1 Lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1096 OF 2001 Mr.P Madhavan Nair ] aged 57 years of Bombay ] Indian Inhabitant, residing ] at 215/5779, Darshan, ] Pant Nagar HIG Scheme ] 90 Feet Road, Ghatkopar (E), ] Mumbai 400 075, and working ] with the 1st Respondent as ] Manager (Administration) ]... Petitioner versus 1. Indian Oil Corporation ] Limited a Government Company ] incorporated under the ] provisions of the Indian ] Companies Act, 1956 ] having its Head Office at ] Indian Oil Bhavan, G-9, ] Aliyavar Jung Marg, Bandra(E) ] Mumbai-400051 ] ] 2. Indian Oil Blending Ltd., ] a Government Company ] incorporated under the ] provisions of the Indian ] Companies Act, 1956 having ] its Head Office at Badamia ] Manor, Keshavrao Khadia Marg ] Mahalaxmi, Mumbai 400 034 ] ... Respondents Mr.A D Shetty a/w Mr Vinay A Rathi for the Petitioner. Mr.J P Cama, Senior Counsel a/w Mr Vishal Lohire i/by M/s. Negandhi Shah & Himayatullah for the Respondents. 2 CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 8th July 2009 ORAL JUDGMENT : PER P B MAJMUDAR J. 1. By way of this Petition, the Petitioner has prayed that the Respondents may be directed to rectify the records by posting the correct date of birth of the Petitioner as 19th May 1943 from 13th February 1941. It is also prayed that the Petitioner may be allowed to continue to serve on the basis that his correct date of birth is 19th May 1943 and not 13th February 1941 and on that basis it is prayed that the Respondents be restrained from retiring the Petitioner from service on 28th February 2001 and he should be allowed to continue up to 19th May 2003. 2. As per the date of birth recorded in the service record of the Petitioner, the Petitioner was to retire in February 2001. The Petitioner filed this Petition on 23rd February 2001 with a prayer that he should be allowed to serve up to the year 2003 as 3 according to him, his correct date of birth is 19th May 1943 and not 13th February 1941. Though the above Petition is admitted, no interim relief was granted to the Petitioner. Since during the interregnum the Petitioner has retired and has crossed the age of superannuation even as per the date claimed by the Petitioner, the learned counsel for the Petitioner submitted that now there is no question of passing any order allowing the Petitioner to serve up to the year 2003, however, it is prayed that the Respondents may be directed to pay arrears of salary and other benefits treating the retirement date of the Petitioner as 18th May 2003. 3. The Petitioner was initially recruited and employed with the Second Respondent Company i.e. Indian Oil Blending Co.Ltd in the year 1969. The aforesaid company is a subsidiary company of the First Respondent i.e.Indian Oil Company. Subsequently the Petitioner was transferred to the Indian Oil Company in the year 1998. At the time of his initial appointment, the Petitioner had shown his date of birth as 13th February 1941 on the basis of 4 the school leaving certificate which was submitted to the Respondent and on that basis the appointment letter was issued to him and his service record shows his date of birth as 13th February 1941. It is the case of the Petitioner that subsequently in the year 1975 he obtained extract of the Births and Deaths Register of the concerned village in Kerala and as per the entry in the said Register, his date of birth is 19th May 1943. The learned counsel for the Petitioner submitted that on the basis of the said certificate issued by the concerned authority, which is a conclusive proof, the Respondents should have treated the date of birth of the Petitioner as 19th May 1943, as at the relevant time the date of birth mentioned in the school leaving certificate was the one given by his uncle to the School which was not correct. 4. The learned counsel for the Petitioner relied upon the certificate dated 19th August 1976 issued by the Personnel Officer of the Respondent No.2, which is at Exhibit 4 in the compilation. As per the said certificate, the date of birth of the Petitioner is 5 19th May 1943. Relying on the said certificate, the learned counsel for the Petitioner submitted that the Personnel Officer had already certified that the aforesaid date i.e. 19th May 1943 is the correct date of birth of the Petitioner and there is no reason for the Respondents not to consider the said certificate and correct the service record of the Petitioner on that basis. 