Aniruddha Bose, C.J.:— This appeal arises out of a decision of the learned Single Judge directing the appellant Bharat Coking Coal Limited to make correction of the date of birth of the respondent-writ petitioner in service records as per his matriculation certificate. That certificate shows his date of birth as 20 January, 1955. The writ petitioner's date of birth is shown in Form B, which is a statutory form maintained by the coal company under the Mines Act, 1952 to be 4 March, 1950. The original Form B Register was produced before us by the appellant and we have checked this entry in the original Register. Before his superannuation on the basis of Form B register in the year 2010, the writ petitioner produced the matriculation certificate showing his date of birth to be 20 January, 1955. It is admitted position that the said certificate was verified by the employer from Bihar School Examination Board and was found to be correct. The appellant employer however proceeded on the basis of the date disclosed in the Form B Register and the respondent writ petitioner was superannuated on 31 March, 2010. The authorities also took cognizance of the service book of the writ petitioner for determining his superannuation date.
2. The writ petition was instituted on 4 December, 2014, almost four years after the writ petitioner's superannuation. It is submitted on behalf of appellant that the writ petitioner had received all the retiral benefits at the time of his superannuation. Learned First Court allowed the writ petition relying on the matriculation certificate as well as Implementation Instruction No. 76 of National Coal Wage Agreement (NCWA) which requires consideration of matriculation certificate for the purpose of determining the age of an employee. It was, inter alia, held and observed by the learned First Court:—
“10. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that admittedly the petitioner for the first time raises his grievances regarding correction in the date of birth in the year 2009. On receipt of such objection, the respondent-authorities verified the date of birth as claimed by the petitioner from the Bihar School Examination Board, Patna and after verification, the BSEB vide its reference No. 8563 confirmed the date of birth as 20.01.1955. If the date of birth, as per the respondents, was 04.03.1950 as mentioned in the Form “B” Register then there was no occasion for verifying the same from Bihar School Examination Board. It is not a case that the petitioner has procured the matriculation certificate much after his appointment, rather, he had passed matriculation prior to his coming into service. From perusal of Annexure-3, which is Form ‘B’, the document of the respondents themselves, it is apparent that interpolation has been done. After cutting the original date of birth mentioned in Form ‘B’ register as 20.01.1955, the wrong date of birth as 04.03.1950 has been written by interpolation. The reason of such interpolation has not been explained by the respondents. There is no occasion why the petitioner will indulge into such interpolation which is not in his favour and as such it is very much clear that interpolation, if any, has been done by the office of the respondents itself. In catena of decisions, the Hon'ble Apex Court has held that no correction can be made at the fag end of service career. In the case of Bharat Coking Coal Ltd. v. Chhota Birsa Uranw, reported in 2014 (3) JLJR 182 (SC), it has been held that statutory documents like Form ‘B’ register is binding and School Leaving Certificate prevail over records and statutory documents of the company. The petitioner should have produced the matriculation certificate at the time of appointment since he has stated that he had passed matriculation examination in the year 1971 which was prior to joining of his service. The statutory Form ‘B’ relied upon by the respondents, which is at Annexure-3 of the writ petition, shows clear interpolation and as such, any date of birth entered by way of interpolation cannot be relied upon even if it is in the statutory Form ‘B’. The judgments relied on by the respondents does not come to their rescue. The respondents heavily relied on the judgment passed in L.P.A. No. 327 of 2006 (Ram Praye Singh v. BCCL), in which it was held that Form ‘B’ which was prepared at the time of joining of the petitioner, is a statutory document and record of service as the same has duly been signed and authenticated by the petitioner.
