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Reportable IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 8634  OF 2013 (Arising out of S.L.P. (C) No. 22813 of 2007)

Eastern Coalfields Ltd. and others … Appellants

Versus

Bajrangi Rabidas …Respondent

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. Calling  in  question  the  legal  sustainability  of  the  

judgment  and  order  dated  17.8.2007  passed  by  the  High  

Court  of  Judicature  at  Calcutta  in  F.M.A.  No.  169  of  2006  

whereby  the  Division Bench has overturned the  judgment  

and  order  dated  14.6.2004  passed  by  the  learned  single

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Judge in W.P. No. 5700(W) of 2001 whereunder he had given  

the stamp of approval to decision dated 26.2.2004 by the  

General  Manager  of  the  appellant-company,  who  had  

rejected  the  objection  of  the  respondent  for  changing  his  

date of birth as recorded in his service excerpts and Form ‘B’  

Register,  the  appellants  have  preferred  their  appeal  by  

special leave.  

3. The facts which are requisite to be exposited are that  

the  respondent  had  joined  at  Chinakuri  Mine  No.  111  on  

9.1.1970 as Mining Sirdar and for being selected on the said  

post he had appeared in Gas Testing Examination held on  

15.5.1969.  He had also appeared in Sirdarship examination  

held on 2.7.1969 and Overmanship certificate examination  

on 3.7.1973.  At every stage, he had mentioned his date of  

birth as 2.4.1946.  On the basis of the declaration made by  

the respondent his date of birth was clearly reflected in Form  

‘B’ Register and service book and he had signed both the  

documents.  Be it noted, the appointment of the respondent  

as Mining Sirdar was in a private colliery.  After enactment of  

Coal  Mines (Nationalization) Act,  1973 all  private collieries

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were  taken  over  by  the  Central  Government  and  handed  

over  to  the Coal  India  Ltd.  and its  subsidiaries.   It  is  not  

disputed that the respondent was absorbed in the Eastern  

Coalfields  Ltd.,  a  subsidiary  of  Coal  India  Ltd.   It  may be  

noted here that as disputes with regard to date of birth of  

employees had arisen, the “Implementation Instruction No.  

76” was issued in the year 1987 laying down the procedure  

for  determination/verification  of  age  of  employees.   On  

15.5.1987  the  respondent  filed  an  objection  stating  that  

there has been an erroneous entry as regards his date of  

birth because his correct date of birth is 2.4.1948 and not  

2.4.1946 as  recorded in  the service register  and Form ‘B’  

Register.  After filing the said objection the respondent chose  

to  maintain  silence  and,  eventually,  approached  the  High  

Court in Writ Petition No. 6156 (W) of 2001 stating, inter alia,  

that his  date of birth is  2.4.1948 as per the Matriculation  

Certificate.   The  High  Court  vide  order  dated  30.7.2003  

directed the respondent therein to  take a decision on the  

objections filed by the workman regarding his date of birth in  

his service excerpts after offering a reasonable opportunity

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of  being  heard  to  him  and  further  keeping  in  view  the  

provisions contained in “Implementation Instruction No. 76”.

4. In pursuance of the order passed by the High Court the  

General Manager, Sodepur Area, conducted an enquiry give  

due  regard  to  the  principles  of  natural  justice  and  the  

guidelines  enumerated  in  “Implementation  Instruction  No.  

76” and rejected his claim vide order dated 26.2.2004.  

5.  Being dissatisfied the respondent preferred W.P.(W) No.  

5700 of 2001.  The learned single Judge took note of series  

of facts, namely, that the respondent was signatory to the  

documents,  namely, the Form ‘B’ Register and the service  

book; that his date of birth as 2.4.1946 was mentioned in the  

two  certificates,  namely,  Gas  Testing  and  Overmanship  

Certificate  and  Sirdarship  Certificate;  the  Gas  Testing  

examination was held on 15.5.1969 and as per Regulation  

14(1)  of  the Coal  Mines Regulations,  1957 (for  short  “the  

Regulations”)  application  for  the  said  examination  was  

required to be submitted not less than sixty days prior to the  

date fixed for the examination and as per Regulation 15(1) of

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the Regulations no person could have been admitted as a  

candidate at any examination held by the Board unless he  

had completed  21 years  of  age;  that  had the respondent  

produced  his  Matriculation  Certificate  which  reflected  his  

date  of  birth  as  2.4.1948,  he  would  not  have  been  in  a  

position to appear in the Gas Testing examination as by the  

time the form was filled up he would have been less than 21  

years of age; that  he had not  correctly stated his age was  

only to avail a benefit at that juncture is writ large; that he  

had  half-heartedly  raised  an  objection  in  the  year  1987  

pertaining  to  the  service  record  though  it  was  within  his  

knowledge that as per the Matriculation Certificate his date  

of  birth  is  2.4.1948;  that  he  approached  the  court  quite  

belatedly in 2001 for redressal of his grievances; and that he  

cannot  be  allowed  to  take  the  benefit  of  securing   an  

appointment  by  stating  a  different  date  of  birth  and  

thereafter  endeavour  to  have  further  advantage  of  

continuance of service on the basis of age mentioned in the  

Matriculation  Certificate.   Being  of  this  view  the  learned  

single Judge dismissed the writ petition.