5. The learned counsel for the Petitioner, therefore, submitted that in view of the said certificate issued by the Personnel Officer as well as in view of the entry in the Births and Deaths Register, the correct date of birth of the Petitioner i.e 19th May 1943 is required to be mentioned in the service record and the Petitioner is required to be allowed to serve up to the age of superannuation considering 19th May 1943 as the correct date of birth of the Petitioner. 6. The Petition is opposed by the Respondents. The learned senior counsel for the Respondents Shri J P Cama submitted that the so called certificate 6 produced by the Petitioner is not genuine one. It is also submitted that the Respondent No.1 published seniority lists from time to time, wherein the Petitioner s date of birth is mentioned as 13 th February 1941, however, the Petitioner never took any objection to the same. The learned counsel submitted that this Petition, which is filed at the fag end of the service tenure, cannot be entertained as the Petitioner has not even approached the Court well in advance before his retirement. 7. We have heard the learned counsel for the parties. We have gone through the record. It is true that the certificate dated 19th August 1976 issued by the Personnel Officer is placed on record at Exhibit-4 on page 100 of the compilation of documents. The said certificate reads as under :- CERTIFIED that the date of birth of Shri P Madhavan Nair, Steno-cum-P.A. To the Secretary of this Company, as per his personal records and based on the Certificate of Birth issued to him by the District Registrar of Births and Deaths, 7 Kozhikode, is Nineteenth May Nineteen Forty three (19-5-1943) The learned counsel for the Petitioner submitted that the Petitioner has made representations to the Respondent No.1 from time to time and having failed to get a favourable reply, ultimately approached this Court and there is no delay on his part. It is also submitted that in the Provident Fund Application submitted on behalf of the Petitioner, which is endorsed by the Respondent No.1, the date of birth of the Petitioner is shown as 19th May 1943 as also in the Life Insurance Policy. 8. In the Affidavit in Reply to this Petition, the Respondent has specifically denied the claim of the Petitioner and has also questioned the authenticity and genuineness of the certificate issued by the Personnel Officer produced by the Petitioner. It is averred in Para C of the Reply by the Respondents as under :- The Petitioner has sought to rely upon false and fabricated documents and has approached this Hon ble Court with unclean hands: 8 I. The Petitioner has sought to contended that Respondent No.2 had issued a certificate on 19th of August 1976 holding that his application for recording his date of birth as 19th May 1943 was accepted. A copy of the said Certificate is hereto annexed and marked as Exhibit-4. I respectfully state and submit that the alleged certificate dated 19th August 1976 is a fabricated/interpolated document which can be noted from the following :- a. The said certificate dated 19th August 1976 appears to be on the letterhead of Respondent No.2. Respondent No.2 does not normally issue certificates by using the words To whom it may concern . Respondent No.2 always indicates the purpose and no general certificate is normally issued. It only addresses letter to its employees. Respondent No.2 does not issue certificates. b. There appears to be certain CC s which are typed at the end of the purported certificate. However, the CC s are typed on a different typewriter and the font is clearly 9 different. In fact, the font appears to have been typed on an electronic typewriter. However, in 1976, Respondent Nos.1 and 2 did not have electronic typewriters. Further Respondent No.2 does not mark CCF of the certificate to the applicants. c. The Petitioner, in fact, was the Law Officer in the Personnel Department and he exercised considerable influence and had access to the letterheads of the Respondents. I say that the Petitioner has obviously misused his influence and has interpolated and fabricated the certificate. d. This certificate was purportedly forwarded to the Petitioner vide letter dated 14th January 1985. It is indeed shocking that this certificate was allegedly prepared in 1976 but sent only in the year 1985, which is nearly 10 years after the certificate was prepared. This is also a clear indicator that the certificate could be a forged and fabricated document and has deliberately been back dated to create a false case to show that the Respondent No.2 had accepted the changed date of birth. 