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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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