S.N. Chakrabarty vs Union of India and Others

S.N. Chakraborty, J.—In this Rule the petitioner, a Railway servant, has impeached the validity of the order passed on 13th July, 1983 by the Deputy Chief Personnel Officer whereby the representation made by the petitioner in accordance with the order made by this Court on 8th June, 1983 was rejected and the earlier decision as to the date of birth recorded in the seniority list, staff register as well as in the medical identity card as on 13th July, 1925 has been maintained on the grounds that the school leaving certificate granted by the Headmaster of the school in 1948 as well as the Life Insurance Polices issued by the three Insurance Co.s, namely. Life Insurance Corporation of India, The Hindustan Co-operative Societies as well as The Arysthan Insurance Society wherein the petitioner''s age was recorded, and more particularly the policy issued by the Insurance Companies recorded the age of the petitioner on consideration of the school leaving certificate as also the age as noted in his ticket No. 11/191 in the shop in the Chittaranjan Locomotive Works where the petitioner was employed at the relevant time was noted were not considered. The petitioner who was a resident of Bangladesh, came over to West Bengal sometime in 1948 and while coming here he had brought a school leaving certificate according to which his date of birth is 31st March, 1928. A copy of this certificate has been annexed as Annexure A to the Writ application. A copy of the Policy issued by the Aryasthan Insurance Co. Ltd. has been annexed as Annexure B to the Writ application according to which the date of birth of the petitioner would be 31st March, 1928. In 1951 on the basis of the application he was selected on 1st February, 1951 as a basic tradesman in the shop of the Chittaranjan Locomotive Works and an appointment letter was given to him. According to the rules of the Railways, the petitioner recorded his date of birth in his own handwriting which was 31st March, 1928. The said original service-sheet of 1951 containing the petitioner''s own hand-writing wherein his date of birth and a summary statement of his bio-data was written along with the petitioner''s signature and thumb impression has been maintained in the personnel officer of the Chittaranjan Locomotive Works. It has been stated further that on 10th December, 1973 on the basis of seniority-cum-merit test, the petitioner was promoted to the next post in the scale of Rs. 425-700/-. On the 25th April, 1983 the petitioner received a communication from the Deputy Chief Personnel Officer, respondent No. 3 intimating him that as per his date of birth recorded as 15th July, 1925, in all the official documents, the petitioner would retire on reaching the age of superannuation on 15th July, 1983. A copy of the said letter has been annexed as Annexure ''G'' to this Writ petition. On receiving the said communication the petitioner on 10th May, 1983 made a representation that in accordance with the extent rules the petitioner declared and recorded his date of birth in the service book in his own hand-writing as 31st March, 1928. He also attached a xerox copy of the school leaving certificate along with the representation, and requested for consideration of the same. It has also been stated that in the seniority lists published, in different times his date of birth has been wrongly recorded, such as, 15th July, 1930, in one list, in the other it was 15th July, 1925. It has, therefore, been stated that this seniority list which was not even circulated in Shop No. 26, should not be taken into consideration. The petitioner has also stated that in similar cases of mistaken recording of the date of birth in the official documents, they were duly corrected on representation being made with sufficient materials. The Railway authorities having not considered the representation of the petitioner, he moved a Writ application before this Court whereon this Court made an order to the following effect:

I dispose of the Writ application directing the General Manager, Chittaranjan Locomotive Works to consider and dispose of the representation of the petitioner dated 10th May, 1983 addressed to the Deputy Chief Personnel Officer, Chittaranjan Locomotive Works and communicate the result thereof by 28th July 1983.

It has been stated further that the petitioner made a representation addressed to the respondent No. 2 wherein he prayed that the documents, namely. Insurance Policies and school leaving certificate should be considered properly in determining his date of birth. This representation was made on the 11th July, 1983.

The petitioner thereafter received the impugned order wherein it has been stated that there is no reason for altering the date of birth mentioned as 15.7.1925 as appeared from the various records, namely, the staff register, the seniority list and also the medical identity card. This order has been annexed as Annexure L(2) to the Writ petition.

