Jharkhand High Court
Ramanand Sah vs The General Manager Steel Authority Of ... on 7 November, 2017
Equivalent citations: 2018 (2) AJR 771, (2018) 1 JCR 511 (JHA)
Author: Aparesh Kumar Singh
Bench: Aparesh Kumar Singh, B.B. Mangalmurti
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 104 of 2017
.....
Ramanand Sah --- ---- Petitioner
Versus
1. The General Manager, Steel Authority of India Limited
I.I.S.C.O., Steel Plant Chasnala Coal Complex, Dhanbad.
2. The Deputy General Manager, Steel Authority of India Limited
I.S.P. Noonudih, Jitpur Colliery, Dhanbad.
3. The Assistant General Manager (P.L.), Steel Authority of India Limited
I.I.S.C.O., Steel Plant Chasnala Coal Complex, Dhanbad.
------ Respondents
with
W.P.(S) No. 3750 of 2017
.....
Rama Shankar --- ---- Petitioner
Versus
1. The General Manager, I.S.P., Steel Authority of India Limited
Chasnala, Dhanbad.
2. The Assistant General Manager (P.L.) (C/J), Noonidih, Jitpur Colliery,
I.S.P., Steel Authority of India Limited, Jitpur, Dhanbad.
3. The Senior Manager (P & A) (C/J), Jitpur Colliery, I.S.P., Steel
Authority of India Limited, Jitpur, Dhanbad.
------ Respondents
---
CORAM:The Hon'ble Mr. Justice Aparesh Kumar Singh
The Hon'ble Mr. Justice B.B. Mangalmurti
----
For the Petitioners : Mr. Ranjan Kumar Singh, Adv.
Mr. Prabhas Chandra Jha, Adv.
For the Respondents : Mr. Indrajit Sinha, Adv.
Mr. Vijay Kant Dubey, Adv.
----
10/07.11.2017Heard learned counsel for the parties.
Both the writ petitions raise common issue relating to correction of date of birth as per the matriculation certificate. Petitioners entered into service in 1974 and 1983 but admittedly had not produced the matriculation certificates at the time of entry in service, though petitioner Ramanand Sah had passed matriculation in the year 1972 while petitioner Rama Shankar had passed it in 1978 itself.
Learned Central Administrative Tribunal by the impugned orders dated 18th July 2016 in O.A. No.051/00121/2016 and 17 th May 2017 in O.A. No.051/00066/2016 has rejected the prayer for correction of date of birth of these petitioners. A reasoned order dated 17 th October 2015 passed in the case of Ramanand Sah rejecting his claim for correction of date of birth relying -2- upon Clause-4.9 of date of birth policy was also under challenge in his O.A. which has been upheld by the learned Tribunal.
The entire case of these two petitioners raise on claim of parity with that of six employees under the same Jitpur Colliery whose request for correction of date of birth on the basis of having acquired matriculation certificate prior to their employment was accepted by the employer by office order dated 27th August 2008. On the part of the respondent employer the plea for correction has been opposed as being impermissible in law. It is also their stand that none of these petitioners had produced the matriculation certificate at the time of entering in service. The date of birth of these petitioners i.e. 21 st June 1950 and 1st July 1958 were entered into their service records on the basis of their own declaration as recorded in the Form-B at the time of entry in service. They also failed to mention the fact relating to acquisition of matriculation qualification at the time of entry in service. There are no interpolation in their service records either. Petitioner Ramanand Sah has in his subsequent service records i.e. PS-3 form also given the same date of birth i.e. 21st June 1950. This document is prepared on 10 th August 1998. The aforesaid submission has been made by learned counsel for the respondents on the basis of the records produced by the General Manager, (P & A), Steel Authority of India Limited, Collieries Division.
In respect of the other petitioner Rama Shankar also learned counsel for the respondents submits that entry in Form-B made at the time of joining service was on his own declaration and does not suffer from any tampering. These petitioners have entered in service in 1974 and 1983 and the plea for correction of date of birth is indeed belated. Petitioner Ramanand Sah has superannuated in 2010 on completion of 60 years of his age. Learned counsel for the respondents have enclosed the rules regarding determination of date of birth (Annexure-B to the counter affidavit dated 8 th September 2017 filed in W.P.(S) No.104/2017) in the case of Ramanand Sah and also is part of their counter affidavit in the connected case. Learned counsel has placed reliance on the provisions of Rule-4.3, 4.4, 4.6 and 4.9 in order to buttress their stand that entries made in the service records at the time of joining in terms of provisions of para-4.4 are final and binding as per Clause-4.9 and 4.10.
