Jharkhand High Court
Arjun Prasad Shoundik vs Chairman-Cum-Managing Director on 23 July, 2018
Author: D.N. Patel
Bench: Amitav K. Gupta, D.N. Patel
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.534 of 2017
with
I.A. No.8253 of 2017
Arjun Prasad Shoundik, son of Late Ram Prasad Saw, resident of IFICO
Colony, Binjhar, P.O.-Marar, P.S. Ramgarh, District-Ramgarh-829122
(Jharkhand) ...... Appellant
Versus
1. Chairman-cum-Managing Director, Bharat Refractories Ltd., Indira
Gandhi Marg, Ispat Nagar, Bokaro Steel City, Bokaro
2. Chairman-cum-Managing Director, India Firebricks and Insulation Co.
Ltd., Near Ranchi Road Railway Station, P.O. Marar, District-Ramgarh
(Jharkhand)
3. The State of Jharkhand
4. The Labour Commissioner, Government of Jharkhand, Ranchi-834002
5. Deputy Labour Commissioner, Hazaribagh-825301
6. The Bharat Refractories Ltd. as present known as Steel authority of India
Ltd. Refractory Unit IFICO through its Chairman-cum-Managing Director, R/o
Indira Gandhi Marg, Ispat Nagar, Bokaro, P.O. and P.S. Bokaro Steel City,
District-Bokaro ...... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Rajendra Ram Ravidas, Advocate
For the Respondents : Mr. Binod Singh, S.C. (L&C)
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09/Dated 23 July, 2018
rd
Oral Order:
Per: D.N. Patel, A.C.J:
I.A. No.8253 of 2017
1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 29 days in preferring this Letters Patent Appeal.
2. Having heard counsels for both the sides and looking to the reasons stated in this interlocutory application, they delay of 29 days in preferring this Letters Patent Appeal is condoned as there are reasonable reasons.
3. I.A. No.8253 of 2017 is allowed and disposed of.
L.P.A. No.534 of 20174. This Letters Patent Appeal has been preferred by the appellant (original petitioner) whose writ petition being W.P.(S) No.3346 of 2008 was dismissed by the learned Single Judge vide judgment and order dated 11th August, 2017 whereby the prayer of this appellant (original petitioner) for change of date of birth was not accepted by the learned Single Judge and hence the appellant (original petitioner) has preferred the present Letters 2 Patent Appeal.
5. Having heard learned counsels for both sides and looking to the facts and circumstances of the case, it appears that as per this appellant (original petitioner), his correct date of birth is 31 st December, 1952 and therefore, this appellant (original petitioner) ought to have been continued into the services up to the year 2010.
6. As per respondent No.1 the correct date of birth of this appellant is 31 st December, 1950 as per the service excerpts and as per the details stated in the counter affidavit filed in the writ petition to be read with annexures annexed with the counter affidavit.
7. Thus, it appears that there is a dispute of the date of birth of this appellant which has been raised after this appellant has retired in the year 2008. The writ petition has been preferred at the fag end of the service i.e. 30th June, 2008 - 58 years.
8. Thus, at the fag end of the services the dispute about date of birth has been raised. Looking to the counter affidavit filed by respondent No.1 in the writ petition being W.P.(S) No.3346 of 2008 and annexures annexed thereto, it appears that from service excerpts the date of birth of this appellant recorded in the statutory Form also is 31st December, 1950. We, therefore, see no reason to interfere with the order passed by the learned Single Judge in W.P. (S) No.3346 of 2008 vide judgment and order dated 11 th August, 2017 as no error has been committed by the learned Single Judge while deciding the writ petition. The law of limitation will apply harshly, in such type of cases.
9. In the case of Union of India V. Harnam Singh reported in (1993) 2 SCC 162 it has been held by Hon'ble the Supreme Court as under:
"7. A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for 3 correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim, as a matter of right, the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam v. Daksha Prasad Deka a public servant may dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. This Court said: (SCC pp. 625-26, para 4) "... The date of compulsory retirement under F.R. 56(a) must in our judgment, be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311(2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record."
