Dismissed

Sushil Kumar Patel (Died) Through Legal Heirs- v. South Eastern Coalfields Ltd.

Chhattisgarh HC11 Aug 2023WPS/7291/2009

Case brief

AI extract

What is this about?

This order dismissed a writ petition filed by the legal heirs of a retired deceased workman seeking correction of his date of.birth in the service record. The court held the petition was bereft of substance due to laches, prior rejection by the Age Determination Committee, reliance on a weak primary school certificate, and the petitioner's death before final adjudication.

What did the court decide?

The prayer for correction of the date of birth in the service record is dismissed. No order as to costs.

Sushil Kumar Patel (Died) Through Legal… — Pension and Retirement Benefits | Chhattisgarh HC (2023)

WPS No.7291/2009

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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WPS No.7291 of 2009

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Order reserved on : 06.05.2023 Order delivered on : 11.08.2023

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Sushil Kumar Patel (Died) Through Legal Heirs- As Per Honble Court Order Dated 20-06-2022 1 (A) Smt. Shanti Bai Patel, W/o Late Sushil Kumar Patel, Aged About 57 Years R/o Adarsh Nagar, P.S. Kusmunda, Tahsil Katghora, District Korba Chhattisgarh 1 (B) Bijendra Kumar Patel S/o Late Sushil Kumar Patel, Aged About 40 Years R/o Adarsh Nagar, P.S. Kusmunda, Tahsil Katghora, District Korba Chhattisgarh 1 (C) Narendra Kumar Patel, S/o Late Sushil Kumar Patel, Aged About 35 Years R/o Adarsh Nagar, P.S. Kusmunda, Tahsil Katghora, District Korba Chhattisgarh 1(D) Anil Kumar Patel, S/o Late Sushil Kumar Patel, Aged About 32 Years R/o Adarsh Nagar, P.S. Kusmunda, Tahsil Katghora, District Korba Chhattisgarh

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---- Petitioners

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Versus

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South Eastern Coalfields Ltd. Through the Chairman Cum Managing Director, Seepat Road, Bilaspur Chhattisgarh

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The Chief General Manager, Kusmunda Area, S.E.C.L., District : Korba, Chhattisgarh

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The Deputy General Manager, Kusmunda Project, S.E.C.L., District : Korba, Chhattisgarh

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The Personnel Manager, Kusmunda Area, S.E.C.L., District Korba, Chhattisgarh

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---- Respondents

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For Petitioners For Respondents

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Mr. Ashok Kumar Shukla, Advocate Mr. Rajkumar Gupta, Advocate

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WPS No.7291/2009

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Hon’ble Justice Smt. Rajani Dubey C A V Order

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The present petition has been preferred by the petitioner under Article 226 of the Constitution of India seeking correction of the date of birth in the service record of the petitioner.

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During pendency of the writ petition, the original petitioner Sushil Kumar Patel died on 29.09.2021 and his Lrs have been brought on record vide order dated 20.06.2022.

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Facts of the case in brief are that the petitioner was initially appointed as General Mazdoor (Category-I) on 06.11.1980 in the respondent Department and thereafter he was promoted to the post of Driver. The petitioner stood retired on his superannuation on 31.12.2007 as per his date of birth being 06.11.1947, but according to the petitioner, his actual date of birth is 06.11.1959 instead of 06.11.1947 in the service record, but the same is alleged to have been manipulated in the service record such as Form-B, thus he is seeking correction in his date of birth in the service record.

