WP(C) 4258/2009 BEFORE HON BLE MR. JUSTICE AMITAVA ROY HON’BLE MR JUSTICE AC UPADHYAY JUDGMENT AND ORDER(ORAL) ( Amitava Roy,J) The petitioner seeks to invoke the extra ordinary jurisdiction of this C ourt to interfere with the judgment and order dated 8.9.2009 passed by the learn ed Central Administrative Tribunal, Guwahati Bench, Guwahati ( for short, hereaf ter referred to as the ’Tribunal’) in OA No.94 of 2008 rejecting his prayer for alteration of his date of birth from 1.2.1949 to 1.9.1952 recorded in his Servi ce Book. 2. We have heard Mr AS Choudhury, Senior Advocate assisted by Mr IH Saikia , Advocate, for the petitioner and Mr AK Sarkar, learned Standing Counsel, NF Ra ilway( for short, also hereafter referred to as ’Railways/Respondents’). 3. The pleaded versions of the parties would be essential to be outlined i n brief, so as to comprehend the contentious arguments better. 4. According to the petitioner, his date of birth is 1.9.1952. He was initi ally engaged as a Causal Labourer in the Bongaigaon Division of the Railways on 20.1.1977 and served in the said capacity upto 19.5.1980 and in his Service B ook, his date of birth was recorded as 1.9.1952 after due verification. While se rving as a Causal Labourer, he, on 7.9.1977 submitted a representation before t he Divisional Engineer/ST Engineer(CTC), Bongaigaon, NF Raiway seeking extension of his engagement to which, the said authority by his letter dated 12.5.1978 re sponded in the negative. Thereby, the said authority also intimated him that he was not eligible for retrenchment benefit as per the Industrial Disputes Act, 19 47 since his service as Casual Labourer was less than one year. The said letter mentioned his date of appointment to be 7.9.1977. 5. Subsequent thereto, he was appointed as a Substitute Khalasi on 19.5 .1980 and thereafter as a regular Khalasi with effect from 13.6.1981. According to him, it was thereafter that his date of birth originally recorded as 1.9.195 2 was altered to 1.2.1949 without any reference to him. He came to learn about the change for the first time in 1983 and accordingly submitted representations on 1.12.1983 and 9.9.1987 for necessary corrections. Meanwhile, the seniority l ist of the employees of the Railways amongst others of his rank and grade was published in which, his date of birth was wrongly shown as 1.2.1949 for which, h e again submitted a representation on 5.3.1988. The respondent Railways actin g on the representations made enquiries into the veracity of his claim based on the Admit Card issued by the Board of Secondary Education, Assam (for shor t, hereafter referred to as ’SEBA’) in the year 1971. SEBA in reply to the queri es made, confirmed about the authenticity of the Admit Card vide its letter dat ed 5.10.2006. According to the petitioner, in terms of the said Admit Card, he was 18 years 6 months as on 1.3.1971 which therefore unmistakably established his claim of date of birth to be 1.9.19052. As inspite of the above testimony of his date of birth as claimed by him, no step was taken by the respondent auth orities to make necessary corrections, he approached the learned Tribunal wit h OA No.137/2007 which was disposed of on 8.6.2007 with a direction to the resp ondents therein to decide the representation by a speaking order within the tim eframe fixed by it. As the concerned respondent authority by order dated 27.2. 2008 declined to accept the petitioner’s request, he returned to the Tribunal wi th OA No.94/2008 reiterating his prayer whereafter, the impugned judgment and or der was rendered. 6. The Railways, in their written statement in the proceeding before the T ribunal pleaded in categorical terms that the petitioner had been engaged as a C asual Labourer on and from 23.2.1968 and after being screened in the year 1981, he was appointed as T/man cum Khalasi in CSI-CTC/BNGN on 11.8.81 and his date o f birth was recorded in his service sheet as 1.2.1949 being endorsed by his lef t thumb impression. The Railways further pleaded that the same date was also rec orded in the Medical examination report which was attested by the petitioner. Ac cording to the respondents, the representation filed by him was disposed of on 2 9.11.1989 taking note of the above recorded facts. They disputed the petitioner’ s claim of entry of his date of birth as 1.9.52 in the Service Book on the grou nd that on the basis thereof, his entry in service on 23.2.68 was an impossibili ty as the minimum age required therefor at the relevant point of time was 18 y ears. The respondents asserted that the petitioner’s representations submitted later on were also disposed of in the same lines. They have reiterated the abov e contentions in their pleadings herein. 