Calcutta High Court
Coal India Limited vs Arun Kumar Sinha & Ors. on 10 September, 1998
Equivalent citations: (1999)3CALLT247(HC)
Author: S. B. Sinha
Bench: Satyabrata Sinha
JUDGMENT S. B. Sinha. J. 1. This appeal is directed against a judgment and order dated 11th May. 1998 passed by a learned single Judge of this court in W.P. No. 30211(W) of 1997. 2. The fact of the matter lies in a very narrow compass. 3. The petitioner passed the Secondary School Examination from the Bihar School Examination Board, Patna in 1956 where his date of birth was recorded on 25th June. 1940. He had undergone Pre-Professional qualification and Pre-employment mining training from 7th July, 1958 to May, 1961. He appeared and passed 2nd Class Mine Manager's Certificate of Competency Examination in June. 1962. He has also passed Diploma in Mining & Mine Surveying Examination in 1963. On 12.8.1965 he joined Coal Board, a statutory authority constituted under Coal Mines (Conservation and Development) Act wherin his aforementioned date of birth was recorded. 4. He obtained 1st Class Mine Manager's Certificate of Competancy in December, 1969. Allegedly when he was to go abroad, he applied for English version of Certificate from Bihar School Examination Board on 9th January, 1970 and when such certificate was issued he found his date of birth mentioned therein as 28.6.1942 whereafter he filed a representaion before his the then employer for correction of his date of birth. 5. In the mean time the Parliament enacted Coking Coal Mines (Emergency Provisions) Act, 1971 whereafter he applied for appointment before Custodian General. He was taken on deputation. On 11th April. 1972 however, he Joined Bharat Coking Coal Limited. In the year 1974 Coal Board merged with Coal India Limited. Allegedly in the Executive Directory published by Bharat Coking Coal Limited, his date of birth shown as 28.6.1942 but in the Executive Directory published in the year 1991 his date of birth was shown on 25.6.1940. The writ petitioner thereafter made various representations for correction of his date of birth on 5th August, 1991, 25th March. 1993 and 22nd April. 1996. 6. The respondents issued a circular letter on 19th May, 1992 whereby and whereunder a ban was placed on alteration of declared and accepted date of birth except in the manner specified therein. The writ petitioner's prayer for correction of date of birth was rejected on 25th April, 1996 whereafter he filed a writ application in the M.P. High Court. By an order dated 10th July, 1997 the writ application was disposed of by directing the respondents to decide the dispute before the processing of selection to the post of Director; whereafter he was given an opportunity of being heard in person. By reason of an order dated 6th August, 1997 as contained in Annexure 'B' to the writ application his representalon was rejected. The learned trial Judge by reason of the impugned order. Inter alia, held that keeping in view the fact that the Bihar School Examination Board cancelled the earlier certificate granted to him and further in view of the fact that he did not obtain any benefit therefrom, the respondents erred in rejecting the representation of the plaintiff. 7. Mr. Mallick, the learned Senior Counsel appearing on behalf of the appellant, inter alia, submitted that the learned trial Judge commited an error in so far as it failed to take into consideration the fact that a Matriculation Certificate cannot be said to be sacrosanct. The learned Counsel further submitted that an application for correction of date of birth having been filed at the fag end of the career, the writ petitioner ought not to have entertained. Referring to Regulation 15 of Coal Mines Regulations it was submitted by the learned Counsel that the petitioner having taken advantage thereof at that point of time he declared himself to be above 21 years of age, now cannot turn down and he was born in the year 1940. 8. Mr. Gupta, the learned counsel appearing on behalf of the respondents, on the other hand, submitted that it is not a case where the writ petitioner made a representation for correction of his date of birth at the fag end of his career. It was pointed out that such an application had been filed as far back as on 22nd January, 1971. The learned counsel submitted that an enquiry was made by the Vigilance Department of the Bihar School Examination Board and it was found that the date of birth as appearing in the English Version was correct and only in that situation the certificate granted to him in Hindi Version was directed to be cancelled. Mr. Gupta would urge that the petitioner cannot be said to have taken any undue advantage for the purpose of his initial appointment, he was to have minimum qualification of 1st Class Mine Manager Competency and in that view of the matter Regulation 15 of the Coal Mines Regulation could not have been taken into consideration. 9. It is beyond any dispute that the petitioner did not apply for correction of date of birth before the Bihar School Examination Board in the year 1956 although the mistake, if any, could be detected at that time. If the contention of the petitioner is correct, he had not only passed the Matriculation Examination at the age of 14 years, he admittedly appeared at the 2nd Class Mine Managers Certificate Competency when he was below the age of 21 years. In terms of the provisions of the Mines Act, 1952 read with the Rules and Regulation framed thereunder a person holding 2nd Class Mine Manager's Certificate of Competency can be given independant charge of coal mine or a section thereof depending on the quantity of production of coal therein. Regulation 15 of Coal Mines Regulation, 1957 which prohibits appearance at any examination by a person below the age of 21 years was evidently made keeping in view the risk involved in working in a mine and particularly in a mine where underground mining operations are carried on. 10. It really appears to be curious that the petitioner's date of birth was found to have been entered by mistake by the Bihar School Examination Board only when he sought for a copy of the English Version of the said certificate but the mistake was not committed by the Bihar School Examination Board not only with regard to the year of birth but also with regard to the date of birth. 