Sadhan Modak Vs M/S Bharat Coking Coal Ltd. through Its Managing Director

The petitioner has approached this Court with a prayer for a direction upon the respondents for correction in the date of birth as 15.10.1966 on the basis of matriculation certificate and accordingly the same be entered in place of 01.10.1963. Further prayer has been made by filing I.A. No. 9642 of 2023 to quash and set aside the retirement notice dated 4.11.2022 whereby the petitioner is directed to retire with effect from 30.09.2023 treating his date of birth as 01.10.1963.

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The facts of the case are that the petitioner was appointed as General Mazdoor by the Management of BCCL on 13.12.1983 under the Land Looser Scheme. It is specific case of the petitioner that as per matric certificate produced by the petitioner at the time of initial appointment, his date of birth ought to have been mentioned in the service excerpts as 15.01.1966, but the same was not entered in the service excerpts and wrongly a fake date of birth was mentioned by the respondents as 1.10.1963

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and based on the same, the petitioner was made to superannuate on 31.01.2016 whereas the actual date of retirement is 30.9.2026. Though repeated requests were made from the date of initial appointment for correction in the date of birth, but the same was not considered and hence, this writ petition has been filed.

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Mr. Tejo Mistry, learned counsel appearing for the petitioner submits that though the matriculation certificate was submitted at the time of initial appointment, but the same was not considered by the respondents. To fortify his argument, learned counsel refers Annexure-2, which is the representation of the petitioner dated 7.12.2021 wherein he has categorically mentioned that at the time of initial appointment, the matriculation certificate was submitted by him. He further submits that in the light of 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, but the same was not done in the present case and 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 after quashment of the impugned requirement notice, the petitioner be reinstated into service and allowed to be continued in service till 31.01.2026 with all consequential benefits.

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On the other hand, Dr. Ashok Kumar Singh, learned counsel appearing for the respondents submits that admittedly there is no quarrel regarding Implementation Instruction No. 76 issued by the Coal India Limited. The subsidiary Companies of Coal India Limited are bound to consider the Implementation Instruction No. 76. Learned counsel fairly points out that from different annexures enclosed to the writ petition and particularly Anneure-2 relied upon by the petitioner showed that the petitioner for the first time approached the respondents in the year 2021 for correction in date of birth based on the matriculation certificate and he produced the matriculation certificate before the authority at this stage only. Learned counsel submits that neither at the time of initial appointment nor in the entire service tenure, the matriculation certificate was ever produced before the Management. The reasons for not producing the matric

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certification has duly been mentioned in the impugned notice which shows that had the petitioner produced the said certificate at the time of initial appointment, he would have been debarred from appointment as he was short of two months’ for appointment. Learned counsel further submits that the Management has filed its counter affidavit and from perusal of Annexures- A, B, C, D as well as page-24 thereof, it is crystal clear that all the documents which have statutory force clearly shows the date of birth of the petitioner as 1.10.1963 and those documents were filled up and duly signed by the petitioner himself and it was never disputed. It is only at the fag end of service career, the same has been disputed by the petitioner claiming the date of birth as 15.1.1966 instead of 1.10.1963. 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.

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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:-

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(i) The petitioner has tried to impress this Court that though he had produced the matriculation certificate at the time of initial appointment, but the same was not considered by the respondent Management. Even in the prayer portion of the writ petition, it has been clearly mentioned that the matric certificate was duly submitted at the time of initial appointment. However, not a single chit of paper has been produced by the petitioner to show that the petitioner had submitted the matriculation certificate at the time of initial appointment, rather, the petitioner is harping on Annexure-2 which is the representation submitted by the petitioner on 7.12.2021.

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(ii) Admittedly, the petitioner has raised the dispute regarding date of birth for the first time on 7.12.2021 on the basis of matriculation certificate, whereas he was appointed in the year 1987 itself.

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(iii) Law is well settled that no claim can be entertained regarding change in date of birth at the fag end of service career. From the

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impugned order, it can comfortably be inferred that the petitioner has acted very smartly in one of the documents which is at Annexure-B to the counter affidavit, wherein interpolation has been made by the petitioner mentioning his date of birth as 15.1.1966. The entire documents which have the statutory force annexed by the respondents duly singed by the petitioner showed the date of birth of the petitioner as 1.10.1963. The Form-B Register and other documents were never disputed or challenged by the petitioner, rather, the same were accepted by putting signature on those documents.

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(iv) 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 matriculation 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.

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(v) The petitioner has preferred this writ petition just eight days prior to his retirement. The issue is no more res integra . In plethora of judgments, it has been clearly held that even if an employee has a good case, the Court should refrain from interfering with the claim as has been raised at the fag end of service career.

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(vi) 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 .”

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(vii) 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

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birth at the fag end of his service career. The Court, in very strong terms, observed as under:-

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".....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”.

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(viii) The Hon’ble Apex Court in case of Secretary and Commissioner,

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Home Department & Ors. Vs. R. Kirubakaran , reported in 1994 Suppl. (1) SCC 155 , has held as under:

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“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.”

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(ix) 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.

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(x) Taking into consideration the aforesaid ratio laid down by the Hon’ble Apex Court as well as by different High Courts, this Court

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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 .”

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As a sequitur to the aforesaid observations, rules, regulations, guidelines, legal propositions and judicial pronouncements, I do not see any reason to interfere with the impugned notice dated 04.11.2022.

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The writ petition is devoid of any merit and the same is, hereby, dismissed. The aforesaid interlocutory application stands closed.

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R.Kr.

Sadhan Modak v. M/S Bharat Coking Coal Ltd. through Its Managing Director

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Sadhan Modak v. M/S Bharat Coking Coal Ltd. through Its Managing Director

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