ORDER
1. Heard Mr. M.K. Laik, learned counsel for the petitioner and Mr. A.K. Mehta, learned counsel for the respondents and with their consent this appeal is being disposed of at the admission stage itself.
2. This appeal is directed against the judgment and order dated 17.2.2004 passed by the learned Single Judge dismissing the writ petition being WPC No. 1789/2002. The impugned order read as under :
“Heard the parties.
The prayer of the petitioner in this writ application is for quashing of Annexure-3 to the writ application i.e. the notice dated 7.1.2002 issued by M/s. Bharat Coking Coal Limited to the petitioner whereby she was informed that she would be attaining the age of 60 years on 1.7.2002, therefore, she would retire from the service with effect from 30.6.2002, as per the provisions of NCWA-VI. The claim of the petitioner that her age according to the respondents themselves at the time of her appointment, was only 30 years, therefore, she is being wrongly compelled to retire from the service before her due date of retirement.
In view of the decisions in the case of State of U.P. and Ors. v. Gullaichi (Smt.), reported in 2003 (6) SCC 483 and also the decision in the case of 2003 JLJR. the dispute of this nature cannot be decided in the writ applica-, tion by invoking Article 226 of the Constitution of India and,.therefore, no relief can be granted to the petitioner. Accordingly, this application is dismissed. However, if so advised, the petitioner may approach the appropriate forum for redressal of her grievance.”
3. The appellant, while in service, received the impugned letter dated’ 7.1.2002 issued by the respondents informing her that she has to retire with effect from 30.6.2002. She immediately approached this Court by filing writ petition on 15.3.2002 challenging the aforesaid letter. The petitioner- appellant very categorically stated that she was appointed as permanent General Mazdoor on 20.6.1973 and at the time of her ap-. pointment her date of birth was mentioned in the statutory Form B Register as 23 years in 1975. In other words, her date of birth was recorded as 1.7.1952. She further stated that she was served with service excerpt showing her date of birth as 23 years in 1975. A copy of the service except was Annexed as Annexure 1 to the writ application. The petitioner-appellant also Annexed the identity card issued by the respondents showing her date of birth as 23 years in 1975. The specific case of the petitioner, therefore, is that she is to retire after attaining the age of 60 years i.e. in 2012.
4. The learned Single Judge relied upon the decision in the case of State of U.P. and Ors. v. Gullaichi (Smt.), reported in 2003 (6) SCC 483 and held that the dispute of this nature cannot be decided in a writ petition.
5. Before appreciating the submissions of the learned counsels and expressing our views we would like to discuss the ratio decided by the Supreme Court in the case referred to hereinabove. The facts of that case was that the respondent joined the service under the State in 1959 and her date of birth in the service book was recorded as 31.7.1929. Consequently she was to retire on 31.7.1987. About three weeks before the date of retirement she approached the Chief Medical Officer, Ajamgarh claiming her date of birth to be 31.7.1939. The office concerned made correction in her service book. On that basis she claimed that she was not to retire on 31.7.39. An application was filed by the respondent- plaintiff for declaration of her dated of birth as 31.7.1939 which was wrongly recorded as 31.7.1929. Analysing the materials on record the Additional Munsif, Ajamgarh dismissed the suit but in appeal the Addl. District Judge allowed the appeal and decreed the suit. A Second Appeal was filed which was dismissed. Then the matter came up before the Supreme Court. Their Lordships held that normally in public service, before entering into the service, even the date of exit, which is said to be date of superannuation or retirement, is also fixed. That is why the date of birth is recorded in the service book or the relevant register relating to the individual concerned. If a dispute with regard to correctness of date of birth is raised, the same has to be decided by the civil Court of competent jurisdiction. In our considered opinion, therefore, the ratio decided by the Supreme Court on the facts of the case, does not apply in the instant case.
6. As noticed, above, it was the specific case of the petitioner-appellant that her date of birth was recorded as 23 years in 1975 and she had to retire in 2012 after attaining the age of £0 years. A very loose and perfunctory counter affidavit was filed by the respondents in the writ petition wherein, without controverting the statements made in the writ petition and without challenging the genuineness of the service excerpt and the identity card, they asserted that the date of birth of the appellant is other than date claimed by her. The respondents were even not in a position to assert as to what is the date of birth of the appellant-petitioner. They did not annex any document including Form B Register in support of their case. We are, therefore, of the view that no dispute actually was raised by the respondents with regard to the date of birth of the petitioner-appellant as alleged by her. In absence of any dispute, question of getting the same adjudicated by a civil Court of competent jurisdiction did not arise at all. The learned Single Judge, therefore, has not correctly appreciated the case of the appellant. Unless the employer comes with a definite case regarding the date of birth, question of adjudication by the civil Court of competent jurisdiction does not arise.
7. In the instant case, as noticed above, copy of the service excerpt (Annexure 1) and the identity card show that the date of birth of the appellant-petitioner was 23 years in 1975 and; therefore, the impugned letter of superannuation was wholly illegal and without any basis. Although in the impugned letter it was mentioned that as per the records the appellant will attain the age of 60 years on 1.7.2002 but there is nothing on record save and except Annexure 1 according to which the petitioner- appellant will retire in 2012.
8. For the reasons aforesaid we set aside the impugned judgment and order passed by the learned Single Judge. Consequently the impugned notice as contained in Annexure-3 to the writ petition is quashed.