SAMARENDRA NATH DAS Vs. UNION OF INDIA

JUDGEMENT

(1.) This Rule is directed against an order issued by the General Manager, North Eastern Railway, Calcutta which is Annexure 'E' to the writ petition. By the aforesaid Memo issued by the G. M. (P),it has been held that as the petitioner's date of birth has been decided to be 1st July, 1919, as recorded in his High School Certificate, the petitioner should not be allowed to continue in service beyond 30th September, 1979 and the period from the date of superannuation should be treated as service on re-employment and the Railway Board's sanction should be obtained. It may be noted in this connection that during the hearing of this matter, the learned Counsel appearing for the Railway Administration has produced the records to show that the Railway Board has sanctioned the re-employment of the petitioner from the date he had attained the age of superannuation of the basis of the age determined by the Chief Personnel Officer till 30th September, 1979. It appears that the petitioner was initially appointed in the office of the Senior Food Controller, North Eastern Railway which was then Oudh Trihut Railway, Gorakhpur as a Clerk and he was subsequently transferred to the office D. C. O. S. O. T. Railway, Gorakhpur. The petitioner's case is that at the time of entry in the service, the father of the petitioner was alive and he appeared before the appropriate authorities with an affidavit in support of the correct age of the petitioner and on that basis, the petitioner's age was recorded to the effect that the petitioner's date of birth was 1st July 1922. The petitioner contends that the said date of birth was accepted even on the face of the Matriculation Certificate wherein a different age was noted. The petitioner, therefore, contends that the petitioner's date of superannuation must be computed with reference to his actual date of birth namely 1st July, 1922 which was accepted and recorded in the service record on proper verification of the relevant documents. It appears that as the age of the petitioner noted in the service record was contrary to the age recorded in the Matriculation Certificate, the petitioner was asked to show cause why the age should not be corrected. The petitioner explained the circumstances and insisted that the correct age which was noted in the service record should not be altered. It, however, appears, that the representation of the petitioner was not acceded to and the Chief Personnel Officer was inclined to accept the date as recorded in the Matriculation Certificate and the age of the petitioner, was therefore, altered treating the same as 1st July, 1919. In view of such alteration of the age of the petitioner in the service record, it was found that the petitioner had superannuated from the service. In the aforesaid circumstances, the impugned order was issued by the G. M. (P) to the effect that the petitioner should not be allowed to continue in service from 30th September, 1979 and the period of service rendered by the petitioner from the date of superannuation on the basis of the age determined as aforesaid till 30th September, 1979 be treated as service on re-employment. It also appears that on that basis post retirement benefits of the petitioner are being computed. Against such determination of the age and the consequential orders for giving the post retirement benefits to the petitioner and adjustment of over-payment made to the petitioner contrary to the pay and other emoluments which was admissible to the petitioner on the basis of the re-employment on superannuation, the instant writ petition has moved by the petitioner.

(2.) Mr. Ganguly, learned Counsel for the petitioner has contended at the first place that under Rule 145 of the Indian Railway Establishment Code, Volume I, the determination of the age can only by made by the General Manager in case of non-gazetted Railway employees. But in the instant case the determination having been admittedly made by the Chief Personnel Officer, the said determination must be held to be illegal and without jurisdiction.

(3.) Mr. Ganguly has further contended that the age noted in the Matriculation Certificate is not binding as a matter of rule and the concerned authorities were quite free to accept the correct age of an employee in preference to the age noted in the Matriculation Certificate and as in the instant case the petitioner's correct age on the basis of other documents had been accepted in preference to the age noted in the Matriculation Certificate there cannot be any reason to modify the age of the petitioner at the last lap of his service simply because the age noted in the Matriculation Certificate differed with the age accepted at the time of entry in the service. Mr. Ganguly has also contended that the concerned authorities failed and neglected to properly determine the age of the petitioner even assuming that such determination was warranted in the facts and circumstances of the case. Hence, it was not open for the respondents to treat the petitioner as a re-employed employee from the alleged date of superannuation till 30th September, 1979 by an order giving retrospective effect to the determination of age. Mr. Ganguly has contended that the concerned authorities had no jurisdiction to force the petitioner to accept re-employment with a lesser pay packet without his option. It may be noted in this connection that under the existing rules, if an employee is re-employed after the superannuation, then he is not entitled to get the salary last drawn by him with increments etc. but he is to get the salary which is the lowest in the cadre in which he is re-employed. Mr. Ganguly has, therefore, contended that the order determining the age of the petitioner subsequently by the Chief Personnel Officer should be quashed and the order or orders by which the petitioner was treated or deemed to have been treated as re-employed after attaining the age of superannuation till the 30th September, 1979 should also be quashed and suitable direction should be given to the Railway Administration to treat the petitioner's age, which was initially noted in the service record as correct and to give all benefits to the petitioner on the basis of such age of the petitioner including arrear salaries and the post retirement benefits.