IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 WP(C).No. 1351 of 2008(S) ------------------------- OA.87/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONERS: --------------- 1. UNION OF INDIA, REPRESENTED BY THE GENERAL MANAGER, SOUTHERN RAILWAY, HEADQUARTERS OFFICE, PARK TOWN P.O. CHENNAI - 3. 2. THE DIVISIONAL RAILWAY MANAGER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. 3. THE SENIOR DIVISIONAL PERSONNEL OFFICER, SOUTHERN RAILWAY, PALGHAT DIVISION, PALGHAT. BY ADV. SRI.M.C.CHERIAN,SR.SC.,RAILWAYS RESPONDENT: --------------- R.SAHADEVAN, S/O.RAMAN, RETRENCHED CASUAL LABOURER, SOUTHERN RAILWAY, PALGHAT DIVISION, RESIDING AT VALAKAD HOUSE, NECHIPULLY POST, MUNDUR, TAMIL NADU. ADV. SRI.T.C.GOVINDA SWAMY FOR R1 SMT.D.HEERA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/05/2009, ALONG WITH WPC NO. 1868 OF 2008 & WPC NO. 1907 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.1351/2008 APPENDIX PETITIONER'S EXTS: EXT.P1: TRUE EXTRACT PARAGRAPH OF 2513 OF THE RAILWAY ESTABLISHMENT MANUAL (1968 EDITION) EXT.P2: COPY OF ORDER DT.31.8.2006 IN O.A.NO.437/2005 OF CAT/ERNAKULAM. EXT.P3: COPY OF O.A.NO.87/2007 ALONG WITH ANNEXURES. EXT.P4: COPY OF REPLY STATEMENT FILED IN O.A.NO.87/2007 OF CAT/ERNAKULAM. EXT.P5: COPY OF ORDER DT.11.6.2007 OF CAT, ERNAKULAM IN O.A.NO.87/2007. //TRUE COPY// PA TO JUDGE K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------------ W.P.(C) Nos.1351, 1868 & 1907 OF 2008 ------------------------------------ Dated this the 29th day of May, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. W.P.(C) No.1351/2008: The respondents in O.A.No.87/2007, before the Central Administrative Tribunal, Ernakulam Bench, are the writ petitioners. The respondent herein was the applicant. 2. The brief facts of the case are the following: The applicant was a casual labourer, who was engaged by the respondents, in 1984. He worked for about 130 days. He was included in the Live Casual Register as serial No.1268 published pursuant to the decision of the Apex Court in Indrapal Yadav's case. Along with others, he was also considered for absorption in Group 'D' post. But, his claim was rejected at the threshold for the reason that he did not have the original casual labour card with him. According to the applicant, it was never issued to him. Aggrieved by the stand of the writ petitioners, he approached the W.P.(C)Nos.1351/2008 & connected cases 2 C.A.T. and the C.A.T. by order dated 31.8.2006 in O.A.No.437/2005 directed the writ petitioners to consider his claim for absorption, based on the other documents available. In obedience to that direction, the applicant's claim was considered and rejected by communication dated 12.1.2007. The said communication told him that the Screening Committee did not recommend his case. Challenging that order, O.A.No.87/2007 was filed. While defending that Original Application, the writ petitioners submitted that, as per the School Admission Register produced by the applicant, his date of birth is 28.4.1962. But, in the Thumb Impression Register maintained by the Railways, his age is recorded as 22 years. The recording was made on 2.7.1984. So, going by the relevant Rule, his date of birth is deemed to be 2.7.1962. So, there is a discrepancy between the date of birth furnished by the applicant and his deemed date of birth. For that reason, his claim for absorption was rejected. The Central Administrative Tribunal, after considering the rival submissions, ordered to consider his claim for absorption in service ignoring the aforementioned discrepancy in the date of birth. The said order of the C.A.T. is produced as Ext.P5 in the W.P.(C)Nos.1351/2008 & connected cases 3 writ petition. Challenging the said order, the present writ petition is filed. 3. We heard the learned counsel on both sides. The writ petitioners were absorbing persons included in the Live Register irrespective of the number of days they have worked, if they were below the prescribed age limit, that is, 40 years for open merit candidates, 43 years for OBC candidates and 45 for SC/ST candidates. The applicant belongs to OBC. So, he was eligible for absorption. The only ground taken for not absorbing him in service is the discrepancy in his date of birth. As per the school records produced by him, his date of birth is 28.4.1962. At the time of engagement as casual labourer in 1984, he declared that his age is 22 years. That declaration is fully in tune with the date of birth claimed by him on the strength of the school records. But, paragraph 225(3)(a) read with the decision of the Railway Ministry under it was relied on by the respondents to hold that his date of birth is 2.7.1962 and therefore, there is a discrepancy between the said dates. The above said rule and the decision thereunder of the Railway Board read as follows: W.P.(C)Nos.1351/2008 & connected cases 4 “Para 225(3)(a): When a person entering service is unable to give his date of birth but gives his age, he should be assumed to have completed the stated age on the date of attestation. Eg. If a person enters service on 1st January, 1980 and if on that date his age was stated to be 18, his date of birth should be taken as 1st January, 1962. Railway Ministry's decision below Rule 225 of IREC Vol.I: In the case of Group D employees, care should be taken to see that the date of birth as declared on entering regular Group D service is not different from any declaration expressed or implied, given earlier at the time of employment as Casual Labourer or as a Substitute.” 4. Going by the above rule, it is clear that when a candidate gives his age only, then his date of birth will be taken as the date on which, the competent authority makes attestation of the declaration of the age. If a candidate enters service on 1.1.1980 claiming that he is aged 18, then his date of birth will be taken as 1.1.1962. This is a deemed date of birth and not the actual date of birth. In this case, the petitioner has produced the records of his actual date of birth. Therefore, the contention of the respondents that there is discrepancy between the two dates of birth given by him is plainly untenable. So, the Tribunal has rightly overruled the contention of the writ petitioners that there W.P.(C)Nos.1351/2008 & connected cases 5 is discrepancy between the date of birth claimed by him at the time of engagement as casual labourer and the one claimed by him at the time of screening for absorption. We fully endorse that view. So, the challenge against Ext.P5 is repelled. But, we notice that this writ petition is filed claiming that the decision of this Court in W.P.(C) No.16330/2006 dated 29.11.2007 is applicable to the case of the respondent/applicant. We notice that the said claim is plainly untenable and the writ petition happened to be admitted relying on the said submission. In the result, the writ petition is dismissed with costs. W.P.(C) Nos.1868 & 1907/2008: The point raised in these two cases is identical to the point decided in W.P.(C) No.1351/2008. Accordingly, these writ petitions are also dismissed with costs. (K.BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps