G.R.Bhattacharjee, J. - (1.) -The dispute involved in this writ petition concerns the date of birth of the petitioner. The petitioner's case is that he was initially appointed to the post of Darwan in the Central Inland Water Transport Corporation Ltd. (CIWTC) which is a Government of India undertaking on or about the 5th September, 1972 and in the Declaration Form regarding nomination for the purpose of Provident Fund account his age was recorded as 32 years as on September 7, 1973 and the said recorded date of birth was duly attested by the Labour Officer of the Central Inland Water Transport Corporation Ltd. His service was subsequently transferred with effect from 1st April, 1974 to the respondent No. 1, Tea Trading Corporation of India Ltd. which is a Government of India Enterprise with the existing terms and conditions of service. He was subsequently promoted to the post of Jamadar with effect from 1st March, 1979. According to his contention, for the first time he came to know from the office of the respondents in November, 1987 that his age was recorded as 32 years on 7th September, 1973 but the school leaving certificate which was in his possession indicates higher age than the said age recorded in the Provident Fund declaration form and then he approached the personnel Manager of the respondent No. 1 in connection with the said matter when he was allegedly told that the age, if any, recorded in the medical report would be taken into consideration for the purpose of superannuation after verification of the same with the age recorded in the school leaving certificate or School Final certificate and in absence of such school leaving or School Final certificate the age will be determined on the basis of the medical report and the petitioner was allegedly advised to submit his school leaving certificate, if any, for verification of his date of birth recorded in the service book. It is the further contention of the petitioner that accordingly he made a representation to the Personnel Manager of the respondent No. 1 on 23rd November, 1987 praying for rectification of the date of birth in his service book and the petitioner was then directed to appear before the Personnel Manager in the 1st week of July, 1989 with the original copy of the school leaving certificate for the purpose of verification of his date of birth recorded in the service book of the company and accordingly the petitioner met the Personnel Manager who after perusing the original school leaving certificate directed the petitioner to deposit a xerox copy of the same along with an affidavit stating the reasons for non-submission of the same earlier.
(2.) The petitioner's case, as it proceeds then, is that on the basis of the said direction of the Personnel Manager he submitted further representation to the respondent No. 2, the Managing Director of the Tea Trading Corporation on 10th July 1989 along with a copy of the affidavit praying for rectification of the date of birth recorded in his service book, but on 12th July, 1989 the petitioner received a letter from the respondent No. 2 intimating that the age recorded cannot be rectified on the basis of the school leaving certificate on the ground that the petitioner's age was determined by the Medical Board on 176 August, 1972 as 38 years and accordingly the said age would be accepted for all purposes including the age of superannuation. He was further informed that no request for alteration of date of birth was made within five years from the date of entry in the service book in accordance with the rules. Then on 12th September, 1989 the petitioner submitted another representation to the respondent No. 3, Manager (Admn.), Tea Trading Corporation of India with a request to consider his case afresh for rectification of the date of birth on the basis of the school leaving certificate. It is alleged by the petitioner that the recording of his date of birth on the basis of age (38 years on 17th August, 1972) as noted in the medical report is patently illegal, arbitrary, mala fide, bad in law and without any foundation and as such the same is liable to be set aside and quashed. The petitioner's contention is that his date of birth as recorded in his school leaving certificate is 2nd September, 1938 and the same should be accepted and entered in his service book and his superannuation should be determined accordingly.
(3.) The contention of the respondents on the other hand is that the petitioner gave declaration of his age which was not supported by any evidence and as such his age was decided according to the decision of medical board at the time of joining the service. It is the contention of the respondents that the Form for appointment specifically required proof of age and that as the petitioner could not produce any evidence in support of his age or date of birth at the time of entry in the service his age was determined on the basis of medical examination held on 17th August, 1972. The said medical examination report is Annexure-X to the affidavit-in-opposition filed on behalf of the respondents. The medical examination report contains the signature of the petitioner. It is the contention of the respondents that the age of the petitioner was determined by medical examination at the time of his entry into the service to the knowledge of the petitioner as would be evident from the fact that the medical examination report was signed by the petitioner also. On the other hand, it is contended on behalf of the petitioner that although in the said medical examination report the age of the petitioner has been recorded as 38 years on 17th August, 1972 yet the age was not determined by holding any ossification test and in fact the said medical examination report was rather a report about the physical fitness of the petitioner. It is the contention of the respondents that before joining the C.I.W.T.C. the petitioner served under M/s. Balmer Lawrie & Company and there his date of birth was recorded as the 12th January, 1933 which fact has been suppressed by the petitioner in the writ petition. The petitioner relies upon a certificate which purports to be a school leaving certificate in Hindi issued from one Umasankar High School, Maharaj Ganj, Bihar showing that the petitioner read upto class-IX and his date of birth was 2nd September, 1938. The said school leaving certificate purports to have been issued on the 7th of August, 1965. It is contended on behalf of the respondents that if really the said school leaving certificate had been in his possession since August, 1965 the petitioner would have produced the same at the time of entry in the service instead of waiting till 1987.;