Kedar Singh Vs. the Central Coalfields Ltd. and ors. - Court Judgment

Excerpt:
- constitution of india. articles 12 & 226: [m. karpaga vinayagam, c.j., narendra nath tiwari & d.p.singh, jj] writ petition - maintainability - whether state co-operative milk producers federation ltd., is a state within meaning of article 12 ? - held, from perusal of relevant rules of byelaws, it is clear that state government has no role to play either in policy decision for raising funds for federation or its expenditure and thus have no financial control. further there is nothing to indicate that government has any functional and administrative control over federation. state government has no role to play in matter of appointment of any of officials of federation including managing director. federation is totally independent in all respects and in no way subservient to state government in conduct of its business. federation in no way can be termed as agency of state government and does not come within meaning of article 12 of constitution. writ petitions against federation is not maintainable. - 5. it is well settled that the date of birth recorded in the service record shall always be presumed to be correct and at the verge of the retirement, an employee cannot be allowed to challenge the date of birth recorded in the service record. before any such direction is issued or declaration made, the court or the tribunal must be fully satisfied that there has 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 court or the tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima jade evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed underserved benefit of extended service and thereby caused injustice to his immediate junior.orderm.y. eqbal, j.1. the petitioner is challenging the order as contained in the office memo dated 29.3.2005 issued by the authority of the respondent-central coalfields limited, whereby petitioner was informed that he shall be superannuated on 31.10.2005 on the basis of his date of birth entered in the service record i.e. 7.10.1945.2. the petitioner was initially appointed as constable in bengal engineering group, a unit of indian army. his date of birth alleged to have been recorded as 7.10.1947. on completion of 15 years, the petitioner was retired. it is alleged that in the discharge report/certificate, his date of birth was wrongly recorded as 7.10.1945 instead of 7.10.1947. in the year 1982, the petitioner was again appointed as security guard against the quota of ex-army-men in the respondent c.c.l. wherein his date of birth was recorded as 7.10.1945. the petitioner applied for necessary correction, but no communication was made to him about the correction made in the service book or not. however, all of a sudden, the impugned letter of superannuation was issued.3. the respondent-c.c.l. in their counter affidavit have categorically stated that the date of birth of the petitioner was recorded as in the company's records as 7.10.1945 and as a token of acceptance, the petitioner put his thumb impression and signatures in the said record. it is stated that in 'b' form also, the petitioner's date of birth was recorded as 7.10.1945 and as a token of acceptance the petitioner put his thumb impression and signature. in the year 1987, the petitioner was served with a copy of service excerpts wherein his date of birth was mentioned as 7.10.1945, but the petitioner did not raise any objection to his date of birth. it is only after receiving the letter of superannuation the petitioner has made out a case that his date of birth was incorrectly recorded in the service record.4. i have heard mr. rajiv ranjan, learned counsel appearing for the petitioner and mr. p.k. prasad, learned counsel appearing for the respondents.5. it is well settled that the date of birth recorded in the service record shall always be presumed to be correct and at the verge of the retirement, an employee cannot be allowed to challenge the date of birth recorded in the service record. as noticed above, in the service book as also in the 'b' form register, the date of birth of the petitioner has been recorded as 7.10.1945 and as a token of acceptance, he has put his thumb impression and signature. in 1987 a copy of the service excerpts was served to the petitioner, but no objection was raised at that time. in that view of the matter, the claim of the petitioner regarding correctness of his date of birth cannot be entertained at this stage. recently in the case of state of u.p. and anr. v. shiv narain upadhyaya' reported in : air2005sc4192 , the supreme court has laid down the principle of law in the matter of correction of date of birth. their lordships held :an application for correction of the date of birth should not be dealt with by the courts, tribunal or the high court keeping in view only the public servant concerned. 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 the promotion for ever. cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. this is certainly an important and relevant aspect, which cannot be lose 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 clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the court or the tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. before any such direction is issued or declaration made, the court or the tribunal must be fully satisfied that there has 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. if no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. the applicant has to produce the evidence in support of such claim, which may amount, to irrefutable proof relating to his date of birth. whenever, any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. in many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the even of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. by this process, it has come to the notice of this court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. the court or the tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima jade evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed underserved benefit of extended service and thereby caused injustice to his immediate junior.6. taking into consideration the entire facts of the case and the law laid down by the supreme court, i do not find any merit in this writ petition which is, accordingly, dismissed.

Judgment:
ORDER

M.Y. Eqbal, J.

1. The petitioner is challenging the order as contained in the Office Memo dated 29.3.2005 issued by the authority of the respondent-Central Coalfields Limited, whereby petitioner was informed that he shall be superannuated on 31.10.2005 on the basis of his date of birth entered in the service record i.e. 7.10.1945.

2. The petitioner was initially appointed as Constable in Bengal Engineering Group, a unit of Indian Army. His date of birth alleged to have been recorded as 7.10.1947. On completion of 15 years, the petitioner was retired. It is alleged that in the discharge report/certificate, his date of birth was wrongly recorded as 7.10.1945 instead of 7.10.1947. In the year 1982, the petitioner was again appointed as Security Guard against the quota of Ex-Army-men in the respondent C.C.L. wherein his date of birth was recorded as 7.10.1945. The petitioner applied for necessary correction, but no communication was made to him about the correction made in the service book or not. However, all of a sudden, the impugned letter of superannuation was issued.

3. The respondent-C.C.L. in their counter affidavit have categorically stated that the date of birth of the petitioner was recorded as in the Company's records as 7.10.1945 and as a token of acceptance, the petitioner put his thumb impression and signatures in the said record. It is stated that in 'B' form also, the petitioner's date of birth was recorded as 7.10.1945 and as a token of acceptance the petitioner put his thumb impression and signature. In the year 1987, the petitioner was served with a copy of service excerpts wherein his date of birth was mentioned as 7.10.1945, but the petitioner did not raise any objection to his date of birth. It is only after receiving the letter of superannuation the petitioner has made out a case that his date of birth was incorrectly recorded in the service record.

4. I have heard Mr. Rajiv Ranjan, learned Counsel appearing for the petitioner and Mr. P.K. Prasad, learned Counsel appearing for the respondents.

5. It is well settled that the date of birth recorded in the service record shall always be presumed to be correct and at the verge of the retirement, an employee cannot be allowed to challenge the date of birth recorded in the service record. As noticed above, in the service book as also in the 'B' form register, the date of birth of the petitioner has been recorded as 7.10.1945 and as a token of acceptance, he has put his thumb impression and signature. In 1987 a copy of the service excerpts was served to the petitioner, but no objection was raised at that time. In that view of the matter, the claim of the petitioner regarding correctness of his date of birth cannot be entertained at this stage. Recently in the case of State of U.P. and Anr. v. Shiv Narain Upadhyaya' reported in : AIR2005SC4192 , the Supreme Court has laid down the principle of law in the matter of correction of date of birth. Their Lordships held :

An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. 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 the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lose 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 clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the Court or the Tribunal must be fully satisfied that there has 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. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount, to irrefutable proof relating to his date of birth. Whenever, any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the even of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima jade evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed underserved benefit of extended service and thereby caused injustice to his immediate junior.

6. Taking into consideration the entire facts of the case and the law laid down by the Supreme Court, I do not find any merit in this writ petition which is, accordingly, dismissed.