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Learned counsel for the petitioner submits that the act of the respondents in retiring the petitioner prior to his actual date of superannuation by manipulating in the date of birth as correctly recorded in the service record is highly despotic

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WPS No.7291/2009

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and capricious as well as tainted with malafide. As per the service rules, tampering with Form-B and service record is a serious offence and if any correction is proposed, then with the consent of the higher authorities after following the proper procedure any change can be made, but in this case, no such act has been done. He further submits that it was incumbent upon the respondents to send the petitioner for ossification test before the Age Determination Committee/Medical Board, but no such method was adopted by the respondents. The representation made by the petitioner has also not been dealt with by the respondents despite the direction issued by the Court to decide the representation of the petitioner in the first round of litigation. Apart from this, the other circumstantial and documentary entries have been taken into account by the respondents, whereas under the Implementation Instruction No.76, entry of school leaving certificate will prevail and the certificate of Class 5^th is valid under the Implementation Instruction No.76 and it cannot be discarded. Therefore, the respondent authorities may kindly be directed to make correction in the date of birth of the petitioner in the service record. Reliance has been placed on the judgment rendered by the Hon’ble Supreme Court in the matter of Bharat Coking Coal

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WPS No.7291/2009

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Limited and others vs Chhota Birsa Uranw , reported in (2014) 12 SCC 570.

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Learned counsel for the respondents submits that the petitioner had an alternative and efficacious remedy at the appropriate time under the provisions of the Industrial Disputes Act applicable to him having been a workman and for this reason, the instant petition deserves to be rejected. The petitioner had earlier filed a writ petition bearing WP No.37087/2007 and after hearing, the petitioner withdrew this petition with direction to make a fresh representation to the respondent No.2 therein within a period of 3 weeks from the date of receipt of the same. In compliance of the order passed by this Court, the petitioner made a representation to the Chief General Manager Kusmunda Area, SECL on 27.08.2009 and thereafter the respondents decided the representation of the petitioner on 05.11.2009. As per the record of the petitioner, in Form-B, which is statutory record of the respondent company, the date of birth of the petitioner is mentioned as 06.11.1947 and in many other service registers as well. The petitioner put his signature in the above record without any objection. He further submits that the petitioner has suppressed the fact that at the time of filing of the petition before this Court, the case of the

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WPS No.7291/2009

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petitioner was already examined by the Management in the year 1995 vide order dated 06/07.06.1995, thereby the date of birth of the petitioner was confirmed as 06.11.1947 in service sheet and Form-B, but the petitioner again made a representation before the Competent Authority for correction of date of birth, upon which vide letter dated 25.11.1998, the DGM, Kusmunda Project informed the petitioner that his case has already been examined by the Age Determination Committee and the decision of the said Committee was conveyed to the petitioner vide letter dated 15.06.1995, as such the case cannot be reopened. The petitioner has not challenged the order of the Age Determination Committee and instead he filed the earlier writ petition in the year 2007 after lapse of 14 years and thereafter the instant petition has been filed, therefore, the present petition is not maintainable on the ground of delay and laches. He next submits that it is well settled position of law that for correcting the date of birth, there has to be conclusive proof of the date of the birth and that the proof should be genuine, but the same is missing in the instant case, as such there is no scope of judicial review/judicial scrutiny. Accordingly, the petition deserves to be dismissed.

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Heard learned counsel for the parties and perused the

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WPS No.7291/2009

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material available on record.

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The petitioner has filed the document (Annexure-P/1) School Leaving Certificate dated 25.07.1990 issued by the Principal of Primary School, Gajra. In this certificate, the petitioner’s date of birth is written as 26.11.1959. The petitioner has also filed Annexure-P/2, a copy of service record, in which the date of birth of the petitioner is shown as 26.04.1959. The petitioner has also filed Annexure-P/7 medical service card of the petitioner, in which his date of birth is written as 26.04.1959.

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As per respondents, Annexure-R/1 is the first service record of the petitioner, in which date of birth of the petitioner is written as 06.11.1947. Annexure-R/2 is the service register. In this register, the date of birth of the petitioner is written as 06.11.1947. Annexure-R/4 is a letter dated 15.06.1995, whereby it has been informed to the petitioner that his date of birth is 06.11.1947, as examined by the Age Determination Committee. Again on 25.11.1998, a letter was written to the petitioner by the respondent No.5 Deputy General Manager stating therein that the case of the petitioner has already been examined by the Age Determination Committee and the same has been conveyed to the petitioner 15.06.1998 and it was further stated that

