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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- 28 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 29 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- 30 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 31 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 32 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 33 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 34 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. 37