The instant application has been moved before this Court on 29th July, 1983 against the impugned order dated 13th July, 1983 issued by the Deputy Chief Personnel Officer, Chittaranjan Locomotive Works and the instant Rule was obtained but no interim order was made. But a direction was given to the petitioner to serve copies of this application on Mr. S.N. Banerjee, learned Advocate for the Railways that the matte; will come up in the list on 2nd August, 1983 at the top for consideration of the prayer for interim order. Accordingly on 4th August, 1983 the said application came up before this Court and this Court after hearing learned Advocates for both the parties passed an order to this effect.

In such circumstances, fair play and justice demand that the quasi judicial authority has to decide the matter on recording reasons. Hence it is deemed just and proper to direct the General Manager to state on oath how he come to the decision that the age as appears from documents other than the service record is quite correct and there is no room for consideration of the two vital documents. He should also state clearly whether he considered these two documents and if any reasons have been recorded for not relying or not accepting these two documents, then he should state that clearly in his order and he should also send the relevant order sheet in original to this Court at the time of hearing of this application. It has to be stated who was in custody of the service record and whether the record of this particular incumbent i.e. the petitioner is in custody of that particular officer or not. If it is missing or lost could be stated clearly also the reasons for the loss. In loss, when such loss of the service record came to the of the officer concerned for the first time and what state were taken to reconstruct the record or to ascertain the actual date of birth of a literate employee, i.e. the petitioner and whether any query was made from the petitioner about his date of birth. This affidavit has to be filed within four weeks from to-day, reply within two weeks thereof and the matter will be placed for hearing as specially fixed at the top of the list irrespective of part heard on 15.9.83.

No interim order was however made. An affidavit-in opposition has been sworn by the General Manager of Chittaranjan Locomotive Works at the relevant time, one Sri M.B. Rao, on 25.1.84 on behalf of respondents Nos. 1 and 2. In para 6 of the said affidavit, It has been stated that the service book of the petitioner was not available when cases of employees were required to be reviewed for retirement in March, 1980 and was presumably lost before 1979. However, dace of birth of the petitioner, S.N. Chakraborty, is available in the old staff register, seniority list and other official records which are prepared, published and circulated from time to time in usual course of the administration. Since the date of birth of the petitioner appears in the aforesaid documents to be 15th July, 1925, accordingly it was concluded that the real date of birth of the petitioner was recorded in the service book as 15th July, 1925 to be the correct date and not 31st March, 1928 as claimed by the petitioner in his said purported representation dated 15.11.82. It has also been stated that the date of his retirement which was indicated in the Medical Index Card as 15th July, 1983 has been signed by the petitioner himself knowing fully well that his actual date of birth is 15th July, 1925. It has also been stated that had the petitioner been of the view that the date as stated in the Medical Index Card was not 15.7.83, he must have refused to sign the same and ought to have brought the mistake to the notice of the authorities. In para 7 of the said affidavit, the deponent further averred that the statement of the petitioner in his representation that he produced the School certificate at the time of his appointment is not a correct statement. It has been further stated therein that had the petitioner really, submitted the School certificate at the time of appointment his date of birth would have been recorded as 31st March, 1928 in all the records as mentioned hereinbefore. It has also been stated in para 8 that on 25th April, 1983 the petitioner was advised by an office memo. to submit an authentic document and in reply, a photostat copy of the school certificate dated 22nd September, 1948 and extract of evidence of the age of the petitioner based on the same school certificate given by the Life Insurance Corporation of India were submitted by him along with his application dated 10th May, 1983. It has also been stated in para 9 of C.R. No. 6132(W) of 1983 that this Hon''ble Court directed the General Manager, Chittaranjan locomotive Works, to consider the representation of the petitioner dated 10.5.83 and to determine the same in accordance with law. It has also been stated in para 9 that in accordance with a direction a suitable reply was given to the petitioner by an order dated 13.7.83. It has been stated in para 10 by the deponent on oath that the -service book of the petitioner was found to be missing since March, 1980 and the said records were kept in the office of the Dy. Chief Personnel Officer, Chittaranjan Locomotive Works, who in usual course of administration is to be custodian of the service book. It has been stated in para that it is the usual practice of reconstruction of the (sic) book of an employee (sic) the Railway department, when the same is lost, is to reconstruct the same with the help of other supporting records available and maintained in the office in the usual course of business. The date of birth of the petitioner as recorded in the service book on his appointment in a particular Railway was and/or is also reproduced in vital documents such as staff register, seniority list of staff published from time to time, prepared and maintained in usual official course of administration. Accordingly the service books which are not available at the time of review of the cases of the employees who are to retire on attainment of the age of superannuation have to be reconstructed in usual course of administration and other practice and procedure followed in Chittaranjan Locomotive Works and in the same way, the petitioner''s service book was reconstructed after taking into account the authentic official records wherein the date of birth is a vital column. It has also been averred by the deponent that the Railway Servant is always called to put his signature in the appropriate column on the first page of the reconstructed service book. However, in this case, though the reconstruction of the service book is almost complete, the petitioner did not attend the office inspite of intimation of the fact of reconstruction to the petitioner by his immediate shop-in-charge at the relevant time verbally as is usually done in the shop and the petitioner failed to respond to the request of the immediate Supervisor. It has been submitted by the deponent that this was obviously motivated. These averments contained in paras 6 to 10 have been affirmed by the deponent as true to his information derived from records and the statements made in para 11 have been affirmed as true to his knowledge. Another affidavit has been sworn by the present incumbent of the office of the General Manager, Chittaranjan Locomotive Works, viz. Sri K.P. Modwel on 25.1.84 In para 1 of the said affidavit he has stated that at the relevant time M.B. Rao, Chief Electrical Engineer was acting as General Manager, Chittaranjan Locomotive as per order of the Railway Board and he was entrusted to exercise all the powers of the General Manager. It has been further stated that all the relevant orders relating to the petitioner were made by him. In para 2 of the said affidavit, the deponent has stated that he adopts the affidavit affirmed by the previous General Manager, M.B. Rao.

