Smt. Gurcharan Kaur vs Union of India and Others

This petition for writ is directed against the judgment dated January 1, 2013, passed by Central Administrative Tribunal, rejecting the Original Application preferred by the petitioner giving challenge to the decision of the respondents to retire her from service w.e.f. 31.10.2010 instead of 31.10.2018. In brief, facts of the case are that an appointment was accorded to the petitioner on 2.8.1991 as Labour on compassionate grounds following death of her husband on 24.8.1990. Her husband Shri Bachan Singh was employed with the respondents as Labour on 6.4.1988 and his date of birth entered in service record was 27.12.1955. The age of the petitioner in form "H" of the service record of Late Shri Bachan Singh was shown as 30 years. At the time of giving appointment to the petitioner she was subjected to a medical test for determination of age and as per the opinion given she was within the age of 25-40 years. It appears that initially the respondents entered age of the petitioner at the time of her initial appointment as "40 years", but subsequent thereto her date of birth was shown as 24.10.1958 in various service records including GPF-DS statement, Canteen Smart Card, Insurance documents etc. By treating 24.10.1958 as date of birth of the petitioner she was supposed to retire from service on 31.10.2018 being 60 years as the age of superannuation.

On 3.6.2010 the respondents sent fresh statement of accounts relating to provident fund for the year 2009-10, showing date of birth of the petitioner as "December, 1950" instead of 24.10.1958. By treating birth of the petitioner in the month of December, 1950 the respondents decided to retire her from service w.e.f. 31.12.2010. Being aggrieved by the same the petitioner preferred an Original Application before the Tribunal with assertion that her actual date of birth was 24.10.1958 and that was changed unilaterally by the employer.

A reply to the Original Application was filed on behalf of the respondents stating therein that at the time of initial appointment, the petitioner was subjected to a medical test, wherein a physical finding was given about her age as above 40 years, hence in service record her age was recorded as 40 years. She also put her right thumb impression on the service record wherein her date of birth was shown as 40 years, as such, there was no change in date of birth, but by treating her age as of 40 years in the year 1990, a decision was taken to retire her from service on attaining the age of 60 years in the month of December, 2010. With regard to mentioning of 24.10.1958 in service record of the petitioner, it was stated that the same appears to have been made at subsequent stage just to get the date of retirement extended by eight years. As per the respondents mentioning of 24.10.1958 as date of birth of the petitioner was nothing but an interpolation made in service record unauthorisedly.

A medical examination of the petitioner for determination of age was also made on 15.9.2009, wherein her radiological age was shown above and between 45-55 years. The Tribunal after hearing counsel for the parties arrived at the conclusion that as per opinion given by Medical Jurist age of the petitioner was 40 years at the time of her initial appointment and that was unauthorisedly interpolated by referring 24.10.1958, hence the respondents rightly decided to retire the petitioner in the month of December, 2010. Learned Tribunal also arrived at the conclusion that no need was there to provide any opportunity of hearing to the petitioner as no change in her date of birth was made by the respondents, but an interpolation was made to avail unauthorised extension of service term.

The argument of learned counsel for the petitioner before us is that the finding given by the Tribunal is patently erroneous and contrary to the record. It is asserted that Shri Bachan Singh, husband of the petitioner, entered in service of the respondents on 6.4.1988 and his date of birth entered in the service record as 27.12.1955. The age of the petitioner in form "H" at that time was shown as 30 years. This fact clearly indicates that the date of birth of the petitioner was somewhere in the year 1958. The medical opinion given was with regard to the fact that the petitioner was within the age of 25-40 years, as such, there was no rational to treat the outer limit i.e. of 40 years as the date of birth of the petitioner.

On the other hand, while defending the findings arrived by the Tribunal and the decision taken by the respondents, it is submitted that a definite medical opinion was given by the Medical Jurist in the year 1990 that the age of the petitioner was above 40 years. As such, her tentative date of birth was rightly determined as of somewhere in the month of December, 1950. It is emphasised that learned Tribunal after examining all facts of the case arrived at the conclusion that an interpolation was made in service record to extend benefit with regard to service term to the petitioner and such finding of fact is not open for interference by this Court while exercising powers under Articles 226 and 227 of the Constitution of India.

Heard counsel for the parties.

It is not in dispute that Shri Bachan Singh, husband of the petitioner, entered in service of the respondents on 6.4.1988 and at that time his date of birth in service record was entered as 27.12.1955. While completing service record of Late Shri Bachan Singh, age of the petitioner in form "H" was also shown as 30 years. At the time of appointment of the petitioner on compassionate grounds she was subjected to a medical test for determination of her age and as per that her radiological age was within 25-40 years. After arriving at this conclusion the Medical Jurist mentioned that age of the subject was above 40 years. We failed to understand that after arriving at a conclusion that the age of the subject was within 25-40 years, how a definite opinion of about the age above 40 years was given by the Medical Jurist. As a matter of fact the expert opinion can be read only to the extent of two terminals i.e. the minimum age was not less than 25 years and the maximum age was not above 40 years. Between these two terminals a huge period of 15 years was existing and the actual/tentative date of birth could have been settled by the respondents by examining service record of Late Shri Bachan Singh, wherein the age of the petitioner was shown as 30 years. As already stated, the date of birth of Late Shri Bachan Singh in service record was shown as 27.12.1955, meaning thereby, the age difference between Shri Bachan Singh and the petitioner was of about three years. By taking into consideration this age difference, the date of birth of the petitioner comes somewhere in later part of 1958. It appears that the respondents at the first instance entered the age of the petitioner about 40 years in service record and subsequently changed the same by taking into consideration 24.10.1958 as her date of birth. On basis of this date of birth, all service documents of the petitioner were prepared including her accounts file with Controller of Accounts Defence. In all these documents, date of birth of the petitioner was shown as 24.10.1958. It is also pertinent to note that in the medical examination made in the year 2009 the age of the petitioner was shown within the age of 45 years to 55 years. As per this report also the date of birth of the petitioner comes somewhere in 1958 and not near to 1950. The Tribunal without taking into consideration all these facts merely by relying upon a vague assertion in medical report, arrived at the conclusion that some interpolation was made in service record and actual date of birth of the petitioner was somewhere in the year 1950. The finding arrived by the Tribunal as a matter of fact is perverse on its face. The Tribunal utterly failed to notice the wrong made by the respondents in changing date of birth of the petitioner.

This petition for writ, therefore, deserves acceptance. Accordingly, the same is allowed. The judgment dated January 1, 2013, passed by Central Administrative Tribunal, Jodhpur Bench, in Original Application No. 346/2010, is set aside. The Original Application preferred by the petitioner is allowed. The decision of the respondents to retire the petitioner w.e.f. 31.10.2010 is declared illegal. The respondents are directed to treat 24.10.1958 as date of birth of the petitioner and further to retire her on attaining the age of superannuation as per the date of birth mentioned above. The petitioner shall be entitled for all consequential benefits including restoration of her service as that was prior to 31.10.2010. No order to costs.