IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE TWENTY FIRST DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE L.NARASIMHA REDDY WRIT PETITION NO : 5728 of 2008 Between: M. Ramaiah, (EC No.2653540), S/o. Mallaiah, Singareni Collieries Company Ltd., Srirampu, Adilabad District. ... PETITIONER AND 1 The Singareni Collieries Company Ltd., Rep. by its Chairman & Managing Director, Kothagudem, Khammam District. 2 The Chief General Manager, Singareni Collieries Company Ltd., Srirampur Aread, Srirampur, Adilabad District. 3 The Dy. General Manager, RK-5 Incline, Singareni Collieries Company Ltd., Srirampur Area, Srirampur, Adilabad District. ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a writ or order or direction, especially one in the nature of Writ of Mandamus: i. declare the proceeding No.SRP/RK5/WO/33/POO1/5731, dt. 06.10.2003 and proceeding No.SRP/RK5/10/POO1/WO/101, dt. 04.01.2008 issued by the 3rd respondent as illegal, arbitrary and set aside the same. ii. consequently direct the respondents to continue the petitioner in service till 01.02.2011, duly granting all other consequential benefits. iii. and pass such other order or orders Counsel for the Petitioner : MR.K.VASUDEVA REDDY Counsel for the Respondent No.: MR.NANDIGAM KRISHNA RAO This court made the following: THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY WRIT PETITION No. 5728 OF 2008 O R D E R: The petitioner joined the service of Singareni Collieries as Temporary Tunnel Mazdoor, on 27.4.1973. Subsequently, he was drafted as General Mazdoor on 1.4.1976 and promoted as Charger Safety Lamp on 1.6.1977. Thereafter, he earned promotion as Lamp Room Fitter, with effect from 1.4.1989, and at present, he is working in that capacity. Through proceedings dated 6.10.2003, the respondents informed the petitioner that his date of birth was confirmed as 14.3.1949, on the basis of the medical examination, and that he would attain the age of superannuation on 14.3.2009. This was followed by another communication, dated 4.1.2008, wherein it was informed that he would retire on 14.3.2009, extended to last working day i.e. 31.3.2009, on attaining the age of 60 years. Petitioner contends that he studied up to HSC, and in the certificate issued by the competent authority, the date of birth was mentioned as 1.2.1951, and the same was reflected in the important records, such as, Identity Card, Service Register, B-Register, etc. He contends that the date of birth was altered to 14.3.1949, in the year 2001, without notice to him, and the so-called assessment made by the Area Age Determination Committee (for short “the Committee”), is without any jurisdiction. He seeks a writ in the form of a declaration, to the effect that he is entitled to continue in service, till 1.2.2011, and for a declaration that the proceedings, dated 6.10.2003 and 4.1.2008, are illegal, arbitrary and unconstitutional. The respondents filed a counter affidavit, stating that the petitioner did not file any certificate, much less, the HSC certificate, in proof of his date of birth, and on medical examination, at the time of joining in service, his age was mentioned as 24 years. It is stated that contrary to the said entry, his date of birth was mentioned in certain records as 1.2.1951, and the same was corrected, duly following the procedure prescribed under Circular, dated 12.1.2001. It is also stated that felt aggrieved by the communication issued to him in the year 2001, the petitioner raised a dispute and accordingly, he was subjected to examination by the Committee. According to them, the Committee had opined that the petitioner was of 24 years of age, as on the date of entry into service, and that the same has become final. Reliance is placed upon certain judgments rendered by the Supreme Court, in the context of alteration of dates of births of the employees. Sri K. Vasudeva Reddy, learned counsel for the petitioner, submits that in all the relevant records, including the Identity Card and Service Register, the date of birth of the petitioner was entered as 1.2.1951, on the basis of the HSC certificate, and the respondents have unilaterally changed the same to 14.3.1949, in the year 2001. He further contends that to perpetuate the illegality committed by the respondents, they have produced the petitioner before the Committee, and though the said Committee was not at all conferred with the power to determine the age, it had undertaken the task. He submits that the action of the respondents is contrary to settled principles of law. Sri Nandigam Krishna Rao, learned Standing Counsel for the respondents, on the other hand, submits that the date of birth of the petitioner was determined, both at the time of entry into service, and at a subsequent stage, duly following the prescribed procedure. He contends that the date of birth mentioned in the HSC certificate cannot be taken into account, since the said records were not produced at the initial stage of joining the service. He submits that in matters relating to age of retirement, or alteration of date of birth, the Court cannot act as an appellate authority. It is not uncommon that employees come forward with a plea of alteration of dates of birth, just before their retirement. The principle to be applied in matters of this nature, have been enunciated by the Supreme Court and several High Courts. It was held that once the date of birth of an employee is entered in the Service Register and other relevant records, on the basis of the information furnished by the employee, it cannot be altered, at the fag end of his service. Reference in this context