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WPS No.7291/2009

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since the case of the petitioner was already examined and settled by the Age Determination Committee, as such the same cannot be reopened. Perusal of the aforesaid documents makes it clear that the petitioner was informed on 15.06.1995 itself about examination of his case, but the petitioner filed a writ petition before this Court in the year 2007 bearing WPS No.3708/2007, which was dismissed as withdrawn vide order dated 13.08.2009. The relevant part of which is as under:-

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“Accordingly, the petition is dismissed as withdrawn. However, if the petitioner makes a fresh representation to respondent No.2 within a period of three weeks from the date of receipt of copy of this order, the same is expected to be decided within a further period of 3 months from the date of its receipt.

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No opinion has been expressed on the merits of the case and the respondent No.2 is free to decide the representation of the petitioner strictly in accordance with law.”

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In compliance of the Court order, the petitioner filed representation (Annexure-P/10) before the Competent Authority on 27.08.2009 and vide order dated 05.11.2009 (Annexure-P/11) his representation was rejected. In Column 3, it is written as under:-

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“03 & fnuk¡d 07-06-1995 dks gqbZ ,Mhlh ds vk/kkj ij tUe frfFk fnuk¡d 06-11-1947 vafdr gSA fnuk¡d 07-06-1995 dks vkids mez esa lq/kkj ds l a ca/k esa ,Mhlh ds }kjk tk¡p dh xbZ rFkk vkids tUe frfFk 06-11-47 dh iq"Vh dh xbZA ijUrq

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WPS No.7291/2009

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ekuuh; mPp U;k;ky; vkids }kjk nk;j fifV’ku esa ,Mhlh dh rF; dh tkudkjh ugha nh xbZ ,oa ekuuh; mPp U;k;ky; esa ,Mhlh }kjk fu/kkZfjr vk;q ds laca/k esa vkids }kjk rF; dks fNik;k x;k tks U;k;ksfpr ugha gSA”.

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Perusal of the aforesaid documents makes it clear that the petitioner was informed about examination of his date of birth by the Age Determination Committee on 15.06.1995 itself and subsequently on 25.11.1998 as well and the petitioner filed first petition in the year 2007 i.e. after lapse of 9 years and as per the respondents, the petitioner did not mention the details of Age Determination Committee in the earlier writ petition and again filed the present petition on 10.12.2009.

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The case law relied by the petitioner is distinguishable in the facts and circumstances of the present case.

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The petitioner wants correction in his date of birth only on the basis of Primary School Certificate, which was prepared on 25.07.1990 (Annexure-P/1), but as per respondents, the Age Determination Committee considered all documents and only thereafter rejected the claim of the petitioner in the year 1995, but the petitioner did not file any appeal or representation against these orders and after 12 years filed the previous writ petition in the year 2007 and thereafter the present petition has been filed in the year 2009.

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WPS No.7291/2009

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In view of the foregoing discussions, it is clear that the petitioner’s case was sent to the Age Determination Committee to assess his correct age and the report of the said Committee was also conveyed to the petitioner on 15.06.1995 itself, but instead of challenging the report of the said Committee, the petitioner filed the previous writ petition and thereafter the present petition after a lapse of 14 years. The petitioner had already retired on 31.12.2007 and died on 29.09.2021, which is evident from death certificate (Annexure-A/1), as such the petitioner’s prayer for correction in the date of birth cannot be entertained at this stage. Even otherwise, the petitioner’s claim is only based on school leaving certificate of Class 5^th , which was also issued subsequently in the year 1990, and not on the basis of any other certificate of clinching nature like Higher Secondary School Certificate.

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The writ petition being bereft of any substance deserves to be and is hereby dismissed accordingly. No order as to cost (s).

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Sd/Rajani Dubey Judge

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Nirala

Sushil Kumar Patel (Died) Through Legal Heirs- v. South Eastern Coalfields Ltd.

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Sushil Kumar Patel (Died) Through Legal Heirs- v. South Eastern Coalfields Ltd.

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