While hearing this matter by this Court, on 15.3.85, Mr. Banerjee, learned Advocate appearing on behalf of the respondents. Railways, prayed for adjournment of hearing for ten days to enable his clients to re-affirm the relevant paragraphs of the affidavit-in-opposition sworn by them. Accordingly the prayer was allowed and the matter was adjourned. The affidavit-in-opposition was returned to the learned Advocate for the respondents to get the same re-affirmed. On 22nd March, 1985 Mr. M.B. Rao, the then General Manager, Chittaranjan Locomotive re-affirmed the said affidavit. In para 2 of the said re-affirmed affidavit, it has been stated by the deponent that the statements beginning from the words "The book" in para 11 as well as the statements made in paras 18, 19 etc, of the said affidavit are based on records and verily believed by the deponent to be true. It has also been stated that the statements beginning from "However supervisor" of para 11 of the said affidavit, are true to information of the deponent conveyed to him by the Shop Superintendent, the petitioner''s immediate supervisor which he verily believes to be true and the statements beginning with, the words "I motivated" of para 11 are his submissions before this Court.

An affidavit-in-reply affirmed by the petitioner on 17th July, 1984 has been filed. It has been stated in para 6 of the said affidavit-in-reply that chapter 19 of the Indian Railway General Code, Vol-I, regarding preparation, maintenance and custody of records of service of every Railway servant are applicable to Chittaranjan Locomotive Works as to any other Railway Establishments and there is no other separate procedure for Chittaranjan Locomotive Works. It has been further stated by the deponent in para 7 of the reply that M.B. Rao, the deponent of the affidavit-in-opposition has deliberately suppressed the above noted position regarding the recording of age in service book in his statement made in paras 6 to 17(a) of his affidavit and he has falsely suggested about such other unofficial, records like staff register, provisional seniority list and medical index card etc. being the records of service of Railway servant. The deponent has strongly denied that those alleged records are the records of service of the petitioner. It has also been averred in para 8 of the said affidavit-in-reply that the statements that the service book of the petitioner was found missing presumably from before 1979 and reconstruction was made and the petitioner was verbally requested to put his signature in the appropriate column to which he failed to respondent which has been verified by the deponent as true to his knowledge cannot be the correct state of affairs. It has also been stated that the statements made in paras 6 to 17(a) are baseless and the deponent committed perjury and is liable to be prosecuted u/s 340 of the Indian Penal Code for such offence. It has also been stated in para 9 of the said affidavit-in-reply that he denied the averments made in para 6 of the affidavit-in-opposition as those are untrue and motivated. It has also been stated that he opted for pension in 1975 and accordingly his service book should have been maintained under Rule 32 of the General Code, Vol-I as in the case of every pensionable non-gazetted Railway servant. In terms of Rule 1942-43 of the said General Code, Vol-I, S.N. chakraborty v. Union of India & Ors. the service book has to be scrutinised every year by showing it to the Railway servant and obtaining signature of such Railway servant. Yet in petitioner''s case no such scrutiny was made at any time before 1975. Had the service book been lost as claimed, the fact would have been brought to the knowledge of the Railway servant on the occasion of scrutiny and signature as stated hereinbefore. The story of the service book being lost is fabrication of an excuse for not producing the same before the Hon''ble Court. The alleged review for retirement, made in March, 1980, was not within the knowledge of the petitioner. It has also been averred that the fact that the service book was lost was not brought to the notice of the petitioner before such review was made. It has been further stated that the Medical Index Card bearing No. 182275 annexed as annexure "A-2" is the copy maintained in the Medical Department and the Medical Index Card bearing No. 182274 is maintained in the Personnel Department according to the circular of 1975 ''annexed as annexure ''C''. The respondents should produced the Index Card bearing No. 182274 which is in their custody. It has also been stated that the said entry No. 6A has been inserted by adding some thing below the Signature of the Railway employee. The said insertion, it, has been stated seems to be a recent origin. Other portions of the affidavit in reply being not relevant for determination of the issues involved in this Rule are not mentioned hereinafter.

