Murari Mohan Dutt, J. - (1.) This appeal is directed against the judgment of a learned single Judge whereby the learned Judge has discharge the Rule Nisi obtained by the appellant on his application under Article 226 of the Constitution.
(2.) The case of the appellant is that he was appointed as a trainee at Kanchrapara Railway Workshop under the then Eastern Railway in the year 1942. He was trained as a fitter. His training commenced with effect from June 29, 1942 and it was completed on January 25, 1943. At the time of his appointment as a trainee, he declared his year of birth to be 1921. After completion of the training on January 25, 1943, a trade-test-certificate was issued to him in which his year of birth was recorded as 1921 and he was appointed as a fitter at the Kanchrapara Railway Workshop on that date. It is alleged that in the service record, his date of birth was never recorded in his presence or with notice to him. He had read upto Class III and he can sign his name in English, but he cannot read or write English Although he is an illiterate staff, his date of birth was never recorded on his declaration and witnessed by another Railway servant as contemplated by Rule 145 of the Indian Railway Establishment Code, Vol. I. The appellant was informed by the Superintendent of the Workshop at Kanchrapara by his letter dated February 7, 1975 that the appellant was due to retire from service with effect from July 1, 1975. On enquiry, the appellant came to know that in the service record his date of birth was recorded as July 1, 1917 instead of 1921. The appellant made representations to the said Superintendent for correction of the wrongly recorded date of birth and pointed out that his year of birth, as recorded in the trade-test-certificate, should be 1921. The appellant also submitted the original trade-test-certificate as required by the said Superintendent by his memo dated March 14, 1975. Inspite of the fact that the appellant's year of birth was recorded in the said trade-test-certificate as 1921, the said Superintendent by his memo dated April 22, 1975 inform the appellant that the date of birth as recorded in his service record had been accepted by the appellant by affixing his signature in English on the first page of the service record, and that a.s oer axtrant rule any request for alteration of the date of birth was not entertainable after completion of the probationary period or three years of service whichever was earlier. It was further stated in the said memo that the date of birth as recorded in the service record, viz. July 1, 1917 would be adhered to. Thereafter, the a appellant made representations to the higher authorities but in vain. Accordingly, he moved a writ petition and obtained Rule Nisi out of which this appeal arises.
(3.) It is not disputed that the appellant is illiterate under Rule 145 of the Indian Railways Establishment Code, in case of illiterate staff, the declared date of birth shall be recorded by a senior Class III Railway servant and witnessed by another railway servant. Mr. Roychoudhury learned Advocate appearing on behalf of the respondents, has produced before us the service record of the appellant. It appears from the said record that the appellant had put his thumb impression as also his signature and that the same were attested by B. Ghosh. The entry regarding the date of birth alleged to have been declared by the appellant his not been witnessed by any railway servant. Under Rule 145, the I declaration of the date of birth shall be witnessed by a railway servant. It is true that a railway servant has witnessed the signature and the thumb impression of the appellant, but in our view, that is not compliance with the provision of Rule 145. The authorities concerned have not also considered the trade-test-certificate which was granted by the military authorities after the completion of the training by the appellant. The trade-test-certificate shows the year of birth of the appellant as 1921. After his selection for the post the appellant was sent for training and there he declared his date of birth as 1921 which was accepted and recorded in the trade-test-certificate granted to the appellant. In our view, the trade-test-certificate is a material piece of evidence which should have been considered by the authorities concerned. Instead, they took the view that as the appellant had put his signature in the service record, he accepted his date of birth as July 1, 1917. The view which has been taken by the authorities is contrary to the provision of Rule 145. As pointed out above there has been violation of the provision of Rule 145 inasmuch as nobody has witnessed the alleged declaration made by the appellant as to his date of birth. In that view of the matter, the order of retirement of the appellant cannot be sustained so long as his date of birth is not decided by the appropriate authority. It is contended that in view of the Railway Board's Circular No. 8026 to the effect that a railway servant who is already in employment on December 3, 1917 should be given opportunity to represent his recorded date of birth upto July 31, 1973, and that no further opportunity should be given after that date, the appellant was not entitled to avail himself of any opportunity after the expiry of July 31, 1973. Wo are unable to accept this contention. The said circular contemplates proper recording of the date of birth and any mistake that may be committed in such recording may be corrected within the period mentioned in the circular. In the instant case, as there has been violation of Rule 145 there was no proper recording of the date of birth of the appellant and, as such, the said circular would not stand in the way of the consideration of the appellant's date of birth as alleged by him. In these circumstances, we quash the impugned orders (Annexure D and F to the writ petition) and make the Rule Nisi absolute. The respondent No. 2, the Chief Personnel Officer, Eastern Railway Calcutta, who it is said, the proper authority in these matters, is directed to consider the representation of the appellant as regards his date of birth with particular reference to the date of birth as recorded in the trade test certificate. The judgement of the learned Judge is set aside and the appeal is allowed, but in view of facts and circumstances of the case, there will be no order for costs. Chakravarty, J. : I agree.;