BURN STANDARD COMPANY LIMITED Vs. DINABANDHU MAJUMDAR

JUDGEMENT

(1.) Special leave sought for, is granted.

(2.) This appeal by special leave arises from the judgment dated 14-1-1993 of a Division Bench of the High Court of Calcutta dismissing Appeal No. 149/91 directed against the order dated 18-4-1991 of a learned Single Judge of the same Court made in Matter No. 2317/90, requiring respondent-1 therein and appellant-1 herein, by issuance of a writ in the nature of mandamus, to correct the date of birth of petitioner-1 therein respondent-1 herein, in his Service and Leave Record and allow him to continue in its service beyond his superannuation age commutable according to his date of birth entered in that Service and Leave Record at the time of his appointment. A question of general importance which is raised for our decision in this appeal is:When the High Court's extraordinary writ jurisdiction under Article 226 of the Constitution is sought to be availed of by an employee of the government or its instrumentality, to prevent either of them, as the case may be, from retiring him on superannuation according to the date of his birth declared at the time of his appointment and entered in his Service and Leave Record,' by its acceptance by the Government or its instrumentality, as correct, can such jurisdiction be exercised in favour of such employee, as a matter of course

(3.) In the year 1981, when appellant-1, the Burn Standard Company Limited was formed by the Government of India, it took over the Indian Standard Wagon Company Limited along with its employees, subject to their existing service conditions. Consequently, respondent-1, who had been appointed by Indian Standard Wagon Company Ltd. as its employee long ago on 25-4-1953 became the employee of appellant-1. Service and Leave Record of respondent-1 with the Indian Standard Wagon Company Ltd., which had been opened at the time of his appointment, became his Service and Leave Record' with the appellant. That Service and Leave Record' of respondent-1, where his age had been entered on the basis of his declaration, voluntarily made at the time of his appointment also contained his authentication made therefor, by affixture of his left thumb mark. That declared age, which indicated the date of birth of respondent-1 as 25-4-1931, has to be the basis for his retirement from service, on attaining the age of superannuation at 60 years. However, respondent-1 who had continued in employment with the appellant for over 36 years, without any demur as to his age entered in his Service and Leave Record, made an application to the appellant on 1-2-1989, at a time close to the date of his retirement, seeking correction of his date of birth as 7-7-1934 in his Service and Leave Record. But, appellant-1, which considered that application, by its letter dated 10-3-1989, informed respondent-1 that his age recorded in his Service and Leave Record as per his own declaration and duly authenticated by him at the time of his appointment, since constituted the sole evidence of his age in all matters relating to his service, according to its Standing Order, the same could not be corrected as sought for. But, respondent-1 again wrote a letter dated 26-7-1989 to appellant-1, stating that he had to seek correction of his date of birth in his Service and Leave Record since it did not reflect his date of birth as found in his Admit Card of Matriculation Examination issued by the Calcutta University and was also not in consonance with the declaration of his age made at the time of his appointment before his erstwhile employer. When the claim in that letter was not acceptable to appellant-1, respondent-1 was duly intimated of the same by means of a Memo dated 8-9-1989. Further, on 5-6-1990 the appellant also issued to respondent-1 the Superannuation Notice which read thus: