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Thursday, September 26, 2013

changing his date of birth = whereby the Division Bench has overturned the judgment and order dated 14.6.2004 passed by the learned single Judge in W.P. No. 5700(W) of 2001 whereunder he had given the stamp of approval to decision dated 26.2.2004 by the General Manager of the appellant-company, who had rejected the objection of the respondent for changing his date of birth as recorded in his service excerpts and Form ‘B’ Register, the appellants have preferred their appeal by special leave.- “Implementation Instruction No. 76” has tried to support the order passed by the Division Bench. Para (A)(i) deals with Matriculation certificate. It reads as follows: - “(i) Matriculates. In the case of appointees who have passed Matriculation or equivalent examinations, the date of birth recorded in the said certificate shall be treated as correct date of birth and the same will not be altered under any circumstances.” Para (A)(v) deals with revision of determination of date of birth in respect of existing employees. Paras (A)(v)(i)(a) and (b) are as follows: - “v) Review determination of date of birth in respect of existing employees. i) (a) In the case of the existing employees Matriculation Certificate or Higher Secondary Certificate issued by the recognized Universities or Board or Middle pass Certificate issued by the Board of Education and/or Department of Public Instruction and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Boards/Institutions prior to the date of employment. (b) Similarly, Mining Sirdarhip, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic. Provided that where both documents mentioned in (i)(a) and (i)(b) above are available, the date of birth recorded in (i)(a) will be treated as authentic.”- It is a well-known principle that one of the ends of equity is to promote honesty and fair play. If a person has taken an undue advantage the court in its extraordinary jurisdiction would be within its domain to deny the discretionary relief. In fact, Mr. Singh, learned senior counsel for the appellants, has basically rested his submission on this axis. In our considered opinion, the Division Bench has erred in extending the benefit to the respondent who had taken undue advantage by not producing the Matriculation Certificate solely on the motive to get an entry into service. In view of our aforesaid premised reasons we are unable to concur with the view taken by the High Court in F.M.A. No. 169 of 2006 and, accordingly, the Judgment dated 17.8.2007 passed by the Division Bench is set aside. 19. Resultantly, the appeal is allowed with no order as to costs.

        published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40832
                                                         Reportable
                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                       CIVIL APPEAL NO. 8634  OF 2013
                (Arising out of S.L.P. (C) No. 22813 of 2007)


      Eastern Coalfields Ltd. and others                … Appellants


                                   Versus


      Bajrangi Rabidas                             …Respondent










                               J U D G M E N T




      Dipak Misra, J.




            Leave granted.

      2.    Calling in question the legal sustainability of the judgment and
      order dated 17.8.2007 passed  by  the  High  Court  of  Judicature  at
      Calcutta in F.M.A. No. 169 of 2006  whereby  the  Division  Bench  has
      overturned the judgment  and  order  dated  14.6.2004  passed  by  the
      learned single Judge in W.P. No. 5700(W) of  2001  whereunder  he  had
      given the stamp of approval to decision dated 26.2.2004 by the General
      Manager of the appellant-company, who had rejected  the  objection  of
      the respondent for changing his date  of  birth  as  recorded  in  his
      service excerpts and Form ‘B’ Register, the appellants have  preferred
      their appeal by special leave.

