HON’BLE SRI JUSTICE K.C. BHANU WRIT PETITION No. 17645 of 2010 ORDER: In this writ petition, the petitioner seeks for issuance of a mandamus to declare the impugned order dated 25.5.2010 as illegal and arbitrary. A consequential direction was also sought to direct the respondents to confirm the petitioner’s date of birth as 22.7.1953 as per the proceedings dated 9.5.2009. The petitioner was appointed as Badli Filler in the respondent- Company with effect from 22.7.1973 and he has been discharging his duties as such. At the time of his appointment, his age was recorded as 20 years and his date of birth was mentioned as 22.7.1953. However, in the year 2005, the Area Age Determination Committee reviewed his age and confirmed the same as 20 years and the same was recommended. That as per records, he has to retire after attaining the age of 60 years, i.e., in 2013. But, surprisingly, he was referred to the Apex Medical Board for assessment of age and the same was entered in the service register. Thereafter the impugned proceedings have been issued by the respondents. Hence, he prays to set aside the same. The respondents filed counter affidavit stating that as the petitioner failed to produce documentary evidence supporting his age, his age was assessed by the Colliery Medical Officer as 23 years and the same was entered by the respondent-company in all the service records. It is stated that as per the date mentioned in the records, the petitioner would have retired on 31.7.2010, but, as per the implementation instruction No. 76, the petitioner was referred to the Area Age Determination Committee, which reviewed the age of the petitioner on 12.12.2003 and thereafter, it confirmed the age of the petitioner as 23 years. Therefore, after considering all the material aspects, the Apex Medical Board of the Company determined the date of birth of the petitioner as 7.4.1951. Hence, the impugned order needs no interference. Learned counsel for the petitioner pointed out that in the first instance, the age of the petitioner has been noted as 23 years and subsequently, without there being any notice, it was altered as 20 years as on the date of his joining in the post and ultimately he was referred to the Apex Medical Board, which determined the age as 59 years as on the date of his examination and therefore, the impugned notice is liable to be set aside. On the other hand, learned Standing Counsel for the respondents states that since there is a discrepancy as to the age of the petitioner at the time of entry into service, he was referred to the Apex Medical Board and the Board after taking into consideration all the aspects, determined the age and therefore, the impugned order needs no interference. Learned counsel for the petitioner placed strong reliance on para-8 of the judgment of this Court in BODDU LAXMI RAJAM vs. SINGARENI COLLIERIES CO. LTD., & OTHERS ([1]), which reads thus: “The 1st respondent evolved a procedure for resolution of disputes, as to age, or date of birth. Under the scheme, the Age Determination Committee (for short 'the Committee') is conferred with power to examine the cases. If the committee finds that the discrepancy is material, it has to refer the matter to the Medical Board. The necessity to refer the case of the petitioner to Medical Board was not felt, till he was served with a notice of superannuation. It is only when the petitioner protested and placed the various documents before them, reflecting consistent age and date of birth, that the respondents have chosen to refer him to the Medical Board. The committee issued proceedings dated 11-11- 2009, stating that a glaring discrepancy was noticed, between the age recorded in the company's records, and the apparent age of the employee. The above decision has no application to the present case in view of the fact that in that case, the petitioner’s age at the time of joining into service was taken into consideration. However, in the instant case, the documents produced by the respondents-Collieries are varying from one to another and there are corrections with regard to the age of the petitioner in the service records. There cannot be any dispute that the date of retirement shall be reckoned from the date of birth recorded in the service book. It is also equally well settled that once the date of birth of an employee has been accepted by the employer, the same cannot be altered without giving appellant an opportunity to be heard. It is however open to the employer to hold enquiry afresh after affording reasonable opportunity to the petitioner. The age of the petitioner is notified as 20 years in the service records and later, it was corrected as 23 years. Subsequently, when he was referred to the Apex Medical Board, his age was determined as 59 years as on the date of his examination. But, in view of the serious discrepancies, the issue cannot be decided in exercise of powers under Article 226 of the Constitution of India. But the impugned order does not stand to legal scrutiny, as change of date of birth is without affording due opportunity to the petitioner. Therefore, the writ petition is allowed and the impugned order is set aside. The matter is remanded to the 1st respondent for fresh consideration. The 1st respondent shall now determine the age of the petitioner basing on the evidence that may be produced by the petitioner and the records that may be available with the respondents, within a period of four (4) weeks from the date of receipt of a copy of this order. Till appropriate decision is taken, the petitioner cannot be retired from service. No costs. ______________ K.C. BHANU,J DATE: 20th April, 2011 Note: Furnish c.c. in one week. B/o pnb [1] 2011(2) ALD 493