PRADIP MOHANTY, J & S.K.MISHRA, J. W.P.(C ) NO.16144 OF 2008 (Decided on 10.11.2010) KALU CHARAN MISHRA ……….. Petitioner. .Vrs. G.M.,(ELECTRICAL), ORISSA HYDRO POWER CORPORATION LTD. & ORS. ……….. Opp.Parties. CONSTITUTION OF INDIA, 1950 – ART.226. For Petitioner - M/s. A.K.Chouhdury & K.K.Das. For Opp.Parties - M/s. Sanjay Patnaik & R.K.Samal. PRADIP MOHANTY,J. The petitioner, in this writ petition filed under Articles 226 and 227 of the Constitution of India, has prayed for quashing of Annexure-13, the impugned notice of retirement dated 20.10.2008, as well as Annexure-14, the order (communicated to him vide letter dated 24.10.2008) passed on his representation. He has further prayed to direct the opposite parties to correct his date of birth in the original service book as “14.4.1951” instead of “14.4.1949” as per the transfer certificate and the duplicate service book and allow him to continue in service by treating his date of birth as “14.04.1951”. 2. The case of the petitioner is that on 21.03.1972 he joined as Helper Grade-III in the Orissa Hydro Power Corporation Ltd., Balimela. After a lapse of 21 years, for the first time, the opposite parties vide letter dated 19.07.1993 called upon him to produce the original transfer certificate, which was submitted by the petitioner before opposite party no.3 on 22.07.1993. In the month of January, 1996, Senior General Manager (Electrical), Balimela Hydro Electric Project affixed a notice in the Notice Board indicating therein that the date of birth of the petitioner is 14.04.1949 instead of 14.04.1951, pursuant to which the petitioner submitted an application mentioning therein that his actual date of birth is 14.04.1951. He also moved an application on 14.03.1996 for necessary correction of his date of birth in the original service book. Since no steps were taken on the said application, he submitted another application on 07.09.2002 requesting the authorities to look into his grievance and take necessary action with regard to correction of his date of birth mentioned in the original service book taking into consideration the entries made in the transfer certificate and duplicate service book. On 14.09.2006, the General Manager (Electrical), Balimela Hydro Electric Project called upon the petitioner to produce his original transfer certificate and conduct certificate issued by Khariaguda High School, Ganjam and Vijay High School, Raikia, Phulbani for verification of the authenticity of his date of birth. Upon receipt of the same, the petitioner drew the attention of the authorities that in the duplicate service book, his date of birth has been mentioned as “14.4.1951” and for the fist time, he came to know from the Notice Board about the wrong entry of his date of birth in the original service book. On 12.04.2007, the Deputy Manager (HRD), vide his letter no.2578, moved the Headmaster, Vijay High School, Raikia to ascertain the authenticity of transfer certificate no.77/68-69 dated 12.08.1968 and after receiving the same, the Headmaster of the said school informed the Deputy Manager (HRD) that the transfer certificate is genuine and the date of birth of the petitioner is 14.04.1951. Despite submission of the transfer certificate and other relevant documents, again the General Manager (Electrical), Balimela Hydro Electric Project vide his letter no.7547 dated 17.10.2006 asked the petitioner to produce the original transfer certificate and conduct certificate of the school for verification. Several correspondences were made between the petitioner and opposite parties and when the grievance of the petitioner was not meted out, he was constrained to move this Court in W.P.(C) No.5292 of 2008 which was disposed of vide order dated 01.09.2008 with direction to the opposite parties to dispose of his representation dated 27.03.2006 by the end of October, 2008 and communicate the result thereof to him. But the opposite parties instead of taking a decision in consonance with the order of this Court dated 01.09.2008 passed in the aforesaid writ petition served the impugned notice of retirement upon the petitioner on 20.10.2008 (Annexure-13) treating his date of birth as 14.04.1949 and subsequently on 24.10.2008 dismissed his representation dated 27.03.2006. Hence, the writ petition. 3. A counter affidavit has been filed on behalf of the opposite parties stating therein that initially the date of birth of the petitioner was recorded in his service book as 14.04.1949 and subsequently without the approval of the higher authority, it was tampered and changed to 14.04.1951 during the period when the project was under the control of erstwhile OSEB basing on the transfer certificate no.77/68-69 dated 12.08.1968 produced by the petitioner obtained from Vijay High School, Raikia. On 26.06.1993, the headquarter office of erstwhile OSEB instructed the P & C Division, Balimela Hydro Electric Project, Balimela to verify the authenticity of the said transfer certificate from the concerned school pursuant to which the Executive Engineer, P & C Division, Balimela wrote a letter (Annexure-B) to the Headmaster, Vijaya High School, Raikia for verification and upon receipt of the same, the Headmaster of the said school, vide his letter dated 01.09.1993 (Annexure-C) expressed his inability to verify the transfer certificate of the petitioner as the counterfoils of Transfer Certificate Issue Books from 1960 to 1970 had been eaten away by white ants since more than four years. After receipt of the letter of the Headmaster, the matter was forwarded to the head office for finalization of the date of birth of the petitioner and after due consideration, his date of birth was determined as 14.04.1949, which was initially recorded in his service book. On 14.03.1996, to change his date of birth the petitioner made a representation which did not yield any result. The petitioner then slept over and did not pursue the matter. Six years after he again made an application on 07.09.2002 to the Senior General Manager (Electrical), BHEP, Balimela, who on due examination by his letter dated 15.07.2006 referred the matter to the Deputy General Manager (HRD), OHPC. As directed, the petitioner produced the original transfer certificate Vijay High School, Raikia, Phulbani and duplicate transfer certificate of Khariaguda High School, Ganjam for verification on 25.09.2006. The Deputy General Manager (HRD), OHPC on 12.04.2007 again moved the Headmaster, Vijay High School to ascertain the authenticity of the transfer certificate no.77/68-69 dated 12.08.1969 and upon receipt of the same, the Headmaster informed that the date of birth of the petitioner is 14.04.1951 as per school records. 