IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1723 of 2011 Kuldeep Sharma @ Kuldeep Mistry son of Bishundhari Mistry, Carpenter, T.M. Spl. Grade II, N.P.C.C. Limited, Resident of Flat No.1, Vijay Laxmi Complex, near Kishan Cinema, Sohsarai, Bihar Sharif, District- Nalanda ………………..Petitoner Versus 1. The Union of India, through the Secretary, Central Public Works Department, New Delhi- 110019 2. The Chairman & M.D., N.P.C.C., Ltd., Plot No. 67-68, Sector-25, Faridabad. 3. The Chief Manager (HR), N.P.C.C., Ltd., Corporate Office, Plot No. 67-68, Sector-25, Faridabad (Haryana) 4. The Manager (P & A), N.P.C.C., Ltd., Plot No. 67-68, Sector-25, Faridabad (Haryana) 5. The Deputy General Manager, N.P.C.C., Ltd., Plot No. 67-68, Sector-25, Faridabad (Haryana) 6. The Addl. General Manager, N.P.C.C., Ltd., Corporate Office, New Delhi 110010. 7. the Zonal Manager, N.P.C.C. Bihar Zone, 15, I.A.S. Colony, 1st Floor, near Syndicate Bank, Kidwaipuri, Patna 800001. 8. The project Manager, N.P.C.C., Ltd., PMGSY Works, Nalanda, Vijay Laxmi Complex, 2nd Floor, flat No. 01, Sohsarai, Biharsharif, Nalanda, Pin 803118. ************** 5. 11.08.2011 Petitioner assails the order dated 11.08.2010 passed by the Manager (P & A) of the National Projects Construction Corporation Ltd. (for short „the Corporation‟) whereby he has been made to superannuate with effect from 28.02.2011 treating his date of birth as 02.02.1953. Background facts, in a nutshell, are as follows:- Petitioner was initially engaged as carpenter on muster-roll basis with the Corporation. At the time of his entry as carpenter on muster-roll basis in the year 1981 his service card was prepared in which his name was incorporated as Kuldeep Sharma son of Bishundhari Mistry and date of birth was recorded as 02.02.1953. Having worked for about a year or so he was taken into work charge establishment of the Corporation. While doing so, the Corporation required him to fill in a form for completion of his history sheet. The petitioner disclosed his name therein as Kuldeep Sharma whereas his 2 father name was given as Bishundhari Mistry. Against column 10 (qualification) he claimed to be matric passed. The mark of identification was also disclosed. Since the initial service record displayed his date of birth as 02.02.1953 he inserted the same date of birth in the said form. It appears that subsequently he was retrenched. Again in December, 1991 the petitioner along with others was reinstated in the service of the Corporation. Retrenchment Order is Annexure „B‟ to the counter affidavit wherein petitioner has been described as Shri Kuldip Sharma son of Shri Bishnudhari Mistry. It is the case of the petitioner that on 12.11.1986, he filed an application annexing therewith an affidavit as also copy of the matriculation certificate for the purpose of change of his surname as Kuldeep Mistry in place of Kuldeep Sharma. A copy of matriculation certificate (Annexure -1) was filed alongwith the affidavit seeking a change in the date of birth in the records of the Corporation. Petitioner had appeared at the matriculation examination held in 1974 and passed the same whereafter the matriculation certificate was issued by the Bihar School Examination Board (Annexure-1) wherein his name is recorded as Kuldeep Mistry son of Bishundhari Mistry. Date of birth, as per matriculation certificate, is 13th February, 1956. The affidavit filed by the petitioner is annexed as Annexure-2. The official of the respondent Corporation under whom the petitioner was serving as carpenter (Grade II) recommended his case for change/alteration to the Additional General Manger by communication dated 11.12.1986 (Annexure-3). It appears that thereafter he was retrenched from service and was again reinstated in 1991 and as such no action was taken on the claim of the petitioner for 3 change of his surname from “Sharma” to “Mistry” as also the date of birth from 02.02.1953 to 13.02.1956 based on matriculation certificate. The authorities of the Corporation passed the impugned order dated 11.10.2010 (Annexure-4) whereby he was made to superannuate with effect from 28.02.2011 treating his date of birth as 02.02.1953. Heard learned counsel for the petitioner and learned counsel for the respondent Corporation. A counter affidavit on behalf of the respondent corporation has been filed which is on record. Rejoinder filed thereto is also on record. Learned counsel while assailing the order submits that „Mistry‟ and „Sharma‟ are the two common surnames of the community to which the petitioner belongs. Initially, he was retained by the Corporation on muster roll basis and his service card was created in which his name was inadvertently inserted as Kuldeep Sharma. The said document was not signed by the petitioner. The date