7. Mr Choudhury has urged that it being more than apparent from the conte mporaneous records that the date of birth of the petitioner is 1.9.1952, the pl ea to the contrary is visibly flawed. The learned Tribunal having fallen in er ror in rendering the impugned decision by disregarding the same, it ought to be interfered with in the interest of justice. Drawing the attention of this Co urt amongst others to the Admit Card issued by the SEBA in the year 1971 and als o the Identity Card issued to him by the Railways as a record of service as a C asual Labourer, the learned senior counsel has insisted that in no view of the m atter, his date of birth can be accepted to be 1.2.1949. Without prejudice to th e above, Mr Choudhury has contended that in absence of the original records in s upport of the respondents’ plea that the petitioner had been engaged as a casua l labourer on 23.2.68 and that his date of birth had been recorded as 1.2.49, t he learned Tribunal also erred in rejecting his prayer for correction thereof t o be 1.9.1952. In support of his arguments, Mr Choudhury has placed reliance on the various decisions of the Apex Court as well as of this court. To mention a f ew ; 1) Umesh Chandra vs. State of Rajasthan, (1982) 2 SCC 202 ; 2) Prabhu Dayal Sesma vs. State of Rajasthan and anr, AIR 1986 SC 1948; 3) Mohd. Yunus Khan vs. UP Power Corporation Limited and Ors, (2009) 1 SCC 80 ; 4) State of Bihar and Ors vs. Pandey Jagdishwar Prasad, (2009) 3 SCC 117 ; 5) Gendalal vs. Union of India and Ors, (2007) 15 SCC 53 ; 6) Nagendra Nath Lahkar vs. State of Assam & Ors, 2009(3) GLT 479 ; 7) Sh.Chhawntluanga vs. State of Mizoram and ors, 2009(5) GLT 814. 8. Mr Sarkar, in reply has reiterated the pleaded stand of the Railways. According to him, the Admit Card issued by SEBA cannot be accepted to be an un impeachable testimony of the date of birth of the petitioner to be 1.9.1952 in n view of the consistent determinations made by the Railways that it was 1.2.19 49 as available from his Service Book. Reiterating that with the date of birt h as 1.9.52, he could not had been engaged as a Casual Labourer with the Railway s because of underage, the learned Standing Counsel has referred to Rule 225(4) , Volume -I of Indian Railway Establishment Code ( for short, hereafter referred to as the ’Code’) to maintain against the permissibility of alteration of the d ate of birth at this distant point of time. Mr Sarkar has also offered the avail able original records pertaining to the service profile of the petitioner for the perusal of this court. 9. We have carefully considered the pleadings of the parties, the documents available as well as the rival arguments advanced. Whereas, the case of the pe titioner is principally based on his claim having been engaged as a Casual lab ourer with the Railways for the first time on and from 26.1.1977, a plea suppor ted by the Identity Card to that effect issued by the Signal Inspector (CTC), Bo ngaigaon, NF Railway as well as the Transfer Certificates issued by the school of study and the Admit Card issued by SEBA in the year 1971, the Railways seek to demonstrate otherwise based on the event of his engagement as a Casual Labour er with effect from 23.2.68. According to them, his date of birth on such entry was recorded to be 1.2.1949 which got reflected in his service sheet after he w as provided with regular employment as T/man/Khalasi in the year 1981. Though th is had been reflected in the letter dated 27.2.2008 of the Divisional Railway Manager (Personnel), Rangia in response to the petitioner’s representation dat ed 12.7.2007, the original records to that effect could not be produced before us by the Railways. Having regard to the considerable significance of the sta nd of the Railways to this effect, we granted time to track the availability of the said records for production before this Court for its necessary perusal. Mr Sarkar has returned with the instructions that the same have been destroyed in terms of the relevant norms /guidelines pertaining to Record Retention Schedul e for Records issued by the Ministry of Personnel and Public Grievances, New De lhi and thus do not exist as on date to be produced. We, thus have to proceed for adjudicating the issues involved in absence of such records. 10. We have perused the relevant records produced before us and have not b een able to identify any document to assuredly substantiate the claim of the Ra ilways that the petitioner for the first time had been engaged as a Casual Labo urer on 23.2.1968 and that his date of birth had been recorded at that stage t o be 1.2.1949. Though amongst others in the order dated 13.2.90 passed in respo nse to the petitioner’s representation for alternation of his date of birth, the Railways’ pleaded stand finds reflection therein, in our view, having regard t o the nature of the issues to be decided, the same per se cannot tilt the balanc e in favour of the Railways. 