(emphasis supplied)
10. In the case of Burn Standard Co. Ltd. V. Dinabandhu Majumdar reported in (1995) 4 SCC 172 it has been held by Hon'ble the Supreme Court as under:
"10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of their juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly-found material. The fact that an employee of Government or its instrumentality who has been 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, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his "Service and Leave Record" could have genuinely waited till the fag end of his service career to get it 4 corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of their discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement."
(emphasis supplied)
11. In the case of State of Maharashtra V. Gorakhnath Sitaram Kamble reported in (2010) 41 SCC 423 it has been held by Hon'ble the Supreme Court as under:
"12. Apart from the notification and the said instruction this Court in a series of cases has categorically laid down that the employees should not be permitted to change the date of birth at the fag end of their service career. In the instant case the application of alteration has been filed at the fag end of his service career after a lapse of twenty-eight years.
13. In Union of India v. Harnam Singh this Court was confronted with almost similar facts. The Court laid down as under: (SCC pp. 172-73, para
15) "15. In the instant case, the date of birth recorded at the time of entry of the respondent into service as 20-5-1934 had continued to exist, unchallenged between 1956 and September 1991, for almost three and a half decades. The respondent had the occasion to see his service book on numerous occasions. He signed the service book at different places at different points of time. Never did he object to the recorded entry. The same date of birth was also reflected in the seniority lists of LDC and UDC, which the respondent had admittedly seen, as there is nothing on the record to show that he had no occasion to see the same. He remained silent and did not seek the alteration of the date of birth till September 1991, just a few months prior to the date of his superannuation. Inordinate and unexplained delay or laches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him. Even if the respondent had sought correction of the date of birth within five years after 1979, the earlier delay would not have non-suited him but he did not seek correction of the date of birth during the period of five years after the incorporation of Note 5 to FR 56 in 1979 either. His inaction for all this period of about thirty-five years from the date of joining service, therefore precludes him from showing that the entry of his date of birth in service record was not correct."
14. In State of T.N. v. T.V. Venugopalan this 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: (SCC p. 307, para 7) "7. ... 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. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of 5 technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground."
15. In Home Deptt. v. R. Kirubakaran the Court again reiterated the legal position that the courts have to be extremely careful when application for alteration of the date of birth is filed on the eve of superannuation or nearabout that time. The Court observed as under: (SCC p. 160, para 9) "9. ... As such whenever an application for alteration of the date of birth is made on the eve of superannuation or near about that time, the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier."
16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P. Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri. In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.
17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.
18. Two decades ago this Court in Govt. of A.P. v. M. Hayagreev Sarma has held that subsequent claim for alteration after commencement of the Rules even on the basis of extracts of entry contained in births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886, was not open. Reliance was also placed on State of U.P. v. Gulaichi, State of T.N. v. T.V. Venugopalan, Bhadrak (R&B) Division v. Rangadhar Mallik, Union of India v. Harnam Singh and Home Deptt. v. R. Kirubakaran.
19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt. v. R. Kirubakaran reads as under: (SCC pp. 158-59, para 7) "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 6 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."
20. In view of the consistent legal position, the impugned judgment cannot be sustained and even on a plain reading of the notification and the instructions set out in the preceding paragraphs leads to the conclusion that no application for alteration of the date of birth after five years should have been entertained."
(emphasis supplied)
12. In view of the aforesaid decisions also, we see no reason to entertain this Letters Patent Appeal because at the fag end of the service the date of birth cannot be altered by this Court. There is unexplained and inordinate delay and laches on the part of this Appellant (original petitioner). Law of Limitation applies, harshly in such type of cases. Hence, this Letters Patent Appeal is hereby dismissed.
(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) NKC/Chandan