      3.    The facts which are requisite  to  be  exposited  are  that  the
      respondent had joined at Chinakuri Mine No. 111 on 9.1.1970 as  Mining
      Sirdar and for being selected on the said post he had appeared in  Gas
      Testing Examination held  on  15.5.1969.   He  had  also  appeared  in
      Sirdarship examination held on 2.7.1969  and  Overmanship  certificate
      examination on 3.7.1973.  At every stage, he had mentioned his date of
      birth as 2.4.1946.  On the  basis  of  the  declaration  made  by  the
      respondent his date  of  birth  was  clearly  reflected  in  Form  ‘B’
      Register and service book and he had signed both the documents.  Be it
      noted, the appointment of the respondent as Mining  Sirdar  was  in  a
      private colliery.  After enactment of   Coal  Mines  (Nationalization)
      Act, 1973 all private  collieries  were  taken  over  by  the  Central
      Government  and  handed  over  to  the  Coal  India   Ltd.   and   its
      subsidiaries.  It is not disputed that the respondent was absorbed  in
      the Eastern Coalfields Ltd., a subsidiary of Coal India Ltd.   It  may
      be noted here that as  disputes  with  regard  to  date  of  birth  of
      employees had arisen, the  “Implementation  Instruction  No.  76”  was
      issued  in   the   year   1987   laying   down   the   procedure   for
      determination/verification of age  of  employees.   On  15.5.1987  the
      respondent filed an objection stating that there has been an erroneous
      entry as regards his date of birth because his correct date  of  birth
      is 2.4.1948 and not 2.4.1946 as recorded in the service  register  and
      Form ‘B’ Register.  After filing the  said  objection  the  respondent
      chose to maintain silence and, eventually, approached the  High  Court
      in Writ Petition No. 6156 (W) of 2001 stating, inter  alia,  that  his
      date of birth is 2.4.1948 as per the Matriculation  Certificate.   The
      High Court vide order dated 30.7.2003 directed the respondent  therein
      to take a decision on the objections filed by  the  workman  regarding
      his date of birth in his service excerpts after offering a  reasonable
      opportunity of being heard to him and  further  keeping  in  view  the
      provisions contained in “Implementation Instruction No. 76”.

      4.    In pursuance of the order passed by the High Court  the  General
      Manager, Sodepur Area, conducted an enquiry give  due  regard  to  the
      principles  of  natural  justice  and  the  guidelines  enumerated  in
      “Implementation Instruction No. 76” and rejected his claim vide  order
      dated 26.2.2004.

      5.     Being dissatisfied the respondent preferred W.P.(W) No. 5700 of
      2001.  The learned single Judge took note of series of facts,  namely,
      that the respondent was signatory to the documents, namely,  the  Form
      ‘B’ Register and the service book; that his date of birth as  2.4.1946
      was mentioned  in  the  two  certificates,  namely,  Gas  Testing  and
      Overmanship Certificate and Sirdarship Certificate;  the  Gas  Testing
      examination was held on 15.5.1969 and as per Regulation 14(1)  of  the
      Coal Mines Regulations, 1957 (for short “the Regulations”) application
      for the said examination was required to be submitted  not  less  than
      sixty days prior to the date fixed for  the  examination  and  as  per
      Regulation 15(1) of the Regulations no person could have been admitted
      as a candidate at any examination held by  the  Board  unless  he  had
      completed 21 years of  age;  that  had  the  respondent  produced  his
      Matriculation  Certificate  which  reflected  his  date  of  birth  as
      2.4.1948, he would not have been in a position to appear  in  the  Gas
      Testing examination as by the time the form was  filled  up  he  would
      have been less than 21 years of  age;  that   he  had  not   correctly
      stated his age was only to avail a benefit at that  juncture  is  writ
      large; that he had half-heartedly raised an objection in the year 1987
      pertaining to the service record though it was  within  his  knowledge
      that as per  the  Matriculation  Certificate  his  date  of  birth  is
      2.4.1948; that he approached the court quite  belatedly  in  2001  for
      redressal of his grievances; and that he cannot be allowed to take the
      benefit of securing  an appointment by stating  a  different  date  of
      birth  and  thereafter  endeavour  to  have   further   advantage   of
      continuance  of  service  on  the  basis  of  age  mentioned  in   the
      Matriculation Certificate.  Being of  this  view  the  learned  single
      Judge dismissed the writ petition.

      6.    Grieved by the order passed by the  writ  court  the  respondent
      preferred an appeal and the Division Bench took note of the fact  that
      the Identity Card issued by  the  private  colliery  at  the  time  of
      initial appointment reflected his date of birth  to  be  as  2.4.1948;
      that the respondent-authorities  were not in a position to explain how
      and under what circumstances the date of  birth  of  the  workman  was
      subsequently changed in the service book; that for  appearing  in  the
      Sirdarpur Certificate examination under the Regulations the prescribed
      minimum age of a candidate is 20 years and  not  21  years;  that  the
      authorities have not taken the  decision  correctly  in  view  of  the
      “Implementation Instruction No. 76”; and that when the initial date of
      birth in the Identity Card mentioned the date of birth to be 2.4.1948,
      the same could not have been changed by the ECL authorities.  Being of
      this view, the  Division  Bench  directed  for  rectification  of  the
      records  and  grant  of  admissible  arrears  of  salary   and   other
      consequential service benefits.

