Jharkhand High Court
Mahesh Kumar Paswan vs M/S Bharat Coking Coal Limited on 7 September, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 2292 of 2020
Mahesh Kumar Paswan, aged about 54 years, Son of late Siaram
Paswan, Resident of Village - Madhuban No.40, Dhowra, P.O. and
P.S. - Lodna, District - Dhanbad (Jharkhand) ... ... Petitioner
Versus
1. M/s Bharat Coking Coal Limited, having its office at Koila
Bhawan, Saraidhela, P.O. and P.S. - Saraidhela, District -
Dhanbad
2. The General Manager, Lodna Area of M/s Bharat Coking Coal
Limited, P.O. and P.S. - Lodna, District - Dhanbad
3. The Project Officer, Lodna Colliery of M/s Bharat Coking Coal
Limited, having its office at Lodna, P.O. and P.S. - Lodna,
District - Dhanbad
4. Secretary, Bihar State Examination Board, Patna.
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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For the Petitioner : Dr. M.K. Laik, Senior Advocate
: Mr. N.K. Sahani, Advocate
: Mr. R.K. Vishwakarma, Advocate
For the Resp. BCCL : Mr. Amit Kumar Sinha, Advocate
For the BSEB : Mr. Binit Chandra, Advocate
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08/07.09.2022 Heard learned counsels for the parties.
2. This writ petition has been filed for the following relief:
"For quashing the order contained in letter dated 24/28.04.2020 passed by respondents, wherein and whereunder the dispute raised by the petitioner with regard to wrong entry of the date of birth in the service record commanding the respondents to implement the instruction of J.B.C.C.I where date of birth mentioned in Matriculation Certificate has been directed to be implemented for determination of date of birth."
Arguments of the Petitioners
3. It is not in dispute that the petitioner was initially appointed in Lodhna Colliery of respondents as Minor Loader vide letter dated 09.02.1987 and the follow up letter dated 08.03.1987 was also issued and thereafter he joined. Vide office order dated 15.03.2003, the petitioner along with other worker was promoted to Category-IV and he was thereafter promoted to next higher grade vide order dated 06.10.2008. Thereafter, he was further promoted to the post of Assistant Foreman vide order dated 30.09.2016.
4. It has been stated by the petitioner in the writ petition that for appointment to next higher post, the authority required matriculation certificate in case the workman is a matriculate and the age mentioned in it was to be taken as genuine and the respondent demanded matriculation 2 certificate as a condition for appointment and promotion to next higher grade. Consequently, the petitioner presented the matriculation certificate.
5. The specific case of the petitioner is that at the time of initial appointment which are ordinarily on temporary basis, the Medical Officer seeing the personality of the prospective employee gives some opinion with regard to the age of the employee and the petitioner subsequently could find out that his date of birth has been mentioned as 05.02.1963, which was not correct as mentioned in the matriculation certificate and thereafter, the petitioner as back as in the year 1989 onwards made various representations before the respondents annexing a copy of matriculation certificate and requesting to make correction in the records. Those letters have been annexed as Annexure- 6 series which are dated 20.10.1989, 27.12.1990, 28.02.1992, 04.04.2017 and also on 19.03.2018. A receipted copy of the letter dated 20.10.1989 has been annexed which is the first letter objecting to the recording of date of birth. It is submitted that lastly, when the petitioner had issued letter dated 19.03.2018, a Letter No.149 dated 01.06.2019 was issued by the respondents to the Secretary, Bihar School Examination Board, Patna for verification of the matriculation certificate of the petitioner and requisite fees was also sent for obtaining verification report. However, vide order dated 24.04.2020, which is the impugned order, the claim for correcting the date of birth has been rejected without waiting for the verification report and by simply referring to the judgment passed by Hon'ble Supreme Court in S.L.P. (Civil) No. 20627 corresponding to Civil Appeal No.1009 of 2020 and also recording that the petitioner raised the dispute on 19.03.2018 after 31 years of service, he did not raise any dispute regarding date of birth in service excerpt. It was also mentioned that in PS 3 and PS 4 also, the date of birth has been mentioned as 05.02.1963 and that the petitioner had signed Form B Register, PS 3, PS 4 and service excerpt and accepted the date of birth in Form B register.
6. Learned counsel for the petitioner has submitted that the dispute regarding recording of date of birth and the supporting documents i.e., matriculation certificate was being forwarded to the respondents right from the year 1989 which was within a very short span of time from the date of his induction in the service and accordingly, the impugned order stating that he raised the dispute for the first time after 31 years is not 3 correct. By referring to the judgment passed by Hon'ble Supreme Court which has been referred to in the impugned order, the learned counsel submits that it has been inter alia held that dispute with regard to date of birth cannot be entertained at the fag end of service. The learned counsel submits that the said judgement does not apply to the facts and circumstances of this case as the allegation that the dispute has been raised after 31 years is not correct in view of the aforesaid documents annexed with the writ petition which shows that the petitioner had raised the dispute since the year 1989.
