IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SEVENTH DAY OF JANUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 27751 of 2008 Between: Mr. Thatikanti Kumaraiah, S/o. T.Mallaiah, T 2 1050, Tilak Nagar, Godavari Khani, Karimnagar. ..... PETITIONER AND 1 The Singareni Collieries Company Limited, Kothagudem, Rep by its Chairman and Managing Director, Karimnagar District. 2 The Singareni Collieries Company Limited, Ramagundam Area 1, Rep by its General Manager, Karimnagar District. 3 The Singareni Collieries Company Limited, Ramagundam Area 1, Rep by its Personnel Manager, Karimnagar District. .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ or order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents not recording the correct year of the age i.e., 1956 declared by the petitioner and recording it as 25 years and correcting as 30 years i.e, 1956 and not rectifying the correct age in CMPF Records and creating variation and retiring the petitioner based on erroneous age seven years early i.e., by end of January or February 2009 is illegal arbitrary and violation of article 14, 16 of the Constitution of India and nothing but a illegal termination and consequently direct all the respondents herein to rectify the petitioner age as 23 years (i.e., birth year as 1-4-2016. Counsel for the Petitioner: MS.G.SUDHA Counsel for the Respondents.: MR.NANDIGAM KRISHNA RAO *** WRIT PETITION NO : 516 of 2009 Between: Mr. Thatikanti Kumaraiah, S/o. T.Mallaiah, T 2 1050, Tilak Nagar, Godavari Khani, Karimnagar. ..... PETITIONER AND 1 The Singareni Collieries Company Limited, Kothagudem, Rep by its Chairman and Managing Director, 2 The Singareni Collieries Company Limited, Ramagundam Area 1, Rep by its General Manager, 3 The Singareni Collieries Company Limited, Ramagundam Area 1, Rep by its Personnel Manager, .....RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court may be pleased to issue a writ or order or direction more particularly one in the nature of writ of Mandamus declaring the action of the respondents not recording the correct year of the age i.e., 1956 declared by the petitioner and recording it as 25 years and correcting as 30 years and not rectifying the correct age in CMPF Records and creating variation and retiring the petitioner based on erroneous age seven years early i.e.,on 30-01-2009 by issuing Ref. Rg-I/6B/P.12/1409, dt. 5-1-2009 as illegal arbitrary and violation of article 14, 16 of the Constitution of India and nothing but a illegal termination and consequently direct all the respondents herein to rectify the petitioner age as 23 years (i.e., birth year as 1-4-1956) as on 1-4-1079 and permit the petitioner to continue in my service up till 1-4-2016 ans pass necessary orders in the circumstances of the case otherwise the petitioner will sustain irreparable loss and injury. Counsel for the Petitioner: MS.G.SUDHA Counsel for the Respondents.: MR.NANDIGAM KRISHNA RAO The Court made the following : COMMON ORDER: These two writ petitions are filed by Thatikanti Kumaraiah assailing the action of the respondents in not acceding to his request with regard to change of date of birth in the service record and informing his date of retirement as 31.01.2009 on attaining the age of superannuation i.e. 60 years. More precisely, W.P.No.27751 of 2008 is filed with a prayer to issue a writ, order or direction, more particularly, one in the nature of writ of Mandamus declaring the action of the respondents in not correcting his date of birth in the service record as illegal and arbitrary. Whereas, W.P.No.516 of 2009 is filed with a prayer to issue a writ, order or direction, more particularly, one in the nature of writ of Mandamus, declaring the action of the respondents in issuing the proceeding Ref.Rg-I.6B/P.12/1409, dated 05.01.2009 as illegal and arbitrary. 2. Thatikanti Kumaraiah applied for unskilled jobs in the respondents Company. He was sponsored through Employment Exchange to the respondents company. He was appointed as Badili Coal Filler on 04.01.1979 in GDK 6 Incline, Godavarikhani, Karimnagar District. He was confirmed as Coal Filler on 30.01.1980. He was promoted as Trammer on 07.05.1985 and further promoted as Hauler Operator in the year 1992. He was transferred to GDK 6B Incline in the year 1998. On coming to know the incorrect entries in the service record with regard to his date of birth, he submitted representations on 09.09.2007 and 05.06.2008. According to him, he was aged 23 years as on the date of his joining as Badili Coal Filler on 04.01.1979 being the year of his birth as 1956. But the respondents authorities corrected his age in the service records as 30 years as on 04.01.1979 without putting him on notice and there being no substantial material to justify the same. When the authorities did not respond to his representations with regard to correction of his date of birth pursuant to NCWA-III guidelines and Circular No.CRP/PER/IR/A/51/4744, dated 23.12.2003, he approached this Court by filing W.P.No.27751 of 2008 with the prayer stated supra. Pending the said writ petition, the respondents issued proceeding dated 05.01.2009 informing his date of retirement on attaining the superannuation as 31.01.2009. The said proceeding is under challenge in W.P.No.516 of 2009. 3. Rule Nisi came to be issued on 22.12.2008 in W.P.No.27751 of 2008. When W.P.No.516 of 2009 came up for admission, learned Standing Counsel of Singareni Collieries Company Limited received notice on behalf of the respondents. 