THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.8991 OF 2009 Dated: 21.01.2010 Between: S. Sanjeev Reddy … petitioner And 1. M/s. The Singareni Collieries Co. Ltd., Rep. by its Chief General Manager (Per.) Kothagudem, Karimnagar District., and 3 others. … Respondents THE HON’BLE Ms. JUSTICE G. ROHINI WRIT PETITION No.8991 OF 2009 ORDER: The petitioner is appointed as a Kalasi in the erstwhile Mineral Exploration Corporation on 11.4.1976 and later he was absorbed in the 1st respondent Company as a Pump Operator w.e.f. 16.1.1977. By letter dated 30.03.2008 the petitioner was informed by the respondents that he had to retire from service on 1.5.2009 on attaining the age of superannuation since he would be completing 60 years of age on 10.4.2009 as per the records of the company. Aggrieved by the same, the petitioner filed W.P.No.6677 of 2009 contending that his age was wrongly shown as 29 years in the Service Register which was opened on 27.1.1994 though he entered the service in the year 1976. According to the petitioner his date of birth was entered as 22 years as on 11.4.1976 in Form-D Register maintained by the respondents and the same shall be final and binding on the employer and employee under the Statutory rules. Thus, it was claimed that the petitioner was aged 22 years as on 11.4.1976. Having taken note of the fact that the petitioner had been agitating on the issue of his age right from the year 1999 and having opined that there was serious dispute with regard to actual age of the petitioner, this Court disposed of W.P.No.6677 of 2009 holding as under: “Though ordinarily, the age entered in the service register is conclusive proof of age of an employee, in the instant case, there are admitted discrepancies between Form ‘B’ Register, which is maintained under the statute, and service register. As mentioned earlier, the petitioner has been raising this dispute for the last ten years. Therefore, I find the dispute raised by the petitioner bona fide and requires to be considered by the Apex Medical Board (for short, ‘the Board’). In this view of the matter, the writ petition is disposed of with a direction to respondent No.1 to immediately refer the dispute raised by the petitioner regarding his correct date of birth to the Board of respondent No.1 Company and ensure that the Board examines the petitioner and submits its report on or before 15.04.2009. Thereupon, respondent No.1 shall pass an appropriate order on the age of supernnuation of the petitioner on or before 25.04.2009 and communicate the same to him.” Pursuant to the directions of this Court, the Medical Board was constituted by the respondents to which the dispute raised by the petitioner regarding his correct date of birth was referred to. The Medical Board by its report dated 21.04.2009 assessed the age of the petitioner as 60 years as on 21.04.2009. On the basis of the said report of the Medical Board, the 1st respondent by letter dated 22.4.2009 informed the petitioner that he would be retired from service of the company on 30.04.2009. Aggrieved by the same, the present writ petition has been filed contending inter alia that the report of the Medical Board which did not contain any reasons and was also silent as to the basis of the material upon which the petitioner’s age was assessed was erroneous. I have heard the learned counsel for both the parties and perused the counter-affidavit filed on behalf of the respondents as well as the other material available on record. It is to be noticed that so far as the age disputes in the 1st respondent company are concerned, a detailed procedure has been prescribed in the Circular dated 23.12.2003 for determination/verification of the age of the employees. Clause (C), Clause (D), Clause (E) and Clause (F) which are relevant for the purpose of the present case may be extracted hereunder : “(C) Age determination Committee/Medical Board for the above will be constituted by the Management. In the case of employees, whose date of birth cannot be determined in B(i) (a) or (B), (i) (b) above, the date of birth recorded in the records of the company, namely, Form-B Register, CMPF Records and Identity Cards (Untampered) will be treated as final. Provided that where there is a variation in the age recorded in the records mentioned above, the matter will be referred to the Age Determination Committee / Medical Board constituted by the Management for determination of age. ( D ) For determination of the Age, the Committee Medical Board referred to above may consider the evidences available with the Colliery Management and/or adduced before it by the employee concerned. (E) Medical Board constituted for determination of Age will be required to assess the age in accordance with the requirement of ‘Medical Jurisprudence’ and the Medical Board will as far as possible indicate the accurate age assessed and not approximately. (F) Where the Management i.e., Area Age Assessment consisting of General Manager, Personnel Manager and the Medical Officer-in-charge of the Area is satisfied that there is a glaring disparity between the date of birth recorded in the company records and the apparent age of the employee, the cases may be referred to APEX Medical Board located at Headquarters of the company for determination of age.” Admittedly in the instant case the petitioner’s case was referred to the Medical Board in compliance with the directions of this Court in W.P.No.6677 of 2009, dated 31.03.2009. Hence, the only question that requires consideration is whether the procedure followed by the Medical Board while assessing the age of the petitioner was in accordance with law. As could be noticed from the Circular dated 23.12.2003 for determination of the age, the Medical Board has to consider the evidences available with the company as well as the evidence adduced by the employee concerned. Admittedly in the instant case the petitioner did not produce any evidence to show that the claim of the respondents that he had completed 60 years as on 10.04.2009 was wrong. In the circumstances, the Medical Board on consideration of the petitioner’s statement as well as the other records produced by the respondents assessed the petitioner’s age as 60 years as on 21.04.2009. The said procedure followed by the Medical Board was strictly in accordance with the procedure prescribed in the Circular. There is no dispute that the Medical Board included the Chief Medical Officer and the same was properly constituted. As held by the Supreme Court in STATE OF ASSAM v. D.P. DEKA[1] the date of retirement has to be determined on the basis of the service record and not on what the employee claimed to be his date of birth, unless the service record is first corrected consistent with the appropriate procedure. An employee may dispute the date of birth as entered in the service record, and may apply for correction of the record, but until the record is corrected, his retirement on attaining the age of superannuation on the footing of the date of birth entered in the service record cannot be held to be arbitrary or illegal. The law is also well-settled that unless a clear case, on the basis of the material which can be held to be conclusive in nature, is made out by the employee and that too within a reasonable time as provided in the Rules governing the service, the Court or Tribunal should not issue a direction or make a declaration as to the date of birth of an employee and that the onus is on the applicant to prove about the wrong recording of his date of birth in the service book. In the instant case, admittedly the petitioner could not produce any evidence to substantiate his claim and in the circumstances the Medical Board assessed the age of the petitioner on medical examination and the other material produced by the respondents. The said procedure followed by the Medical Board being in accordance with law, the interference by this Court is not warranted on any ground whatsoever. Accordingly, the Writ Petition is dismissed. No costs. _____________ G. ROHINI, J. Dt. 21.01.2010 gbs [1] AIR 1971 SC 173 = (1970) 3 SCC 624