11. In the impugned order it is stated : " A scrutiny of various records as also the letter received from BSEB, leaves hardly any doubt that the date and year of birth of Sri Arun Kumar Sinha as per Matriculation Certificate is 28.6.1942 and not 25.06.1940. It is also evident that the correction which was made in BSEB record was only with regard to date of birth i.e. '28' Instead of '25'. There is not even a whisper, that any correction/modification was made by BSEB in the recorded year of birth. This implies that the year ' 1942' remained unaltered from the beginning. This is borne out from the letter dated 22.07.1997 of Joint Secretary (Vig), BSEB. Patna (Exhibit-IV) which clearly says that in the Board record Shri Sinha's date of birth has been corrected from 25.06.1942 to 28.06.1942. Another letter from the Joint Secretary (Vig) dated 30.7.1997. submitted by Shri A.K.Sinha (Exhibit-VI) states that the certificate No. 71903 should be treated as cancelled and certificate No. 21633 dated 25.12.1978 be treated as correct. Linking the two letters dated 22.07.1997 and 30.07.1997 from Joint Secretary (Vig.). BSEB, Patna it implies that the certificate No. 71903 mentioned the date of birth as 25.06.1942 which has been cancelled." 12. It is inter alia, found : "During the personal hearing on 28.07.1997 at Calcutta. Shri Sinha was asked whether he could show any document from BSEB to substantiate that his date of birth was 25.06.1940 in the earlier records. He stated that excepting an attested copy of the certificate No. 71903 in the personal file, there in no other certificate/document with him. As per his statement, he had returned the original certificate to the Board and was given a duplicate certificate in its place stating his date of birth as 28.06.1942. It is on record that Shri Sinha joined the Coal Board on 12.8.1965 as a Sampling Asstt. and declared his date of birth as 25.06.1940. His services were later taken on lien by BCCL w.e.f. 11.04.1972, where his age was continued to be shown as 25.06.1940. Shri Sinha had made an application on 22.01.1971 to Secretary, Coal Board for making corrections in the record but no further action was taken in the matter. It is strange that he never considered it desirable to peruse the matter. Surprisingly he never raised this issue at the time of his joining BCCL. He appears to have been made some communication with BCCL which led to his age being shown as 28.06.1942, in the executive directory. This however, by no stretch of imagination can be construed as an acceptance by the management of the change in date of birth. Shri Sinha should be aware that there is a procedure to be follwed for recording of age and also correction modification to be made therein. There is no record to show that he was ever Informed by BCCL and/or CIL management that his date of birth had been modified/corrected. Simply placing reliance on an executive directory and keeping quiet on the issue from 1980 does not sound very convincing." 13. The Director (Personnel & Industrial Relation) who was the competent authority to pass the order impugned in the writ application. therefore, ultimately came to the following conclusion :- "The sequence of events mentioned above shows that the issue regarding the rectification in the date of birth was raised by Shri Sinha after he had obtained the statutory qualification and appointment with Coal Board. Had this matter been raised by him or had it come to the attention of the Authorities during the statutory training, the implication would have been different including disqualification from the statutory training and admission to the professional course in mining on the ground of non-fulfilment of minimum age criteria prescribed under the Mines Act & Rules. The declaration of age 25.06.1940 as such gave him a distinct advantage of an early entry into mining profession by two years and subsequently early carrier growth opporunities, salary & emoluments, and other benefits during his employment," 14. It is now well settled by reason of various decisions of the Supreme Court of India that date of birth stated in the Matriculation Certificate is not sacrosanct. Only because after a long lapse of years certain correction had been made in the said certificate, the same ipso facto does not entitle the officer to get his date of birth corrected. 15. In Birad Mal Singhvi v. Anand Purohit , it has clearly been held :- " To render a document admissible under setlon 35. three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded," 16. The said decision had been considered by a Division Bench of this court, of which I was a member, in Chittaranjan Das v. Durgapore Project Limited & Ors. reported in 99 CWN 897 in the following terms : "For the views I have taken, it is not necessary to consider the efect of the provisions of section 35 of the Evidence Act nor is It necessary to consider the decisions relating to drawing of presumption in terms of section 114 thereof. A persumption under section 114 may not be drawn by a Court. In a case of this nature where a certificate of date of birth has been granted by a Headmater of a private Institution, drawing of presumption under section 114 of the Indan Evidence Act does not arise. In any event, such presumption even if drawn stands rebutted in view of the aforementioned letter issued by the W.B.B.S.E. Moreover the question with regard to the determination of a date of birth being a disputed one cannot be gone into by this court in exercise of its jurisdiction under Article 226 of the Constitution of India." 