SYAMANAND MISHRA Vs. D.V.C.

JUDGEMENT

(1.) By this writ petition the writ petitioner has challenged the order of superannuation passed by the respondent No. 1 contending the same is illegal as it is premature and not on the basis of the correct date of birth. The petitioner was working as S.K. Khalasi in the employment of respondent No. 1 at Tilaiya Hydel Power Station, Tilaiya Dam, Hazaribagh. On 20th June, 1960 the petitioner joined the services without proving his exact age. It appears at the time of his joining, the medical officer noted down the statement (age ) of the petitioner as on 20th June, 1960 as 23 years according to the version of this petitioner, but according to the assumption of the doctor he was 26 years. Thereafter the respondent No. 1 had issued a circular on 29th Jan., 1985 stipulating the guidelines for verification of the age for illiterate and semi-illiterate employee and also for correction of age if there is any mistake in recording of age in Service Book of the concerned employee. Accordingly the petitioner made an application for rectification of his age on 18th Nov., 1984 enclosing a transfer certificate issued by a school recording his date of birth as 20th June, 1936. His representation was followed by a series of reminders uptil 5th Feb., 1991. It appears that the concerned authority of the respondent No. 1, however, did not reconsider the date of birth as applied for by the petitioner. The petitioner even after refusal went on making representation after representation. Ultimately it appears that the matter was sought to be resolved by referring this matter to the Assistant Labour Commissioner, Government of Bihar. The respondent No. 1 duly explained to the said Assistant Labour Commissioner on 16th Oct., 1992 as to their inability to reconsider and correct the date of birth of the petitioner. Meanwhile, the petitioner was forced to superannuate on attaining his age for retirement.

(2.) In the affidavit-in-opposition it appears that the writ petitioner himself has submitted various documents, namely, a medical certificate issued on 16th Sept., 1969 at the time of making the petitioner permanent in the post of khalasi. In his own application dated 30th Oct., 1969 the petitioner has made reference to the said medical certificate wherein it is recorded on 16th Sept., 1969, that on that date his age was 35 years and he has accepted this age without any objection and reservation. In his application he has categorically stated that the age on the basis of medical officer's certificate may be accepted as he was not in a position to produce any proof of age. It is significant to mention he has signed the said application in English language. Thereafter again on 2nd Dec., 1970, the writ petitioner has made an application wherein he has recorded his date of birth as Jan., 1934. In another application of the writ petitioner dated 20th March, 1973 for offering himself as a candidate for the post of technician Grade-III he has categorically mentioned in the date of birth as Ist Jan. 1934. Similar is the situation in his another application on 4th June, 1973 for offering himself as a candidate for the post of Line Patrolman, wherein he has mentioned his date of birth Ist Jan., 1934. Again another document dated 23rd Aug., 1971 in a letter addressed by the Director of Personnel to the Assistant Engineer, Tilaiya Hydel Station, DVC, Tilaiya, copy whereof has been given to the writ petitioner, it appears that his date of birth is recorded as 16th Sept., 1934. The writ petitioner has not made any objection to all these things in the affidavit-in-reply. He has not dealt with as to non- receipt, correctness and validity of the contents of the aforesaid writings. The writ petitioner conspicuously has not stated of this material fact in the writ petition.

(3.) Miss Ghosh, appearing with Mr. Sudip Ghosh in support of this writ petition submits that there is no consistency as to date of birth of the writ petitioner. She submits that there is no material whatsoever on the basis of which the respondent No. I could come to a definite decision that his date of birth was 16th Sept., 1934. The opinion of the medical officer and/or examination of the medical officer cannot give a definite and concrete proof as to age of a particular person. It appears that the date of birth has been determined by the respondent on the basis of the assumption of a medical officer not on the basis of any unimpeachable document. Therefore, this order of superannuation on the basis of presumptive value of medical certificate is wholly illegal and arbitrary. In support of her submissions she relies on a decision reported in 1997 W.B.L.R. Calcutta 32 Part-I. She submits referring to that judgment the subject matter on fact in this case is similar to that of the reported decision. In that case the order of superannuation was struck down.