may be made to the judgment of the Supreme Court in STATE OF TAMILNADU v. T.V. VENUGOPALAN , EXECUTIVE ENGINEER, BHADRAK (R&B) DIVISION, ORISSA, v. RANGADHAR MALLIK, etc. In the instant case, no such request was made by the petitioner. His date of birth was mentioned in the records, be it in the Identity Card, Service Register, or other records, as 1.2.1951. However, without the knowledge of the petitioner and without any notice to him, the date of birth was altered to 14.3.1949, some time in the year 2002. This was on the basis of the verification of service particulars by a Committee, in accordance with the circular dated 12.1.2001. The reason pleaded by the respondents is that the petitioner was subjected to medical examination, at the time of his entry into service, in the year 1973 and he was found to be 24 years of age. A further plea is that HSC certificate and Transfer Certificate were not produced by the petitioner, when he entered the service. This is one of the rare cases, where the date of birth of an employee was altered by the employer, several decades after the appointment, that too, without notice to the employee. It was not even alleged that the petitioner had either misrepresented, or committed fraud on the respondents, leading to the mentioning of the date of birth as 1.2.1951, in all the records, from the inception. The sole basis appears to be the gist of medical examination conducted on the petitioner, with reference to his physical fitness, while joining the service. Taking advantage of the fact that the age of the petitioner was mentioned as 24 years, in such report, the respondents have unilaterally altered the entries in all the records, nearly 30 years after the petitioner joined the service. Such a course is totally impermissible, apart from being illegal and arbitrary. When the petitioner challenged the action of the respondents, in altering the date of birth, they have chosen to subject him to verification by the Committee. On 12.9.2003, the Committee is said to have examined him and expressed the opinion that he was 24 years of age as on 14.3.1973. On the basis of this report, the impugned communication was given to the petitioner. The report of the Committee suffers from more defects, than one. Firstly, it is to be noted that according to the scheme framed by the respondents company, a two-tier procedure is contemplated, in the matter of determination of disputed dates of birth. Whenever any discrepancy is noticed in the records, as to the date of birth of an employee, the matter is required to be referred to the Committee. This Committee, comprising of the General Manager of the Area, Deputy Chief Medical Officer of the Area Hospital and Deputy General Manager (Personnel), has to examine the various records, as well as the version put forward by the Management and the employee. If it forms an opinion that the entries in the service register do not warrant any alteration, the matter can be closed at the level of the Committee. However, where the Committee feels that there exists any conflict and it is to be resolved by undertaking medical examination, it has to refer to the matter to the Apex Medical Board. The opinion rendered by that Board, shall be treated as Final. In the instant case, there did not exist any conflict or discrepancy, in the relevant service records, as to the date of birth of the petitioner. The conflict if at all was, the one brought about, on account of unilateral alteration by the respondents in 2002. Still, it has chosen to take up the matter and proceeded to express the opinion, which warranted alteration of date of birth to the detriment of the petitioner, without referring the case to the Apex Board. To this extent, a clear irregularity was committed by the Committee, and it usurped the powers of a superior authority. There is another reason, on account of which the opinion expressed by the Committee cannot be sustained. It is not uncommon that individuals, particularly illiterates, are subjected to medical examination for determination of their age. Invariably, such determination would be, with reference to the date of examination. The Committee in this case had exhibited its expertise, in determining the age of the petitioner as on 14.3.1949, by examining him in 2003. Not a semblance of assessment was undertaken. There cannot be a better example of a farcical exercise, than this. The respondents do not dispute that the entries in the relevant service records, till they were altered by them, in the year 2002, reflected the date of birth of the petitioner as 1.2.1951. In case, they had any doubt about the accuracy of the date of birth, or they had any material to prove the same to be inaccurate, they ought to have issued a notice to the petitioner, indicating the proposed course of action. However, they did not choose to do so. Further, it is not as if the date of birth of the petitioner i.e. 1.2.1951 was entered, on the basis of any guesswork, or that it is the result of any manipulation. The respondents do not even express any doubt that the petitioner studied HSC. In fact, it was on the basis of the said qualification that he was promoted to subsequent positions. The date of birth mentioned in the HSC certificate, accords with the one, entered in the service records. Viewed from any angle, the action of the respondents, in altering the date of birth of the petitioner from 1.2.1951 to 14.3.1949, cannot be sustained. The writ petition is, accordingly, allowed as prayed for. There shall be no order as to costs. ___________________ 21st April 2008 Note: L.R. copies to be marked. (B/o) PAN