-3-Learned counsel for the petitioners have relied upon implementation instruction 76 arrived at in the matter of implementation of the National Coal Wage Agreement. However, National Coal Wage Agreement is inapplicable to the employees of Steel Authority of India Limited who are governed by National Joint Steel Committee, a bipartite agreement between the employers and the Trade Union. Learned counsel for the petitioners submits that in the case of petitioner Ramanand Sah, the learned Single Judge of this Court by order dated 3 rd August 2015 (Annexure-
9) passed in W.P.(S) No.2027/2010 directed the respondents to take a fresh decision in the matter taking into consideration the matriculation certificate submitted by him as also the office order dated 27 th August 2008 (Annexure-
7). The reasoned order passed thereafter (Annexure-10) however does not show complete application of mind and fails to accord parity to the case of the said petitioner as granted in the case of other six employees covered under office order dated 27th August 2008. Learned counsel for the petitioners have also referred to an order passed by the learned Single Judge of this Court in W.P.(S) 5460/2010 in the case of Kaushal Kr. Singh Vrs. General Manager, SAIL where again a direction was issued to consider the claim of the said petitioner in accordance with law within a stipulated time for correction of his date of birth entry as per his matriculation certificate.
On a previous date 4th October 2017 we took note of the plea of the petitioners based on the claim of parity and passed the following order quoted as under :-
"Petitioners in both the writ petitions have harped upon an office order dated 27th August, 2008 issued by one P.C. Tiwari, Asstt. General Manager (Annexure-7 in W.P.(S) No. 104 of 2017 & Annexure-6 in W.P.(S) No. 3750 of 2017), whereunder correction of date of birth of six employees under the same Jitpur Colliery has been allowed on the basis of matriculation certificate acquired prior to their employment. These two petitioners also contend on the basis of letter dated 12th August, 1998 (Annexure-6 and reply dated 20th August, 1998 part of Annexure-6 Series in W.P.(S) No. 104 of 2017) and 4th September, 1998 as Annexure-3/1 in W.P.(S) No. 3750 of 2017, whereunder on being asked by the Senior Manger, Jitpur Colliery, both the petitioners duly sought correction of their date of birth on the basis of matriculation certificate produced by them. Admittedly, petitioner in the first writ petition i.e. W.P.(S) No. 104 of 2017 entered into the service in 1974, but had passed matriculation in the year 1972, while petitioner in the second writ petition i.e. W.P. (S) No. 3750 of 2017 had joined service in 1983 but had acquired matriculation qualification in -4- 1978 itself. According to them, the date of birth recorded in their matriculation certificate i.e. 12th November, 1954 and 1st January, 1963 should be corrected in their service record in place of 21 st June, 1950 and 1st July, 1958 respectively in both their cases.
The respondents, in their counter affidavit, have defended their action and enclosed the Rules regarding determination of date of birth (Annexure-B) along with Form-B of both the petitioners. However, they have only made evasive answer to the plea of discrimination asserting that an illegal or unwarranted order cannot be made the basis for seeking correction of date of birth by these petitioners. The respondents however have not dilated on this aspect and neither substantiated their contention that the order of correction of date of birth in respect of six persons dated 27thth August, 2008 was illegal or improper.
For proper appreciation of the issue in controversy, we, therefore, consider it proper to direct the respondents to produce the records relating to correction of the date of birth of the six persons named in the office order dated 27 th August, 2008 and at the same time records relating to these two petitioners as well which also contains the processing of their claim of correction of date of birth on the basis of letters of 1998 referred to hereinabove.
Accordingly, as prayed for, by learned counsel for the respondents, let the case appear in the reopening week after Diwali vacation when responsible officer not below the rank of Assistant General Manager should be present with the records."
Mr. Rajesh Bambha, General Manager (P & A), Collieries Division, Steel Authority of India Limited has appeared thereafter along with the records. Learned counsel for the respondents has placed the records which contain the decision of the General Manager on the proposal for correction of the date of birth entry as per the matriculation certificate of those 6 employees, though they had acquired matriculation qualification prior to their entry in service.
Learned counsel for the respondents have fairly submitted that the concerned officials at the relevant point of time have failed to take note of the binding rules in relation to the issue of correction of date of birth. The order cannot be justified on the test of legality. Therefore, no claim of equal treatment under law can be prayed on behalf of the petitioners.
We usefully reproduce the extract of Rules regarding determination of date of birth of employees of the Steel Authority of India Limited hereunder:-
"4.0 PROCEDURE/RULES :
4.1 Every employee must declare his date of birth in the application or the prescribed form, before his first appointment and must produce confirmatory evidence in -5- support of his declaration as mentioned hereunder. No person should be allowed to join the services of the Company without his date of birth having been declared/recorded as prescribed.
4.2 The Company reserves the right to ask at any time an employee to produce documentary evidence about his date of birth.
