Full Judgment Text
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PETITIONER:
BURN STANDARD CO. LTD. & ORS.
Vs.
RESPONDENT:
SHRI DINABANDHU MAJUMDAR & ANR.
DATE OF JUDGMENT21/04/1995
BENCH:
VENKATACHALA N. (J)
BENCH:
VENKATACHALA N. (J)
AHMADI A.M. (CJ)
CITATION:
1995 AIR 1499 1995 SCC (4) 172
JT 1995 (4) 23 1995 SCALE (3)37
ACT:
HEADNOTE:
JUDGMENT:
VENKATACHALA, J.
1. Special leave sought for, is granted.
2. This appeal by special leave arises from the judgment
dated 14.1.1993 of a Division Bench of the High Court of
Calcutta dismissing Appeal No. 149/91 directed against the
order dated 18.4.1991 of a learned Single Judge of the same
Court made in Matter No. 2317/90, requiring respondent-1
therein -- appellant-1 herein, by issuance of a writ in the
nature of mandamus, to correct the date of birth of peti-
tioner-1 therein -- respondent-1 heron, in his ’Service and
Leave Record’ and allow him to continue in its service
beyond his superannuation age commutable according to his
date of birth entered in that ’Service and Leave Record’ at
the time of his appointment. A question of general
importance which is raised for our decision in this appeal
is: When the High Court’s extra- ordinary writ jurisdiction
under Article 226 of the Constitution is sought to’ be
availed of by an employee of the Government or its
instrumentality, to prevent either of them, as the case may
be, from retiring him on superannuation according to the
date of his birth declared at the time of his appointment
and entered in his ’Service and Leave Record’, by its
acceptance by the Government or its instrumentality, as
correct, can such jurisdiction be exercised in favour of
such employee, as a matter of course?
3. In the year 1981, when appellant-1, the Burn Standard
Company Limited was formed by the Government of India, it
took over the Indian Standard Wagon Company Limited along
with its employees, subject to their existing service
conditions Consequently, respon-
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dent-1, who had been appointed by Indian Standard Wagon
Company Ltd. as its employee long ago on 25.4.1953 became
the employee of appellant- 1. ’Service and Leave Record’ of
respondents with the Indian Standard Wagon Company Ltd.,
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which had been opened at the time of his appointment, became
his ’Service and Leave Record’ with the appellant. That
’Service and Leave Record’ of respondent1, where his age had
been entered on the basis of his declaration, voluntarily
made at the time of his appointment also contained his
authentication made therefore by affixture of his left thumb
mark. That declared age, which indicated the date of birth
of respondent- 1 as 25.4.193 1, was to be the basis for his
retirement from service, on attaining the age of superan-
nuation at 60 years. However, respondent-1 who had
continued in employment with the appellant for over 36
years, without any demur as to his age entered in his
’Service and Leave Record’, made an application to the
appellant on 1.2.1989, at a time close to the date of his
retirement, seeking correction of his date of birth as
7.7.1934 in his ’Service and Leave Record’. But, appellant-
1, which considered that application, by its letter dated
10.3.1989, informed respondent 1 that his age recorded in
his ’Service and Leave Record’ as per his own declaration
and duly authenticated by him at the time of his
appointment, since constituted the sole evidence of his age
in all matters relating to his service, according to its
Standing Orders, the same could not be corrected as sought
for. But, respondent-1 again wrote a letter dated 26.7.1989
to appellant-1, stating that he had to seek correction of
his date of birth in his ’Service and Leave Record’ since it
did not reflect his date of birth as found in his Admit Card
of Matriculation Examination issued by the Calcutta
University and was also not in consonance with the
declaration of his age made at the time of his appointment
before his erstwhile employer. When the claim in that
letter was not acceptable to appellant-1, respondent-1 was
duly intimated of the same by means of a Memo dated
8.9.1989. Further, on 5.6.1990 the appellant also issued to
respondent-1 the Superannuation Notice which read thus:
"You are well aware that your retirement date
is 24.4.91 (a.n.) as recorded. We would like
to take this opportunity to communicate that
you will be released from the services of Bum
Standard Co. Ltd. w.e.f. 25.4.91 (fn.). By
this time, we may request you to vacate the
quarter, if allotted, for enabling us to
settle your dues towards final settlement."
