BHARAT COKING COAL LTD. & ORS. versus SHYAM KISHORE SINGH on 5 February 2020

1. Leave granted.

2. The appellants are before this Court assailing the order dated19.02.2019 passed by the Division Bench of the High Court of Jharkhandat Ranchi in LPA No.115 of 2018. Through the said order the DivisionBench though has modified the judgment and order dated 13.10.2017 ofthe learned Single Judge insofar as the extent of relief granted, thecontention of the respondent herein relating to the change of date ofbirth in the service records is accepted and a direction has been issuedto the appellants to pay the sum equivalent to salary of one year for theperiod between the April, 2010 to March, 2011. The appellants thus beingaggrieved are before this Court in this appeal.

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3. The brief facts are that the respondent herein was appointedas a trainee in the appellants company. He was allotted Personnel No.00473470 and joined service as Trainee Dozer Operator with effectfrom 27.02.1982. Though the respondent claims that he had declared hisdate of birth as 20.01.1955 in terms of the entry contained in his H

Amatriculation certificate the fact remains that his date of birth entered inthe service record was 04.03.1950 and had remained so from the dateof his appointment on 27.02.1982 till his retirement on 31.03.2010. In theyear 1998 the respondent has submitted the Provident Fund NominationForm wherein he has indicted the details of his family and shown hiswife as his nominee. In the relevant Form also, the respondent hadBindicated his date of birth as 04.03.1950. The respondent thus havingcontinued in service till the age of superannuation had retired from serviceon 31.03.2010. Just prior to his retirement, in the year 2009, arepresentation had been made by the respondent seeking change of thedate of birth entered in the records, which was declined by the appellants.CThe respondent not having agitated the matter further at that point oftime and having retired on 31.03.2010 has after the lapse of four yearsfiled the W.P.(S) No.6172/2014 before the High Court of Jharkhand atRanchi. The appellants herein having appeared, filed their objectionstatement. The learned Single Judge on taking into consideration thenature of the claim put forth was of the view that when the respondentDraised the issue regarding correction of the date of birth in the year 2009the appellants secured verification of the date of birth claimed by therespondent from the Bihar School Examination Board, Patna. Onverification it was confirmed that the date of birth in the school recordswas 20.01.1955. The said verification made by the appellants herein hasEbeen held against them by the learned Single Judge and it was observedthat if the date 04.03.1950 as entered by the respondent in the servicerecords was correct, there was no occasion for the appellants to verifythe same from Bihar School Examination Board. In that circumstancethe learned Single Judge being of the opinion that the respondent hadpassed the matriculation prior to joining the services and in thatFcircumstance the entry of date of birth in the matriculation certificatebeing 20.01.1955 even before joining the service, has accepted thecontention put forth by the respondent and in that background arrived atthe conclusion that the appellants are to be directed to make appropriatecorrections and pass consequential orders.G

4. The Division Bench has in fact referred to the said reasoningadopted by the learned Single Judge relating to the verification maderelating to correctness of the matriculation certificate from the BiharSchool Examination Board and in that circumstance since the learnedSingle Judge had also relied on the Full Bench judgment of the JharkhandHHigh Court in the case of Kamta Pandey vs. M/s BCCI & Ors. [2007

(3) JLJR 726] has upheld the said reasoning assigned by the LearnedSingle Judge. However, the Division Bench had taken note that therespondent herein had filed the writ petition four years after his retirementfor restoration of his employment. It has further taken note that therespondent had filled up several forms in the course of his services wherethe respondent had not disclosed his educational qualification. In thatview, the Division Bench was of the opinion that the learned Single Judgehad not properly dealt with the aspect of delay in approaching the Court.In that circumstance the Division Bench had limited the attendant benefitspayable to the respondent to the salary for one year between the periodApril, 2010 to March, 2011 as prevailing at that point. It is in thatbackground the appellants being aggrieved both by the order passed bythe learned Single Judge as also the Division Bench are before this Courtin this appeal.

5. Heard Mr. K.M. Natraj leaned Additional Solicitor Generalappearing for the appellants, Mr. M. Shoeb Alam learned counsel forthe respondent and perused the appeal papers.

6. The fact that the respondent had joined the services of theappellants on 01.03.1982 is the accepted position. Though the respondentrelies on the matriculation certificate to indicate that the date of birthstated therein is 20.01.1955, there is no material on record to indicatethat the said document had been produced before the employer at thetime of joining employment. In that background, the service recordmaintained by the appellants will disclose that the date of birth indicatedin the document is 04.03.1950 which had been furnished by the respondenthimself as the relevant forms under his signature contain the said date.Though the learned counsel for the respondent contended that the HighCourt had noticed certain alteration of the date of birth as indicated inForm “B” the relevance of the said document cannot be consideredwithout reference to the other documents in the service records. Thevery fact that the respondent through his representation made in theyear 2009 was seeking for change of the entry relating to date of birthwill indicate that what was contained in the service records is 04.03.1950,which was the position from 27.02.1982.