10 II. I say that even the said letter dated 14th January 1985 was issued to the Petitioner since he was the Law Officer and he exercised considerable influence over the Personnel Department. The Petitioner used his influence to get the said letter issued to the Petitioner. Copy of the false letter dated 14th January 1985 is annexed hereto and marked as Exhibit.5 In the reply it is also averred that as per Clause 56 of the Regulations, the school leaving certificate is the authentic document which is to be considered for the purpose of recording the correct date of birth. Clause 56 reads as follows :- Once the date of birth of the employee is recorded as per the rules, the employee shall be governed by the same for all purposes in the service and no change in the same will be permitted on any grounds. It is not in dispute that the Petitioner passed matriculation examination and submitted his school 11 leaving certificate wherein the date of birth is shown as 13th February 1941. Regarding certificate issued by the Personnel Officer is concerned, Para-C of the reply which is reproduced above is relevant. In the reply it is further averred that the Petitioner has deliberately relied upon the Certificate which is never issued by the Respondents. We have gone through the contents of the said certificate and prima facie we are of the opinion that the authenticity of the said certificate is highly doubtful as one can see with naked eyes that different typewriters have been used. So far as the upper part of the said certificate is concerned, the same is in different font and the bottom part is concerned, it is in different font. 9. That apart, another aspect of the matter that is required to be taken into consideration is that the Respondent No.1 had published the seniority lists in the years 1990, 1996, 1997 and 1999. In all these seniority lists, the date of birth of the Petitioner is shown as 13th February 1941, but the Petitioner never objected to the said recording. 12 Apart from this, there is nothing on record to show that after publication of the said seniority lists, and to be precise seniority list published in the year 1990, the Petitioner has made any representation to the authority to get his date of birth changed and for correcting the entry in the seniority list. It is at the fag end of his service that the Petitioner has approached this Court by way of this Petition. 10. So far as reliance on the Births and Deaths Register is concerned, in view of the facts as stated above, we cannot issue directions to the Respondents to now correct the service record of the Petitioner on the basis of the extract from the Births and Deaths Register. It is also required to be noted that the Petitioner initially joined the second Respondent in the year 1969 and the said abstract of Births and Deaths Register is obtained in the year 1975. Apart from the aforesaid aspect, after publication of the seniority lists, for a considerable time the Petitioner has not made any representation between 1990 and 1999 and, it is only in the year 2001 he has filed the instant Writ 13 Petition at the fag end of his service. The Petitioner has already retired in the year 2001 and considering the aforesaid aspect, in our view, this is not a case where a highly disputed claim of the Petitioner can be adjudicated by this Court in its extra ordinary jurisdiction under Article 226 of the Constitution of India. Even otherwise, the Petitioner had not taken any concrete steps for many years and simply because he entered into correspondence with the Respondent No.1 cannot be a ground for not approaching this Court within time. As mentioned above even after publication of the seniority lists from time to time, the Petitioner has not made any attempt to get the entry changed in the seniority lists wherein his date of birth is mentioned as 13th February 1941. So far as the genuineness of the certificate issued by the Personnel Officer is concerned, in our view, it is highly doubtful and is not free from suspicion. Even otherwise, we are of the view that there is no merit in the above Petition especially when on the basis of the school leaving certificate the date of birth had been recorded as back as in the year 1969. In the matter of change of 14 date of birth, the employee is required to approach the Court within a reasonable time and not at the fag end of his service. It is pertinent to note that even a civil suit would have been time barred. 11. Considering the aforesaid aspect, we see no merit in the above Petition. The Petitioner is not entitled to any reliefs in the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. The Petition is accordingly dismissed. Rule discharged with no order as to costs. sd/- sd/- [R.M.SAVANT, J] [P.B.MAJMUDAR, J]