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2023 DIGILAW 1269 (JHR)

Gangadhar Prasad Das v. Bharat Coking Coal Ltd. , represented through its Chairman-cum-Managing Director

2023-10-17

S.N.PATHAK

body2023
JUDGMENT : Heard the parties. 2. Petitioner has approached this Court with a prayer for direction upon the respondents to correct the date of birth of petitioner in the service record as 03.05.1967 instead of 08.12.1963 and accordingly, allow the petitioner to retire as per the corrected date of birth i.e. 03.05.1967. Further prayer has been made for quashing the office order dated 07.01.2023, whereby an advance notice regarding retirement of petitioner has been issued erroneously considering his date of birth as 08.12.1963. 3. As per the facts of case, petitioner joined the post of Miner Loader in BCCL on 19.12.1986. It is the case of the petitioner that at the time of joining, in the Form ‘B’ Register which has been maintained by the respondents, the date of birth of petitioner was wrongly mentioned as 08.12.1963 in place of his actual date of birth as 03.05.1967, which was questioned by the petitioner but that time he was verbally assured by the officials of the respondent-BCCL that the same will be rectified once his services get confirmed. It is the specific case of the petitioner that he has passed Matriculation in the year 1983 from Bihar School Examination Board (for short “BSEB”) which is much prior to the date of his joining the services of respondent-BCCL and in his matriculation certificate issued by BSEB his date of birth is mentioned as 03.05.1967. Further, in Aadhar Card, Voter ID Card and other documents his date of birth is mentioned as 03.05.1967. After confirmation of the services, when the respondents have not corrected the date of birth of petitioner inspite of their verbal assurance, the petitioner made representation dated 03.06.1989 to respondent No. 6 which was duly acknowledged by the said respondents and again assurance was given that the date of birth of petitioner will be corrected soon. Thereafter, though petitioner was discharging his duties but the respondents have not corrected his date of birth in his service records. 4. It is the further case of the petitioner that thereafter, he made several representation in between 2007 to 2021 but no action has been taken on the same. Thereafter, though petitioner was discharging his duties but the respondents have not corrected his date of birth in his service records. 4. It is the further case of the petitioner that thereafter, he made several representation in between 2007 to 2021 but no action has been taken on the same. It is further averred that one similarly situated employee namely, Ramanuj Singh posted as Driver in Tetulmari Colliery was having same problems of incorrect date of birth in the service record of the BCCL and it was corrected vide letter dated 30.04.2013 but the petitioner’s date of birth was not corrected by the BCCL. It is the further case of the petitioner that the respondent-BCCL vide letter dated 19.07.2017 show-caused the petitioner with respect to his prayer for correction in the date of birth to which the petitioner duly replied vide letter dated 05.08.2017. Thereafter, the petitioner was assured by their Superior Authorities that his date of birth will be corrected at the earliest. 5. Though the petitioner was waiting for the reply of the respondent, to his utter surprise, he received a letter dated 07.01.2023, whereby he has been informed that he will be superannuated from services w.e.f. 31.12.2023. Upon receipt of the said notice, the petitioner rushed to the office of the Director, BCCL representing vide letter dated 10.04.2023, whereby he has narrated entire fact and further requested to correct his date of birth in the service record as per his matriculation certificate but till date no action has been taken by the respondents. Hence, he has been constrained to knock the door of this Court. 6. Learned counsel for the petitioner submits that the petitioner is entitled to get his date of birth corrected by the respondents on the basis of Matriculation Certificate issued by Bihar School Examination Board but the respondents have not shown any consideration to the same and neither to the repeated requests and representations submitted by the petitioner. Learned counsel further submits that though the petitioner has approached the competent authority well within time but the same was kept in abeyance due to lethargic approach of the respondent-BCCL. Learned counsel accordingly submits that suffice it would be if a direction be given to the respondents to make suitable correction in the date of birth of the petitioner as per his matriculation certificate issued by the Bihar School Examination Board. 7. Learned counsel accordingly submits that suffice it would be if a direction be given to the respondents to make suitable correction in the date of birth of the petitioner as per his matriculation certificate issued by the Bihar School Examination Board. 7. On the other hand, learned counsel for the respondent-BCCL submits that the petitioner has accepted his date of birth as mentioned in his service excerpts for all along his service career and only at the fag end of service, he has approached this Court praying for a direction upon the respondents to make correction in the date of birth as per his educational certificate. Learned counsel further argues that in the extract of service record maintained by the respondent-BCCL, the petitioner himself filled-up with his own handwriting, the column of date of birth showing his date of birth as 08.12.1963 and put his signature thereon. Further, in Form-A of Central Coal Mines Provident Fund Scheme also the date of birth of petitioner was entered as 23 years on 08.12.1986 meaning thereby that the date of birth of petitioner is 08.12.1963. This statutory form has been signed willingly by the petitioner confirming his date of birth being 08.12.1963. Learned counsel further argues that when the petitioner was informed vide letter dated 07.01.2023 that he would superannuate on 31.12.2023 on the basis of his date of birth 08.12.2023, hurriedly the petitioner filed the present writ petition praying therein for direction upon the respondents to correct his date of birth which is not permissible in law. 8. 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, he has raised objection regarding correction of date of birth, which is not permissible in the eyes of law. 9. 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, he has raised objection regarding correction of date of birth, which is not permissible in the eyes of law. 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) Admittedly, Petitioner accepted the date of birth mentioned in his service excerpts all along his service career and it was only in the year 2023 i.e at the fag end of service career, he has approached this Court with a prayer for direction upon the respondent to make correction in the date of birth based on the entry made in his matriculation certificate. (II) In the service records maintained by the respondent-BCCL, the petitioner himself filled-up with his own handwriting the column of date of birth showing his date of birth as 08.12.1963 and put his signature thereon and does not object to the same. (III) Further, in Form-A of Central Coal Mines Provident Fund Scheme also the date of birth of petitioner was entered as 23 years on 08.12.1986 meaning thereby that the date of birth of petitioner is 08.12.1963. This statutory form has been signed willingly by the petitioner confirming his date of birth being 08.12.1963. (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 & Ors. Vs. R. Kirubakaran, reported in 1994 Suppl. (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, reported (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 & Anr. v. Gorakhnath Sitaram Kamble & Ors., reported in (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. The Hon’ble Apex Court in the case of State of Maharashtra & Anr. v. Gorakhnath Sitaram Kamble & Ors., reported in (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. v. Premlal Shrivas, reported in (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. & Ors. 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. & Ors. Vs. Shyam Kishore Singh, reported in (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.