7. In the above background it is to be noticed as to whether theconsideration as made by the High Court is justified. The learned counselfor the respondent with specific reference to para 10 in the order of thelearned Single Judge referred to the aspect wherein the learned Single A

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AJudge has taken note of the representation made by the respondent inthe year 2009 and the verification that was secured by the appellantsfrom the Bihar School Examination Board. Though such reference ismade, in our opinion, the same was not appropriate in the present factswhen three decades had elapsed from the date of employment. Theposition is well established that if a particular date of birth is entered inBthe service register, a change sought cannot be entertained at the fagend of service after accepting the same to be correct during entire service.In the instant facts the position is that the respondent entered service on01.03.1982. The date of birth entered as 04.03.1950 has remained onrecord from the said date. The requirement to submit the nominationCform indicating the particulars of the family and the nominee was compliedand it was submitted by the respondent on 25.05.1998. In the saidNomination Form the date of birth of the employee was required to bementioned, wherein the respondent in his own handwriting has indicatedthe date of birth as 04.03.1950. Apart from that fact, the learned AdditionalSolicitor General would also point out that since there was a change inDthe method of maintaining the service register, all the employees wereprovided an opportunity to verify and seek for change in the servicerecord in the year 1987. At that stage also the respondent did not seekfor any change. Therefore, in that circumstance, when the opportunityavailable at the first instance in 1987 had not been availed and thereafterEon 25.05.1998 when the respondent himself in the Provident FundNomination Form had indicated the date of birth as 04.03.1950 whichcorresponds to the date of birth entered in the service register as on thedate of commencement of the employment, merely because a verificationwas made from the Bihar School Examination Board and even if it wasconfirmed that the date of birth was 20.01.1955 such change at thatFstage was not permissible.

8. This Court has consistently held that the request for change ofthe date of birth in the service records at the fag end of service is notsustainable. The learned Additional Solicitor General has in that regardrelied on the decision in the case of State of Maharashtra and Anr. vs.GGorakhnath Sitaram Kamble & Ors. (2010) 14 SCC 423 wherein aseries of the earlier decisions of this Court were taken note and washeld as hereunder:

“16. The learned counsel for the appellant has placed relianceon the judgment of this Court in U.P. Madhyamik ShikshaH

Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC 465 : 2006SCC (L&S) 96] . In this case, this Court has considered a numberof judgments of this Court and observed that the grievance as tothe date of birth in the service record should not be permitted atthe fag end of the service career.

17. In another judgment in State of Uttaranchal v. PitamberDutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] reliefwas denied to the government employee on the ground that hesought correction in the service record after nearly 30 years ofservice. While setting aside the judgment of the High Court, thisCourt observed that the High Court ought not to have interferedwith the decision after almost three decades.

19. These decisions lead to a different dimension of the case thatcorrection at the fag end would be at the cost of a large numberof employees, therefore, any correction at the fag end must bediscouraged by the court. The relevant portion of the judgmentin Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 : 1994SCC (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 publicservant cannot be entertained at the fag end of his service]. Itneed not be pointed out that any such direction for correction ofthe date of birth of the public servant concerned has a chainreaction, inasmuch as others waiting for years, below him fortheir respective promotions are affected in this process. Someare likely to suffer irreparable injury, inasmuch as, because of thecorrection of the date of birth, the officer concerned, continues inoffice, in some cases for years, within which time many officerswho are below him in seniority waiting for their promotion, maylose their promotion forever. … According to us, this is an importantaspect, which cannot be lost sight of by the court or the tribunalwhile examining the grievance of a public servant in respect ofcorrection of his date of birth. As such, unless a clear case on thebasis of materials which can be held to be conclusive in nature, ismade out by the respondent, the court or the tribunal should notissue a direction, on the basis of materials which make such claimonly plausible. Before any such direction is issued, the court orthe tribunal must be fully satisfied that there has been real injustice A

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to the person concerned and his claim for correction of date ofbirth has been made in accordance with the procedure prescribed,and within the time fixed by any rule or order. … the onus is onthe applicant to prove the wrong recording of his date of birth, inhis service book.”

