ORDER
Tapen Sen, J.
1. In this writ application, the petitioner prays for quashing the letter dated 16/20.10.2003 being letter No. 3169 as contained in Annexure 16 by which the petitioner was informed that in view of the fact that he had attained the age of 60 years, he would therefore superannuate with effect from 31.3.2004 (forenoon). The petitioner also makes a prayer for quashing letter No. 3201 dated 24/ 27.10.2003 (Annexure 18) by which the respondents apparently rejected the representation filed by the petitioner and once again put him on notice that he would be superannuating with effect from 31.3.2004. As a consequence of quashing the aforementioned letters, the petitioner prays for issuance of an order commanding the respondents to correct his date of birth as assessed by the Medical Board.
2. The case of the petitioner is that he joined as a Literate Prop Coolie in the Gopalichak Colliery on 1.1.1969. On 7.5.1969, he passed the Mining Sirdar’s Examination and accordingly was promoted as a Mining Sirdar in the same Colliery. On 8.7.1978, he passed the Overman’s Examination whereafter he was posted on that post and subsequently in the year 1989, he was promoted as a Senior Overman. According to the petitioner, the dates of birth of several employees were wrongly entered in the service records as a result whereof those employees including the petitioner filed representations for correction. At paragraph 9 it has been stated that on seeing his service excerpts, the petitioner found that his date of birth had wrongly been mentioned in the Form ‘B’ Register as 15.3.1944 without his consent/signature. The petitioner states that as per Implementation Instruction No. 76 (Annexure 1) where there was no document available, a Medical Board was to be constituted for purposes of assessment of the correct date of birth of the employees. Accordingly, the case of the petitioner was also referred to the Medical Board for assessment on 28.11.1988 by Annexure 2. A Medical Board was constituted which assessed his age as 38 years as on 2.12.1988. According to the petitioner, if this assessment, (Annexure 3) is to be taken into consideration then 38 years as on 2.12.1988 would mean that his date of birth is 1950 and not 1944 as was wrongly recorded in the Form ‘B’ Register as also in the CMPF Records. Let it be recorded that the assessment was made on 2.12.1988 and thereafter, the Deputy Chief Personnel Manager Issued a letter to the Agent, being letter No. 78 dated 5/9.1.1989, wherein he transmitted the results of the age assessments made by the Medical Board is respect of 10 employees which included the petitioner at Sl. No. 5. This is Annexure 4 and upon perusal thereof, it appears that the petitioner’s date of birth was recorded as 38 years as on 2.12.1988. Subsequently, a letter was issued by the Superintendent/Manager of Gopalichak Colliery being letter No. 92 dated 14.12.1992 wherein he was informed about the result of the Medical Board to the effect that it had assessed his age as 38 years as on 2.12.1988 and he was further informed that as per such assessment, necessary corrections were being made in the Form ‘B’ Register. Annexure 6, which is the extract of the Form ‘B’ Register, shows that the date of birth 15.3.1944, was corrected to read that he was 38 years as on 2.12.1988 in the light of M.B. (Medical Board). After the aforementioned correction had been made in the Form ‘B’ Register, the Identity Card was also corrected on 6.11.1989 and the date of birth 15.3.1944 was struck off and in its place, the date 2.12.1950 was entered. The petitioner has further stated that on 16.11.1997 an agreement (Annexure-8) was entered upon between the Management and Workmen wherein one of the terms was – “The date of birth corrected and communicated in writing by the responsible Executives of the Area on the basis of recorded date of birth in Form B age assessed by authorized Medical Board or age recorded in Mining Sirdar’s Certificate will be accepted for one time provided the case is not sub-judiced or taken legal shelter.” The petitioner then states that he come to learn that the entry of his age assessed by the Medical Board had not been entered in the computerized records and that his old date of birth, i.e.. 15.3.1944 was still being treated as the correct date. The petitioner therefore filed a representation on 14.4.2002, which was forwarded to the concerned authorities whereafter on 17/19.7.2002 (Annexure 10), the Project Officer, Gopalichak Colliery wrote to the Deputy Chief Personnel Manager wherein while giving the details of the petitioner’s dispute, also informed him about the Medical Board which had assessed his date of birth on “2.12.1988 as 38 years”. He also informed that this was communicated to the Agent by letter No. 78 dated 5/9.1.1989 (Annexure 4) under the signatures of the Deputy Chief Personnel Manager, Putki Balihari Area and that the age assessed by the said Medical Board had already been recorded In the Form ‘B’ Register of the Gopalichak Colliery with due communication to the concerned officers.
3. It appears that thereafter, a committee was formed for purposes of verification of records in relation to the petitioner and by an intra-departmental note sheet dated 27.8.2003/2.9.2003 (Annexure 11), the Committee verified the records and gave their report. In the concluding portion of the report, the following observations have been made–
“From the official papers, it reveals that in the year 1988, said Medical Board for age assessment was held at Kustore Hospital in which perhaps since there was age dispute, the case of Shri Upadhyay was sent and accordingly his age was assessed by the Board on 2.12.1988 declaring him as 30 years as on 2.12.1988. The same was communicated by the then Dy. C.P.M. P.B. Area to the Agent. Gopalichak Colliery vide letter even No. 78 dated 5/9.01.1989 and subsequently, the same was communicated to Shri Upadhyay by the Supdt. Manager, Gopalichak Colliery vide letter No. …… 5.4.1989.”
(underlining by Court)
4. The petitioner states that in spite of these overwhelming documents in his favour, the respondents nevertheless issued the impugned superannuation notice dated 16/20.10.2003 informing him that he would be superannuating on 31.3.2004 – meaning thereby that they continued to treat his year of birth as 1944 and thus, proceeded to superannuate him when he reached the age of 60 years on that basis contrary to the findings of the Medical Board which would have allowed him to continue till the year 2010 as it had assessed his year of birth as 1950. The petitioner represented against the aforesaid action, but that was rejected by Annexure 18, i.e., letter dated 24/27.10.2003.
5. The Counter-Affidavit filed in the instant cases shows that the stand of the respondents are :–
(a) that the point raised in the writ application are disputed question of facts;
(b) that the petitioner is a workman within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and therefore, has an alternative and efficacious remedy by way of raising an Industrial Dispute; and
(c) that 15.3.1944 was the date which had been recorded in Form ‘B’ Register, Service Register, Gas Testing Certificate, Mining Sirdar’s Certificate and Overman’s Certificate vide Annexures ‘A’, ‘B’, ‘C’ and ‘D’.
6. It is also the case of the respondents that these certificates and recordings made therein cannot be brushed aside. They also state that these existing statutory certificates recorded his date of birth as 15.3.1944 and although there was no glaring discrepancy in the Form ‘B’ Register, yet the case of the petitioner was forwarded wrongly and irregularly by the Agent/Superintendent of Mines, Gopalichak Colliery on 28.11.1988. According to the statements made in the counter affidavit, the reference to the Medical Board on 28.11.1988 was not even signed by the Area Personnel Manager or Area Medical Officer and it was not approved by the General Manager. It has further been stated that the Medical Board at Kustore Hospital was not competent because assessment of age is made by the Apex Medical Board. It has further been stated that unless the competent authority, i.e., the Director (Personnel) approves the change of date of birth, the same cannot be done. At paragraph 10 it has been stated that the petitioner’s age was never assessed by the Apex Medical Board rather, it was done by the Medical Board at Kustore Hospital without the approval of the competent authority.
7. It is also the case of the respondents, as submitted by Mr. Mehta with reference to the suggestion made in paragraph 7 of the counter affidavit, that in order to obtain Mining Sirdar’s Certificate, a candidate has necessarily to undergo training for 3 (three) years. If he (the petitioner) obtained that certificate on 7.5.1969, he would be 19 (nineteen) years of age on that date, i.e. on 7.5.1969. Mr. Anoop Kumar Mehta, learned counsel appearing for the respondents argued that if he was 19 years on 7.5.1969, then prior to that day, the petitioner must have undergone 3 (three) years training – meaning thereby that his training had commenced from the year 1966. If the petitioner’s contention that he was born in 1950 is accepted, then it would mean that he must have joined at the age of 16 (sixteen) in the Coal Industry which was absolutely impermissible.
8. The petitioner has filed a rejoinder to the aforementioned counter-affidavit wherein he has raised various objections to the same and the basic argument is that the Medical Board which assessed the age was competent and that the date of birth 15.3.1944 was filled up by the respondents without taking consent of the petitioner.
9. However, one thing has to be borne in mind. The analogy referred to in paragraph 7 of the Counter Affidavit has not been answered by the petitioner in his rejoinder Paragraph 7 of the Counter Affidavit reads as follows :
“7. That the respondents state that the Mining Sirdar Certificate and Overmanship Certificate are statutory certificates wherein the date of birth have been recorded as 1944. On the strength of the said certificates, the petitioner has got promotion as Mining Sirdar and lateron as Overman. It is further stated that if the date of birth of the petitioner is taken as 1952 then he obtained Mining Sirdarship certificate at the age of 19 years. It is relevant to state here that for appearing in Mining Sirdarship certificate examination, a candidate has to work for 3 years and has to undergo training. Considering this fact, If the date of birth of the petitioner is taken as 1952, then as per the petitioner’s case, he joined at the age of 16 years in the coal industry which is not possible.”
Note.–The year 1952 appears to be a mistake because the pleadings all along suggest that the date of birth was recorded by the Medical Board as 38 years as on 2.12.1988 and therefore instead of 1952 the year should be 1950.
10. In reply to the aforementioned paragraph 7, all that the petitioner has to say is in paragraph 6 of the rejoinder which is as follows :–
“6. That with regard to the statements, made in paragraph No, 7 of the counter affidavit, it is stated and submitted that they are disputed and hence denied and It is further stated that the date of birth of the petitioner was assessed as per the Implementation Instruction No. 76.”
11. After having read the contents of the writ petition, it prima facie appeared to this Court initially that the petitioner undoubtedly had a case which needed interference by this Court. However, upon reading the contents of the counter-affidavit and the rejoinder filed thereto, this Court is satisfied that no interference is required as the writ petition is devoid of any merit. It is true that the case of the petitioner was referred to the Area Medical Board for assessment of his age. but it is evident that such reference was made without specifying as to whether there was any variation in the records or whether there was a glaring and apparent wrong entry which had been brought to the notice of the Management. The procedure for reference to Medical Board is to be found in Clause (B)(ii) of the Implementation. Instruction No. 76 which has been brought on record by the petitioner himself vide Annexure 1. Clause (B)(ii) specifically lays down that wherever there is no variation in records such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management.
Clause (B)(ii) reads as follows :
“(B) Review determination of date of birth in respect of existing employees.
(i)(a) ……………
(i)(b) ……………
(ii) Wherever there is no variation in records, such cases will not be reopened unless there is a very glaring and apparent wrong entry brought to the notice of the Management. The management after being satisfied on the merits of the case will take appropriate action for correction through Determination Committee Medical Board.”
12. The reference to the Medical Board is Annexure 2 which is dated 28.11.1988 and it is evident that the same is a filled up proforma and, as required, no reasons have been mentioned against Column No. 8. Column No. 8, of the Form reads as ” Reason/Justification for referring for age assessment.” Upon perusal of this document, it is evident that this column is practically empty and it has been filled up in such a manner that it resembles a mere ‘scribbling’ and/or inserting one or two letters of the English alphabet. This cannot be termed to be a compliance of the requirement specifically created under Clause (B)(ii) of the Implementation Instruction No. 76.
13. The ingredients which are sine qua non for reference to a Medical Board as enumerated in Clause (B)(ii) of the Implementation Instruction No. 76 are totally and conspicuously absent. In a recent judgment of the Supreme Court in the case of General Manager, Bharat Coking Coal Limited, West Bengal v. Shib Kumar Dushad and Ors., reported in AIR 2001 SC 72, it has been held at paragraphs 18 and 21 and with reference to Implementation Instruction No. 76 that in case of dispute of an employee who has neither a Matriculation Certificate/Secondary School Certificate nor a Statutory Certificate in which the Manager has certified the entry regarding the date of birth to be authenticated, the employer is to refer the matter to the Medical Board. Thus, according to the Supreme Court and as interpreted by this Court, where these are in existence, then reference to the Medical Board is not proper.
14. In the instant case, it is evident that the petitioner was in possession of Statutory Certificates which are Annexures ‘A’, ‘B’ and ‘C’. Annexure ‘D’ on the other hand is a letter of the Government of India, Ministry of Labour informing the General Manager that the petitioner while he had applied for the Mining Sirdarship Examination had mentioned his date of birth as 15.3.1944 on the basis whereof the relevant certificate had been issued. Annexures ‘A’, ‘B’ and ‘C’ are the Gas Testing Certificate (under Mines Act, 1952), the Sirdar’s Certificate (under Coal Mines Regulations, 1957) and the Overman’s Certificate (under the Coal Mines Regulation, 1957) respectively. In all these certificates, the date of birth of the petitioner was duly certified and mentioned as being 15.3.1944. This is not a case therefore, where the employee did not have such statutory certificates nor was there any variation in the records because the original Service Experts recorded his date of birth as 15.3.1944 on the basis of the aforementioned Statutory Certificates. Thus, there was no glaring or apparent wrong entry and if such glaring and apparent wrong entry had been brought to the notice of the Management, then the same should necessarily have found place in Column No. 8 of the Reference which was made vide Annexure 2.
15. Thus.there was no material before the persons who made the reference to bring the case of the petitioner within the parameters of the Implementation Instruction No. 76 and therefore, the reference to the Medical Board was itself irregular and contrary to Clause (B)(ii) of the said Instruction No. 76.
16. That apart, even the assessment made by the Medical Board vide Annexure 3 shows that both in Column Nos. 7 and 8, the date of birth recorded in the Form *B’ Register as well as in the CMPF. Records showed his date of birth as 15.3.1944. There is no whisper in the writ application as to why such entries were treated to be glaringly inappropriate or wrong or as to why those entries were at variance with each other. In the absence of such an essential pre-requisite, Implementation Instruction No. 76 itself creates a bar because Clause (B)(ii) says that the matters where there are no variations, will not be reopened unless there was glaring and apparent wrong entries.
