*HON’BLE SRI JUSTICE R.KANTHA RAO
W.P.No.12282 of 2013
% Date:05.08.2014 Between:
# Amula Ramaiah …Petitioner And $ The SCC Ltd. Rep. by its C & MD, Hyderabad and two others …Respondents ! Counsel for petitioner: Sri A.K.Jayaprakash Rao ^ Counsel for respondents: Sri Nandigam Krishna Rao < GIST:
>HEAD NOTE:
? Cases referred:
1. 2006 (5) ALD 492 (DB)
2. 2014 LAB.I.C. 2364
3. (1994) 6 SCC 302
4. (1995) 4 SCC 172
5. (2011) 9 SCC 664
6. (2000) 8 SCC 696
HON’BLE SRI JUSTICE R. KANTHA RAO
WRIT PETITION NO. 12282 OF 2013
Date:05-08-2014
Between:
Amula Ramaiah …Petitioner
And
The SCC Ltd. Rep. by its C & MD, Hyderabad and two others
…Respondents
ORDER:
HON’BLE SRI JUSTICE R. KANTHA RAO
WRIT PETITION NO. 12282 OF 2013
This writ petition is filed seeking issuance of writ of mandamus declaring the proceedings issued by the 3rd respondent in Ref.No.RG1/SPC/21/1050, dated 22.10.2012, refusing to record correct date of birth as 10.08.1962 as per school certificate, as illegal, unjust, contrary to law, arbitrary, discriminatory, amounting to unfair labour practice and violative of Articles 14, 16 and 21 of the Constitution of India, and grant all consequential benefits by continuing him in service till he attains the age of superannuation on 31.08.2022.
2. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents-Company.
3. The brief facts relevant for considering the issues involved in the writ petition may be stated as follows:
4. The petitioner joined the service of the respondents-company on 31.07.1979 as temporary Tunnel Mazdoor at GDK-V Incline. According to him, before joining service, he pursued his education up to SSC but failed. However, he passed 7th class board examination and obtained transfer certificate from the Zilla Parishad Secondary School, Ramagundam on 20.07.1977. He says that at the time of joining service, he obtained the transfer certificate, but the recording authority did not record the date of birth as mentioned in the certificate and recorded it only as 31.07.1954. Whereas, it is recorded in the transfer certificate as 10.08.1962. Subsequently, he was promoted as Coal Filler and thereafter, the respondents called for applications for the post of Security Guards by issuing a notification in the year 1989 and as stipulated in the notification, one should pass 7th Class to become eligible for the post of Security Guard. The petitioner produced the transfer certificate which shows that he passed 7th Class in the year 1974 itself. Pursuant to the said notification he was selected as Security Guard on 29.08.1989.
Again, he was promoted as Jamedar, T&S Group-E in pursuance of the notification dated 23.0-5.2007. The qualification required for the said post also 7th Class and he produced the transfer certificate in that connection and he was promoted as Jamedar on 20.12.2011.
5. It is further submitted by the petitioner that during the entire period of service, he has no access to the records which are maintained by the respondents-company. In the year 2011, the petitioner developed giddiness and was sent for medical check up at the company hospital. The doctor who examined him in the company hospital found that the petitioner was suffering from high blood pressure and he needs to undergo frequent periodical check ups, on that he obtained a medical card from the company and he was surprised to notice that his age was recorded as 57 years showing his retirement date as 31.07.2014. Immediately, he submitted representation to the respondents-company seeking correction of the date of birth in the service record. Further, the respondents-company themselves issued a newspaper notification on 29.08.2012 calling for the objections from the employees with regard to discrepancy in recording the date of birth as per the school certificates in the service record. Thereafter, the petitioner submitted an application duly enclosing the school certificate again requesting them to record correct date of birth as 10.08.1962 only but not as 31.07.1954 which was recorded in the service records. The 3rd respondent by order dated 22.10.2012 rejected the representation made by the petitioner.
6. The petitioner therefore contends that the action of the respondents in proposing to retire him from service on 31.07.2014 is illegal, unjust, contrary to rules amounting to unfair labour practice and violative of Articles 14, 16 and 21 of the Constitution of India and that he is entitled to continue in service as per transfer certificate up to 31.08.2022.
7. According to the petitioner, as per Instruction No.76 of Age Retirement Rules, in case of appointees who have pursued studies in a recognized educational institution, the date of birth recorded in the school leaving certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. It is further submitted that the action of the respondents in rejecting his representation wherein he sought for correction of date of birth is contrary to the circular dated 25.04.1988 and therefore, he filed the present writ petition seeking correction of date of birth in exercise of jurisdiction under Article 226 of the Constitution of India.
