@JUDGMENTTAG-ORDER
Sujit Narayan Prasad, J.@mdashThe petitioner had initially preferred this writ petition for making necessary correction in his date of birth, which has been wrongly mentioned as 2.1.1952 in place of 2.1.1954. During pendency of the writ petition, a notice was issued to the petitioner on 8.8.2011 for his superannuation w.e.f. 31.1.2012, as such he had preferred an interlocutory application being I.A. No. 2501/2011 for challenging the notice dated 8.8.2011, which had been allowed vide order dated 7.11.2012. The brief facts of the case, as has been argued by learned counsel for the petitioner, is that the petitioner had been appointed on 17.10.1971 under the respondents-BCCL. He had obtained Matriculation certificate in the year 1969. He had got employment on the basis of the Matriculation certificate. In the Matriculation certificate, his date of birth has been mentioned as 2.1.1954. Subsequently, he came to know that there is some discrepancy in his date of birth and in place of 2.1.1954, it has been mentioned as 2.1.1952. He had made representation on 29.11.1995 before the competent authority to make necessary correction in his date of birth, which had been duly received. When no action was taken on the said representation, he again made another representation on 17.12.1998, but his date of birth had not been rectified. He has annexed documents such as: identification certificate report dated 8.8.2006, service particulars dated 5.9.2006, last pay certificate issued on 28.8.2002, wherein his date of birth has been mentioned as 2.1.1954. He has also relied upon Implementation Instruction No. 76, which is an outcome of a Bilateral Agreement, wherein it has been agreed upon that in case of the appointees, who have passed Matriculation or equivalent examination, 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. When the grievance of the petitioner was not redressed, he preferred instant writ petition. During pendency of the writ petition, a notice had been issued to the petitioner on 8.8.2011 stating therein that since he is going to complete 60 years of age on 31.1.2012, he will superannuate w.e.f. 31.1.2012 on the basis of his date of birth i.e. 2.1.1952. The said notice had been challenged by the petitioner by way of an interlocutory application. In support of his arguments, learned counsel for the petitioner has relied upon a judgment rendered by a Full Bench of this Court in
2. On the other hand, learned counsel for the respondents have contended by filing counter affidavit that actual date of birth of the petitioner is 2.1.1952. In support of their contentions, the respondents have relied on Annexure-A, which is Form-B Register, wherein the date of appointment of the petitioner has been mentioned as 17.10.1971 and the age of the petitioner has been mentioned as 28 years. The respondents have also relied upon the service excerpts of the petitioner, wherein his date of birth has been mentioned as 2.1.1952. They have contended that the date of birth mentioned in Form-B Register will prevail over the Matriculation certificate. Since in the Form-B Register, the date of birth of the petitioner has been mentioned as 2.1.1952, he has rightly retired w.e.f. 31.1.2012. They have further contended that if the petitioner''s age as per the Matriculation certificate i.e. 2.1.1954 will be taken to be correct, he had not attained required minimum age of 18 years at the time of appointment. Hence, he could not have been appointed. Learned counsel for the respondents have relied upon a judgment rendered by a Division Bench of this Court in
3. Heard the parties, perused the record.
4. The petitioner had been appointed on 17.10.1971 on the basis of the Matriculation certificate wherein his date of birth has been mentioned as 2.1.1954. The petitioner had joined service and in various documents of the respondents-BCCL, his date of birth has been mentioned as 2.1.1954.
5. In order to adjudicate issue, it is important to see Implementation Instruction No. 76, which is outcome of a Bilateral Agreement. From perusal thereof and by referring to the conditions mentioned therein containing review determination of date of birth in respect of existing employees, it appears that in case of the existing employees Matriculation certificate or Higher Secondary certificate issued by the recognized Universities or Boards or Middle Pass certificate issued by the Board of Education and/or Department of Public Institutions and admit cards issued by the aforesaid Bodies should be treated as correct provided they were issued by the said Universities/Bodies/Institutions prior to the date of employment. The relevant portion of Implementation Instruction No. 76 is quoted hereinbelow:--
"(B) 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.
(i)(b) Similarly, Mining Sirdarship, Winding Engine or similar other statutory certificates where the Manager had to certify the date of birth will be treated as authentic.
(ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The Management after being satisfied on the merit of the case will take appropriate action for correction through Determination Committee/Medical Board
(C) Age Determination Committee/Medical Board for the above will be constituted by the Management. In the case of employees whose date of birth cannot be determined in accordance with the procedure mentioned in (B)(i)(a) or (B)(i)(b) above, the date of birth recorded in the records of the company, namely, Form-B Register, CMPF records and Identity Cards (untampered) will be treated as final. Provided that there thee Ed.--sic--where there? is a variation, in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee/Medical Board constituted by the Management for determination of age.
(D) For determinant of the age, the Committee/Medical Board referred to above may consider the evidences, available with the Colliery Management and/or adduced before the employee concerned.
(E) Medical Board constituted for determination of age will be required to assess the age in accordance with the requirement of "Medical Jurisprudence" and the Medical Board will as far as possible indicate the accurate age assessed and not approximately."