4. Respondent-1, who did not accept the said
Superannuation Notice, in its stride, invoked the writ
jurisdiction of the Calcutta High Court by filing a writ
application under Article 226 of the Constitution, being
Matter No.2317/90 against appellant-1, by praying therein
for issue of a writ of mandamus to appellant-1 not to
superannuate and retire him from service till he attained
the superannuation age on the basis of his date of birth
found in his Matriculation Admit Card i.e. 7.7.1934.
Although the grant of that writ application of respondent-1
was opposed by appellant1, a learned Single Judge of the
High Court who heard that application, by his Order dated
18.4.1991 allowed it by issuing a writ in the nature of
mandamus to appellant-1, as had been sought for therein.
When that order of the learned Single Judge was impugned in
appeal No. 149/ 91, the Division Bench of the High Court
which heard that appeal, by its order dated
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14.1.1993 dismissed the same, affirming the order of the
learned single Judge.
5. Appellant- 1, who felt aggrieved by the said order of
dismissal of appeal made by the Division Bench of the High
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Court, has filed the present appeal by special leave, in
which the question indicated at the outset, is raised for
our consideration and decision.
6. As is pointed out by us, while narrating the facts of
the case, respondent-1 made an application to appellant-1,
seeking correction of his date of birth, which was entered
in his ’Service and Leave Record’, after he had completed,
as many as 36 years of his service and when his retirement
was due. When appellant-1 received that application, it
issued a letter to respondent-1 making it clear that when
his age had been recorded in his ’Service and Leave Record’
on the basis of his own declaration, which had been duly
authenticated by him at the time of his appointment,
question of correcting such date of birth did not arise.
Later, when respondent-1, wrote another letter to appellant-
1 asserting that at the time of his initial appointment, he
had declared his date of birth to be 7.7.1934 and that date
of birth was duly recorded by the then management and that
very date of birth was mentioned in his Admit Card to
Matriculation examination, that letter also did not find
favour with appellant-1 Hence, appellant-1 issued
Superannuation Notice dated 5.6.1990 to respondent-1
indicating that he will be superannuated w.e.f. 25.4.1991and
retired on the forenoon of that day on the basis of his
date of birth entered in his ’Service and Leave Record’.
However, that Superannuation Notice was sought to be got
over by respondent-1 by filing a writ application in the
High Court. What was stated in his writ application as
regards the declaration made by him before the predecessor
of the appellant, was not that at the time of his
appointment he had made a declaration and the same was duly
recorded by the management, as had been stated and asserted
earlier before appellant-1. Instead, it had been stated in
the writ application that after his appointment, he was
asked to file a declaration form and a nomination form and
they having been duly filled up, were deposited with the
authority concerned and in that declaration form he had
given his date of birth as 7.7.1934. Further, it had been
stated that when he came to know in the year 1989 that his
date of birth was wrongly recorded by appellant-1, he made a
representation to the appellant for correction but it was of
no avail. However, when he was issued the Superannuation
Notice he had challenged it before the High Court. What all
had been stated with regard to the declaration of the date
of birth by respondent-1 in his writ application was totally
denied on behalf of the appellant by filing an affidavit in
opposition. It was stated in that affidavit that it was not
open to respondent- 1 to dispute the correctness of his date
of birth entered in his ’Service and Leave Record’ when he
had on his own, made a declaration of that date of his birth
at the time of his appointment and when that declaration was
duly authenticated by him by affixture of his left thumb
impression. The learned Single Judge of the High Court who
heard the writ application did not go into the question
whether the date of birth declared by respondent-1 as cor-
rect and accepted by appellant-1 and acted upon by it,
warranted correction as sought for by respondent-1, merely
because a dif-
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ferent date of birth of respondent-1 was found in his
supposed Admit Card to Matriculation examination. All that
is found in the order of the learned Single Judge is, that
the High Court had in its earlier Division Bench decision
held that the date of birth of a Government servant in his
service record requires correction according to the date of
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birth found in its Matriculation certificate and, therefore,
the date of birth of respondent-1 in his ’Service and Leave
Record’ should be corrected on the basis of the date of
birth found in the Matriculation certificate even ignoring
the fact that what had been produced by respondent-1 in the
court was not a Matriculation certificate, but a photocopy
of a duplicate Admit Card of Matriculation examination. It
is the said view of the matter which made the learned single
Judge, as seen from his order, to direct appellant-1 to
correct the date of birth of respondent-1 in his ’Service
and Leave Record’ and allow him to continue in service of
appellant-1 on the basis of such corrected date of birth, by
issuing a writ in the nature of mandamus. When the order of
the learned single Judge was taken up in appeal before the
Division Bench of the High Court, the Division Bench did not
feel inclined to interfere with the order of the learned
single Judge and dismissed the appeal.