8. The respondents apart from controverting material facts stated in the affidavit filed in support of the writ petition, contended specifically that the post in which the petitioner was initially appointed does not require any educational qualifications and also that the petitioner at the time of initial appointment did not submit 7th class transfer certificate. In the Identity and Service Card prepared on 09.09.1980 the petitioner’s educational qualification was recorded as ‘Nil’ and his age was recorded in the Identity and Service Card as 25 years as on 31.07.1979 (i.e. DOB 31-07-1954). The version of the respondents is that as per the Company Rules in case of illiterates, the age assessed/determined by the Medical Officer of the respondents-company at the time of initial medical examination in accordance with the Mines Rules under Mines Act, 1952 would be taken into consideration with the consent of the appointee and will be recorded in all the service records. That the petitioner was appointed as Tunnel Mazdoor which does not require any qualifications and hence, there was no need to submit educational qualifications at the time of initial appointment. Therefore, according to respondents he was subjected to initial medical examination in accordance with Mines Rules, 1955 and the petitioner did not submit any documentary evidence supporting his age and the age assessed by the then Colliery Medical Officer as 25 years as on 31.07.1979 was taken into consideration and his date of birth was recorded as 31.07.1954 by the company in all the service records of the employee; such as, Form ‘B’ Register, Identity & Service Card, CMPF Form ‘A’ which are statutory records.
9. Nextly, it is submitted that the respondents called the 7th Class qualified employees for interview for the post of Security Guard. The petitioner has applied for the said post and he was selected and appointed as Security Guard. The submission of 7th class certificate by the petitioner at the time of interview is for the purpose of verification of qualification which is required for the said post, but not for the proof of age/date of birth. Therefore, according to the respondents, the date of birth mentioned in the 7th Class certificate which was subsequently produced by the petitioner at the time of promotion cannot be considered as a correct one.
10. Further, it is submitted that the age/date of birth which was recorded in service records was mentioned in the medical card. During August, 2012, the age/DOB & Date of retirement particulars of the S&PC personnel were displayed on notice board. In response to the notice displayed, the petitioner has submitted an application seeking correction of his date of birth as per SSC failed memo and transfer certificate. His representation was examined and the petitioner was informed by proceedings dated 22.10.2012 that as per the Joint Bipartite Committee for Coal Industry (for short ‘JBCCI’ guidelines that there is no variation in service book, form-A CMPF Record and Form ‘B’ register. Therefore, the request for correction of date of birth as per 7th and 10th class transfer certificates cannot be considered. Thus, according to the respondents, whenever there is any variation of date of birth in the service records maintained by the respondents-Company, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the management. Contending as above, the respondents sought to dismiss the writ petition filed by the petitioner as not maintainable.
11. The law now is well settled that if the employee seeks any change in the date of birth, he has to make an application as soon as possible after securing employment. I n COMMISSIONER OF COLLEGIATE EDUCATION, HYDERABAD AND ANOTHER v. NARAYANA REDDY
[1] AND ANOTHER
, the Division Bench of this Court held that long service of 36 years and silence regarding date of birth being maintained all through, alteration of date of birth in service record cannot be permitted even though there is no statutory period of limitation prescribed for correcting the date of birth.
12. In the instant case, the petitioner joined the service as Tunnel Mazdoor on 31.07.1979 and he made an application to the management for correction of the date of birth in the year 2012 i.e. after a period of 33 years.
13. The learned counsel appearing for the petitioner relied on M/S.
BHARAT COKING COAL LTD. AND OTHERS v. CHHOTA BIRSA [2] URANW . In the said case, the Hon’ble Supreme Court expressed the view that claim for correction of date of birth cannot be rejected on technical ground of being belated claim and the claim of the employer that other non-statutory documents like school leaving certificate should not be given precedence over service record cannot hold good. Even if the certificate was issued after joining service but on the basis of school record containing date of birth, cannot be disregarded as one issued after joining service.
14. The facts of the case before the Supreme Court are entirely different from the facts of the present case. In the said case, the employee joined the service in the year 1973 and in the year 1987 on coming to know the wrong recording of his date of birth in his service records from the nomination form sought for rectification of the date of birth soon thereafter and the Hon’ble Supreme Court therefore was of the view that it cannot be said that the rectification was sought at the fag end of his service.
15. But, in the instant case, according to the petitioner he sought rectification of date of birth on his noticing his age recorded as 57 years in the medical card wherein his retirement date is shown as 31.07.2014. Further, in the aforementioned judgment, the Hon’ble Supreme Court held specifically that the correction of date of birth in service record ought to be made as per rules applicable, it being a question of fact, has to be decided by appropriate forum, but not by a writ Court.
16. Having regard to the unique facts and circumstances of the case before the Supreme Court, the above referred judgment was rendered and he same cannot be made applicable to the facts of the present case.
[3]
17. In STATE OF T.N. v. T.V.VENUGOPALAN the Supreme Court h e l d that the date of birth recorded after entering service and countersigned by Government Servant, it would not be permitted to be challenged by the government servant at the fag end of his service.