7. Learned counsel for the petitioner has further submitted that by virtue of the order passed by this Court, an affidavit has been filed by Bihar School Examination Board (BSEB) stating that the petitioner had passed the matriculation examination in 1982 with Roll Code 2310 Roll No.0020 and his date of birth mentioned as 01.01.1966 and that the petitioner had passed in second division. Learned counsel submits that the verification of the matriculation certificate of the petitioner which was sent by the BSEB has now been confirmed by virtue of the counter - affidavit filed in this case. Learned counsel has also relied upon the judgment passed by this Court in Full Bench in the case of Kamta Pandey Vs. M/s BCCL reported in 2007 (3) JCR 681.
Arguments of the Respondents.
8. Learned counsel for the respondents, on the other hand, has opposed the prayer of the petitioner and has submitted that at the stage of entry, if the petitioner did not disclose his education qualification and also the date of birth recorded in the matriculation certificate, it is not open to the petitioner to dispute the same after 31 years. He has further submitted that Form B is filled at the stage of entering into the service and when the petitioner was transferred to another colliery, there is another Form B and other documents annexed along with the records of this case i.e Form PS III and PS IV were filled up on 26.05.1998. In all the documents, the date of birth of the petitioner has been recorded as 05.02.1963 and therefore no interference is called for with regard to the date of birth of the petitioner.
9. The learned counsel has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Bharat Coking Coal Ltd. & Ors. Vs. Shyam Kishore Singh in Civil Appeal No.1009 of 2020 and has submitted that in the said case also, upon verification of class 10 4 certificate, it was found genuine, but in spite of that no interference was made by the Hon'ble Supreme Court with regard to recording of date of birth which was already available in the service record and the judgments passed by this Court in W.P.(S) No.6172 of 2014 and in LPA No.115 of 2018 by the Hon'ble Division Bench dated 19.02.2019, were set aside.
10. Learned counsel has also relied upon a judgment dated 11.08.2015 passed in W.P.(S). No.366 of 2014 (John Andrew Osta Vs. M/s Central Coalfields Limited and Ors.) to submit that it has been held that where qualifications are enhanced after entering in service by incumbents under the coal company, they are treated for the purposes of consideration of higher promotion, but not for the purposes of correction of date of birth and no reliance can be placed upon matriculation certificate which was never produced at the time of entry and such stand of the respondents was found to be justified. Learned counsel has also relied upon a judgment passed by this Court in L.P.A. No.222 of 2021 (The Bharat Coking Coal Limited and Ors. Vs. Sukullah Mian @ Sukrullah Mian) decided on 21.12.2021 reported in 2022 (1) JBCJ 680 to submit that if the petitioner was in possession of matriculation certificate, he could have very well produced it immediately on the date of entering into service. He submits that even as per the writ petition, the matriculation certificate was required to be produced from the side of the petitioner when he was promoted. The learned counsel for the petitioner has also submitted that initially when the counter-affidavit was filed, para wise comment was not given. However, pursuant to order dated 19.07.2022, a prayer was sought for filing para wise comment to the writ petition after the case was heard at length. The respondents were permitted to file para wise comment of the writ petition and bring the necessary material on record by 27.07.2022 and consequently, para wise comment has been filed.
Findings of this Court
11. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that it is not in dispute any more that at the time of induction into service way back as on 08.03.1987, the petitioner was already matriculate and he had passed matriculation examination in the year 1982 which is as per the affidavit filed by the Bihar School Examination Board, Patna, but it appears that neither matriculation was the required qualification for appointment as 5 Minor Loader nor the petitioner had submitted his matriculation certificate at that point of time.
12. However, from the records of this case, a specific statement has been made in para 12 of the writ petition that at the time of initial appointment, the Medical Officer seeing the personality of prospective employee give some opinion with regard to age and the petitioner did not question at that point of time, but subsequently the petitioner could know that his date of birth has been mentioned as 05.02.1963. It has also been mentioned in the writ petition that the petitioner in the year 1989 onwards made various representations annexing the copy of the matriculation certificate requesting the respondents to correct the date of birth. Receipted copy of some of the representations have been filed by the petitioner.
13. Initially when the counter-affidavit was filed, a simple statement was made by the respondents that change in date of birth of an employee can only be permitted within time and not more than 5 years of entry of service in view of various judgements passed by the Hon'ble Supreme Court and have stated that after lapse of 31 years, the date of birth of the employee cannot be permitted to be altered / changed, even if, there is cogent evidence, the same cannot be changed as a matter of right. However, none of the representations made by the petitioner right from 1989 and annexed with the writ petitioner were denied to have been filed and no para wise comment to the writ petition was filed by the respondents. The matter was heard at length on 19.07.2022 and after hearing at length when this was pointed out to the learned counsel for the respondents that there is no para wise comment in the counter-affidavit, learned counsel for the respondents sought time to file para wise comment and ultimately para wise comment has been filed.