11. The Form ‘B’ register relied upon by the respondents is a new Form ‘B’ which was not prepared at the time of appointment rather at a later stage. The Implementation Instruction No. 76 of NCWA-II provides for determination of age at the time of appointment where it has been clearly mentioned that in case of new 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. On a plain reading of the said I.I. No. 76 it is clear that in case of such new appointees, who have passed matriculation or equivalent examination, the date of birth recorded in the matriculation certificate shall be treated as correct date of birth and the same will not be altered under any circumstances. It is, therefore, not the entry made in Register Form ‘B’ or any other records, but, the date of birth recorded in the matriculation certificate which has been accepted as a conclusive proof of date of birth. This also is of no help to the respondents as Form ‘B’ which is at Annexure-3 is itself interpolated and the essential Form ‘B’, which was prepared at the time of joining of the petitioner has not been brought on record and as such, this case is distinguished on that score itself. It is, therefore, not the entry made in register Form ‘B’ or any other records, rather the date of birth recorded in the matriculation certificate be accepted as a conclusive proof of date of birth. In that view, if there is service excerpts or Form ‘B’ register even signed by the employee mentioning the date of birth contrary to that recorded in matriculation certificate shall not be treated as correct date of birth. Similar issue fell for consideration before the Full Bench of this Court in Kamta Pandey v. BCCL [2007 (3) JLJR 726]. The Full Bench of this Court has answered the same by holding that the date of birth recorded in the matriculation certificate is a conclusive proof of age and has overriding effects on other records, including service records, as both the parties are governed by Implementation Instruction No. 76 of National Coal Wage Agreement-III. The same view was reiterated in W.P. (S) No. 2208 of 2008, which was affirmed by the Division Bench in LPA No. 276 of 2011.”
3. Point was raised on behalf of the coal company that at the fag end of the service career the plea for correction of age for extending the service tenure ought not to be entertained. But on that point the learned First Court relied on a Full Bench judgment of this Court in the case of Kamta Pandey v. BCCL [2007 (3) JLJR 726]. It has been, inter alia, held in paragraph 27 of the said report:
“27. In these decisions, though it is observed that the employee will not normally be permitted to apply for change of his date of birth at the fag end of service career, the Supreme Court clearly held that if the Court is fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed and when a clear case, relating to the date of birth, is made out on the basis of clinching materials, then necessary direction to make a declaration of the said date of birth can be given.
4. So far as the learned First Court's reasoning is concerned, there is one feature with which we are unable to agree. In this case the respondent writ petitioner had applied before the Court four years after his retirement for restoration of his employment. Moreover several Forms were filled up in course of his service in which his educational qualification was not disclosed. These factors, in our opinion have not been given due weightage by the learned First Court. In the service book however the educational qualification of the respondent writ petitioner has been shown to be ‘school final’ and the name of the institution has also been disclosed.
5. Essentially, the arguments of the respective parties run in the following course. The writ petitioner's case is that it is the employers' representatives who fill up the various registers and there could always be discrepancies in disclosures recorded in such forms. Then there is Implementation Instruction which has been referred to in the judgment under appeal. We have referred earlier in this judgment to the said instruction. Employer's case is primarily founded on delay in approaching the Court. The writ petitioner did not apply before the Court during his tenure as an employee and he has approached the Court after four years of his superannuation after receiving some retiral benefits. Now we will have to reconcile the competing claims of the parties in the light of the aforesaid facts. The writ petitioner's case on merit prevailed with the learned First Court but in our opinion delay of four years without proper explanation in approaching the Court ought to go against a party in grant of discretionary relief which one prays for while invoking constitutional writ jurisdiction of this Court. While the judgment of the learned First Court has dealt with cogent reasoning the merit of the writ petitioner's case, the aspect of delay in approaching the Court was not properly dealt with.
6. Having considered these factors, we dispose of the appeal directing the employer to pay one year's additional salary along with the attendant benefits to the writ petitioner. The reason as to why we direct so is that even if we take into account the matriculation certificate to be the guiding factor for age determination, then at the time the writ petitioner had approached this Court, only one year's service would have been left to be served by him. The writ petitioner in any event cannot be directed to be appointed now. Nor could he be directed on the date the judgment of the learned First Court was pronounced as he had crossed the superannuation age on such dates, even going by his matriculation certificate. The writ petitioner cannot be granted remaining four years salary as he did not work for those four years and he did not also seek relief from the Court also during this period.
7. We accordingly modify the judgment and order of learned First Court and direct the employer to pay a sum equivalent to one year's salary for the period between April, 2010 to March, 2011 at the then prevailing rate. All other retiral dues shall also be released to the writ petitioner. This exercise shall be completed within a period of 10 weeks from the date of communication of this order. The appeal stands disposed of in the above terms.
8. No order as to costs.
9. As we have disposed of the main appeal, the connected Interlocutory Application shall also stand disposed of.