7. Having gone through the order of the learned single
Judge, we arc unable to think that the discretionary
extraordinary jurisdiction vested in the High Court under
Article 226 of the Constitution has been property exercised
by him in issuing a writ in the nature of mandamus directing
appellant-1 to correct the date of birth of respondent-1 in
his ’Service and Leave Record’ and allow him to continue in
service beyond the date when he should have retired having
regard to his age as entered in his ’Service and Leave
Record’. The Division Bench of the High Court also, we are
inclined to think, has failed to see that the learned single
Judge had not properly exercised his writ jurisdiction in
granting relief to respondent-1, if regard is had to the
nature of relief which he had sought for.
8. The importance of the date of birth of an employee
given to his employer and accepted as correct by the latter
and entered in the ’Service and Leave Record’ of the former,
cannot be underestimated. That is so for the reason that
the employee’s service with the employer has to be neces-
sarily regulated according to such date of birth.
Therefore, when a person is taken into service on
appointment, he would be required by his employer to declare
his correct date of birth and support the same by production
of appropriate certificates or documents, if any. Even
where the persons so appointed fail to produce the cer-
tificates or documents in proof of their date of birth, they
would be required to affix their thumb impression or
signature in authentication of their declared ages or dates
of birth. When on the basis of such declaration made or
certificates produced by the employee an entry is made of
his date of birth in his ’Service and Leave Record’ to be
opened, that will amount to acceptance by the employer of
such date of birth, as correct, be it the Government or its
instrumentality. When such entry is made in Service Record
of the employer the only way in which the employer, Gov-
ernment or its instrumentality can get over such entry,
because of subsequent disclosures as to its incorrectness,
is to hold inquiry into the matter by affording an op-
portunity to the employee concerned to
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have his say in the matter. But when once the employer, the
Government or the instrumentality concerned accepts the date
of birth of an employee as declared by him and supported by
certificates or documents produced by him and allows him to
enter into its service and continue on such basis, is it
open to such employee to claim that the date of birth
declared and authenticated by him was incorrect and, there-
fore, the employer, be it the Government or its
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instrumentality, should correct his date of birth in his
’Service and Leave Record’ according to what he claims to be
true and if the Government or its instrumentality concerned
refuses to accept such claim, can the High Court in exercise
of its discretionary extraordinary writ jurisdiction
entertain a writ application, to consider the merit of such
claim?