of birth recorded therein (Annexure-A to the counter affidavit) was 2nd February, 1953. The said service card does not disclose the basis for treating his date of birth as 02.02.1953. The said column requires that date of birth is to be inserted based on matriculation certificate/S.L.C. or Medical Certificate. Date of birth inserted as 02.02.1953 therein does not disclose the basis of recording as such. Immediately after achieving status of work charge, the petitioner filed application enclosing therewith his affidavit as also the copy of the matriculation certificate with a request to change his surname from Kuldeep Sharma to Kuldeep Mistry and the date of birth from 02.02.1953 to 13.02.1956. The said application together with the affidavit were duly forwarded to the higher 4 authority by the immediate officer under whom the petitioner was serving as carpenter by communication dated 11.12.86 (Annexure-3). The respondents thereafter kept silence on the said matter inasmuch as he was not informed about any order passed thereon or the procedure to be adopted by him to effect change in the surname as also the date of birth. Petitioner emphasizing importance of the matriculation certificate in the matter of date of birth has relied on a judgment of Supreme Court in case of Manoj Kumar Versus N.C.T. (2010 (4) PLJR 113 (SC) submits that the respondent in all fairness ought to have altered his date of birth in accordance with the matriculation certificate or could have effected such change after verifying genuineness of the certificate in case of any doubt. This was all the more necessary since it is not the case that he passed matriculation after achieving status of work charge in the establishment of the respondent corporation. He has also relied on 2010 (4) PLJR 332 (paragraph 6 & 10). Learned counsel for the respondents, on the other hand, submitted that the documents available with the Corporation indicate his name as Kuldeep Sharma. However, the name of his father has always been treated as Bishnudhari Mistry. It is submitted that the petitioner always represented himself as Kuldeep Sharma. Documents in this regard have been annexed as Annexure „C‟ & „D‟ series. It is also contended that the Certified Standing Order of the Corporation does not permit change in the age of workman as recorded by the Corporation at the time of his employment. It is further submitted with reference to the averments made in the counter affidavit that for effecting a change in the name or surname there is a laid down procedure wherein the 5 applicant has to file certain documents in the shape of affidavit, paper publication followed by gazette Publication. Since only an affidavit was filed and the two other documents were not furnished thereafter the respondents did not effect change in the surname of the petitioner from „Sharma‟ to „Mistry‟ making it compatible with the name / surname appearing in the matriculation certificate of the petitioner. On a perusal of materials on record this much is evident that petitioner was initially engaged on muster roll basis. His service card was prepared in which his name was set out as Kuldeep Sharma. In the column date of birth 02.02.1953 was incorporated without disclosing the basis thereof. The said service card was not signed by the petitioner. It is common knowledge that Sharma and Mistry are two surnames of the community to which the petitioner belongs. It further appears that there is no dispute with regard to parentage of the petitioner. The documents produced on behalf of the petitioner as well as the respondents do indicate that petitioner was always treated as son of Bishnudhari Mistry. The respondent Corporations objects the claim of the petitioner for a change in his surname as well as the date of birth on the ground that the Certified Standing Order (Clause 4) prohibits such change in the date of birth and the petitioner did not furnish the two other documents for effecting change in his surname. It appears that soon after acquiring status of permanency (work charge) the petitioner had filed an affidavit alongwith the matriculation certificate seeking change in the surname as well as the date of birth. The said application was duly forwarded to the higher official of the respondent Corporation by the immediate officer of the petitioner but no action was taken 6 thereon. The respondent could have directed the petitioner to furnish the remaining documents in the shape of paper publication / publication followed by gazette notification / publication but the same was not done. The respondents remained silent. Petitioner continued to discharge his duties probably in the belief that based on his affidavit and the matriculation certificate necessary corrections in the records of the Corporation