17. In P. Ramakrishnan Nair v. Guruvayoor Devaswom Managing Committee and Ors. reproted in 1995 Lab IC 486, a Division Bench of Kerala High Court held that where on the face of correction of school records, an alteration in the date of birth is sought for after 25 years, the same cannot be entertained. 18. A Division Bench of this Court in Calcutta Port Trust & Ors v. Ajtt Kumar Deb reported in 1996 Lab 1C 167 reiterated the said position in law. 19. In Union of India & Ors v. Kantilal Hemabam Pandya , the apex court has deprecated any action on the part of an officer to approach the writ court at the fag end of the career. 20. In Visakhapatnam Dock Labour Board v. E. Atchanna & Ors. reported in 1996(2) SCC 448, the apex court has also deprecated passing of an interim order by a writ court. 21. This aspect of the matter has also been considered in an unreported decision of which I was a member in Hindustan Copper Limited & Ors. v. Chitwaran Singh & Anr. (F.M.A.T. No. 1340 of 1988) disposed of on 9.4.1996 wherein it was held : "In the instant case, the learned trial Judge, in our considered view, did not take into consideration the fact that even the Matriculation certificate cannot be considered to be sacrosanct. The date of birth entered into the school register must be proved on the basis of the material available at the point of time when the student was admitted in the school. This aspect of the matter has been considered by the Supreme Court in the case which has been considered by this Court in the case of C. Das v Durgapur Steel Project reported in 99 CWN 897. It is well-settled that in view of the several decisions of this court as also the Supreme Court of India that a Writ Court should not entertain a writ application at the fag end of the career of an employee. Reference in this conncetion may be made to and 1995 Lab IC 486. This aspect of the matter has recently been considered by the Supreme Court in the case of Burn Standrd Co. Ltd. v. Dinabandhu Majumdar . In the said case the apex court observed that 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 is instrumentalities to continue in service beyond the period of their entitlement according to date of birth accepted by their employers, placing reliance on the so-called newly found material." 22. The matter relating to alteration of date of birth has to be considered from another angle. Correction of date of birth has an adverse effect on the Juniors. It has a chain reaction; as by reason of such correction, the Juniors are deprived from their perspective promotion. 23. In Secy. & Commr. Home Deptt. v. R. Kirubakaran . It was held that the onus of proof that the recorded date of birth was wrong lies on the applicant and such claim must be operated by a prima facie evidence of an impeccable character and must be based on materials which can be held to be conclusive in nature. In this situation, the court must be slow in granting any relief to such a person, 24. This aspect of the matter has again been considered in Commissioner of Police, Bombay & Anr. v. Bhagwan V. Lahane . In that case the concerned employee sought for correction of date of birth on the basis of birth register. It was held : "It appears that he got the entry in the birth register corrected, then obtained a copy of it and produced the same before the authorithy. Once it was found to be doubtful, the authorities were right in not correcting his date of birth in the service-book. Admittedly, the School Leaving Certificate was produced by the respondent and the entry in the service-book'was made on the basis of the date of birth mentioned therein. As he failed to show that the said entry was made due to want of care on the part of some other person or that it was an obvious clerical error, the Tribunal ought not to have directed the appellant to correct the same." 25. In the instant case the petitioner apart from his failure to prove that the date of birth recorded in the original certificate was by way of mistake has failed to show any cogent reason as to why he could discover his actual date of birth only by accident. 26. At no point of time the petitioner's service record was corrected. Even his erstwhile employer, Coal Board did not correct his date of birth. Admittedly he was employed on deputation from Coal Board and became the full fledged employee of Bharat Coking Coal on the merger of Coal India Limited. The recording of his date of birth in the executive directory cannot be said to be recording of date of birth in the Service Book. In any event, he has been given an opportunity of hearing hereing wherein he had produced all the documents which were in his power or possession. In that view of the matter, it must he held that even the principles of natural justice have been complied with although there had been no alteration of his date of birth in his Service Book which was made to his department of prejudice. 27. No illegality, irrationality or procedural impropriety in the order passed in the writ application by the Director of Personnel, I.R has been pointed out. This court while exercising its jurisdiction under Article 226 of the Constitution of India is not concerned with the merit of the decision but is concerned with any illegality. Irrationality, impropriety, procedural irregularity in the decision making process of the concerned authority. For the reasons aforementioned we are of the opinion that the learned trial Judge committed a patent error in allowing the writ application. This appeal is, therefore, allowed. The impugned order dated 11.5.98 is set aside. The petition of the writ petitioner is dismissed. However. In the facts and circumstances of this case there will be no order as to costs. B. D. Dutta, J.
28. I agree.
29. Appeal allowed