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6. Grieved  by  the  order  passed  by  the  writ  court  the  

respondent preferred an appeal and the Division Bench took  

note of the fact that the Identity Card issued by the private  

colliery at the time of initial appointment reflected his date  

of birth to be as 2.4.1948; that the respondent-authorities  

were  not  in  a  position  to  explain  how  and  under  what  

circumstances  the  date  of  birth  of  the  workman  was  

subsequently  changed  in  the  service  book;  that  for  

appearing in the Sirdarpur Certificate examination under the  

Regulations the prescribed minimum age of a candidate is  

20 years  and not  21 years;  that  the authorities  have not  

taken the decision correctly in view of the “Implementation  

Instruction No. 76”; and that when the initial date of birth in  

the Identity Card mentioned the date of birth to be 2.4.1948,  

the  same  could  not  have  been  changed  by  the  ECL  

authorities.  Being of this view, the Division Bench directed  

for  rectification  of  the  records  and  grant  of  admissible  

arrears of salary and other consequential service benefits.

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7. We  have  heard  Mr.  Mahabir  Singh,  learned  senior  

counsel  for  the  appellants  and  Mr.  Bijan  Ghose,  learned  

counsel for the respondent.

8. At  the  outset,  it  is  essential  to  be  stated  that  the  

learned  single  Judge  had  dismissed  the  writ  petition  in  a  

summary manner and the Division Bench has taken note of  

certain facts which are not correct and also relied upon the  

amended  regulation.   As  has  been  stated  earlier,  on  the  

basis of the order passed by the writ court on 30.7.2003 the  

General Manager conducted an enquiry.  The facts that have  

been enumerated in the enquiry proceeding are absolutely  

relevant for apposite delineation of the lis in question.  The  

concerned  authority  had  issued  notice  to  the  respondent  

who  appeared  before  him  on  6.2.2004.   He  had  clearly  

stated before him that he had joined the service on 9.1.1970  

as  Mining  Sirdar  and  had  appeared  in  the  Gas  Testing  

Examination held on 15.5.1969, Sirdarship Examination on  

2.7.1969  and  Overmanship  Certificate  Examination  on  

3.7.1973.   He  had  obtained  all  the  three  statutory  

certificates where his date of birth was recorded as 2.4.1946.

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It is worthy to note that the Division Bench has referred to  

Regulation 15(2) of the Regulations to express the view that  

the  appellant  therein  could  not  have been  admitted  as  a  

candidate to the said Examination in the year 1969 without  

submitting  the  passed  certificate  of  the  secondary  school  

examination of a recognized Board or its  equivalent.   The  

said assumption by the Division Bench is incorrect as it has  

not at all taken note of the facts that have come out in the  

enquiry  conducted  by  the  General  Manager.  The  enquiry  

report clearly reveals that the respondent could not produce  

the Madhyamik certificate at the time of his appointment as  

he  had  not  received  the  same at  that  time and  the  said  

certificate was received by him sometime in the year 1970.  

He  had  categorically  stated  that  he  never  produced  the  

certificate  of  Madhyamik  examination  before  the  

Management but verbally told the fact of his passing of the  

said examination to the then Welfare Officer.  It was also told  

that he had not mentioned passing of the examination at the  

time  of  submission  of  application  to  appear  before  the  

statutory examination.  This being the factual position, the

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finding  of  the  Division  Bench  that  he  had  produced  the  

Madhyamik School certificate at the time of appearance in  

examination is not correct.

9. It is perceptible that the Division Bench has referred to  

Regulation  15(1)(a)  of  the  Regulations  to  come  to  the  

conclusion that the respondent had not availed any benefit  

as  the  prescribed minimum age  of  a  candidate  is  twenty  

years.  In this context, we may refer to Regulation 15(1)(a)  

and (b) which read as follows:-

15.  Age  and  general  qualifications  of  candidates – (1) (a) No person shall be admitted  as  a  candidate  at  any  examination  held  by  the  Board unless he is 20 years of age.