4. The respondents filed counter-affidavits in both the writ petitions. It is stated in the counter-affidavit that the age of the petitioner was recorded as 30 years as on 04.01.1979. In all the records such as Form- B Register, CMPF-Nomination Form-A, Employee personal record, the age of the petitioner was recorded as 30 years as on 04.01.1979. As per Implementation Instruction No.76 of the Joint Bipartite Committee for Coal Industry (JBCCI), the procedure in determination of the age/date of birth at the time of appointment is: (A) Determination of the age at the time of appointment: (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. (ii) Non-matriculates but educated: In the case of appointees who have pursued studies in a recognized educational institution, the date of birth recorded in the School Leaving Certificate, shall be treated as correct date of birth and the same will not be altered under any circumstances. (iii) Ex-Servicemen: In the case of Ex-servicemen who are not matriculates, the date of birth recorded in the Army Discharge Certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. In the case of Ex- servicemen who have passed Matriculation examination, the date of birth recorded in the Matriculation Certificate will be treated as correct date of birth, provided they have passed the Matriculation examination before entering the Defence Services; otherwise the date of birth recorded in Army Discharge Certificate will be taken as correct date of birth. (iv) Illiterate: In the case of appointees not covered under the foregoing clauses, the date of birth will be determined by the Colliery Medical Officer keeping in view any documentary and other relevant evidence as produced by the appointee. Date of birth as determined shall be treated as correct date of birth and the same will not be altered under any circumstances. As per Circular No.P.49/4792/IR/1270, dated 01.08.1998, procedure for determination/verification of age of the employees in respect of cases, where there is variation in the age recorded in the various records earlier and glaring disparity in age recorded in Company’s records and the apparent age of the employees, is: i) Where there is variation in the age recorded in the records such as Form ‘B’ Register, CMPF records and Identity Cards (untampered) such cases will be referred to the age determination committee/Medical Board consisting of the General Manager/Chief Personnel Manager and Medical Officer-in- Charge of the Area. ii) Where there is variation in records, this Committee will consider evidence available with the Colliery Management and/or adduced before it, by the employee concerned and it will be required to assess the age in accordance with the requirement of ‘Medial Jurisprudence’ and the Medical Board as far as possible indicate the accurate age assessed and not approximately. iii) Where there is glaring disparity between the date of birth recorded in the Company records and the apparent age of the employee, such cases may be referred to the Apex Medical Board located at Headquarters of the Company for determination of the age, by the Area Age Determination Committee. The above guidelines came to be re-circulated clarifying doubts on some points. As the age of the petitioner was available in all the records i.e. Service Book, Form-B Register and CMPF record his case was not referred to the Area Age Determination Committee. As per clause A-iv in Implementation Instruction No.76 of the Joint Bipartite Committee for Coal Industry (JBCCI) and as the petitioner failed to produce documentary or any other evidence at the time of joining the company, his age was determined by the Colliery Medical Officer as 30 years as on 04.01.1979 and the same was recorded in authentic service records. As there is no variation in service records, his case was not referred to the Area Age Determination Committee. However, on 20.12.2000, the service records verification committee verified all the records and confirmed the age of the as 30 years as on 04.01.1979. 5. When W.P.No.516 of 2009 came up for admission hearing, both the learned counsel appearing for the parties have consented for final disposal of both the writ petitions. Hence, both the writ petitions are being heard and disposed of by this common order. 6. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing for the respondents Company. 7. Learned counsel appearing for the petitioner submits that the petitioner was aged 23 years as on 04.01.1979, but the respondents authorities mentioned the age of the petitioner initially as 25 years and subsequently corrected as 30 years as on 04.01.1979 in the service record. Learned counsel further submits that in the particulars furnished under Coal Mines Provident Fund, the authorities stated the age of the petitioner as 24 years as on 23.03.1976. According to the learned counsel, the petitioner was not an employee as on 23.03.1976 and therefore, the age of the petitioner mentioned in the particulars furnished under Coal Mines Provident Fund, prima facie, cannot be stated to be correct. Learned counsel took me to the Screening Committee Report to substantiate her contention that there is no consistency with regard to the age of the petitioner as entered in the service book and CMPF records. In support of her contention, she relied on a judgment of the Supreme Court in Mohd. Yunus Khan v. U.P.Power Corpn. Ltd. & Ors.[1], wherein it has been held that the representation for correction of date of birth should be made as expeditiously as possible so as to enable the employer to pass an appropriate order thereon had no application in a case where mistake on the part of the authorities stood admitted. 8. Learned Standing Counsel appearing for the respondents Company submits that there is no inconsistency with regard to the age of the petitioner as entered in the service book and CMPF records. A further submission has been made that the Photostat copy of the declaration given by the petitioner filed along with the material papers is a fabricated one and there is no correction as projected by the petitioner in the original declaration and thus, there is no inconsistency with regard to the age of the petitioner recorded in the service book and CMPF record. Learned Standing Counsel further submits that entertaining the writ petitions at the fag end of the retirement from service is wholly unwarranted. In support of his submissions, reliance has been placed on the following judgments of the Supreme Court: 1) State of Orissa & Ors. v. Ramanath Patnaik[2] 2) State of Tamil Nadu v. T.V.Venugopalan[3] 3) State of Assam v. Daksha Prasad Deka[4] 4) Govt. of A.P. v. M.Hayagreev Sarma[5] 5) Union of India v. Harnam Singh[6], and 6) The Secretary and Commissioner, Home Department & Ors. v. R.Kirubakaran[7] 9. The petitioner is a semi-literate. He joined the respondents Company on 04.01.1979. According to him, he was aged 23 years as on the date of his joining the respondents Company. In the service record, his age was initially shown as 25 years and subsequently corrected as 30 years as on 04.01.1979. He submitted representations to the respondents Company for correction of his date of birth. A Screening Committee examined the case of the petitioner and recommended for verification of his age by the Age Determination Committee. The proceedings of the Screening Committee read as hereunder: “THE SINGARENI COLLIERIES COMPANY LIMITED (A GOVT. COMPANY) RAMAGUNDAM AREA-I PROCEEDIGNS OF SCREENING COMMITTEE In pursuance of the circular No.CRP/PER/IR/A/01/15, dt.03/01/2003 and in accordance with the office Order of Chief GM, RG.I vide No.RG.I/PER/43/3668, Dt.21/07/2003, the Screening Committee appointed for the purpose Examined/Analysed the age of anomaly / age dispute issue / case pertaining to Sri Thatikanti Komaraiah, HOP, E.C.No.0854328 of GDK 6B Incline, and following are the proceedings: 1. Name of the Employee T.Komaraiah 2. Employee Code 0854328 3. Place of Work GDK.6B inc. 4. Date of Initial Appointment 09-02-1979 5. a) age / DOB recorded in form-o of initial Medical Examination. b) Whether form-O is available or not? Form O IME not available. 6. a) Age / DOB recorded in Service Book b) Any Supporting documents available c) Date of Service Book prepared / Place d) Any over writings / corrections (with due certificate / without certification) e) Base taken for such correction of Age 04-01-1949 MVTCRGSlNo.11/388, dated 07-02-1979. Dated 25-05-1982/GDK.6 inc. Over writing without certification. No documents 7. a) Age recorded in Form B Register b) Date and place of preparation/entries. 04.01.1949 8. a) Age recorded in CMPF (Form-A) b) Age recorded in CMPF (Pension Form) 16-03-1953 04-01-1949 9. a) Whether he has passed SSC/SSLC/MATRIC prior to his appointment in the Company. b) If so what is the Age/DOB recorded in the school records. Nil 10. a) Whether he is possessing any statutory certificates. b) If, so what is the Age/DOB recorded in the statutory certificates. Not applicable. 11. a) Age / DOB recorded in EPR data format. 04-01-1949 12. a) Age / DOB recorded in Identity Card b) Date and place of issue of ID Card Nil 13. a) Whether the concerned employee is contesting / Representing. b) If so, on what basis he is contesting / Representing. Representing Basing on CMPF records. 14. Observations of service records verification Committee (if any) OBSERVATIONS OF THE SCREENING COMMITTEE: As per NCWA-III implementation instruction No.76, “C” Review/determination of date of birth of existing employees will be considered for rectification basing on the records of the company namely Form.B register, CMPF records and identity cards (untampered) will be treated as final. As there is variation of age entered in service book and to that of CMPF records, this issue may be finalized at the age determination committee. 15. RECOMMENDATIONS OF THE SCREENING COMMITTEE: As there is variation of age entered in service book and to that of CMPF records, this issue may be finalized at the age determination committee. The Screening Committee took the case of the petitioner pursuant to the circular, dated 23.12.2003, issued by the respondents Company. For better appreciation, I may refer the text of the Circular, dated 23.12.2003, which reads as hereunder: “1. Kindly refer to the circulars cited communicating detailed guidelines and procedure for determination / verification of the age of the employees. As per the guidelines communicated, when there is variation in records namely identity & Service Card, Form-B Register and CMPF records, the age in respect of such cases is to be determined by the Area Age Determination Committee. 