RAYA GOVIND GAONKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) . The petitioner joined the Fifth Royal Maratha Light Infantry in the year 1939 at the age of about 18 years. Later on, he was discharged and transferred to the Royal Air Force on 3/11/1942 when his apparent age was recorded as 21 years because at that time he did not produce the School Leaving Certificate. Later on, however the petitioner obtained the School Leaving Certificate and filed the same in the year 1945 and the petitioner was given an enrollment certificate on 8/1/1945. This enrollment certificate was signed by the Enrollment Officer as well as the petitioner and his date of birth was accepted as 2/8/1921. Accordingly, the petitioner was issued an identity card which indicated his date of birth as 2/8/1921. On 15/7/1974 a discharge order was issued by the Officer Incharge, Air Force Record Officer that the petitioner should be discharged from service on 3/11/1975 because on that date he would be attaining 55 years of age which was the date of superannuation. The petitioner felt aggrieved by this discharge order and filed the present petition under Article 226 of the Constitution of India.

(2.) . It was contended by the learned counsel for the petitioner that on the petitioner's furnishing the School Leaving Certificate in the year 1945, his date of birth was accepted as 2/8/1921 and accordingly he was issued an enrollment certificate and identity card and this position was accepted by the respondents all through out and in fact after the discharge notice was issued on 31/7/1974 the Commanding Officer made a query with the Air Force Record Room as to how the date of birth of the petitioner was shown differently when the record card signed on 8/1/1945 showed his date of birth as 2/8/1921. To this, a reply was given by the Record Officer that this date of birth mentioned as 2/8/1921 was only for departmental purposes. Learned counsel, therefore, submitted that this itself shows that there was no basis for changing the date of birth of the petitioner in the discharge certificate to 3/11/1920. Learned counsel further submitted that in any event if the respondents wanted to change the date of birth of the petitioner or had any doubt regarding the date of birth given by the petitioner it was incumbent upon them to give him a notice before affecting the change and this having not been done the discharge certificate was violative of principles of natural justice. Learned counsel referred to I.N. Saksena v. The State of Madhya Pradesh (AIR 1967, 1264) in support of her contention.

(3.) . Though, no one appeared for the respondents at the time of the hearing, from the counter-affidavit filed by the respondents I find that when the petitioner joined the Army his approximate age was given as 18 years. However, what is stated is that when he joined the Air Force in the year 1942 since his certificate of date of birth was not available, his date of birth was taken on the basis of apparent age and thus apparent age in the year 1942 was shown as 22 years. The respondents however have not denied anywhere that the petitioner had in fact furnished a School Leaving Certificate in the year 1945 on the basis of which he was issued the identity card. 'As regards the question, of compliance with the rules of natural justice, it is stated in the affidavit that by various broad-casts issued by the respondents, all those officers who had not furnished documentary proof of their age at the date of enrollment were given an opportunity to do so. They were further informed that <PG>101</PG> if they failed to do so, the date of birth will be determined as per apparent age. Since the petitioner did not furnish any documentary proof after the broad-cast his date of birth was fixed on the basis of apparent age.