(b) No person shall be admitted as a candidate at  any  examination  for  a  Manager’s,  Surveyor’s,  Overman’s,  Sirdar’s,  or  Shotfirer’s  Certificate  unless he holds a valid first aid certificate of the  standard  of  the  St.  John  Ambulance  Association  (India):

Provided  that  if  any  candidate  satisfies  the  Board  that  he  has  not  sufficient  opportunity  to  obtain such first-aid certificate, the Board may, by  order in writing admit him to the examination on  such conditions, if any as it thinks fit to impose :

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10. It is imperative to note that “20 years of age” occurring  

in  Regulation  15(1)(a)  was  substituted  by  Notification  No.  

G.S.R.  32  dated  16.12.1978.   Regulation  15(1)(a)  prior  to  

1978 read as follows: -

“15. Age and general qualifications of candidates –  (1) (a) No person shall be admitted as a candidate  at any examination held by the Board unless he is  21 years of age.”

Thus, in 1969 the above quoted regulation was in force.

11. At this juncture, we may fruitfully refer to Regulation 14  

of the Regulations.  It reads as follows: -

“14.Submission of application – (1) Application  for an examination conducted by the Board shall  be made to the Board not less than 60 days prior  to  the  date  fixed  for  the  examination  and  on  a  form supplied for the purpose.

(2) Notice  regarding  the  date  and  place  of  examination  for  the  Manager’s,  Surveyor’s  and  Overman’s certificate shall be published under the  order of the Board in such periodicals as the Board  may direct, not less than 60 days prior to the date  fixed by the Board for receiving applications.”

12. From  the  conjoint  reading  of  Regulations  14(1)  and  

15(1)(a)  it  is  quite  clear  that  an  application  has  to  be  

submitted to the Board not less than 60 days prior to the

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date fixed for examination.  The respondent had passed the  

Matriculation Certificate examination in December, 1963.  It  

is  quite  unusual  that  he  could  not  have  obtained  the  

certificate till 1969.  Be that as it may, if the date of birth, as  

reflected in the certificate, is taken into account,  then the  

respondent  would  have  been  eligible  to  submit  the  

application for examination.  The construction that can be  

placed on reading of the clauses can only be that he has to  

be 21 years of age by the time he submitted his application.  

To avoid his disqualification to appear in the examination he  

took the plea as has come out in the enquiry that he had  

passed the examination and his date of birth was 2.4.1948.

13. Learned  counsel  for  the  respondent  has  invited  our  

attention  to  the  “Implementation  Instruction  No.  76”  has  

tried  to  support  the  order  passed  by  the  Division  Bench.  

Para (A)(i)  deals with Matriculation certificate.  It  reads as  

follows: -

“(i) Matriculates.

In the case of appointees who have passed  Matriculation or equivalent examinations, the

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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.”

14. Para (A)(v) deals with revision of determination of date  

of birth in respect of existing employees.  Paras (A)(v)(i)(a)  

and (b) are as follows: -

“v) Review determination of date of birth in  respect of existing employees.

i) (a) In the case of the existing employees  Matriculation  Certificate  or  Higher  Secondary  Certificate  issued  by  the  recognized  Universities  or  Board  or  Middle  pass  Certificate  issued  by  the  Board  of  Education  and/or  Department  of  Public  Instruction  and  admit  cards  issued by the aforesaid Bodies should be  treated  as  correct  provided  they  were  issued  by  the  said  Universities/Boards/Institutions  prior  to  the date of employment.

(b)  Similarly,  Mining  Sirdarhip,  Winding  Engine or similar other statutory certificates  where the Manager had to certify the date of  birth will be treated as authentic.

Provided  that  where  both  documents  mentioned  in  (i)(a)  and  (i)(b)  above  are  available, the date of birth recorded in (i)(a)  will be treated as authentic.”

15. On an apposite reading of the instructions there can be  

no  iota  of  doubt  that  the  date  of  birth  mentioned  in

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Matriculation  or  Higher  Secondary  certificate  has  to  be  

accepted as authentic.   But, a pregnant one, as has been  

indicated hereinbefore, the case at hand depicts a different  

picture.   The  respondent  did  not  produce  the  Matriculate  

Certificate, though he had passed the said examination.   It  

is because, we are inclined to think, had he produced the  

said  certificate,  he  could  not  have  undertaken  the  

examination  and  consequently  could  not  have  been  

appointed.  To secure an appointment, as has been found in  

the enquiry, he made a statement that he had not obtained  

the certificate though he had passed the examination and  

the same was accepted by the Welfare Officer of the then  

private company.

