- (1.) HEARD Sri Sanjeev Kumar Mishra, learned counsel for the petitioner and Sri Ananda Sen, learned counsel for the respondents.
(2.) THE petitioner in this writ application has prayed for an order quashing the letter dated 30.06.2008 (Annexure -5) whereby the petitioner was intimated about his date of superannuation from service of the company as 30.09.2008 and to correct the entry regarding the petitioner's date of birth in accordance with the age as certified in his Matriculation Certificate. The facts of the petitioner's case in brief are as follows : - The petitioner was appointed as a Mazdoor at the Chasnala Colliery in the year 1970. At the time of his appointment, he was a non -matriculate. He had therefore produced his Middle School Certificate issued to him by the Bihar School Examination Board in the year 1965 affirming his date of birth as 01.01.1953. Subsequent to his appointment, on his passing the Board of Mining Examination in the year 1988 -89, the Winding Engineman -Class - II and Class -I certificates as issued to him also recorded his date of birth as 01.01.1953, after obtaining satisfactory evidence of his age, medical fitness, character, literacy and experience in driving engine. Under such circumstances, the petitioner had no occasion for raising any dispute regarding the entries of his date of birth made in his service records. It was only upon being served with the impugned notice that he could understand that his date of birth was incorrectly entered in his service records. He filed his representations lodging his protest before the competent authorities on 29.05.2007 and again on 31.07.2007 seeking necessary verification and correction of the entries in respect of his date of birth, on the basis of the provisions contained in the N.C.W.A. -3. The petitioner's grievance is that inspite of his repeated protests and inspite of his claim made on the basis of his Middle School Certificate, his prayer for correction of the entry of his date of birth in his service records was not carried out and he was made to retire prematurely on 30.06.2008 although he would have attained the age of retirement of 60 years in June, 2013.
(3.) LEARNED counsel for the petitioner, while inviting attention to the provisions contained in the N.C. W. Agreement -3 and also the provisions of Administrative Implementation Instruction No. 76, submits that the date of birth recorded in the Board Certificate shall have to be treated as the correct date of birth of the employee and in the event of a dispute regarding the correctness of the entry made in the service records, the date of birth recorded in the Middle School Certificate shall have to be treated as correct and final. Referring to Clause (B)(i)(a) of the Implementation Instruction No. 76, learned counsel would submit that this Rule applies in the case of existing employees and the correction in the entries relating to the date of birth in the service records of the employee has to be carried out according to the provisions of the Instruction. Learned counsel argues further that the respondents cannot be allowed to take a plea that the entry in the statutory Form -B Register, even if it bears the signature of the employee, should be treated as final and that the date of birth recorded in the Middle School Certificate cannot be accepted. To buttress his argument, learned counsel would refer to and rely upon the judgement of a Bench of this Court in the case of Subhash Chandra Jha V/s. The General Manager, Chasnala Colliery & Others passed in W.P.(S) No. 5445 of 2007 and also upon the Full Bench Judgement of this Court in the case of Kamta Pandey V/s. B.C.C.L. reported in 2007(3) JLJR 726.;