      7.    We have heard Mr. Mahabir Singh, learned senior counsel for  the
      appellants and Mr. Bijan Ghose, learned counsel for the respondent.

      8.    At the outset, it is essential to be  stated  that  the  learned
      single Judge had dismissed the writ petition in a summary  manner  and
      the Division Bench has taken note  of  certain  facts  which  are  not
      correct and also relied upon the  amended  regulation.   As  has  been
      stated earlier, on the basis of the order passed by the writ court  on
      30.7.2003 the General Manager conducted an enquiry.   The  facts  that
      have been enumerated in the enquiry proceeding are absolutely relevant
      for apposite delineation  of  the  lis  in  question.   The  concerned
      authority had issued notice to the respondent who appeared before  him
      on 6.2.2004.  He had clearly stated before him that he had joined  the
      service on 9.1.1970 as Mining Sirdar  and  had  appeared  in  the  Gas
      Testing Examination  held  on  15.5.1969,  Sirdarship  Examination  on
      2.7.1969 and Overmanship Certificate Examination on 3.7.1973.  He  had
      obtained all the three statutory certificates where his date of  birth
      was recorded as 2.4.1946.  It is worthy  to  note  that  the  Division
      Bench has referred to Regulation 15(2) of the Regulations  to  express
      the view that the appellant therein could not have been admitted as  a
      candidate to the said Examination in the year 1969 without  submitting
      the passed certificate  of  the  secondary  school  examination  of  a
      recognized Board or  its  equivalent.   The  said  assumption  by  the
      Division Bench is incorrect as it has not at all  taken  note  of  the
      facts that have come out in  the  enquiry  conducted  by  the  General
      Manager. The enquiry report clearly reveals that the respondent  could
      not produce the Madhyamik certificate at the time of  his  appointment
      as he had not received the same at that time and the said  certificate
      was received by him sometime in the year 1970.  He  had  categorically
      stated that he never produced the certificate of Madhyamik examination
      before the Management but verbally told the fact of his passing of the
      said examination to the then Welfare Officer.  It was also  told  that
      he had not mentioned  passing  of  the  examination  at  the  time  of
      submission of application to appear before the statutory  examination.
      This being the factual position, the finding  of  the  Division  Bench
      that he had produced the Madhyamik School certificate at the  time  of
      appearance in examination is not correct.

      9.    It is perceptible  that  the  Division  Bench  has  referred  to
      Regulation 15(1)(a) of the Regulations to come to the conclusion  that
      the respondent had not availed any benefit as the  prescribed  minimum
      age of a candidate is twenty years.  In this context, we may refer  to
      Regulation 15(1)(a) and (b) which read as follows:-


           15. Age and general qualifications of candidates –  (1)  (a)  No
           person shall be admitted as a candidate at any examination  held
           by the Board unless he is 20 years of age.

           (b)   No  person  shall  be  admitted  as  a  candidate  at  any
           examination for a Manager’s, Surveyor’s, Overman’s, Sirdar’s, or
           Shotfirer’s Certificate  unless  he  holds  a  valid  first  aid
           certificate  of  the  standard  of  the   St.   John   Ambulance
           Association (India):

                 Provided that if any candidate satisfies the Board that he
           has  not  sufficient  opportunity  to  obtain   such   first-aid
           certificate, the Board may, by order in writing admit him to the
           examination on such conditions, if  any  as  it  thinks  fit  to
           impose :

      10.   It is imperative to note that “20 years  of  age”  occurring  in
      Regulation 15(1)(a) was substituted  by  Notification  No.  G.S.R.  32
      dated 16.12.1978.  Regulation 15(1)(a) prior to 1978 read as  follows:
      -

           “15.  Age and general qualifications of candidates – (1) (a)  No
           person shall be admitted as a candidate at any examination  held
           by the Board unless he is 21 years of age.”

      Thus, in 1969 the above quoted regulation was in force.

