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2022 DIGILAW 416 (GAU)

Lalhruaitluanga v. State Of Mizoram

2022-04-21

AJIT BORTHAKUR

body2022
JUDGMENT : (Ajit Borthakur, J.) : – 1. Heard Mrs. Dinari T. Azyu, learned counsel for the petitioners assisted by Mr. Victor L. Ralte. None appeared for the respondent Nos. 1, 2 and 3. Also heard Mr. B. Lalramenga, learned counsel for the respondent Nos. 4 and 5/MIZOFED. 2. The petitioners' case precisely is that the petitioner No. 1 was initially appointed to the post of Branch Manager of Mizoram State Cooperative Marketing and Consumers' Federation Ltd. (MIZOFED) in the year 1986 and retired recently as General Manager (General Administration) of the said MIZOFED. The petitioner No. 2 was initially appointed as apprentice Sales Girl in the year 1981 in the said MIZOFED and presently working in a superior position. The name of the petitioner No. 3 has been struck out as per Order dtd. 4/4/2022 passed in I.A.(C) No. 39/2022. The petitioners have contended that the respondent authority MIZOFED had issued a circular dtd. 4/6/2014 directing its employees to submit certificates duly issued by their respective churches indicating their exact date of birth to ascertain their correct date of birth as there were many employees who had been rendering services for a longer period, but unable to perform work satisfactorily. Pursuant thereto, the employees of MIZOFED including the petitioners submitted their certificates showing their actual dates of birth issued by their respective churches. The dates of birth of the petitioners as given in the church certificates showed them to be younger than the dates of birth recorded in their service books. The Board of Directors of MIZOFED (herein after referred as 'B.O.D.'), therefore, resolved that those certificates bearing age younger than their age recorded in the service books would not be accepted. The petitioners being aggrieved by such arbitrary and discriminatory resolution of the B.O.D. had submitted representations on 5/11/2018 and 26/2/2021 for rectification of their dates of birth in their service books and on the direction of this Court dtd. 18/3/2021 passed in WP(C) No. 22/2021 disposed of the same by issuing office Order No. 52/2021, dt. 24/3/2021 by the respondent No. 5 rejecting their representations. As such, the instant writ petition under Article 226 of the Constitution of India is filed praying for setting aside and quashing the aforesaid impugned Office Order, dt. 18/3/2021 passed in WP(C) No. 22/2021 disposed of the same by issuing office Order No. 52/2021, dt. 24/3/2021 by the respondent No. 5 rejecting their representations. As such, the instant writ petition under Article 226 of the Constitution of India is filed praying for setting aside and quashing the aforesaid impugned Office Order, dt. 24/3/2021, and also to direct the respondents authority to accept their new dates of birth as indicated in their respective church certificates for determination of their dates of birth. 3. Mrs. Dinari T. Azyu, learned counsel for the petitioners contends that the petitioner No. 1 has retired from service on 1/4/2021 and the petitioner No. 2 is due to retire on 23/4/2022 i.e., day after tomorrow. Mrs. Dinari T. Azyu further contends that while refusing to rectify the dates of birth of the petitioners in their respective service books as per the church certificates, the authenticity of the same has not been disputed by the respondents and whereas those church certificates of other employees which do tally with their service book entries and those employees who are even older than their service book entries are being accepted is apparently arbitrary and illogical. 4. Mrs. Dinari T. Azyu, learned counsel for the petitioners relevantly relied on the proposition of law laid down by the Hon'ble Supreme Court in M/s New Bihar Biri Leaves Co. and Ors. Vs. State of Bihar and Ors., reported in (1981) 1 SCC 537 and H.R. Basavaraj (Dead) by his Lrs. and Anr. Vs. Canara Bank and Ors., reported in (2010) 12 SCC 458 . 5. Mr. B. Lalramenga, learned counsel for the respondent Nos. 4 and 5 contends that the requisition for church certificates from the concerned churches regarding the dates of birth of the employees of MIZOFED was done for the noble purpose of verifying their actual dates of birth only and as such, it is tacit that church certificates from the concerned churches may be considered as the only material/criteria in making such verifications without any specific resolution of the B.O.D. assuring to accept all such certificates issued by the concerned churches produced by the employees. In course of such age verification drive/exercise, the MIZOFED authority found that amongst the employees, the dates of birth of 12 employees, whose names were reflected in the meeting minute, dt. In course of such age verification drive/exercise, the MIZOFED authority found that amongst the employees, the dates of birth of 12 employees, whose names were reflected in the meeting minute, dt. 9/4/2014, as certified by their concerned churches were at variance to the dates of birth as recorded in their service books and besides, it was also found that the dates of birth of the other 8 employees including the petitioners herein were shown younger to the age reflected in the respective service records. In this context, Mr. B. Lalramenga emphatically contends that now at the fag end of the petitioners' long service career, their prayer for any change in their dates of birth in service records cannot be entertained based on church certificates. 6. In this context, Mr. B. Lalramenga relevantly contends that the MIZOFED Staff service (Amendment) Rules, 2020 does not provide any remedy for such modification/rectification of date of birth in the service records of employees. In this regard, Mr. B. Lalramenga has relied on the proposition of law propounded by the Hon'ble Supreme Court in Bharat Coking Coal Limited and Ors. Vs. Shyam Kishore Singh, reported in (2020) 3 SCC 411 and in Civil Appeal No. 5720 of 2021 in Karnataka Rural Infrastructure Development Limited Vs. T.P. Nataraj and Ors. 7. I have given due consideration to the submissions made by the learned counsel for both the sides and their respective affidavits. Also, perused the case record along with the documents annexed thereto as well as the citations relied on by both sides. 8. As the petitioner No. 1 has retired from service on attainment of superannuation, and there is no corresponding prayer for appropriate relief and further, as the learned counsel for the petitioners has expressly not pressed his case, it is clarified that his grievance is not taken up for judicial consideration being infructuous. 9. The name of petitioner No. 3 has already been struck out as stated above. 10. A perusal of the case record shows that MIZOFED is a society registered under the Assam Co-operative Societies Act, 1949 (Act 1 of 1950) and as per Rule 16 (ii) of the MIZOFED Staff Service (Amendment) Rules, 2015, its employees retire on attaining the age of 60 years and further, the Government of Mizoram holds 97.8% of total share capital of MIZOFED. The petitioner No. 2 was initially appointed as apprentice Sales Girl, on daily wage basis vide Office Order No. 47/1981, dt. 12/12/1981 and thereafter, she was promoted to the post of Sales and Allied Service, Grade II vide Office Order No. 115/2000, dtd. 1/9/2000, in which position she has been working till date. 11. However, having noticed that some of the employees of MIZOFED have been working for a longer period with high remunerations, the Executive Committee adopted a resolution on 28/5/2014 to ask the employees to submit their certificates issued by their respective churches indicating their exact dates of birth, so as to enable the authority to verify/ascertain their exact dates of birth and accordingly, the respondent No.5 issued a Circular, dtd. 04/6/2014 to the employees. In response thereto, the petitioner No. 2 like other employees of MIZOFED submitted her Church Certificate showing her date of birth as 23/4/1963 vide Annexure 19 and 19 A (Translated copy) whereas her date of birth as recorded in the service book was 23/4/1962, that is with a variance of 1 (one) year younger in age. 12. After going through various departmental internal decisions in this regard, the petitioner No. 2 and others submitted representations to the competent authorities to consider for rectification of their dates of birth, but the same was rejected vide Office Order No. 52 of 2021, dtd. 24/3/2021, issued by the respondent No. 5, inter alia, on the ground that in the meeting of the B.O.D. held on 9/10/2014, it was resolved that the date of birth as recorded in the service books of the employees should be accepted instead of the date of birth as acknowledged by the concerned Church authorities. 13. Now, in view of the rival contentions, the basic issue that arises in this petition is whether the date of birth recorded in the service book/record of the petitioner No. 2 is amenable to any rectification/modification at the fag end of her career. 14. In the case of M/s New Bihar Biri Leaves Co. and Ors. Vs. State of Bihar and Ors., (Supra) in paragraph No. 48, it is observed and held as under:- "48. 