K. Lahiri, A.C.J. - (1.)DASARATH Das, the Petitioner has challenged the order of compulsory retirement rendered by the Divisional Superintendent (Personal), N.F. Railway, Tinaukia in this writ application under Article 226 of the Constitution of India.
(2.)THE Petitioner was appointed as a Watchman by erstwhile Bengal Assam Railways with effect from 1.11.1945. In due course he was absorbed in the North Eastern Frontier Railways and promoted to the post of Travelling Ticket Examiner. In his Service Book his date of birth was recorded as 1.11.1925. In 1953 he came by a certificate issued by the Headmaster, P.D.U. High English School where his date of birth was recorded as 8.7.1927. He made representation to the Railway authorities, produced the requisite certificate to the then Divisional Superintendent for necessary rectification of his date of birth in his Service Book. The certificate was returned and the Petitioner assumed that it had been returned after necessary corrections of his date of birth in the Service Book. However, the Respondents continued to publish seniority lists from 1961 to 1980 showing the Petitioner's date of birth as 1.11.1925. Thereafter, the Petitioner received the impugned letter from the Divisional Superintendent (Personnel), Respondent No. 3, stating that he would retire from service from the forenoon of 1.4.1981. The Petitioner claims that under Rule 2046 (F.R. 56 XXI) of the Railway Establishment Code, volume II the date of his compulsory retirement is the date on which he attains the age of 58 years. He claims that according to his school certificate his date of birth is on 8.7.1927 and he could be retired only on 8.7.1985 and not earlier as his been done by the impugned order. The Respondents were bound to correct the wrong date of his birth entered in his Service Book as he had produced the School Certificate. In the alternative, the Petitioner claims that he could not have been retired from service prior to 1.11.1983 when his date of birth was recorded in the Service Book as 1.11.1925. The Respondents do not contest that the age of his superannuation is the date on which he attains the age of 58 years. They also do not contest that the date of birth of the Petitioner was entered in the record of service as 1.11.1925. However, the Respondents claim that the Petitioner's date of birth was altered to 5.3.1922 in accordance with the provisions of Rule 145 of the Railways Establishment Code, Volume I, As such, the common case of the party is that Petitioner on entering railway service, declared his date of birth on 1.11.1925 and the same was duly recorded in his Service Book. The Respondents claim that the date of birth contained in the service Book was altered from 1.11.1925 to 5.3.1922 by the Divisional Superintendent on the authority of an order palled by the Chief Commercial Superintendent (P). When COMPULSORY RETIREMENT AMOUNTS TO REMOVAL OR DISMISSAL AS CONTEMPLATED UNDER ARTICLE 311 OF THE CONSTITUTION?
Article 311 is a Constitutional protection given to Government servants who have title to office, against arbitrary and summary dismissal. It follows, therefore, that compulsory retirement before the age of follows, therefore that within the scope of Article 311 of the Constitution. Age of superannuation is common to all permanent civil servants which inevitably happens by passage of time unless ofcourse the employee dies earlier or resigns from the post. It does not depend on the discretion of the employer or the employee. Notwithstanding the rule fixing an age of superannuation, a person appointed to such a post acquires title to it. However, the same cannot be said of a compulsorily retirement person before the age of superannuation, Compulsory retirement is not an incident of the tenure nor does it work automatically - it is a mode of terminating the employment at the discretion of the appointing authority. Rule 2046 of the Railways Establishment Code is under the heading "Compulsory retirement", fixes the age of superannuation for different categories of service. The date of compulsory retirement of a Railway servant other than the Ministerial Service has been fixed as the date on which 'he attains the age of 58 years.' It is thus seen that a railway servant acquires a lien to the post and does not lose it till he attains he attains the superannuation. It confers a title to the post with all the advantages appertaining to the post, and, ordinarily it comes to an end only on the incumbent attaining the age of Superannuation. The fundamental rule creates offices of stability and security. Therefore, the termination of service of such a servant can only be dismissal or removal for he will be deprived of his title to the office. Compulsory retirement on attaining the age of superannuation is neither dismissal nor removal nor a punishment. Compulsory retirement simplicity does not amount to dismissal or removal or reduction of rank to attract Article 311 , if It is a compulsory retirement in accordance with the terms and condition of service. A railway servant has no right to continue beyond his age of superannuation, however, he has right to continue in service upto the age of superannuation. Compulsory retirement may amount to punishment where the order of compulsory retirement stigmatise the incumbent or it is made or the ground to misbehavior or incapacity of the employee. An order of compulsory retirement will be indicative of punishment or penalty if the order will involve loss of benefits already earned by the employee. The order of compulsory retirement, if arbitrary and mala fide can be successfully challenged. An employee can successfully challenge the order of compulsory retirement if it is made in breach of the rules governing the service conditions.

