THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI
W.P.No. 7903 of 2023
ORDER:
In this writ petition, the petitioner is seeking a writ of mandamus to declare the action of the respondents in retiring the petitioner from service w.e.f. 28.02.2023, as illegal, arbitrary and to set aside the same and consequently to direct the respondents to continue the petitioner in service upto 28.02.2026 with all consequential and attendant benefits and to pass such other order or orders.
2. Brief facts leading to the filing of the present writ petition are that the petitioner was initially appointed in the respondent company as Badli Filler on 19.02.1987 and subsequently, he was promoted as General Mazdoor (HEMM). It is submitted that at the time of his initial appointment, the medical officer had assessed his age as 22 years as on 19.02.1987 and the same was recorded in his service records, such as CMPF Records, Form-PS3 & Form-PS4, etc., and therefore, according to the petitioner, he is entitled to continue in service upto 28.02.2026. It is submitted that the respondent No.4 issued a proceedings dated 05.08.2022 referring the 2 PMD,J W.P.No. 7903 of 2023 petitioner to the respondent No.5 for assessment of his age and accordingly, the petitioner was directed to appear before the Apex Medical Board on 06.08.2022. It is submitted that Medical Board has assessed the age of the petitioner as 60 years as on 06.08.2022 and even as per the said report, the petitioner is entitled to continue upto 31.08.2023. However, the respondent No.4 has issued an office order dated 07.02.2023 stating that the petitioner attained the age of superannuation on 28.02.2023 and that his name will be removed from the company rolls w.e.f. 01.03.2023. It is submitted that the age of superannuation of the employees working in the respondent No.1 Company was 61 years as per the Circular dated 12.08.2021 and since the age of the petitioner was assessed as 22 years as on 19.02.1987, he is entitled to continue in service upto 28.02.2026. However, the respondents have retired the petitioner from service w.e.f. 28.02.2023 and thereby the petitioner is losing three years of his service. Challenging the same, the present writ petition has been filed.
3. Learned counsel for the petitioner has drawn the attention of this Court to the relevant documents i.e., the information furnished to him under RTI Act, 2005, dated 3 PMD,J W.P.No. 7903 of 2023 23.02.2021 that as per the Service Card, his date of birth is recorded as 25 years as on 19.02.1987 i.e., 19.02.1962, but as per the CMPF Nomination in PS-3 & PS-4 his date of birth is recorded as 12.02.1965 and as per MVCT, his age is recorded as 25 years as on 19.02.1987 i.e., 19.02.1962. It is submitted that the doctors of the Medical Board have decided that the petitioner is 60 years as on 06.08.2022, on his mere appearance and not by conducting any medical examination. He also relied upon the date of birth recorded in his Aadhar and Pan Cards.
4. Learned Standing counsel appearing for the respondents relied upon the averments in the counter affidavit and submitted that as per the service register record of the petitioner at the time of initial appointment, his age has been recorded as 25 years as on 19.02.1987 and since the petitioner was illiterate and did not have any date of birth certificate, the age as determined by the medical officer has been considered and entered into service book. It is submitted that the petitioner has been referred to the Medical Board for examination on his request for change of his date of birth and after medical examination, the Medical Board has assessed the age of the petitioner as 60 years as on date of examination i.e., 4 PMD,J W.P.No. 7903 of 2023 06.08.2022. Therefore, the petitioner has rightly been retired on attaining the age of 61 years i.e., on 28.02.2023.
5. Learned Standing counsel has drawn the attention of this Court to the various documents such as service register wherein his date of birth is recorded as 25 years as on 19.02.1987. It is submitted that the Forms PS-3 and PS-4 are the forms filled by the petitioner and the date of birth given by him cannot be taken as his date of birth, as it was determined at 25 by the medical officer at the time of his initial appointment. He has referred to the Coal Mines Provident Fund Form-A, wherein the date of birth was recorded as 25 years as on 19.02.1987 and the petitioner thumb impression was annexed thereto. It is also referred to the employee's personal record, wherein the date of birth of the employee is recorded as 19.02.1962.
6. Learned Standing counsel also relied upon the following judgments in support of his contentions that there cannot be change of date of birth at the fag end of the career i.e., at the time of retirement.
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PMD,J W.P.No. 7903 of 2023
(i) Karnataka Rural Infrastructure Development Limited Vs.T.P.Nataraja and Others 1;
(ii) Bharat Coking Coal Limited and Others Vs. Shyam Kishore Singh 2;
(iii) Rolla Sathaiah Vs. The Singareni Collieries Company Limited and Another 3;
(iv) K.Kumaraswamy Vs. Regional Manager, APSRTC and Others 4;
(v) Kambam Venkata Rao Vs. Chairman and Managing Director, Singareni Collieries Company and Others 5.
7. Learned counsel for the petitioner has filed a reply affidavit to the counter affidavit filed by the respondents and submitted that the Form PS-3 & PS-4 are prepared by the management and therefore, the age recorded therein has to be considered as his correct date of birth.
8. Having regard to the rival contentions and the material on record, this Court finds that there is no dispute that the date of birth of a person cannot be changed at the fag end of 1 (2021) 12 SCC 27 2 (2020) 3 SCC 411 3 2014 SCC Online Hyd 1145 4 (2022) SCC Online TS 2820 5 (2022) SCC Online TS 2639 6 PMD,J W.P.No. 7903 of 2023 his career at his request. In this case, the date of birth was admittedly recorded as 19.02.1962 in the service record and also in the Provident Fund account. The PS-3 is the form giving the particulars of the family members of the petitioner and PS-4 is the nomination form for receiving the outstanding benefits after the death of the employee while in service. These two forms are admittedly filled in by the employee himself. However, the service registers of the employees are maintained by the authorities and in the employee's personal record, the date of birth is recorded as 19.02.1962. After going through the medical reports submitted by the respondents, it is noticed that a detailed medical examination has been conducted on the petitioner and the age was determined as 60 years as on 06.08.2022. Therefore, this Court does not find any merit in this writ petition and it is liable to be dismissed.
9. Accordingly, this writ petition is dismissed. There shall be no order as to costs.
10. Miscellaneous petitions, if any, pending in this writ petition, shall stand closed.
____________________________ JUSTICE P.MADHAVI DEVI Date: 20.09.2023 bak 7 PMD,J W.P.No. 7903 of 2023 9 THE HONOURABLE SMT JUSTICE P.MADHAVI DEVI W.P.No. 7903 of 2023 Dated: 20.09.2023 bak