11. The photocopy of the Identity Card issued to the petitioner on 5.12. 79 by the Signal Inspector (CTO), Bongaigaon, NF Railway clearly reveals his da te of birth to be 1.9.52 for the period of his employment in that capacity com mencing from 21.1.77. It passes our comprehension as to how, if in fact, the p etitioner had been engaged as a Casual Labourer on 23.2.68 and his date of bir th was recorded to be 1.2.49, a different date could be recorded in his Identit y card. Interestingly, the first page of the Service Book of the petitioner men tions his date of birth to be 1.2.1949. Though the said page does not contain an y date of such entry, a perusal of the other pages thereof seems to suggest tha t it was on 27.7.81 after being provided with regular employment as T/man cum Kh alasi. It is significant to note that in case the Railways had made entry of th e petitioner’s date of birth to be 1.2.49 at the time of his appointment as Cas ual Labourer on 23.2.68, there ought to have been some reference thereof in the Service Book, but there is none. 12. Regulation 225(1) of the Code prescribes that every person, on enteri ng railway service, shall declare his date of birth which shall not differ from any declaration expressed or implied for any public purpose before entering rai lway service. In the case of literate staff, the date of birth shall be entered in the record of service in the railway servant’s own handwriting. In the case of the illiterate staff, the declared date of birth shall be recorded by a seni or railway servant and witnessed by another railway servant. 13. On being queried by us, it has been submitted at the Bar that at the relevant time, the petitioner was under matric. Be that as it may, the first pa ge of the petitioner’s Service Book sans, the date of birth 1.2.1949 and except some thumb impressions contain, no other entry either in his hand or in the ha nd of the concerned railway authority. We, therefore are of the prima facie opin ion that the Service Book of the petitioner as produced before us had not been prepared in terms of the enjoinment of Rule 225 of the Code. 14. In this view of the matter, the petitioner’s date of birth as 1.2.49 reflected in the seniority list and other records according to us is of no s ignificance whatsoever for the purpose of adjudication. 15. On the other hand, the School transfer certificate dated 3.1.65 iss ued by the Headmaster, Udiana ME School, Rangia records that as per the Admissi on register of the institution on 31.12.1964 he was aged 12 years 3 months. The Transfer certificate dated 5.10.1989 issued by the Superintendent, Rangia High Madrassa registered his age to be 18 years 6 months as per the Admission registe r as on 31.12.1970. In the Admit Card issued by SEBA, his age was mentioned to b e 18 years 6 months as on 29.3.1971. The authenticity and/or genuineness of t his Admit Card stands proved by the letter of the Registrar, SEBA under Memo No.SEBA/TECH/VERI/1/95/120 dated 1010.2006 addressed to the APO/1/ RNY, office of the Divisional Manager (P). Thus, the documents produced by the petitioner i n support of his claim with regard to his date of birth to be 1.9.52 are ove rwhelmingly preponderant over the documentary evidence sought to be produced by the Railway to suggest otherwise. 16. In the above view of the matter, we feel inclined to accept the peti tioner’s plea that his date of birth is 1.9.1952 and not 1.2.1949 as contended b y the respondent Railway. The learned Tribunal in our view, was thus not right in rejecting his prayer for alteration of his date of birth from 1.2.49 to 1.9 .52. Though, in terms of Rule 225(4) of the Code, the date of birth recorded in accordance therewith ought not to be ordinarily altered, in the singular f acts and circumstances of the case, it having been held that entry of the peti tioner date of birth to be 1.2.49 was made in contravention of the procedure prescribed thereby, we do not feel persuaded by the plea raised by the Railways in this regard. In view of this determination, we are of the unhesitant opinion that the petitioner is entitled to a direction for correction of his date of b irth from 1.2.1949 to 1.9.1952 in his Service Book with the Railways. Ordered a ccordingly. Resultantly, he would be entitled to all consequential service benef its till his age of superannuation on the basis of his date of birth as 1.9.1952 . The impugned judgment and order is set aside. 17. The petition stands allowed. No costs.