9. This Court in fact has also held that even if there is goodevidence to establish that the recorded date of birth is erroneous, thecorrection cannot be claimed as a matter of right. In that regard, in Stateof M.P. vs. Premlal Shrivas, (2011) 9 SCC 664it is held as hereunder; “8. It needs to be emphasised that in matters involving correctionof date of birth of a government servant, particularly on the eveof his superannuation or at the fag end of his career, the court orthe tribunal has to be circumspect, cautious and careful whileissuing direction for correction of date of birth, recorded in theservice book at the time of entry into any government service.Unless the court or the tribunal is fully satisfied on the basis of theirrefutable proof relating to his date of birth and that such a claimis made in accordance with the procedure prescribed or as perthe consistent procedure adopted by the department concerned,as the case may be, and a real injustice has been caused to theperson concerned, the court or the tribunal should be loath to issuea direction for correction of the service book. Time and again thisCourt has expressed the view that if a government servant makesa request for correction of the recorded date of birth after lapseof a long time of his induction into the service, particularly beyondthe time fixed by his employer, he cannot claim, as a matter ofright, the correction of his date of birth, even if he has good evidenceto establish that the recorded date of birth is clearly erroneous.No court or the tribunal can come to the aid of those who sleepover their rights (see Union of India v. Harnam Singh [(1993) 2SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).

12. Be that as it may, in our opinion, the delay of over two decadesin applying for the correction of date of birth is ex facie fatal tothe case of the respondent, notwithstanding the fact that therewas no specific rule or order, framed or made, prescribing theperiod within which such application could be filed. It is trite thateven in such a situation such an application should be filed whichcan be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can beheld to be reasonable, more so when not a feeble attempt wasmade to explain the said delay. There is also no substance in theplea of the respondent that since Rule 84 of the M.P. FinancialCode does not prescribe the time-limit within which an applicationis to be filed, the appellants were duty-bound to correct the clericalerror in recording of his date of birth in the service book.”

10. The learned Additional Solicitor General has also relied uponthe decision of this Court in the case of Factory Manager KirloskarBrothers Ltd. vs. Laxman in SLP (C) Nos.2592-2593/2018 dated25.04.2019 wherein the belated claim was not entertained. Furtherreliance is also placed on the decision of this Court in the case of M/sEastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. inC.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held ashereunder:

“Nothing is on record that in the year 1987 when the opportunitywas given to Respondent No.1, to raise any issue/dispute regardingthe service record more particularly his date of birth in the servicerecord, no such issue/dispute was raised. Only one year prior tohis superannuation, Respondent No.1 raised the dispute whichcan be said to be belated dispute and therefore, the learned SingleJudge as well as the employer was justified in refusing to acceptsuch an issue.

The Division Bench of the High Court has, therefore,committed a grave error in directing the appellant to correct thedate of birth of Respondent No.1 in the service record afternumber of years and that too when the issue was raised only oneyear prior to his superannuation and as observed hereinabove nodispute was raised earlier.”

11. The learned counsel for the respondent, on the other hand,has relied upon the decision of this Court relating the very same employernamely, the appellants herein in the case of Bharat Coking Coal Ltd.& Ors. vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein thisCourt with reference to the earlier decisions of this Court has upheld theorder of the High Court wherein a direction had been issued to effectthe change in the date of birth. Having perused the same we are of theopinion that the said decision cannot render assistance to the respondentherein. This is for the reason that in the said case it was taken note that AB

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Ain 1987 on implementation of the National Coal Wage Agreement (iii)was put into operation for stabilising the service records of the employeesand all its employees were provided a chance to identify and rectify thediscrepancies in the service records by providing them a nominationform containing details of their service records. In the cited case therespondent (employee) therein had noticed the inconsistencies in theBrecords regarding his date of birth, date of appointment, father’s nameand permanent address and availed the opportunity to seek correction.Though he had sought for the correction of the errors, the otherdiscrepancies were set right but the date of birth and the date ofappointment had however remained unchanged and it is in that view theCemployee had again raised a dispute regarding the same and the judicialremedy was sought wherein the benefit was extended to him.

12. On the other hand, in the instant case, as on the date of joiningand as also in the year 1987 when the respondent had an opportunity tofill up the Nomination Form and rectify the defect if any, he had indicatedDthe date of birth as 04.03.1950 and had further reiterated the same whenProvident Fund Nomination Form was filled in 1998. It is only aftermore than 30 years from the date of his joining service, for the first timein the year 2009 he had made the representation. Further the respondentdid not avail the judicial remedy immediately thereafter, before retirement.Instead, the respondent retired from service on 31.03.2010 and evenEthereafter the writ petition was filed only in the year 2014, after fouryears from the date of his retirement. In that circumstance, the indulgenceshown to the respondent by the High Court was not justified.

13. Hence, the order dated 13.10.2017 passed by the learned SingleJudge in WP(S) No.6172 of 2014 and the order dated 19.02.2019 passedFby the Division Bench in LPA No.115 of 2018 are not sustainable.

14. In the result, the impugned order is set aside and the appeal isallowed with no order as to costs. Pending applications if any, shall alsostand disposed of.

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Divya Pandey

Appeal allowed.

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