THE HON'BLE SRI JUSTICE K.SARATH
WRIT PETITION No.20199 of 2020
ORDER:
This Writ petition is filed seeking the following relief:
"....to issue a writ, order or direction, more in nature of Writ Mandamus declaring the action of the 4th respondent in retiring the petitioner from service prematurely, as illegal, and arbitrary and set aside the impugned proceedings No.MMR/KK.1/W/2020/1382 dated 21.03.2020 issued by the 4th respondent; consequently to direct the respondents to continue the petitioner in service up to 30.06.2023, duly granting all other consequential and attendant benefits......"
2. Heard Sri Kalvala Sanjeev, Learned Counsel appearing for the petitioner and Sri P.Sriharsha Reddy, Learned Standing Counsel appearing for respondents.
3. The Learned Counsel appearing for the petitioner submits that the petitioner was appointed as Floating Badli Filler and posted work at KK-1-Incline on 2 SK,J W.P.No.20199 of 2020 26.09.1986 and subsequently promoted he was promoted as Lineman. As the petitioner has no birth certificate at the time of initial appointment his age was assessed by the Medical officer and basing on that the respondent-corporation issued Office Order in proceedings No.P.Bpa/261.IV/3370 dated 26.09.1986 recording the date of birth of the petitioner as 30.06.1963, as such the petitioner's date of birth is being treated as 30.06.1963. The same date of birth was entered in all the service records of the company including B-Register, Service and identity card, employee personal record and as per date of birth of the petitioner he has to continue in service up to 30.06.2023. While it being so, surprisingly the 4th respondent issued impugned proceedings on 21.03.2020 stating that the petitioner's age is a dispute and the same case has been examined by the Apex Medical Board and it has confirmed the age of the petitioner as 60 years as on 18.03.2020 and he 3 SK,J W.P.No.20199 of 2020 was compelled to retire from service with effect from 31.03.2020 prematurely thereby depriving more than three years of service.
4. The Learned Counsel for the petitioner further submits that the contention of the 4th respondent that the petitioner's age was confirmed as 60 years as on 18.03.2020 in the medical examination is factually incorrect. The various records from the date of initial appointment till the date of issuance of impugned order clearly and clinchingly establish that the date of birth of the petitioner is being treated as 30.06.1963. However, ignoring all those records, without issuing any notice to the petitioner and without affording any opportunity, the impugned order was issued basing on some fabricated record. Merely because the personal record and statutory records of the petitioner are in the custody of respondents they cannot arbitrarily 4 SK,J W.P.No.20199 of 2020 fabricate the same, thereby putting the petitioner to untold hardship.
5. The Learned Counsel for the petitioner further submits that, on many occasions this Court as the Hon'ble Apex Court held that the dates of birth of the employees cannot be arbitrarily modified, that too, at the fag end of one's career and in support of his contention relied on the judgment of this Court in Rasakatla Madanaiah Vs Singareni Collieries Ltd.,1
6. The Learned Standing Counsel appearing for Respondents, basing on the counter, submits that as per as per implementation instructions No.76 issued by the Joint Bi-Partite Committee for Coal (JBCCI-IV), where there is variation in the age recorded in the records, such cases will be referred to the Age
1. Unreported Judgment in WP No.6972 of 2011 of High Court of Andhra Pradesh dated 26.03.2012 5 SK,J W.P.No.20199 of 2020 Determination Committee/Medical Board consisting of the General Manager/Chief Personnel Manager and Medical officer-In charge of the area. The Learned Standing Counsel further submits that, the petitioner was issued Office Order appointing him as Floating Badli Filter, but inadvertently the date of birth of the petitioner was recorded as 23 years as on 30.06.1986 instead of 28 years, due to typographical error, and the same was recorded in service book employee personal record, B-Register etc. As per implementation of the instruction No.76 issued by the JBCCI, as there is variation in age recorded in various records of the petitioner, the case of the petitioner was referred to the Apex Medical Board at Kothagudem on 18.03.2020 and the petitioner appeared before the Apex Medical Board and the said Board, after recording the statement of the petitioner, have determined the age of the petitioner as 60 years as on 18.03.2020 and accordingly the same was entered in the company 6 SK,J W.P.No.20199 of 2020 records and the same was communicated to the petitioner, and the petitioner was directed to retire from service on 01.04.2020. The petitioner has not approached the Mines Authorities for settlement of his terminal benefits as on date and requested to dismiss the writ petition.
7. After hearing both sides, this Court is of considered view that at the time of initial appointment the age of the petitioner was recorded as 23 years as on 30.06.1986 in the Office Order dated 26.09.1986 and the same has been recorded in all the records. While it being so, in the month of March, 2020 the respondents asked the petitioner to appear before the Apex Medical Board without issuing any notice to him and admittedly in the material record filed along with the counter shows no notice served to the petitioner for alteration of date of birth and that the petitioner has not signed in the age assessment report, and 7 SK,J W.P.No.20199 of 2020 disputing his appearance before the Medical Board. This Court and the Hon'ble Apex Court time and again held that the date of birth of the employee mentioned in the record cannot be modified, that too, at the fag end of the career of the employee. In the instant case also, admittedly the petitioner served in the respondent-corporation for more than 33 years.
8. This Court in P.Pochamma vs. Principal Secretary, Technical Education, Govt. of Andhra Pradesh and others2, wherein at para No.8, 10 and 11 held as follows:
"8. There are various other judgments referred to by the learned Counsel for the petitioner to claim of employees for change of date of birth and it has been consistently held by the Supreme Court that date of birth as entered in the service register should not be ordered to be changed unless there is unimpeachable evidence. The same principle
2. 2004 (4) ALT 156 (DB) 8 SK,J W.P.No.20199 of 2020 apply to the employer who wants to change the recorded date of birth an employee".
10. ".....whereas in the present case the writ petitioner was not retired on the accepted date of birth as entered in her service register, whereas in the present case the writ petitioner was not retired on the accepted date of birth as entered in her service register, but on the basis of date arrived at by the respondents on the basis of a forensic expert which was not even ever put to the petitioner. The petitioner was not even given a chance to show cause as to whether the report of the forensic expert obtained in 19994 should be relied upon or not. She was not even given a chance to show that the certificate issued in her favour in 1983 by the Sarpanch, Gram Panchayat, Chintakunta village was genuine.
11. For these reasons we allow the writ appeal set aside the order of the learned Single Judge and direct that the writ petitioner shall be reinstated into service with all consequential benefits. No order as to costs.
9. In view of the law laid down by the Hon'ble Apex Court as well as this Court in P.Pochamma Vs. Principal Secretary, Technical Education, 9 SK,J W.P.No.20199 of 2020 Government of Andhra Pradesh, (supra 2) and in the instant case the respondents without giving any notice to the petitioner issued present impugned orders of retirement of the petitioner and the impugned order passed by the respondents is liable to be set aside and accordingly the same is hereby set aside.
10. Accordingly, this writ petition is allowed and the impugned proceedings No.MMR/KK.1/W/2020/1382 dated 21.03.2020 issued by the 4th respondent is hereby set aside. The respondents are directed to reinstate the petitioner into service forthwith treating his age as 30.06.1963. No order as to costs.
11. Miscellaneous Petitions pending, if any, shall stand closed.
____________________ JUSTICE K.SARATH, Date: 31.01.2023 trr