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Supreme Court of India
M/S Bharat Coking Coal Limited vs Shyam Kishore Singh on 5 February, 2020Author: A.S. Bopanna
Bench: R. Banumathi, A.S. Bopanna
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1009 OF 2020
(Arising out of SLP (Civil) No.20627 of 2019)
Bharat Coking Coal Ltd. & Ors. .…Appellant(s)
Versus
Shyam Kishore Singh …. Respondent(s)
JUDGMENT
A.S. Bopanna,J.
Leave granted.
2. The appellants are before this Court assailing the
order dated 19.02.2019 passed by the Division Bench of
the High Court of Jharkhand at Ranchi in LPA No.115 of
2018. Through the said order the Division Bench though
Signature Not Verified
has modified the judgment and order dated 13.10.2017 of
Digitally signed by
MAHABIR SINGH
Date: 2020.02.05
17:12:53 IST
Reason:
the learned Single Judge insofar as the extent of relief
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granted, the contention of the respondent herein relating
to the change of date of birth in the service records is
accepted and a direction has been issued to the
appellants to pay the sum equivalent to salary of one
year for the period between the April, 2010 to March,
2011. The appellants thus being aggrieved are before
this Court in this appeal.
3. The brief facts are that the respondent herein was
appointed as a trainee in the appellants company. He
was allotted Personnel No. 00473470 and joined service
as Trainee Dozer Operator with effect from 27.02.1982.
Though the respondent claims that he had declared his
date of birth as 20.01.1955 in terms of the entry
contained in his matriculation certificate the fact remains
that his date of birth entered in the service record was
04.03.1950 and had remained so from the date of his
appointment on 27.02.1982 till his retirement on
31.03.2010. In the year 1998 the respondent has
submitted the Provident Fund Nomination Form wherein
he has indicted the details of his family and shown his
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wife as his nominee. In the relevant Form also, the
respondent had indicated his date of birth as 04.03.1950.
The respondent thus having continued in service till the
age of superannuation had retired from service on
31.03.2010. Just prior to his retirement, in the year
2009, a representation had been made by the respondent
seeking change of the date of birth entered in the records,
which was declined by the appellants. The respondent
not having agitated the matter further at that point of
time and having retired on 31.03.2010 has after the lapse
of four years filed the W.P.(S) No.6172/2014 before the
High Court of Jharkhand at Ranchi. The appellants
herein having appeared, filed their objection statement.
The learned Single Judge on taking into consideration the
nature of the claim put forth was of the view that when
the respondent raised the issue regarding correction of
the date of birth in the year 2009 the appellants secured
verification of the date of birth claimed by the
respondent from the Bihar School Examination Board,
Patna. On verification it was confirmed that the date of
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birth in the school records was 20.01.1955. The said
verification made by the appellants herein has been held
against them by the learned Single Judge and it was
observed that if the date 04.03.1950 as entered by the
respondent in the service records was correct, there was
no occasion for the appellants to verify the same from
Bihar School Examination Board. In that circumstance
the learned Single Judge being of the opinion that the
respondent had passed the matriculation prior to joining
the services and in that circumstance the entry of date of
birth in the matriculation certificate being 20.01.1955
even before joining the service, has accepted the
contention put forth by the respondent and in that
background arrived at the conclusion that the appellants
are to be directed to make appropriate corrections and
pass consequential orders.
4. The Division Bench has in fact referred to the said
reasoning adopted by the learned Single Judge relating to
the verification made relating to correctness of the
matriculation certificate from the Bihar School
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Examination Board and in that circumstance since the
learned Single Judge had also relied on the Full Bench
judgment of the Jharkhand High Court in the case of
Kamta Pandey vs. M/s BCCI & Ors. [2007 (3) JLJR 726]
has upheld the said reasoning assigned by the Learned
Single Judge. However, the Division Bench had taken
note that the respondent herein had filed the writ petition
four years after his retirement for restoration of his
employment. It has further taken note that the
respondent had filled up several forms in the course of
his services where the respondent had not disclosed his
educational qualification. In that view, the Division
Bench was of the opinion that the learned Single Judge
had not properly dealt with the aspect of delay in
approaching the Court. In that circumstance the Division
Bench had limited the attendant benefits payable to the
respondent to the salary for one year between the period
April, 2010 to March, 2011 as prevailing at that point. It
is in that background the appellants being aggrieved both
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by the order passed by the learned Single Judge as also
the Division Bench are before this Court in this appeal.