(3.)THE first contention of the Petitioner is that his age of superannuation is on 8.7.1985. The Petitioner joined railway service on 1.11.1945 and declared his date of birth as 1.11.1925. He came by a school Certificate in 1953 where his date of birth was recorded as 8.7.1927. There after he made a representation "to the railway authorities" and ho was called upon to produce the requisite certificate in 1961. Accordingly, he produced the school certificate. However, the same was simply returned on 7.3.1962. Thereafter, the seniority lists were published from year to year showing his date of birth as 1.11.1925. The Petitioner did not take any steps to correct his age recorded in his service book as required under the Rules. Under Rule 145(1) of the General Rules published in the Establishment Code, Vol. J, every person, on entering railway service -must declare his date of birth and the same is entered in the record of service. The procedure for alteration or correction of the date of birth is provided in Rule 145(3), which, we extract herein below:
145. Date of birth.

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(3) The date of birth as recorded in accordance with those rules shall be held to be binding and no alteration of such date shall ordinarily be permitted subsequently. It shall, however, be open to the President in the case a gazetted railway servant, and a General Manager in the case of a non -gazetted railway servant to cause the date of birth to be altered -

(i) where in hit opinion it had been falsely stated by the railway servant to obtain an advantage otherwise inadmissible, provided that such alteration shall not result in the railway servant being retained in service longer than if the alteration had not been, made, or

(ii) where, in the case of illiterate Staff, the General Manager is satisfied that clerical error has occurred, or

(iii) where a satisfactory explanation (which should ordinarily be submitted within a reasonable time after joining service) of the circumstances in which the wrong date came to be entered is furnished by the railway servant concerned together with the statement of any previous attempts made to have the records amended.

It is seen that the date of birth entered in the Service Book of an employee is binding on the employers and the employees Ordinarily no alteration of such date is permissible once it is entered in the record of service. However, the President, in the case of Gazetted Railway Servants, and the General Manager in the case of non -gazetted railway servants may cause the date of birth to be altered under the circumstances set out in Clauses (i) and (ii) and (iii). According to the Petitioner his case does not fall under Clauses (i) and (ii). He is a non -gazetted railway servant and only the General Manager could alter his date of birth However under Clause (iii) the General Manager may alter the date where a satisfactory explanation is submitted within a reasonable time after joining service, of the circumstances in which the wrong date came to be entered was furnished by the railway servant concerned. In the instant case there is no material to show that the Petitioner ever submitted any application to the General Manager and/or any other competent person to alter his date of birth as recorded in his Service Book. It appears that the pensioner made no exercise at all to correct his date of birth. When the Petitioner noticed that his date of birth was corrected even after submission of his certificate, he should have taken action, which he did not do. There is no explanation, not to speak of satisfactory explanation, of the circumstances in which the wrong date came to be entered in his Service Books, Situated thus, we find that the Petitioner did not make any representation to the General Manager or other competent Authority to have his age altered in terms of Rule 145(3)(iii). Further submission of the school certificate was not made "within a reasonable time after joining service", No attempt was made by the Petitioner to alter his date of birth recorded in his Service Book even after the seniority lists were published, showing his date of birth as 1.11.1925. The certificate produced before us is also not a University certificate. Further, the certificate dated 5.7.1953 was obtained from a school in the then East Pakistan, As the Petitioner did not make any endeavour to have his name corrected as enjoined by Section 145(3) of the Rules and in view of latches, he is not entitled to any Writ of Mandamus or order of the like nature. Further in the absence of any explanation as to how and why the wrong date could be entered in his Service Book, which was endorsed by him, the question of issuing any direction to the Respondents to correct his age after 40 years of the entry in the Service Boot does not arise. Accordingly, the contention fails.

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