The Bharat Coking Coal Ltd. through its Chairman cum Managing v. Director, Dhanbad
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 2535 of 2023 Dhananjay Kumar Mahto @ Dhananjay Kumar Mahato @ Dhananjay Mahato …. …. Petitioner 1. The Bharat Coking Coal Ltd. through its Chairman cum Managing Versus Director, Dhanbad. 2. Chairman cum Managing Director of M/s BCCL, Dhanbad. 3. Director (Personnel) of M/s BCCL, Dhanbad. 4. General Manager, Western Jharia Area of M/s BCCL, Moonidih, 5. Dhanbad. Project Officer, Moonidih Colliery of M/s BCCL, Moonidih, Dhanbad. …. … Respondents ------ CORAM : HON’BLE DR. JUSTICE S.N. PATHAK ------ : For the Petitioner
Legal Reasoning
Mr. Ajay Kumar Singh, Advocate Mr. Raj Nandan Chatterjee, Advocate Mr. Anoop Kumar Mehta, Advocate For the Respondents : ----- 5/ 03.01.2024 Heard the learned counsel for the petitioner and learned counsel for the respondents. 2. The petitioner has approached this Court with a prayer for quashing of the retirement notice dated 16/18-11.2022 (Annexure-9), whereby the petitioner was directed to superannuate with effect from 30.4.2023 treating his date of birth as 3.4.1963, contrary to date of birth mentioned in the matriculation certificate as 11.01.1966. 3. As per factual matrix, the petitioner was appointed on the post of Temporary UG Miner / Loader in Moonidih Colliery of M/s BCCL on 14.2.1987. It is the specific case of the petitioner that at the time of joining, he submitted his details before the authority wherein, he mentioned the date of birth as 11.01.1966 based on the matriculation certificate. Thereafter, the petitioner worked to the full satisfaction of the authorities. One fine morning, the impugned retirement notice dated 16/18.11.2022 was issued, whereby the petitioner was informed that he is going to superannuate on 30.4.2023 on attaining the age of 60 years treating his date of birth as 3.4.1963. The petitioner is aggrieved by wrong entry in the service excerpts 2 in the column of date of birth and hence, he is claiming rectification in date of birth in the service excerpts on the basis of matriculation certificate. 4. Learned counsel appearing for the petitioner submits that as per the Implementation Instruction No. 76, the matriculation certificate has to be taken into consideration by the Management for the purpose of recording the date of birth. Learned counsel further submits that it was incumbent upon the respondent authorities to correct the date of birth of the petitioner as per the said certificate in the service excerpts and other documents. Learned counsel submits that though several representations were filed by the petitioner, but no heed was paid on the same. Therefore, a direction be given to the respondents to change the date of birth of the petitioner as per matric certificate in the service excerpts and extend the benefits to the petitioner for remaining service period. 5. On the other hand, learned counsel appearing for the respondents opposing the contention of learned counsel for the petitioner submits that it is not open for the employer or employee to raise any dispute regarding date of birth at the fag end of service tenure. He further submits that admittedly the date of birth mentioned in the matriculation certificate has to be considered only when it is produced at the time of initial appointment. In the instant case, the same was never produced and as such, the petitioner was medically examined and his age has been assessed as 24 years as on 3.4.1987 and accordingly his date of birth was recorded to be 3.4.1963. Never any objection was raised by the petitioner at the time of initial appointment regarding medical assessment. The date of birth as 3.4.1963 finds mentioned in all the relevant documents prepared by the Management at the time of initial appointment and thereafter, Form-B, service excerpts, service record, NEIS and LTC/LLTC Register were opened mentioning the date of birth as 3.4.1963. Learned counsel submits that in plethora of judgments, it has been decided that no correction in the date of birth can be made at the fag end of service. Learned counsel further submits that the petitioner has approached the authorities only on 13.4.2023 and the writ petition has been filed after retirement and as such, the writ petition deserves to be dismissed on the ground of delay and laches. 3 6. Having heard learned counsel for the parties and having gone through the entire records, this Court is of the considered view that no interference is warranted in the writ petition for the following facts and reasons:- (i) The petitioner has raised the dispute regarding date of birth for the first time on 13.4.2023 only after receiving the retirement notice dated 16.11.2022 on the basis of matric certificate, whereas he was appointed in the year 1987 itself. (ii) The claim of the petitioner that correction should be made as per the Implementation Instruction No. 76 is not accepted to this Court on the ground that the petitioner has failed to submit the matric certificate at the time of initial appointment. Any settlement entered into by the parties has got its statutory force and once the parties have agreed in the settlement, the same cannot be challenged by the parties. (iii) Had the petitioner produced the matric certificate at the time of initial appointment, there was no occasion for respondents not to enter the date of birth of the petitioner as per certificate. Since the petitioner produced it only in the year 2023 and suppressed the same at the time of joining, the request for changing the date of birth has not been acceded to by the respondents on the ground of delay and laches. (iv) In this context, the Hon’ble Apex Court in the case of Union of India Vs. Harnam Singh, reported in (1993) 2 SCC 162 held that “No Court or the Tribunal can come to the aid of those who sleep over their rights.” (v) 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 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:- 4 ".....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”. (vi) The Hon’ble Apex Court in case of Secretary and Commissioner, Home Department & Ors. Vs. R. Kirubakaran, reported in 1994 Suppl. (1) SCC 155, 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. 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.” (vii) The Hon’ble Apex Court in case of Nedungadi Bank Ltd. Vs. K.P. Madhavankutty & Ors., reported in (2000) 2 SCC 455, dealing with the issue relating to stale claim, has held that, reference of the said dispute at a belated stage is bad in eyes of law both on the grounds of delay as well as on non-existence of an industrial dispute. (viii) Taking into consideration the aforesaid ratio laid down by the Hon’ble Apex Court as well as by different High Courts, this Court in the case of Ajit Singh Vs. M/s Tata Iron & Steel Co. Ltd., Jamshedpur, decided in W.P.(L) No. 1251 of 2010, 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.” 5 7. As a sequitur to the aforesaid observations, rules, regulations, guidelines, legal propositions and judicial pronouncements, this Court is not inclined to interfere with the impugned retirement notice dated 16/18.11.2022. 8. The writ petition is devoid of any merit and the same is, hereby, dismissed. R.Kr. (Dr. S.N. Pathak, J.)