5. Heard Mr. K.M. Natraj leaned Additional Solicitor
General appearing for the appellants, Mr. M. Shoeb Alam
learned counsel for the respondent and perused the
appeal papers.
6. The fact that the respondent had joined the
services of the appellants on 01.03.1982 is the accepted
position. Though the respondent relies on the
matriculation certificate to indicate that the date of birth
stated therein is 20.01.1955, there is no material on
record to indicate that the said document had been
produced before the employer at the time of joining
employment. In that background, the service record
maintained by the appellants will disclose that the date of
birth indicated in the document is 04.03.1950 which had
been furnished by the respondent himself as the relevant
forms under his signature contain the said date. Though
the learned counsel for the respondent contended that
the High Court had noticed certain alteration of the date
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of birth as indicated in Form “B” the relevance of the said
document cannot be considered without reference to the
other documents in the service records. The very fact
that the respondent through his representation made in
the year 2009 was seeking for change of the entry
relating to date of birth will indicate that what was
contained in the service records is 04.03.1950, which
was the position from 27.02.1982.
7. In the above background it is to be noticed as to
whether the consideration as made by the High Court is
justified. The learned counsel for the respondent with
specific reference to para 10 in the order of the learned
Single Judge referred to the aspect wherein the learned
Single Judge has taken note of the representation made
by the respondent in the year 2009 and the verification
that was secured by the appellants from the Bihar School
Examination Board. Though such reference is made, in
our opinion, the same was not appropriate in the present
facts when three decades had elapsed from the date of
employment. The position is well established that if a
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particular date of birth is entered in the service register, a
change sought cannot be entertained at the fag end of
service after accepting the same to be correct during
entire service. In the instant facts the position is that the
respondent entered service on 01.03.1982. The date of
birth entered as 04.03.1950 has remained on record from
the said date. The requirement to submit the nomination
form indicating the particulars of the family and the
nominee was complied and it was submitted by the
respondent on 25.05.1998. In the said Nomination Form
the date of birth of the employee was required to be
mentioned, wherein the respondent in his own
handwriting has indicated the date of birth as
04.03.1950. Apart from that fact, the learned Additional
Solicitor General would also point out that since there
was a change in the method of maintaining the service
register, all the employees were provided an opportunity
to verify and seek for change in the service record in the
year 1987. At that stage also the respondent did not seek
for any change. Therefore, in that circumstance, when
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the opportunity available at the first instance in 1987
had not been availed and thereafter on 25.05.1998 when
the respondent himself in the Provident Fund Nomination
Form had indicated the date of birth as 04.03.1950
which corresponds to the date of birth entered in the
service register as on the date of commencement of the
employment, merely because a verification was made
from the Bihar School Examination Board and even if it
was confirmed that the date of birth was 20.01.1955
such change at that stage was not permissible.
8. This Court has consistently held that the request
for change of the date of birth in the service records at
the fag end of service is not sustainable. The learned
Additional Solicitor General has in that regard relied on
the decision in the case of State of Maharashtra and
Anr. vs. Gorakhnath Sitaram Kamble & Ors. (2010)
14 SCC 423 wherein a series of the earlier decisions of
this Court were taken note and was held as hereunder:
“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 [(2005) 11 SCC
Page 9 of 16
465 : 2006 SCC (L&S) 96] . 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 [(2005) 11 SCC 477 :
2006 SCC (L&S) 106] 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.
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 [1994 Supp (1) SCC 155 : 1994 SCC (L&S)
449 : (1994) 26 ATC 828] 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 been real
injustice to the person concerned and his claim for
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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.”
9. This Court in fact has also held that even if there is
good evidence to establish that the recorded date of birth
is erroneous, the correction cannot be claimed as a
matter of right. In that regard, in State of M.P. vs.
Premlal Shrivas, (2011) 9 SCC 664 it is held as
hereunder;
“8. It needs to be emphasised that in matters involving
correction of date of birth of a government servant,
particularly on the eve of his superannuation or at the
fag end of his career, the court or the tribunal has to be
circumspect, cautious and careful while issuing
direction for correction of date of birth, recorded in the
service book at the time of entry into any government
service. Unless the court or the tribunal is fully satisfied
on the basis of the irrefutable proof relating to his date
of birth and that such a claim is made in accordance
with the procedure prescribed or as per the consistent
procedure adopted by the department concerned, as
the case may be, and a real injustice has been caused
to the person concerned, the court or the tribunal
should be loath to issue a direction for correction of the
service book. Time and again this Court has expressed
the view that if a government servant makes a request
for correction of the recorded date of birth after lapse of
a long time of his induction into the service, particularly
beyond the time fixed by his employer, he 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. No court or
the tribunal can come to the aid of those who sleep
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over their rights (see Union of India v. Harnam
Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993)