18. In BURN STANDARD CO.LTD. AND OTHERS v. DINABANDHU
[4] AMJUMDAR AND ANOTHER
the Supreme Court held that the date of birth entered in service and leave record on the basis of voluntary declaration made by the employee at the time of appointment, authenticated by him and never objected to up to the fag end of service (about two years before superannuation), writ petition seeking correction of date of birth filed at such stage ordinarily not entertainable. The Supreme Court was of the view that the extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution is not meant for enabling the employees of government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employees, placing reliance on the so-called newly-found material. The fact that an employee of government or its instrumentality who remained in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches.
19. In STATE OF MADHYA PRADESH AND OTHERS v. PREMLAL
[5] SHRIVAS
, the Supreme Court took the view that the government servant cannot claim as a matter of right correction of date of birth in service record after lapse of time fixed by the employer, even if he has good evidence to establish erroneous entry.
20. In G.M., BHARAT COKING COAL LTD. WEST BENGAL v. SHIB
[6] KUMAR DUSHAD AND OTHERS
the Supreme Court held that where question regarding correctness of date of birth as entered in service record raised by employee long after his joining the service and the employer decided the question following the procedure prescribed by statute, statutory rules or instructions, in absence of any arithmetical or typographical error apparent on the face of the record, High Court should not interfere with such decision of the employer in exercise of its extraordinary jurisdiction under Article 226. The Supreme Court further was of the view that whether certificates produced by the employee showing his date of birth different from that entered in his service record, is a disputed question of fact. The High Court in exercise of its jurisdiction under Article 226 should not undertake an inquiry into such question.
21. The facts of the present case have to be examined in the light of the principles enunciated by the Supreme Court in the aforesaid judgments. The normal rule is that when the employee disputes the date of birth which is entered in the service record and produces some documentary evidence showing a different date of birth, it is a disputed question of fact which cannot be adjudicated by this Court in exercise of its jurisdiction under Article 226 of Constitution of India. Further, this Court to exercise its judicial discretion under Article 226, has to take into account the conduct of the parties, if there is inordinate delay in approaching the Court for their relief, and there are laches on the part of the petitioner, the Court normally would not interfer to grant the relief prayed for in the writ petition. The general rule is that after joining service, the employee if at all disputes the date of birth which is entered in the service record, has to make an application for correction of the same soon-after he joining service or at least within a reasonable time. Further, after rendering services for over a period of decades, the employee cannot plead ignorance of his date of birth entered in the service records. If at all, the employee contends that he was not made aware of the date of birth entered in service record by preventing access to the records maintained by the management, he has to establish the said fact by adducing reliable and convincing evidence. Without there being any compelling reasons, it is not possible to believe that the petitioner in the instant case is not aware of his date of birth entered in service records for a period of 33 years. In all the service records of the petitioner such as Form ‘B’ register, Identity & Service Card, CMPF Form ‘A’ his date of birth was mentioned as 31.07.1954.
22. As rightly contended by the respondents, the petitioner cannot claim the date of birth mentioned in the transfer certificate produced by him at the time of his promotion to be correct one and it has to be altered in the service records basing on the transfer certificate as the transfer certificate was produced at the time of interview for promotion for the purpose of showing his educational qualification as 7th Class but not as proof of date of birth. On the said basis, the petitioner is not supposed to ask the management to carry out the correction of the date of birth in the service records. Since no educational qualification was required for the initial appointment of the petitioner, production of date of birth certificate was absolutely unnecessary. Even otherwise, if really the petitioner produces the transfer certificate at the time of his initial appointment, there is no reason as to why the officials refused to enter the said date of birth in the concerned records.
23. The petitioner joined service initially on 31.07.1979. He claims that his date of birth is 10.08.1962 which means that he was aged 16 years 11 months on the date of his initial appointment. If that is so, the petitioner might not have been recruited initially as Tunnel Mazdoor in the respondents- company. The respondents filed along with other documents the copy of Coal Mines Provident Fund Form ‘A’ which contains the declaration of the petitioner. In the said document, his date of birth is mentioned as 31.07.1954. This apart, as already said, in all the service records, the petitioner’s date of birth is mentioned as 31.07.1954. As to this, the petitioner did not raise any objection for a period of 33 years and for the first time, he raised objection two years before his attaining the age of superannuation. The petitioner is therefore not entitled for the relief prayed for in the writ petition.
24. The writ petition, therefore, fails and accordingly it is dismissed without any order as to costs. Miscellaneous petitions, if any, filed in this writ petition shall stand closed.
R.KANTHA RAO, J Date:05.08.2014
Note:
L.R. copy to be marked. B/O Ccm THE HON’BLE SRI JUSTICE R.KANTHA RAO
WRIT PETITION NO. 12282 OF 2013
Date:05-08-2014
[1] 2006 (5) ALD 492 (DB)
[2] 2014 LAB.I.C. 2364
[3] (1994) 6 SCC 302
[4] (1995) 4 SCC 172
[5] (2011) 9 SCC 664
[6] (2000) 8 SCC 696