      11.   At this juncture, we may fruitfully refer to  Regulation  14  of
      the Regulations.  It reads as follows: -

           “14.   Submission  of  application  –  (1)  Application  for  an
           examination conducted by the Board shall be made  to  the  Board
           not  less  than  60  days  prior  to  the  date  fixed  for  the
           examination and on a form supplied for the purpose.

           (2)   Notice regarding the date and place of examination for the
           Manager’s,  Surveyor’s  and  Overman’s  certificate   shall   be
           published under the order of the Board in  such  periodicals  as
           the Board may direct, not less than 60 days prior  to  the  date
           fixed by the Board for receiving applications.”

      12.   From the conjoint reading of Regulations 14(1) and  15(1)(a)  it
      is quite clear that an application has to be submitted  to  the  Board
      not less than 60 days prior to the date fixed  for  examination.   The
      respondent had passed the  Matriculation  Certificate  examination  in
      December, 1963.  It is quite unusual that he could not  have  obtained
      the certificate till 1969.  Be that as it may, if the date  of  birth,
      as reflected in the certificate,  is  taken  into  account,  then  the
      respondent would have been eligible  to  submit  the  application  for
      examination.  The construction that can be placed on  reading  of  the
      clauses can only be that he has to be 21 years of age by the  time  he
      submitted his application.  To avoid his disqualification to appear in
      the examination he took the plea as has come out in the  enquiry  that
      he had passed the examination and his date of birth was 2.4.1948.

      13.   Learned counsel for the respondent has invited our attention  to
      the
“Implementation Instruction No. 76” has tried to support the order
      passed by the Division Bench.  Para (A)(i)  deals  with  Matriculation
      certificate.  It reads as follows: -

           “(i)  Matriculates.

                 In the case of appointees who have passed Matriculation or
                 equivalent examinations, the date of birth recorded in  the
                 said certificate shall be treated as correct date of  birth
                 and the same will not be altered under any circumstances.”

      14.   Para (A)(v) deals with revision  of  determination  of  date  of
      birth in respect of existing employees.  Paras  (A)(v)(i)(a)  and  (b)
      are as follows: -

           “v)   Review determination  of  date  of  birth  in  respect  of
           existing employees.

                    i)  (a)  In  the  case   of   the   existing   employees
                       Matriculation   Certificate   or   Higher   Secondary
                       Certificate issued by the recognized Universities  or
                       Board or Middle pass Certificate issued by the  Board
                       of Education and/or Department of Public  Instruction
                       and admit cards issued by the aforesaid Bodies should
                       be treated as correct provided they  were  issued  by
                       the said  Universities/Boards/Institutions  prior  to
                       the date of employment.

                 (b) Similarly, Mining Sirdarhip, Winding Engine or  similar
                 other statutory  certificates  where  the  Manager  had  to
                 certify the date of birth will be treated as authentic.

                 Provided that where both documents mentioned in (i)(a)  and
                 (i)(b) above are available, the date of birth  recorded  in
                 (i)(a) will be treated as authentic.”

      15.   On an apposite reading of the instructions there can be no  iota
      of doubt that the date of birth mentioned in Matriculation  or  Higher
      Secondary certificate  has  to  be  accepted  as  authentic.   But,  a
      pregnant one, as has been indicated hereinbefore,  the  case  at  hand
      depicts a different picture.   The  respondent  did  not  produce  the
      Matriculate Certificate, though he had passed  the  said  examination.
      It is because, we are inclined to think,  had  he  produced  the  said
      certificate,  he  could  not  have  undertaken  the  examination   and
      consequently could not have been appointed.  To secure an appointment,
      as has been found in the enquiry, he made a statement that he had  not
      obtained the certificate though he had passed the examination and  the
      same was accepted by the Welfare Officer of the then private company.

