U.C.Banerjee, J. - (1.) In this stay application Mr. Som, learned Advocate appearing for the appellant/petitioners submitted that the learned trial Judge has erred in placing total reliance on the date of birth as appearing in the School Final Certificate produced by the writ petitioner long after his entry into service.
(2.) On the factual score it appears that the petitioner has produced a school Final certificate as a private candidate and it is on that score Mr. Som, learned Counsel submitted that the certificate recording the date of birth of a private candidate cannot be taken with that much trust and confidence so as to declare the age correctly. Regular student and private candidate cannot be paced or equated in so far as the record of date of birth is concerned. Mr. Som, learned counsel submitted that in the case of regular student recording of date of birth is maintained in the school register and on the basis thereof school Final Certificate is issued by the Higher Secondary Board. In the case of private candidate no such recording is ever made. Therefore, Mr, Som, contended that the recording of age of a regular student cannot be equated with that of a private candidate. In our view there is some force in the contention of Mr. Som and it appears from the record that the learned trial Judge has proceeded solely on the basis of the age as recorded in the school Final Certificate granted by the West Bengal Board of Secondary Education as a private candidate.
(3.) In any event on the further factual score it appeals that the writ petitioner at the time of entry into his service has declared his date of birth as 6.6.1933. Rut in the first application for appointment he has declared his age as 26 years and accordingly on the basis of the age given by the petitioner the date of birth has been fixed at 1.4.1932. It however, appears that at the time of entry into the service the petitioner was examined by Medical practitioner who has recorded that the petitioner's age by appearance as about 25 years. On the facts and circumstances the petitioner's date of birth is 6.6.1933. The Declaration in the Nomination form under the Provident Fund Rules also contains the date of birth as 6.6.1933 though however, the company has recorded the petitioner's date of birth as 1.4.1932 thereafter. In the Horoscope and Admit Card issued by the Board produced by the writ petitioner show the date of birth of the petitioner as 6.6.1935. Explanation for late production of Horoscope is also noted at this juncture. The learned Advocate appearing for the writ petitioner submits that at the time of entry into the service there was no Horoscope. Subsequently the same was produced by the petitioner's parent on migration from East Pakistan presently Bangladesh. Incidently it is to be noted that the petitioner joined the service in June 1958. Horoscope was available in the year 1960. But the petitioner has chosen not to produce the same upto 1979 - apparently an unbelievable story. Furthermore on 11th February, 1980 the petitioner was informed that for all official purposes his date of birth has been accepted as 1.4.1932 on the basis of the petitioners own declaration. But though certain correspondences were exchanged between the parties the petitioner has chosen not to take step in the matter upto 1990. That means for a period of about 10 years the petitioner had been proceeding on the basis thereof without coming to court. In that view of the matter we were at the first instance inclined to pass order against the writ petitioner but considering the interest of Justice, however, at the time of entry into the service the petitioner was medically examined and the date of birth has been recorded as 6.6.1933 which has a corroborative and documentary evidence in Declaration in the Nomination Form, we are of the opinion that the petitioner's date of birth ought to be determined on the basis of the Medical Examination already held in the year 1958 as 6.6.1933 and not as 1.4.1932 as has been given in the notice dated 11th February 1990.;