ORDER
1. This appeal is, at the instance of the writ petitioner, whose writ petition, being W.P. (S) No. 682 of 2002, was dismissed by the leaned Single Judge by judgment and order dated 18th May, 2004.
2. According to the writ petitioner-appellant, he was appointed as Dozer/ Scraper Operator by the respondents in the year 1975, and at the time of his joining, he gave his date of birth, which was recorded in Form ‘B’ Register as well as in the other Statutory Register maintained in Colliery, as 4th November, 1945. He was also issued Identity Card wherein his date of birth was shown as 4th November, 1945.
3. It appears that the respondents floated Voluntary Retirement Scheme for which the writ petitioner-appellant also applied, but by a communication dated 20th October, 2001, the petitioner was informed that his application for Voluntary Retirement Scheme had been referred to the Date of Birth Committee and after examination of his case, it was found that the date of birth of the petitioner was 45 years on 21 st July, 1945 i.e. 21st July, 1941. The date on which the petitioner was said to have attained 45 years has obviously mistakenly been referred as 21st July, 1945 when it should have been 21st July, 1986. On the basis of the above, the writ petitioner-appellant was informed that his application for voluntary retirement .could not be entertained and the petitioner was informed that he was being put off the roll of the Company and was being stopped from duty with immediate effect.
4. The writ petitioner-appellant challenged the said communication and the action of the respondents in the writ petition which was ultimately dismissed by the learned Single Judge on the ground that the Court was not called upon to interfere with the finding of the Medical Board which assessed the age of the writ petitioner as 45 years on 21st July, 1986.
5. Appearing in support of the appeal, Mr. Tiwari urged that the letter of 20th October, 2001 was highly illegal and arbitrary, since even under the Rules, the respondents were required to give the employees, at least six months’ notice before issuing the notice of superannuation. In any event, in the instant case, since the date of birth of the writ petitioner has been recorded as 4th November, 1945 in all the records, there was absolutely no occasion for any other date to have been into consideration for determining the age of the writ petitioner-appellant. Mr. Tiwari strongly urged that even the story of the writ petitioner-appellant having to appear before the Medial Board was not supported by any documentary evidence except .that an extract of names have been annexed to the counter-affidavit filed on behalf of the respondents in the writ petition. Even the extract of Form ‘B’ as annexed in the counter-affidavit did not bear the signature or thumb impression of the writ petitioner-appellant. On the other hand, Mr. Tiwari referred to the Service Extracts which have been supplied to the writ petitioner-appellant on 1st March, 1988 in which the date of birth was clearly recorded as 4th November, 1945, whereas the Medical Inspection was said to have taken place in the year 1986, Mr. Tiwari contended that had the medical examination taken place, as contended on behalf of the respondents, the same would surely have been indicated in the Service Extracts supplied to the writ petitioner-appellant two years later.
6. When the matter was heard on the occasion, we had requested Mr. A.K. Mehta, appearing for the respondents, to arrange for production of the medical examination of the writ petitioner- appellant said to have been undertaken in the year 1986 together with the original ‘B’ Form Register. Mr. Mehta has produced the originals of the copies which have, in fact, been annexed to his counter-affidavit in the writ petition which, in our view, does not improve the case of the respondents.
7. There is no proper evidence that any Medical Board was actually formed or that the writ petitioner also was examined by the Medical Board for the purpose of redetermining his age which had been given as 4th November, 1945 at the time of his entering into the service. No dispute also appears to have been raised by the writ petitioner upon being served with a copy of the Service Extracts.
8. In the circumstances, We are unable to sustain the order passed by the leaned Single Judge, since we are of the view that the writ petitioner-appellant should be given the benefit of the records which show that his date of birth is recorded as 4th November, 1945. If the said date of birth is taken to be correct, the writ petitioner-appellant would ordinarily have retired from service in the month of November, 2005, which entails that the writ petitioner-appellant will still be deemed to be in service.
9. However, since the writ petitioner-appellant had himself applied for being given the benefit of the Voluntary Retirement Scheme, we dispose of the appeal by setting aside the order passed by the learned Single Judge and directing the respondents to treat the date of birth of the appellant-writ petitioner as being 4th November, 1945 and to deal with his application for voluntary retirement on that basis. The matter is to be decided by the respondents within a period of eight weeks from date. Needless to say, if the appellant’s application for voluntary retirement is not accepted, the appellant will be deemed to have continued in service until he attains the age of superannuation and will be entitled to all consequential benefits.
10. Let a copy of this order be made available to the learned Advocate of the respective parties for communication to the respondents and its implementation. There will be no order as to costs.