02. However, in respect of the cases where the Area Age Determination Committee is satisfied that there is glaring disparity between the date of birth recorded in the company’s records and apparent age of the employee, such cases only are to be referred to Apex Medical Board for determining the correct age of the employee. 03. It has been noticed that the cases of workmen which should have been settled by Area Age Determination Committees were referred to Apex Medical Board stating that the date of birth/age as mentioned in Antenna Card or Bonus Card is differing from the date of birth mentioned in company records i.e. service Book and Form-B Register. 04. The above points have been examined and it is reiterated that- i) As per JBCCI guidelines, only when there is variation in records namely Identity & Service Card (Service Book), Form-B Register and CMPF record, the age in respect of such cases is to be determined by the Area Age Determination Committee at Area level only. The other records like VTC certificates, voters list, Medical Attendance book, LTC records, Bonus cards, School Transfer Certificate, etc., need not be taken cognizance of or considered. The Area Age Determination Committee consists of GM of the Area, Area Personnel Dept. Head and Medical Officer In-charge of the Area, i.e. Dy.CMO/Medical Supdt., posted in the concerned Area Hospital only (Medical Supdts., posted in dispensaries are not members of this Committee). ii) In respect of the cases where the age is tallying in all the three records and the Area Age Determination Committee feels that there is no glaring disparity between the date of birth recorded in all the three records and the apparent age of the employee, the age as recorded in the said records is to be confirmed by the Committee. iii) Only in respect of the cases, where the Area Age Determination Committee feels that although there is no variation of the age recorded in the 3 records of the Company, there is a glaring disparity between the date of birth(age) as recorded in the said records and the apparent age of the employee concerned, then only those cases are to be referred to the Apex Medical Board (but the Area Age Determination Committee should not determine the age. It is for the Apex Medical Board to examine the case in accordance with medical jurisprudence and the clinical reports at Main Hospital and determine his correct age). iv) Where the Area Age Determination Committee is of the opinion that there is glaring disparity between the date of birth recorded in the Company records and the apparent age of the employee, such cases should be referred by the concerned Area General Manager to General manager (Personnel), Kothagudem along with the details of the concerned employee in the prescribed proforma together with a copy of the application made by the employee and the report of the Area Age Determination Committee in terms of the Circular dt.07.08.1997 cited at Sl.No.5 so as to place the case before Apex Medical Board. v) On receipt of the proposal from the Area, the same will be examined by Corporate Personnel Department and it will be referred to Chief Medical Officer, Main Hospital, Kothagudem, for placing the case before the Apex Medical Board for review and decision. vi) After review of the case by the Apex Medical Board, the decision of the Apex Medical Board will be communicated to GM (Personnel) by CMO together with report of the Apex Medical Board. GM (Personnel), in turn, will transmit the same to the Area General Manager. vii) It is expected that the age/date of birth of every employee is available in company records i.e. Service & Identity Card (Service Book), Form-B Register and CMPF record. In exception cases where the date of birth is not available in any of the above records, the age of such employee should be determined by the Area Age Determination Committee in accordance with the ‘medical jurisprudence’ and the clinical reports of the Area Hospital after thorough enquiry as to how the date of birth was missing in all company records. 05. Action may please be taken accordingly.” I have gone through the Photostat copy of the Service Record and also Photostat copy of the declaration of the petitioner under Coal Mines Provident Fund. It is apparent to the naked eye that the age of the petitioner has been corrected from 25 years to 30 years in the service record as on 04.01.1979. One thing is certain that there is no consistency with regard to the age of the petitioner as noted in the service book and CMPF record. In view of this inconsistency, the Screening Committee thought it fit that the case of the petitioner be examined by the Age Determination Committee. Since there is in-house procedure for examining the grievance of the petitioner, I deem it appropriate to dispose of both the writ petitions directing the respondents to refer the case of the petitioner to the Age Determination Committee. Till a finding is recorded by the Age Determination Committee, the proceeding issued by the respondents authorities informing the date of retirement of the petitioner from service as 31.01.2009 shall be kept in abeyance. 10. With the above observations, both the writ petitions are disposed of. No costs. ______________________ B.SESHASAYANA REDDY, J. Date:27th January, 2009. cs ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{KSRANI} [1] 2008(7) Supreme 625 [2] 1997 (5) SCC 181 [3] 1994 (6) SCC 302 [4] 1970 (3) SCC 624 [5] 1990(2) SCC 682 [6] 1993(2) SCC 162 [7] JT 1993 (5)SC 404