16. The question that arises for consideration is that once  

he had availed the benefit by not stating the correct fact,  

whether the equitable jurisdiction under Article 226 of the  

Constitution  of  India  should  be  extended  to  him.   The  

Division Bench has recorded a finding the respondent could  

not  have  been  allowed  to  participate  in  the  examination  

without  producing  the  Matriculation  certificate.   The  said

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finding is based on an assumption and has been arrived at  

totally being oblivious of the enquiry report which records  

the statement of the respondent.  In this context, we may  

profitably reproduce a passage from  Union of India  v.  C.  

Rama Swamy and others1: -

“In  matters  relating  to  appointment  to  service  various factors are taken into consideration before  making a selection or an appointment.  One of the  relevant  circumstances is  the  age of  the person  who  is  sought  to  be  appointed.   It  may  not  be  possible to conclusively prove that an advantage  had been gained by representing a date of birth  which is different than that which is later sought to  be incorporated.  But it will not be unreasonable to  presume  that  when  a  candidate,  at  the  first  instance, communicates a particular date of birth  there  is  obviously  his  intention  that  his  age  calculated on the basis of that date of birth should  be  taken  into  consideration  by  the  appointing  authority  for  adjudging  his  suitability  for  a  responsible  office.  In  fact,  where  maturity  is  a  relevant  factor  to  access  suitability,  an  older  person is ordinarily considered to be more mature  and, therefore, more suitable.  In such a case, it  cannot be said that advantage is not obtained by a  person because of an earlier date of birth,  if  he  subsequently  claims to be younger in  age,  after  taking  that  advantage.   In  such  a  situation,  it  would  be against  public  policy  to  permit  such a  

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(1997) 4 SCC 647

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change  to  enable  longer  benefit  to  the  person  concerned.”

[Underlining is ours]

17. The  controversy  can  be  viewed  from  another  angle.  

Thereafter,  the  learned  Judges  opined  that  there  is  no  

justification  in  the  proposition  that  principle  of  estoppel  

would not apply in such a situation.  As is manifest, in the  

case at hand the respondent stated this on the higher side to  

gain the advantage of eligibility and hence, we have no trace  

of doubt that principle of estoppel would apply on all fours.  

It  is  well  settled in  law that jurisdiction of the High Court  

under  Article  226  of  the  Constitution  is  equitable  and  

discretionary.  The power of the High Court is required to be  

exercised  “to  reach  injustice  wherever  it  is  found”.   In  

Sangram Singh  v.  Election Commissioner, Kotah and  

another2, it has been observed that jurisdiction under Article  

226 of the Constitution is not to be exercised whenever there  

is an error of law.  The powers are purely discretionary and  

2

(1955) 2 SCR 1

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though no limits can be placed upon that discretion, it must  

be exercised along recognized lines and not arbitrarily and  

one of the limitations imposed by the courts on themselves  

is  that  they  will  not  exercise  jurisdiction  in  such  class  of  

cases unless substantial injustice has ensued or is likely to  

ensue.   That  apart,  the  High  Court  while  exercising  the  

jurisdiction under Article 226 of the Constitution can always  

take cognizance of the entire facts and circumstances and  

pass  appropriate  directions  to  balance  the  justice.   The  

jurisdiction being extraordinary it is required to be exercised  

keeping in mind the principles of equity.  It is a well-known  

principle that one of the ends of equity is to promote honesty  

and fair play.  If a person has taken an undue advantage the  

court  in  its  extraordinary  jurisdiction  would  be  within  its  

domain to deny the discretionary relief.  In fact, Mr. Singh,  

learned  senior  counsel  for  the  appellants,  has  basically  

rested his submission on this axis.  In our considered opinion,  

the Division Bench has erred in extending the benefit to the  

respondent  who  had  taken  undue  advantage  by  not  

producing the Matriculation Certificate solely on the motive

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to get an entry into service.  It is apt to note here that this  

Court in G.M., Bharat Coking Coal Ltd., West Bengal v.  

Shib  Kumar  Dushad  and  others3 has  ruled  that  the  

decision on the issue of date of birth of an employee is not  

only important for the employee but for the employer also.  

18. In  view  of  our  aforesaid  premised  reasons  we  are  

unable to concur with the view taken by the High Court in  

F.M.A. No. 169 of 2006 and, accordingly, the Judgment dated  

17.8.2007 passed by the Division Bench is set aside.   

19. Resultantly, the appeal is allowed with no order as to  

costs.

……………………….J. [Anil R. Dave]

……………………….J. [Dipak Misra]

New Delhi; September 23, 2013.

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(2008) 8 SCC 696