17. Additionally, it is evident from the pleadings that the claim of the petitioner is based solely on the assessment made by the Medical Board at Kustore Central Hospital. This claim is against overwhelming and unimpeachable statutory documents which are Annexures ‘A’ to ‘C’ of the Counter-Affidavit. Thus, a claim based on assessment and that too an assessment made at the local level at Kustore on the basis of a reference which did not comply with the requirement of Clause (B)(ii) of the Implementation Instruction No. 76 and which also did not receive the approval of the Area Personnel Manager, Area Medical Officer and the General Manager, cannot be accepted in the face of such statutory certificates.
18. At paragraph 9 of the Counter-Affidavit, the respondents have therefore correctly taken a stand as follows :–
“9. That the respondents state that although there was no glaring difference in the records of Form-B, Service Excerpts and certificates issued by the DGMS yet the case of the petitioner was illegally and irregularly forwarded by the then Agent Superintendent of Mines, Gopalichak colliery vide letter bearing Ref. No. GOP Per Age-Ass. 85 dated 28.11.1988 on the plea, of “glaring case”. The reference to the Medical Board was also not correct in as much as Form MMB-6 was not even signed by the Area Personnel Manager, Area Medical Officer and also not approved by the then General Manager. The Medical Board at Kustore Hospital which was also not competent inasmuch as assessment of age is made by the Apex Medical Board wrongly assessed the age of the petitioner as 38 years as on 2.12.1988 which means that the date of birth is 2.12.1950. The change of date of birth from 15.3.1944 to 2.12.1950 has been done without any approval of the competent authority namely the Director (Personnel) and also without consent of the Area Medical Officer”.
(Underlining by Court)
19. In the rejoinder, in reply to the aforementioned paragraph 9 of the Counter Affidavit it has been stated :–
“8. That the statements, made in paragraph No. 9 of the Counter Affidavit are disputed and hence denied and it is further stated and submitted that the case of the petitioner was referred before the Medical Board by the competent authority and on such recommendation the Medical Board has , assessed the age of the petitioner and, as such, at this stage it cannot be stated that the case of the petitioner was wrongly referred.”
The aforementioned reply is a mere bald statement of the petitioner at paragraph 8 and it is bereft of details and does not meet the point raised in the Counter-Affidavit.
20. The other alternative argument advanced on behalf of the writ petitioner is that he has been dealt with in a discriminatory manner vis-a-vis the other 9 (nine) persons who were sent along with him for medical assessment of age. Mr. Anil Kumar Sinha, Senior advocate submitted with reference to Annexure 14 that out of the 10 (ten) persons who had been referred for age assessment, one of them had opted for voluntary retirement whereas the remaining persons had been allowed to superannuate on the basis of the age as assessed by the same Medical Board and that it was only in the case of this petitioner that the respondents singled him out and put him on notice.
21. The aforementioned submission of Mr. Anil Kumar Sinha, learned Senior Advocate, cannot be accepted primarily because the High Court exercising jurisdiction under Article 226 will not give its seal of approval to an illegality committed. If such an approval is given by the High Court, it would amount to legalizing an illegality. Since this Court has held that the reference itself was bad and therefore, such an argument of Mr. Anil Kumar Sinha has no merit.
22. For the aforementioned and foregoing reasons, this Court has no hesitation, therefore, in holding that the act of referring the case of the petitioner to the Medical Board was not only Irregular, but it was contrary to the Implementation Instruction No. 76 as the said reference did not meet with the essential pre-requisite contained in Clause (B)(ii) thereof.
23. Consequently, the arguments to the effect that the respondents once having corrected the date of birth on the basis of the findings given by the Medical Board are estopped from acting contrary thereto cannot be accepted because it is well settled that the State cannot be bound by unauthorized acts of its employees and that the concept of promissory estoppel cannot be raised if the State or its servants act beyond the scope of their duty or contrary to the directions or standing administrative instructions. This view was taken by the Full Bench of the Patna High Court in the case of Rita Mishra and Ors. v. Director of Primary Education, reported in 1987 BBCJ 741 (FB).
24. For the foregoing reason therefore, this Court does not find any fault with the respondents in issuing the impugned letter dated 16/20.2.2003 bearing letter No. 3169 (Annexure 16) and the other one dated 24/27.10.2003 bearing letter No. 3201 because prima facie it appears that the respondents have taken action rightly and on the basis of statutory documents which were available and which were neither at variance nor were there any glaring and apparent wrong entry.
Consequently, this Court holds that there is no merit in this writ application. It is accordingly, dismissed. No Order as to costs.