- (1.) THE present writ petition has been preferred for following reliefs: (I) For quashing the notice of retirement dated 10.8.07 issued under the signature of respondent no.2, whereby and whereunder the petitioner has been sought to be retired w.e.f. 31.12.07 afternoon, which is illegal and arbitrary amounting to unauthorized curtailment of five years service in as much he would be attaining the actual age of retirement in June, 2003, in terms with date of Birth recorded in Bihar School Examination Board (BSEB) certificate as the 10th June 1953. (II) Further to declare and hold that since the legal and actual date of birth as recorded in the BSEB certificate is 10th June, 1953 and since the age of retirement prescribed in the respondent's institution is 60 years, the petitioner is entitled to continue in service up to June, 2003 and therefore, subjecting the petitioner to retire w.e.f. 31.12.07 vide impugned order dated 10.8.07 treating his imaginary date of birth as 1.1.1948, is illegal, arbitrary, much less punitive and thereby unconstitutional being violative of Articles 14,19, 21 and 311(2) of the Constitution of India, besides in express violation of Instrument No.76 of NCWA -III and authoritative judicial pronouncement of this Hon'ble Court.
(2.) THE facts, in brief, are set out as under: The petitioner claims that his Date of Birth is 10th June, 1953 as per the certificate granted by the Bihar School Examination Board for Class VIIth, dated 1st February, 1966 which is annexed as Annexure -1 to the writ petition. The petitioner was selected and appointed as Fitter in B.C.C.L. on 1.4.1972. In the form B register the Date of Birth was recorded as 1.1.1948 to which the petitioner has given thumb impression. According to the petitioner he was not provided with any document to that effect and in the year 1987 a document known as "Seva Abhilekh" was issued on 9.6.1987 wherein it was found that his Date of Birth was recorded as 1.1.1948 and in the adjacent column of the record it was recorded as 22 years as on 1.4.1972 which according to him was not only illegal but self contradictory because even if his age was taken 22 years as on 1.4.1972 then the actual Date of Birth as per mathematical calculation comes to 1.4.1950. The petitioner raised his objection and he was given a bonafide impression that the issue in controversy has been resolved in terms of the mandatory provision of Instruction No.76 of the NCWA -III. The petitioner came to know about the aforesaid fact in the year 2002 upon enquiry that in the service record his Date of Birth was wrongly recorded as 1.1.1948 and the same was not corrected. He again gave a written representation on 29.8.2002 with a request to make necessary correction in terms with the Middle Board Certificate which was granted by the Bihar School Examination Board. Thereafter respondent no.2 wrote a letter to the Secretary, Bihar School Examination Board, respondent no.3 herein, who in turn after verifying the record gave a letter dated 26.11.2007 confirming the Petitioner's Date of Birth as 10.06.53 and in this regard an affidavit has also been filed by respondent no.3. The middle board certificate issued by the Bihar School Examination Board vide certificate no. 7194 dated 1st February, 1966 is an authentic document. When nothing happened the petitioner again wrote a letter to respondent no.2 enclosing the certificate for correction of his Date of Birth but to his utter surprise he received a notice on 10.8.07 regarding his superannuation with effect from 31.12.2007 based on the incorrect recording of his Date of Birth as 1.1.1948. Petitioner being constrained has preferred this writ petition challenging the aforesaid notice of retirement dated 10.8.07 and has also prayed that he is entitled to continue in service up to June 2013 as per his correct Date of Birth.
(3.) THE main contention raised by the learned counsel for the petitioner is that the impugned action of the respondents in seeking retirement before the due date of superannuation in terms with the date of birth recorded in the Middle School Board Certificate was highly arbitrary and illegal. It was also in gross violation of the Instruction No.76 of NCWA -III and thereby unsustainable and fit to be quashed. His further submission is that the impugned action of the respondents is also in gross violation of the principle of natural justice and fair play since the same is imaginary based on no evidence and therefore, amounts to punishment and for which no proceeding whatsoever has been conducted, giving opportunity to the petitioner. His further contention is that the petitioner has raised the age dispute much prior to the notice of retirement but the respondents did not take any bonafide steps or action for redressal of the grievance of the petitioner. The respondent wrote a letter to the respondent no.3 seeking clarification/verification of the certificate produced by the petitioner, which was never doubted/questioned by the concerned respondents, rather detail particular were sought way back in the year 2004 itself, upon which, though the concerned BCCL respondent should have immediately taken follow up action quickly but only in the year 2007 they wrote a letter seeking details from the petitioner to which, he replied and thereafter the matter was not even considered in accordance with law. His further contention is that in any case the certificate produced by the petitioner has not been declared illegal or doubtful by any authority and therefore the same is a valid and admissible document in the eyes of law and thereby binding upon the respondents in terms with certified Standing Instruction no.76. He further submits that it is an undisputed position that the petitioner appeared in the Bihar School Middle Board Examination in the year 1965 as a regular student of the Middle School, Poldih and was declared successful after passing the same and a certificate was issued to him bearing the Date of Birth as the 10th of June, 1953 which is fully legal and genuine and the same is admissible in terms with Instruction No. 76 of NCWA -III and thus, the entire action of the respondents are violative of well settled principle of natural justice and in violation of Articles 14, 16, 19, 21 of the Constitution of India and fit to be set aside.;