4.3 Each person entering the services of the Company shall, in support of declaration of the date of birth, submit Matriculation/School Final Examination Certificate or equivalent examination or School Leaving Certificate. 4.4 In case of those persons who have not passed Matriculation/School Final Examination/equivalent examination at the time of entering the service, the following documents containing their date of birth may be accepted as evidence of age, in the order in which they are enumerated below (in other words evidence at (b) will be accepted only if evidence (a) is not possible, and so on.)
(a) School Certificate from educational institution where the candidate/employee studied.
(b) Service record/service certificates issued by the previous employer in case of candidates/employees who had been in employment under public sector enterprises/government department or a local body prior to joining SAIL.
(c ) Attested extracts from Register of birth and death maintained by Gram Panchayats, Municipality, Municipal Corporation, Town/notified area or an appropriate authority.
(d) Baptism Certificate from Church in case of Christian employee/horoscope in case of Hindu employees.
(e) Certificate of birth from Government hospitals where the candidate/employee was born.
4.5 The date of birth shall be accepted only according to Christian Era. In case it is shown by some other Era, it shall be converted into corresponding Christian Era. 4.6 Where the employee has not passed Matriculation/School Final Examination/equivalent examination or has not studied in a school and none of the documents indicated in 4.4 can be produced by him, an affidavit attested by a magistrate to that effect shall be given by him along with the declaration of his age which after due corroboration by a Medical Board nominated by the Management, may be accepted as the proof of age. In case of difference between the age declared in the Affidavit and the age certified by the Medical Board, the higher age shall be accepted and recorded.
4.7 Wherever the Medical Board certifies a particular age in respect of an employee vide para 4.6, the date of birth shall be taken as the corresponding date after deducting the number of years representing his age from the date of his medical examination. For example, if the date of medical examination of an employee is 16th July 1981, and the -6- medical officer of the Company certifies the age of the employee as 25 years on the date of medical examination, the date of birth to be recorded in the personal record of the employee, shall be 16.7.1956.
4.8 In a case where the Matriculation or school final or equivalent examination certificate or any acceptable document as produced by the employee/candidate, indicates only age in terms of year and month, the date of birth for the purpose of service records may be taken as the last date of such month. If age is mentioned in years only, the year of birth may be arrived after deducting the given age from the year concerned and the last date of the year so arrived at, shall be taken as the date of birth.
4.9 Once the date of birth is accepted and recorded in accordance with provisions of para-4.4 at the time of joining or thereafter or as determined as per provisions of para 4.6, it shall become final and binding.
4.10 In respect of those employees whose date of birth has already been recorded in the descriptive roll/declaration form/service book of the employee and signed/thumb impressed by him, the date so recorded shall be deemed as final and binding."
Case of the petitioners appears to fit under the provisions of Rule-4.4 or 4.6 as they had failed to produce any certificate of the date of birth at the time of entry in service. It was on their self-declaration that the date of birth entries were recorded in Form-B at the time of joining their services. As per Rule 4.9 and 4.10 quoted above, once the date of birth is accepted and recorded in terms of the aforesaid provisions at the time of joining, it shall become final and binding. The petitioners have themselves endorsed their signature on Form-B at the time of entry in service. We do not find any legal basis on the part of the concerned respondent-General Manager while calling for application for correction of date of birth by letter dated 12 th August 1998 (Annexure-6). Petitioners claim to have also made application for correction of the date of birth on the basis of their matriculation certificate in the year 1998 but had remained silent also over a period of 12 years in the case of Ramanand Sah when he approached this Court in the year 2010 and the other petitioner who approached the learned Tribunal only in the year 2016 seeking such correction. The plea of correction of date of birth apparently is at the fag end of service of both these petitioners and unless supported by the relevant rules should not have been entertained also. Learned Central Administrative Tribunal has also relied upon the judgment rendered by the Apex Court in its order dated 17 th May 2017 passed in the case of -7- applicant Rama Shankar i.e. Chandigarh Administration and Another Vs. Jagjit Singh and Another, reported in AIR 1995 Supreme Court 705, where it was categorically observed as under :-
"Generally speaking, the mere fact that the respondent authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination, merely because the respondent authority has passed one illegal/ unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again."
Learned Tribunal has also condemned the action of the respondent authorities in allowing the correction of date of birth of certain employees on the basis of their matriculation certificate in teeth of relevant rules in the year 2008. The concept of equality does not flow in the negative manner. An unwarranted act dehors the statutory provisions cannot cloth the petitioners or other similarly situated to seek similar relief under Article 14 of the Constitution of India.
We also deprecate the action of the concerned General Manager in effecting the correction of date of birth of such 6 employees on 27 th August 2008 vide Annexure-7. However, we cannot take a different view in the matter than that of the learned Tribunal in the aforesaid facts and backgrounds of the case. Accordingly, the instant writ petitions are dismissed.
(Aparesh Kumar Singh, J.) (B.B. Mangalmurti, J.) Shamim/