      16.   The question that arises for consideration is that once  he  had
      availed the benefit by not  stating  the  correct  fact,
whether  the
      equitable jurisdiction under Article 226 of the Constitution of  India
      should be extended to him.  The Division Bench has recorded a  finding
      the respondent could not have  been  allowed  to  participate  in  the
      examination without producing the Matriculation certificate.
The said
      finding is based on an assumption and  has  been  arrived  at  totally
      being oblivious of the enquiry report which records the  statement  of
      the respondent.  In  this  context,  we  may  profitably  reproduce  a
      passage from Union of India v. C. Rama Swamy and others[1]: -

           “In matters relating to appointment to service  various  factors
           are taken into consideration before making  a  selection  or  an
           appointment.  One of the relevant circumstances is  the  age  of
           the person who is  sought  to  be  appointed.   It  may  not  be
           possible to conclusively prove that an advantage had been gained
           by representing a date of birth which  is  different  than  that
           which is later sought to be incorporated.  But it  will  not  be
           unreasonable to presume that when  a  candidate,  at  the  first
           instance, communicates a  particular  date  of  birth  there  is
           obviously his intention that his age calculated on the basis  of
           that date of birth should be taken  into  consideration  by  the
           appointing  authority  for  adjudging  his  suitability  for   a
           responsible office.  In  fact,  where  maturity  is  a  relevant
           factor to access suitability,  an  older  person  is  ordinarily
           considered to be more mature and, therefore, more suitable.   In
           such a case, it cannot be said that advantage is not obtained by
           a person because of an earlier date of birth, if he subsequently
           claims to be younger in age, after taking  that  advantage.   In
           such a situation, it would be against public  policy  to  permit
           such a change to enable longer benefit to the person concerned.”

                                                       [Underlining is ours]



      17.   The controversy can be viewed from another  angle.   Thereafter,
      the learned Judges opined  that  there  is  no  justification  in  the
      proposition that principle of estoppel  would  not  apply  in  such  a
      situation.  As is manifest, in the case at hand the respondent  stated
      this on the higher side to  gain  the  advantage  of  eligibility  and
      hence, we have no trace of doubt  that  principle  of  estoppel  would
      apply on all fours.  It is well settled in law  that  jurisdiction  of
      the High Court under Article 226 of the Constitution is equitable  and
      discretionary.  The  power  of  the  High  Court  is  required  to  be
      exercised “to reach injustice wherever it is found”.  
In Sangram Singh
      v. Election Commissioner, Kotah and another[2],
it has  been  observed
      that jurisdiction under Article 226 of the Constitution is not  to  be
      exercised whenever there is an error of law.  
The  powers  are  purely
      discretionary and though no limits can be placed upon that discretion,
      it must be exercised along recognized lines and  not  arbitrarily  and
      one of the limitations imposed by the courts  on  themselves  is  that
      they will not exercise jurisdiction in  such  class  of  cases  unless
      substantial injustice has ensued or is likely to ensue.  
That  apart,
      the High Court while exercising the jurisdiction under Article 226  of
      the Constitution can always take cognizance of the  entire  facts  and
      circumstances and pass appropriate directions to balance the  justice.
      The jurisdiction being extraordinary it is required  to  be  exercised
      keeping in  mind  the  principles  of  equity.   
It  is  a  well-known
      principle that one of the ends of equity is  to  promote  honesty  and
      fair play.  
If a person has taken an undue advantage the court in  its
      extraordinary jurisdiction would be within  its  domain  to  deny  the
      discretionary relief.  
In fact, Mr. Singh, learned senior counsel  for
      the appellants, has basically rested his submission on this axis.   In
      our considered opinion, the Division Bench has erred in extending  the
      benefit to the  respondent  who  had  taken  undue  advantage  by  not
      producing the Matriculation Certificate solely on the motive to get an
      entry into service.  
It is apt to note here that this Court  in  G.M.,
      Bharat Coking  Coal  Ltd.,  West  Bengal  v.  Shib  Kumar  Dushad  and
      others[3] has ruled that the decision on the issue of date of birth of
      an employee is not  only  important  for  the  employee  but  for  the
      employer also.
      18.   In view of our aforesaid  premised  reasons  we  are  unable  to
      concur with the view taken by the High Court in F.M.A. No. 169 of 2006
      and, accordingly, the Judgment dated 17.8.2007 passed by the  Division
      Bench is set aside.
      19.   Resultantly, the appeal is allowed with no order as to costs.




                                                                ……………………….J.
                                                              [Anil R. Dave]






                                                                ……………………….J.
                                                               [Dipak Misra]


      New Delhi;
      September 23, 2013.
-----------------------
[1]

      [2] (1997) 4 SCC 647


[3]

      [4] (1955) 2 SCR 1


[5]

      [6] (2008) 8 SCC 696




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