4. Keeping the pleadings of the parties in view, this Court carefully perused the records. In the prescribed column of the original service book (Annexure-A to the counter affidavit), as it appears, the date of birth of the petitioner has been mentioned as “14.4.1949” as well as “14.4.1951”. The date “14.4.1949” has been mentioned without 2 reference to any document, whereas “14.4.1951” has been mentioned with reference to transfer certificate no.77/68-69 dated 12.08.1969 issued by the Headmaster of Vijay High School, Raikia. Pursuant to the query made by the opposite parties, the Headmaster of Vijay High School, Raikia vide letter dated 22.07.2007 (Annexure-7 series), has clarified that the transfer certificate no.77/68-69 of the petitioner is genuine and his date of birth, i.e., 14.4.1951 is also correct. The plea of the opposite parties that in the original service book the date “14.4.1949” was tampered and changed to “14.4.1951” is not tenable, because the original service book was in the custody of the opposite parties and so the question of manipulation by the petitioner does not arise. The endorsement made on 27.02.1996 by the Executive Engineer in the original service book to the effect that the date of birth of the petitioner is 14.4.1949 referring to the letter dated 07.02.1996 of the Assistant to Chief Engineer & Member (Generation), OSEB (Annexure-D) is not acceptable in absence of any specific mention about the source of arriving at such conclusion. Furthermore, referring to the very same Annexure-D although date of birth of one Sarif Khan, Fitter Grade-II was accepted as 04.10.1941, the same was subsequently changed/corrected and said Sarif Khan was allowed to continue in service till 31.08.2007, as is evident from Annexure-15. Another strong circumstance in favour of the petitioner is the duplicate service book (Annexure-1) wherein the date of birth of the petitioner has been clearly mentioned as “14.4.1951”. The said duplicate service book having been issued by the opposite parties themselves, there is no reason to disbelieve the same. This aspect has also not been specifically refuted by the opposite parties in their counter affidavit. A specific plea has been taken by the opposite parties in their counter affidavit that how could the Headmaster, Vijay High School, Raikia certify the transfer certificate in question to be genuine and the date of birth of the petitioner as “14.4.1951” when in his earlier communication dated 01.09.1993 (Annexure-C) he had intimated that he was not able to verify the transfer certificate as the school records from 1960 to 1970 were eaten away by white ants. But, on perusal of Annexure-C it reveals that the Headmaster of Vijay High School had intimated that proper verification of the T.C. could not be made since the Admission Register of the school from 1960 to 1970 had been taken to this Court in connection with some other case and not returned despite repeated requests and that the counterfoils of T.C. Issue Books, Cancelled T.C. bundles, etc. from 1960 to 1970 kept in the wooden almirah had been eaten away by white ants since more than four years. From this, it can not be construed that the Headmaster had intimated that the school records from 1960 to 1970 were eaten away by white ants. This apart, the communication dated 22.07.2007 (Annexure-7 series) was made by the Headmaster pursuant to the query made by the opposite parties. It is not the case of the opposite parties that letter dated 22.07.2007 (Annexure-7 series) was written by the Headmaster at the instance of the petitioner. On the other hand, in letter dated 22.07.2007 the Headmaster has specifically mentioned “For your kind reference a xerox copy of T.C. (counterfoil) is enclosed herewith.” From this, it can be safely concluded that the communication (Annexure-7 series) was made by the Headmaster after crosschecking the transfer certificate in question with the counterfoils and admission register available in the school. Therefore, the plea of the opposite parties is not tenable. Another important aspect which cannot be lost sight of is that in the order communicated to the petitioner vide letter dated 24.10.2008 (Annexure-14) passed on his representation pursuant to the direction of this Court in W.P.(C) No.5292 of 2008 no 3 reason has been assigned and it appears to be a cryptic one. The opposite parties also in their counter affidavit have not disclosed any reason for rejecrion of the representation of the petitioner. For the reasons aforesaid and for the further reasons that the date of birth, i.e., 14.4.1951, as claimed by the petitioner, is reflected in the duplicate service book as well as the original service book, there is no impediment in accepting the same which we hereby direct. 5. In view of the above, this Court quashes the impugned orders under Annexures- 13 and 14. Necessary order shall be passed by the opposite parties within a period of two months from the date of receipt of this order or production of certified copy thereof. 6. The writ petition is accordingly disposed of. Writ petition disposed of. 4