14. In the case of M/s New Bihar Biri Leaves Co. and Ors. Vs. State of Bihar and Ors., (Supra) in paragraph No. 48, it is observed and held as under:- "48. It is a fundamental principle of general application that if a person of his own accord, accepts a contract on certain terms and works out the contract, he cannot be allowed to adhere to and abide by some of the terms of the contract which proved advantageous to him and repudiate the other terms of the same contract which might be disadvantageous to him. The maxim is qui approbat non reprobat (one who approbates cannot reprobate). This principle, though originally borrowed from Scots Law, is not firmly embodied in English Common Law. According to it, a party to an instrument or transaction cannot take advantage of one part of a document or transaction and reject the rest. That is to say, no party can accept and reject the same instrument or transaction (Per Scrutton, L. J., Verschures Creameries Ltd. v. Hull and Netherlands Steamship Co.; see Douglas Menzies v. Umphelby; see also STROUD'S JUDICIAL DICTIONARY, Vol. I, page 169, 3rd Edn.)." 15. In the case of H.R. Basavaraj (Dead) by his Lrs. and Anr. Vs. Canara Bank and Ors., (Supra) in paragraph No. 30, it is observed and held as under:- "30. In general words, estoppels is a principle applicable when one person induces another or intentionally causes the other person to believe something to be true and to act upon such belief as to change his/her position. In such a case, the former shall be stopped from going back on the word given. The principle of estoppels is, however, only applicable in cases where the other party has changed his position relying upon the representation thereby made." 16. In the case of Bharat Coking Coal Limited and Ors. Vs. Shyam Kishore Singh, (Supra) in paragraph No. 10, it is observed and held as under:- "10. 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. v. Premlal Shrivas it is held as hereunder: “8. 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. v. Premlal Shrivas it is held as hereunder: “8. It needs to be emphasized 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 carrer, the court or the tribunal has to be circumspect, cautions 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. 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." 17. In the case of Karnataka Rural Infrastructure Development Limited Vs. T.P. Nataraj and Ors. in Civil Appeal No. 5720 of 2021 in paragraph No. 10, it is observed and held as under:- "10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under: (i) application for change of date of birth can only be as per the relevant provisions/regulations applicable; (ii) even if there is cogent evidence, the same cannot be claimed as a matter of right; (iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation." 18. In the case in hand, as stated above, the date of birth of the petitioner No. 2 is 23/4/1962 as recorded in her service book and continued to be relied on it by the department and the petitioner No. 2 herself since her initial appointment in MIZOFED in the year 1981 till date, that is, for about 40 years of service career and now going on retirement, day after tomorrow on 23/4/2022 on attainment of superannuation at the age of 60 years as per relevant Service Rules. It is noticed that the petitioner No. 2 did not approach the authority for rectification of her date of birth entry in the service book/record at the earliest opportunity since she joined in service in 1981, that is, about 40 years ago, but belatedly in the year 2021 just before her retirement on 23/4/2022. It is noticed that the petitioner No. 2 did not approach the authority for rectification of her date of birth entry in the service book/record at the earliest opportunity since she joined in service in 1981, that is, about 40 years ago, but belatedly in the year 2021 just before her retirement on 23/4/2022. The petitioner No. 2 is, therefore, now automatically estopped from deviating from her original representation and her tacit conduct of sticking to the aforesaid representation during the last about 40 years of career in respect to her date of birth as recorded in the service book/record. 19. Therefore, placing reliance on the settled principle of law in the above referred judgments of the Hon'ble Apex Court rendered in Bharat Coking Coal Limited and Ors. Vs. Shyam Kishore Singh, (Supra) and in Karnataka Rural Infrastructure Development Limited case (Supra), this Court is of the opinion that the prayer of the petitioner No. 2 for change/modification in her date of birth originally recorded in service book/record cannot be entertained at her fag end of service and also due to her unexplained delay and laches as well as when the MIZOFED Staff Service (Amendment) Rules, 2020 does not provide any provision for any such remedy. Consequently, this Court is of the opinion that the impugned office Order, dtd. 24/3/2021 cannot be set aside and quashed and the date of birth of the petitioner No. 2 in her Church Certificate for determination of her purported exact date of birth at the fag end of her career cannot be directed to be accepted as prayed. 20. Accordingly, the petition being devoid of merit, the same stands dismissed. 21. Writ Petition is disposed of accordingly.