9. No doubt, there may be special law or rules which
permit a person appointed in the service of the Government
or its instrumentality to seek correction of his date of
birth which might have been accepted by the Government or
its instrumentality, as the case may be, as correct at the
time of his appointment. But, the special law or rules
governing the service of an employee if forbids correction
of such date of birth of employee after its acceptance by
the Government or its instrumentality, its subsequent
correction at the instance of such employee, becomes imper-
missible. However, in the absence of such special law or
rules it may be open to the employee concerned to seek
correction from the Government or its instrumentality, of
the date of birth declared by him and accepted by the
Government. Even where such correction is sought, the Gov-
ernment or its instrumentality, as the case may be, would be
entitled to refuse to correct the date of birth of its
employee if the facts in the given case do not warrant such
correction. If that be the legal position, can it be said
that it is open to a High Court in exercise of its extra-
ordinary writ jurisdiction to entertain a writ application
of an employee of the Government or its instrumentality, as
the case may be, for correction of his date of birth entered
in his ’Service and Leave Record’ at the time of his
appointment and direct the Government or its instrumentality
concerned to correct such date of his birth in his ’Service
and Leave Record’ and continue him in service beyond the
date of his normal retirement, is the question. It is true
that the High Court in exercise of its discretionary
jurisdiction under Article 226 of the Constitution can even
enter upon disputed questions of fact, if the case in which
the extraordinary jurisdiction is invoked warrants adoption
of such inevitable course and decide upon the same for
giving relief to the concerned party. But, the question is
that if an employee of the Government or its
instrumentality, who is at the fag end of his service and
due for retirement from his service shortly, according to
his date of birth found in his ’Service and Leave Record’
files a writ application before the High Court and invokes
its writ jurisdiction for correction of such date of birth
with a view to continue in service beyond the normal period
of his retirement, will it be appropriate for the High Court
to entertain such application to enquire into disputed facts
pertaining to his date of birth for correcting it and extend
his period of service?
10. Entertainment by High Courts of writ applications made
by employees of the Government or its instrumentalities at
the fag end of their services and when they
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are due for retirement from their services, in our view, is
unwarranted. It would be so for the reason that no employee
can claim a right to correction of birth date and
entertainment of such writ applications for correction of
dates of birth of some employees of Government or its
instrumentalities will mar the chances of promotion of his
juniors and prove to be an undue encouragement to the other
employees to make similar applications at the fag end of
their service careers with the sole object of preventing
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their retirements when due. Extra-ordinary 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 its instrumentalities to
continue in service beyond the period of their entitlement
according to dates of birth accepted by their employers,
placing reliance on the so called newly found material. The
fact that an employee of Government or its instrumentality
who will be in service for over decades, with no objection
whatsoever raised as to his date of birth accepted by the
employer as correct, when all of a sudden comes forward
towards the fag end of his service career with a writ
application before the High Court seeking correction of his
date of birth in his Service Record, the very conduct of
non-raising of an objection in the matter by the employee,
in our view, should be a sufficient reason for the High
Court, not to entertain such applications on grounds of
acquiescence, undue delay and laches. Moreover,
discretionary jurisdiction of the High Court can never be
said to have been reasonably and judicially exercised if it
entertains such writ application, for no employee, who had
grievance as to his date of birth in his ‘Service and Leave
Record’ could have genuinely waited till the fag end of his
service career to get it corrected by availing of the
extraordinary jurisdiction of a High Court. Therefore, we
have no hesitation, in holding, that ordinarily High Courts
should not, in exercise of its discretionary writ
jurisdiction, entertain a writ application/petition filed by
an employee of the Government or its instrumentality,
towards the fag end-of his service, seeking correction of
his date of birth entered in his ‘Service and Leave Record’
or Service Register with the avowed object of continuing in
service beyond the normal period of his retirement.
11. Prudence on the part of every High Court should,
however, in our considered view, prevent it from granting
interim relief in a petition for correction of the date of
birth filed under Article 226 of the Constitution by an
employee in relation to his employment, because of the well
settled legal position governing such correction of date of
birth, which precisely stated, is the following:
When a person seeks employment, he impliedly agrees with the
terms and conditions on which employment is offered. For
every post in the service of the Government or any other
instrumentality there is the minimum age of entry prescribed
depending on the functional requirements for the post. In
order to verify that the person concerned is not below that
prescribed age he is required to disclose his date of birth.
The date of birth is verified and if found to be correct is
entered in the service record. It is ordinarily presumed
that the birth date disclosed by the incumbent is accurate.
