation Certificate as is being claimed, rather the same was on the basis of his experience. 18. That in reply to the submissions made in paragraph 11 of the writ application, it is stated that the submissions made therein are not correct. As the petitioner was a Non-Matriculate, therefore, the column relating to his education qualification in the service excerpts was left vacant.” 10. Therefore, according to our considered view, merely because the writ petitioner was granted promotion to Grade-III, there cannot be presumption that the matriculation certificate was with the possession of the appellant-BCCL. Further it cannot be as it is the specific case of the writ petitioner that the protest for making necessary correction in date of birth in the service record has been made sometime in the year 2011-12 and as such, how such plea be taken by the writ petitioner about availability of matriculation certificate with the appellant-BCCL sometime in the year 1984 when promotion has been granted in his favour as Grade-III. In view thereof, according to our considered view, the ground which has been agitated by the learned counsel appearing on behalf of the respondent-writ petitioner to that effect has no substance, accordingly, the same is rejected. 11. In view thereof, according to our considered view, the ground which has been agitated by the learned counsel appearing on behalf of the respondent-writ petitioner to that effect has no substance, accordingly, the same is rejected. 11. So far as the applicability of Clause B(i)(a) of the Implementation Instruction No. 76 is concerned that is also not applicable in the facts of the case as the same speaks about the case of existing employee but herein the case of the writ petitioner is at the time of entry in service and while in service he has not produced the matriculation certificate fairly for a long period reason best known to him. Further learned Single Judge has misconstrued the condition stipulated under Clause B(i)(a) of Implementation Instruction no. 76 as to how it is applicable when such matriculation certificate has not been produced by the writ petitioner as also on the ground that the learned Single Judge has came to such finding by taking into consideration the order of promotion to the post of Grade-III granted in favour of the writ petitioner, which we have already discussed hereinabove that promotion is not on the basis of matriculation certificate rather on the basis of experience as referred hereinabove. Hence, according to our considered view, the condition stipulated under Clause B(i)(a) of Implementation Instruction no. 76 is not applicable. 12. Learned Single Judge has also referred the judgement rendered in Kamta Pandey Vs. M/s BCCL & Ors. [ 2007 (3) JLJR 726 (SC)] as well as in M/s BCCL & Ors. Vs. Chhota Birsa Uranw [2014 (3) JLJR 182 (SC)] which led the learned Single Judge to interfere with the order dated 13/18.11.2017. However, the question is whether the aforesaid judgements are applicable to the facts of the present case. It is not in dispute, as has been laid down in the case of Kamta Pandey (supra) as well as in Chhota Birsa Uranw (supra) that the matriculation certificate, if issued prior to entry in service will have conclusive proof of date of birth. In the present case, no matriculation certificate was produced fairly for a long period. If the writ petitioner was in possession of the matriculation certificate, it could well have been produced immediately on the date of entry in service or even within reasonable time from the date of appointment. In the present case, no matriculation certificate was produced fairly for a long period. If the writ petitioner was in possession of the matriculation certificate, it could well have been produced immediately on the date of entry in service or even within reasonable time from the date of appointment. That having not been done, the writ petitioner cannot be allowed to take aid of the aforesaid judgments. Even otherwise also the judgment being binding precedence will not have its universal applicability, rather it applies on the basis of facts and circumstances of given case. Accordingly, as per the reason aforesaid these judgments are not applicable in the facts of this case but learned Single Judge, without appreciating the factual aspects of this case, has applied the ratio laid down in those cases. 13. This Court in the entirety of the facts and circumstances as referred hereinabove, is of the view that the impugned order passed by learned Single Judge suffers from error, accordingly, it is fit to be set aside. 14. In view thereof, the order passed by the learned Single Judge is set aside. The appeal stands allowed. In consequence thereof, the writ petition stands dismissed.