P.D. Desai, J. - (1.) THE appeal is taken up for hearing by treating it as included in the day's cause list. The appellant, writ Petitioner, is an employee of the respondent Bank. The dispute giving rise to the Writ Petition centres round the question of his birth date. The precise question for decision is whether he is entitled to the relief directing the respondent Bank to treat him as having been born on January 17, 1931 and not January 17, 1930 and on that basis to superannuate him on January 31, 1991 and not January 31, 1990. The dismissal of the Writ Petition substantially seeking these reliefs has given rise to the present appeal.
(2.) BY virtue of an ad interim order passed on January 29, 1990 on the connected application, the respondent Bank was restrained from retiring the appellant on January 31, 1990 on the basis of his date of birth recorded as January 17, 1930. He is, therefore, continuing in service till date.
(3.) THE appellant was appointed as clerk in the Bank of India Limited at Calcutta on March 2, 1948. The original application, if any, made by him seeking employment is not forthcoming nor the letter of appointment. The only document evidencing the appointment is a form which is alleged to have been filled in by or at the instance of the appellant and which is brought on record of the case as an annexure to the affidavit -in -opposition filed by the respondent Bank in the Trial Court. The upper portion of the form, inter alia, shows that he was engaged from March 2, 1948 on probation for a period of three years at a monthly salary of Rs. 65/ - per month. The lower portion of the form, which bears the heading "Questions to be answered by the applicant " for employment" contains particulars such as name, address, date and place of birth, caste, date of passing the Matriculation Examination etc. Against the column "Date and place of birth", the entry is "17th January, 1930, in Calcutta". Against the columns "Have you passed the Matriculation Examination" If so, give date of passing" and "Has the certificate been shown to the Accountant"? the; entries respectively are "Yes, in 1947" and "Please see below". The concerned endorsement at the foot is as follows : Certificate not yet received from the University. Submitted Headmaster's Certificate stating that he Passed the Matriculation Examination. I am satisfied. The endorsement is signed by the Accountant. Initially, in the affidavit -in -opposition filed in the Trial Court, the stand of the respondent Bank was that the appellant had joined service "by submitting an application in the Bank's format" and that in the application "he declared his date of birth as 17/1/1930" and also that the Headmaster's Certificate shown by the appellant was "in support of his statement in the Bank's format". The "format" referred to in the affidavit -in -opposition is the "form" adverted to earlier in the course of this judgment. The implication of these averments apparently was that the format was filled in by the appellant. The appellant vehemently denied the suggestion. The Trial Court held that it could not decide such a disputed question of fact. At the appellate stage, the respondent Bank has taken up the stand that all the particulars including the date of birth were entered in the format on the basis of information furnished by the appellant. Even this version is controverted by the appellant who denies having furnished the relevant information and alleges that the format is no more than office, record, various columns whereof are filled in different hands and one is type written and that it is signed by the Agent and the Accountant of the Calcutta office without proper verification. He also relies upon the fact that his surname is wrongly spelt as "Banerji" in the said format, although the correct spelling recorded even in the other service record maintained by the Bank, is "Banerjee". Recording to the appellant there is inherent evidence furnished by the manner in which the format has been prepared and maintained to suggest that it was not filled in on the basis of the particulars furnished by him at the time of his appointment.;