The situation then is that the incumbent gives the date of
birth and the employer accepts it as true and accurate
before it is entered in the service
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record. This entry in the service record made on the basis
of the employee’s statement cannot be changed unilaterally
at the sweet will of the employee except in the manner
permitted by service conditions or the relevant rules. Here
again considerations for a change in the date of birth may
be diverse and the employer would be entitled to view it not
merely from the angle of there being a genuine mistake but
also from the point of its impact on the service in the
establishment. It is common knowledge that every
establishment has its own set of service conditions governed
by rules. It is equally known that practically every
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establishment prescribes a minimum age for entry into
service at different levels in the establishment. The first
thing to consider is whether on the date of entry into
service would the employee have been eligible for entry into
service on the revised date of birth. Secondly, would
revision of his date of birth after a long lapse of time
upset the promotional chances of others in the establishment
who may have joined on the basis that the incumbent would
retire on a given date opening up promotional avenues for
others. If that be so and if permitting a change in the
date of birth is likely to cause frustration down the line
resulting in causing an adverse effect on efficiency in
functioning, the employer may refuse to permit correction in
the date at a belated stage. It must be remembered that
such sudden and belated change may upset the legitimate
expectation of others who may have joined service hoping
that on the retirement of the senior on the due date there
would be an upward movement in the hierarchy. In any case
in such cases Interim injunction for continuance in service
should not be granted as it visits the juniors with
irreparable injury, in that, they would be denied promotions
a damage which cannot be repaired if the claim is ultimately
found to be unacceptable. On the other hand, if no interim
relief for continuance in service is granted and ultimately
his claim for correction of birth date is found to be
acceptable, the damage can be repaired by granting him all
those monetary benefits which he would have received had he
continued in service. We are, therefore, of the opinion
that in such cases it would be imprudent to grant interim
relief
12. When we turn to the case of respondent-1, he did not
object to his date of birth or age entered in his ’Service
and Leave Record’ with appellant- 1 during 36 years of his
service. When the writ application filed by respondent-1
was entertained by the High Court, it is difficult to find
that it has used its discretion in the matter either
judiciously or reasonably, and for that reason alone the
judgment of the Division Bench of the High Court under
appeal by which the order of the learned Single Judge has
been affirmed calls to he interfered with and set aside.
13. Even, on merits, both judgment of the Division Bench of
the High Court and the order of a Single Judge of the High
Court, cannot be sustained. For correction of respondent-
1’s date of birth found in his ’Service and Leave Record’
,with appellant-1, the Calcutta University’s copy of the
duplicate Admit Card to Matric examination, which purported
to show his date of birth as 7th day of July, 1934, could
not have been relied upon by the High Court for it was not a
Matriculation certificate of respondent-1 where his date of
birth had been found for being acted upon as correct date of
birth, as had been held
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in a previous Division Bench decision of the High Court vide
Pramatha Nath Choudhury v. the State of West Bengal and Ors.
[1981 (1) SLR 570].
14. Undoubtedly, the claim of appellant Pramatha Nath
Choudhary in the appeal before the Division Bench of the
High Court was exactly similar to the claim of respondent- 1
in the present appeal. All that the Division Bench has said
in its decision is that date of birth of the appellant which
was accepted by his employer should be corrected to accord
with date of birth found in his Matriculation certificate.
No reason is given as to why towards the fag end of the
service career of the appellant before it, such correction
should have been permitted. Moreover, even though the
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Matriculation certificate produced by the appellant before
the Division Bench for the first time was seriously doubted,
no opportunity had been given to the Government to make good
the doubt. Having gone through the said judgment of the
Division Bench in appeal, we have no hesitation in reaching
the conclusion that the Division Bench was wholly unjusti-
fied in interfering with the order of the learned Single
Judge of the same court whereby it was held, in our view,
rightly that the appellant’s writ application filed for
correction of his date of birth at the fag end of his
service career for avoiding his superannuation which was
due, cannot be entertained.
15. Hence, the order of the learned Single Judge of the
High Court whereby he allowed the writ application of
respondent- 1 here and the judgment of the Division Bench of
the High Court whereby the order of the learned Single Judge
is affirmed, cannot be sustained and call to be interfered
with.
16. In the result, we allow this appeal and set aside the
judgment of the Division Bench of the High Court in appeal
and reject the writ application of respondent-1 filed in the
High Court. Since respondent-1 had continued in service of
appellant-1 beyond 5.6.1990, the date of his superannuation
on the basis of his declared age entered in his ’Service and
Leave Record’ because of the judgment and order of the High
Court, now set aside, he shall not be entitled to any
service benefits other than the salary drawn by him for the
period beyond 5.6.1990. No costs.
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