24 ATC 92] ).
12. Be that as it may, in our opinion, the delay of over
two decades in applying for the correction of date of
birth is ex facie fatal to the case of the respondent,
notwithstanding the fact that there was no specific rule
or order, framed or made, prescribing the period within
which such application could be filed. It is trite that
even in such a situation such an application should be
filed which can be held to be reasonable. The
application filed by the respondent 25 years after his
induction into service, by no standards, can be held to
be reasonable, more so when not a feeble attempt was
made to explain the said delay. There is also no
substance in the plea of the respondent that since Rule
84 of the M.P. Financial Code does not prescribe the
time-limit within which an application is to be filed, the
appellants were duty-bound to correct the clerical error
in recording of his date of birth in the service book.”
10. The learned Additional Solicitor General has also
relied upon the decision of this Court in the case of
Factory Manager Kirloskar Brothers Ltd. vs.
Laxman in SLP (C) Nos.25922593/2018 dated
25.04.2019 wherein the belated claim was not
entertained. Further reliance is also placed on the
decision of this Court in the case of M/s Eastern
Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors.
in C.A.No.7724 of 2011 dated 27.05.2019 wherein this
Court has held as hereunder:
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“Nothing is on record that in the year 1987 when the
opportunity was given to Respondent No.1, to raise any
issue/dispute regarding the service record more
particularly his date of birth in the service record, no
such issue/dispute was raised. Only one year prior to
his superannuation, Respondent No.1 raised the
dispute which can be said to be belated dispute and
therefore, the learned Single Judge as well as the
employer was justified in refusing to accept such an
issue.
The Division Bench of the High Court has,
therefore, committed a grave error in directing the
appellant to correct the date of birth of Respondent
No.1 in the service record after number of years and
that too when the issue was raised only one year prior
to his superannuation and as observed hereinabove no
dispute was raised earlier.”
11. The learned counsel for the respondent, on the
other hand, has relied upon the decision of this Court
relating the very same employer namely, the appellants
herein in the case of Bharat Coking Coal Ltd. & Ors.
vs. Chhota Birasa Uranw (2014) 12 SCC 570 wherein
this Court with reference to the earlier decisions of this
Court has upheld the order of the High Court wherein a
direction had been issued to effect the change in the date
of birth. Having perused the same we are of the opinion
that the said decision cannot render assistance to the
respondent herein. This is for the reason that in the said
case it was taken note that in 1987 on implementation
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of the National Coal Wage Agreement (iii) was put into
operation for stabilising the service records of the
employees and all its employees were provided a chance
to identify and rectify the discrepancies in the service
records by providing them a nomination form containing
details of their service records. In the cited case the
respondent (employee) therein had noticed the
inconsistencies in the records regarding his date of birth,
date of appointment, father’s name and permanent
address and availed the opportunity to seek correction.
Though he had sought for the correction of the errors, the
other discrepancies were set right but the date of birth
and the date of appointment had however remained
unchanged and it is in that view the employee had again
raised a dispute regarding the same and the judicial
remedy was sought wherein the benefit was extended to
him.
12. On the other hand, in the instant case, as on the
date of joining and as also in the year 1987 when the
respondent had an opportunity to fill up the Nomination
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Form and rectify the defect if any, he had indicated the
date of birth as 04.03.1950 and had further reiterated
the same when Provident Fund Nomination Form was
filled in 1998. It is only after more than 30 years from
the date of his joining service, for the first time in the
year 2009 he had made the representation. Further the
respondent did not avail the judicial remedy immediately
thereafter, before retirement. Instead, the respondent
retired from service on 31.03.2010 and even thereafter
the writ petition was filed only in the year 2014, after four
years from the date of his retirement. In that
circumstance, the indulgence shown to the respondent
by the High Court was not justified.
13. Hence, the order dated 13.10.2017 passed by the
learned Single Judge in WP(S) No.6172 of 2014 and the
order dated 19.02.2019 passed by the Division Bench in
LPA No.115 of 2018 are not sustainable.
14. In the result, the impugned order is set aside and
the appeal is allowed with no order as to costs. Pending
applications if any, shall also stand disposed of.
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………….…………….J.
(R. BANUMATHI)
.……………………….J.
(A.S. BOPANNA)
New Delhi,
February 05, 2020
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