in respect of his surname as well as date of birth had been made. I have already noticed that the records on which the respondent Corporation relies to show that his date of birth is 02.02.1953 is not authenticated by the respondents as well as the petitioner inasmuch as it does not disclose the basis on which the aforesaid date of birth was inserted. The other documents on which the respondents rely is the bio data (Annexure-C to the counter affidavit). Said documents is again based on service card (Annexure-A). According to the petitioner he had passed the matriculation examination in the year 1974. The certificate issued by the Bihar School Examination Board (duplicate copy) is on record as Annexure-1 to the writ petition. It appears that the petitioner furnished the said certificate on affidavit. The respondent could have acted on the same and altered their records since in the matter of date of birth of an employee due importance has always been given to the date of birth recorded in the matriculation certificate. Petitioner in this regard has rightly relied on (2010 (4) PLJR 113 (SC) Manoj Kumar Versus Govt. of N.C.T. of Delhi. As about change in his surname this Court has already noticed that there is no dispute with regard to the name of the father of the petitioner. The documents emanating from the petitioner and the record(s) maintained by the respondent, do establish 7 that petitioner is the son of Bishundhari Mistry. This factum is atleast established from the service particular prepared by the respondent when the petitioner was assigned status of work charge (Annexure-D series) . Petitioner in fact, was not seeking change of his name but only change in his surname. The matriculation certificate (Annexure-1) does establish that Kuldip Mistry is son of Bishundhari Mistry. Reliance has been placed by the respondents on Clause 4 of the Certified Standing Order (Annexure-E) to negate his case for correction in the age of the employee. It has been contended that in terms of Clause 4-C thereof the date of birth of a workman shall not be altered. On a close scrutiny of the said provision it appears that in terms of Clause 4-(a), the basis for accepting date of birth are the matriculation/ S.L.C./ Certificate issued by Panchayats in respect of non-matric workmen. In the event of non-production of aforesaid documents the respondents could have assessed his age by subjecting him to medical examination and or a declaration could have been obtained from the employer. The documents on record conclusively indicate that the requirement as contained in Clause-4 A & B was/were not followed. In that view of the matter, the respondents would not be justified in refusing to acknowledge the date of birth of the petitioner appearing in the matriculation certificate by referring to Clause 4-C of the Certified Standing Order they cannot take advantage of their own fault. This Court has already taken note of the fact that the caste to which the petitioner belongs carry surname as „Mistry‟ or „Sharma‟. The petitioner had filed appropriate affidavit in this regard on 12.11.1986 8 (Annexure-2 Series). No action was taken thereon inasmuch as petitioner was not apprised of the procedure for change of name of the employee. It is to be borne in mind that petitioner did not request for change of his first name. The request was only for the change of surname from „Sharma‟ to „Mistry‟. The stand of the respondents in Para-4 of the counter affidavit would not be sustainable in law since request was only to change the surname from „Sharma‟ to „Mistry‟ not his name. It is also seen that the respondents did not response to the said request made by him in 1986 attaching an affidavit affirmed by the petitioner enabling him to complete the procedure, if any, therefor. That having not been done the respondent would not be justified in taking a stand that they cannot change the surname of the petitioner for want of compliance of those procedures. For the reasons aforenoted the application is allowed in the following terms:- I. The respondent shall treat the petitioner as „Kuldeep Mistry‟ not „Kuldeep Sharma‟. II. Order dated 11.08.2010 as contained in Annexure- IV insofar as it fixes the date of superannuation of the petitioner as 28.02.2011 is quashed. III. The petitioner shall be reinstated in service on production of copy of the present order. The date of birth of the petitioner shall be treated as 13.02.1956 as appearing in the matriculation certificate (Annexure-1). IV. Petitioner shall be treated continuously in service till 9 he attains the age of superannuation treating his date of birth as 13.02.1956. V. Petitioner shall be paid 50% of the salary / wages for the period he was kept out of job/service. Saif (Kishore K. Mandal, J.)