14. Upon perusal of the supplementary affidavit giving parawise comments, it has been stated in para 21 that the claim of petitioner for correction of his date of birth since 1998 as claimed is not readily traceable and that the petitioner has not submitted any letter of assurance issued by the management for correction of his date of birth in support of his claim. The claim of the petitioner was that he filed representation since 1989 and not since 1998. Moreover, the fact remains that there is no denial regarding filing of the various representations since 1989 by the petitioner for correction of his date of birth, but it has simply stated 6 that the same are not readily traceable and that the petitioner has not submitted any letter of assurance from the side of the management.
15. It was for the respondents to make a categorical statement regarding the filing of the representation by the petitioner seeking rectification of date of birth which as per the writ petitioner was made since the year 1989 itself, but the supplementary counter affidavit which was filed seeking permission to place parawise comments of the writ petition after the matter was substantially heard continued to be evasive on this point. This Court finds that even the medical examination report at the time of induction of the petitioner has not been produced by the respondents before this Court and it has been simply stated that it is not possible for the medical board to assess the exact age of a person.
16. Considering the aforesaid facts and circumstances, this Court is of the considered view that the petitioner having been appointed in the year 1987 had raised the dispute with regard to recording of his date of birth right from the year 1989, receipted copy of such documents have been annexed along with the writ petition and filing of those documents have not been specifically denied by the respondents in spite of filing two affidavits and therefore, the present case is not a case where the petitioner had raised the dispute with regard to his date of birth at the fag end of his service. The petitioner had raised the dispute within a period of 2 years from his induction into service. Merely because the management did not issue any letter in that regard or pursuant thereto cannot be a ground the reject the plea of the petitioner that the dispute regarding recording of date of birth was raised since 1989.
17. In view of the affidavit filed by Bihar School Examination Board, it is not in dispute that the petitioner has passed the matriculation examination as back as in the year 1982 where his date of birth has been recorded as 01.01.1966.
18. The judgment passed by the Hon'ble Supreme Court in Civil Appeal No.1009 of 2020 (supra) is primarily on the issue that the dispute regarding date of birth cannot be raised at much belated stage and such changes cannot be entertained at the fag end of service after accepting the recorded date of birth to be correct during the entire period of service. The Hon'ble Supreme Court also recorded that the person in that case was appointed in the year 1987 and the dispute was raised for the first time after expiry of 30 years in the year 2009 when he made the 7 representation; he retired from service on 31.03.2010 and even thereafter the writ petition was filed only in the year 2014 i.e., after 4 years from the date of retirement. In such circumstances, the Hon'ble Supreme Court was of the view that the indulgence given by the High Court with regard to dispute of date of birth based on matriculation certificate, which was duly verified by the board, was not sustainable.
So far as the present case is concerned, though the petitioner does not appear to have produced his matriculation certificate at the time of induction, but soon thereafter he has produced the same in the year 1989, but in spite of that the respondents did not take any care to rectify his date of birth. The petitioner had filed several representations before the authority while in service and subsequently after the petitioner was promoted where matriculation was the required condition, for the first time in the year 2018, the respondents had taken steps for verification of his matriculation certificate. The impugned order was passed without waiting for the report from the Bihar School Examination Board regarding the genuineness of the matriculation certificate of the petitioner which stands now confirmed to be genuine by virtue of the affidavit filed by Bihar School Examination board.
This Court also finds that so far as the judgment reported in 2022 (1) JBCJ 680 (supra) is concerned, in the said case, it has been held that if the petitioner was in possession of matriculation certificate, it could very well have been produced immediately on the date of entry in service or even within reasonable time from the date of appointment. In the present case, the petitioner had produced the matriculation certificate in the year 1989 i.e., within about two years of his initial date of appointment, had raised the dispute regarding date of birth within reasonable time. Accordingly, the judgment which has been relied upon by the respondents reported in 2022 1 JBCJ 680(Supra) is in favour of the petitioner which clearly stipulates that even if the certificate is not produced at the time of entry, such dispute can be raised within the reasonable time. Even as per the counter affidavit filed by the respondents, they have taken a specific stand by referring to the judgement passed by the Hon'ble Supreme Court that dispute regarding date of birth can be raised within 5 years of induction. Moreover, the present case is not a case where the petitioner has raised dispute regarding his date of birth at the fag end of service.
819. In view of the aforesaid facts and circumstances, the impugned order as contained in Annexure - 7 dated 24/28.04.2020 which records that the petitioner has raised his dispute with regard to date of birth on 19.03.2018 i.e almost after 31 years of service, is perverse and not sustainable in the eyes of law in view of the documents annexed with the writ petition regarding dispute having been raised as back as in the year 1989 by filing representation and there have been repeated representations which have not been categorically denied by the respondents in their counter-affidavit as well as in supplementary counter affidavit.
20. Consequently, the impugned order is hereby set aside. The respondents are directed to rectify the date of birth of the petitioner in the records as 01.01.1966 as recorded in the matriculation certificate. A counter-affidavit has been filed by the Bihar School Examination Board dated 20.09.2022 before this Court also certifying the genuineness of the matriculation certificate issued to the petitioner upon verification from their records.
21. This writ petition is accordingly allowed.
22. Pending interlocutory application, if any, stands closed.
(Anubha Rawat Choudhary, J.) Saurav