6. Now the question which is to be decided is as to whether the date of birth mentioned in the Matriculation certificate will be taken as the genuine date of birth or the date of birth mentioned in Form-B Register or the service excerpts will be taken as the genuine date of birth.
7. While dealing with the similar situation, a Full Bench of this Court has held in the case of Kamta Pandey, supra, that the date of birth mentioned in the Matriculation certificate will be taken as the genuine date of birth in view of Implementation Instruction No. 76 wherein it has been provided that if the Matriculation certificate has been obtained by the employee prior to entry in the service and if the employee has got employment on the basis of the said certificate then the date of birth mentioned in the Matriculation certificate will be taken as the authentic date of birth. It has also been held that Implementation Instruction No. 76, being an outcome of a Bilateral Agreement, is to be relied upon by the respondents-BCCL and they cannot deviate from Implementation Instruction No. 76 of the National Coal Wage Agreement-III dated 25.4.1988.
8. Moreover, the respondents cannot go beyond the condition mentioned in Instruction No. 76. In the instant case, the petitioner had got employment in the year 1971 while he had obtained the Matriculation certificate in the year 1969. The petitioner has specifically stated that he had got employment on the basis of the Matriculation certificate. Hence, in view of Implementation Instruction No. 76, the date of birth mentioned in the Matriculation certificate will be said to be genuine date of birth.
9. The Hon''ble Supreme Court in M/s. B.C.C.L v. Chhota Birsa Uranw, supra, has held that the date of birth mentioned in the certificate, issued prior to the date of appointment will be treated as genuine. It has been further held at Paragraph 14 that Clause 1(a) of Implementation Instruction No. 76 permits rectification of the date of birth by treating the date of birth mentioned in the School Leaving Certificate to be correct provided such certificate should be issued by the Educational Institution prior to the date of employment.
10. In the instant case, the petitioner had got employment on the basis of the Matriculation certificate obtained prior to the date of appointment. The Implementation Instruction No. 76 is binding upon the parties, as such they cannot deviate from the same and cannot ignore Matriculation Certificate which was issued prior to the date of appointment of the petitioner. Hence, in view of the ratio of the Hon''ble Apex Court in M/s. B.C.C.L v. Chhota Birsa Uranw, supra, the contention of the petitioner is fit to be accepted.
11. So far as the contention of the respondents that the date of birth mentioned in Form-B Register will be taken as the genuine date of birth, the same cannot be accepted in view of the facts of the instant case wherein in Form-B Register, there is no reference of any date of birth, rather the date of joining has been mentioned as 17.10.1971 mentioning the age of the petitioner as 28 years at the time of appointment. However, the date of birth of the petitioner has been mentioned as 2.1.1952 in the service excerpts. Even if the said contention of learned counsel for the respondents is accepted on the basis of Annexure-As & A/1 then also there is contradiction because according to the date of birth mentioned in the service excerpts (Annexure-A/1) i.e. 2.1.1952 and the age of the petitioner mentioned in Form-B Register (Annexure-A) i.e. 28 years, the date of birth of the petitioner cannot be as 2.1.1952 at the time of appointment.
12. In the case of Ram Pyare Singh, supra, upon which reliance has been placed by the respondents, the facts are quite different because in the said case, the appellant-petitioner had not produced his Matriculation certificate at the time of appointment. However, the said case is distinguishable from the case in hand because in the said case, in Form-B Register, there was reference of the date of birth of the petitioner, but in the instant case, in Form-B Register, there is no reference of the date of birth of the petitioner, rather the date of appointment of the petitioner has been mentioned as 17.10.1971 and the age of the petitioner has been mentioned as 28 years at the time of appointment. However, the date of birth of the petitioner has been mentioned as 2.1.1952 in the service excerpts. Hence, the judgment rendered in the case of Ram Pyare Singh, supra, also on the ground that Instruction No. 76 was not fell for consideration, will not be applicable in the facts and circumstances of the instant case.
13. In view of the facts and circumstances stated hereinabove, I find that the petitioner''s retirement on 31.1.2012 on'' the basis of his date of birth i.e. 2.1.1952, is not justifiable. Hence, the impugned notice dated 8.8.2011 is not sustainable, the same is, hereby, quashed.
14. Since the petitioner has already retired on 31.1.2012, no direction can be issued for his reinstatement in service. The petitioner has been forced to superannuate from service w.e.f. 31.1.2012 on the basis of his date of birth i.e. 2.1.1952 after completion of 60 years of service, he will be deemed to have been in service till completion of 60 years of service on the basis of his date of birth i.e. 2.1.1954. The petitioner had not performed his duty during the intervening period, he will not be entitled to get any salary for the intervening period on the ground of ''No Work No Pay'', but certainly he will be entitled to get pensionary benefits, presuming that he had superannuated from service w.e.f. 31.1.2014, for the purpose of calculation of the pensionary benefits on the basis of the last pay drawn. This writ petition is allowed in the terms indicated hereinabove.
