- (1.) This appeal has been filed against the judgment and decree dated 30.7.2005 passed by Shri Nagendra Kumar, Additional District Judge -XIII, Dhanbad in Title Appeal No. 130 of 2004, confirming the judgment and decree dated 11.8.2004 passed by Shri K.K. Shukla, Additional Munsif, 2nd, Dhanbad in Title Suit No. 63 of 2001.
(2.) COUNSEL for the appellant submitted that the suit should have been decreed on the basis of the date of birth mentioned in the matriculation certificate etc., in terms of Instruction No. 76 of J.B.C.C.I. issued on 25.4.1988. The appellant joined employment in the colliery in question in the year 1969. At the time of joining, he declared his date of birth as 8.5.1942 and, accordingly, the same was mentioned in the statutory Form B register which was confirmed by him. The appellant did not raise any dispute with regard to his date of birth. In the year 1987, the Service Excerpt was circulated amongst the employees including to the appellant showing the said date of birth in his service record but he did not raise any dispute even for about thirteen years, and thereafter only at the fag end of service, he raised such dispute in the year 2000, claiming that as per matriculation certificate etc., the date of birth should be corrected as 6.1. 1949. He refused to attend Medical Board when he was asked by the management. Then he filed the present suit. The courts below concurrently held that the appellant did not furnish his matriculation certificate etc., at the time of his appointment. Thus the said Instruction No. 76 of J.B.C.C.I. issued on 25.4.1988 was not applicable in the present case. The court below further found that the appellant raised such dispute at the fag end of his service and, therefore, the suit was dismissed.
(3.) MOREOVER , during the pendency of the suit, the appellant filed a writ petition being W.P. (C) No. 5689 of 2001 for correction of his date of birth in which the following order was passed: - "This application has been preferred by the petitioner for a direction on the respondents to correct the date of birth of the petitioner in the record as January, 1949 in terms of the Instruction No. 76 of the Joint Bipartite Committee for Coal Industry dated 25th April, 1988. Admittedly, the petitioner entered in the services of the colliery in 1969, which was taken over under M/S B.C.C.L. in the year 1972. His date of birth has been recorded in the statutory Form B register. In the circumstances, at the fag end of service career, this Court is not inclined to pass any order for re -opening the issue relating to date of birth. In view of the aforesaid observation, counsel for the petitioner sought permission to withdraw the writ petition to avail other remedy to which Mr. Mehta has no objection. The writ application is, accordingly, dismissed as withdrawn.  ;