The only question that requires to be determined is whether the direction given by this Court-on 28.6.83 while despising of the earlier Writ application (CO. 6132(W)/83) i.e. a specific direction which was given to the General Manager, Chittaranjan Locomotive to consider and dispose of the representation of the petitioner dated 10.5.83 addressed to the Deputy Chief Personnel Officer, Chittaranjan Locomotive in accordance with law and to communicate the result thereof to the petitioner has been given. It appears that after the passing of the said order, the petitioner sent a letter on 11th July, 1983 to the General Manager, respondent No. 2, intimating that he has already annexed the certificate dated 22.9.48 issued by the Headmaster, T.J.H.E. School, Mymemsingh and the Life Insurance Corporation Form No. 4104 and Proposal No. 53366-465 on his life. The petitioner also requested the General Manager to consider the said documents as well as to consider the original service sheet of 1951 which contains the declaration in his own handwriting about his date of birth and the summary statement with bio-data under his signature and thumb impression calling the same from the office of the Personnel officer of Chittaranjan Locomotive Works. It has also been cussed therein that the petitioner has been able to trace out some documents which were previously mislaid, viz., original Insurance Certificate relating to policy No. 3086,9118 dated 20.8.63 original Insurance certificate date relating to Policy No. 8277 dated 18.8.53 and original Insurance Certificate relating to policy No. 27403 dated 10.5.49 on acceptance of proof of age by (sic)han Insurance Co. Ltd., Head office at Calcutta on 22.6.49. It appears that a communication was given to the petitioner under the signature of the Deputy Chief Personnel Officer intimating him that his representation to the General Manager was considered and the same was disposed of with the finding that the General Manager found no reason to believe that the date of birth of the petitioner was other than 15th July, 1925 and as such there was no case for altering this date.

Before proceeding to decide the merits of the contentions raised by the parties it is very relevant to consider the relevant Rules.

The relevant Rule laying down the procedure for recording of service of railway employees, Rule 1931 of the Indian Railway General Code, Volume I, provides for recording service of Non-Gazetted staff. The said Rule is in the following terms:

For each non-pensionable non-gazetted railway servant (other than class IV staff including workshop staff in semi-skilled and unskilled categories), whether permanent, officiating or temporary, a service Register in Form No. G 1931 shall be kept in the custody of the head of the office in which he is serving or which is his headquarters office.

Form No. G, item No. 6 specifically mentions about the "date of birth". Item No. 14 of the said form provides for "left thumb impression" and item no. 21 provides for "signature of employee and date" and item no. 22 provides for "signature of witness, designation and date" and item no. 23 provides for "signature of accepting office, designation and date." Rule 1932 of the said General Code, Volume I also provides, that "for each pensionable non-gazetted railway servant a Service Book shall be maintained in Form G. No. 1932 and kept in the custody of the head of the office"

In Form No. G, item No. 6 provides for "date of birth and column No. 12 provides for "signature of Government, servant" whereas column no. 13 provides "signature and designation of the Head of the officer or other all testing officer". There is a note to this effect that "the entries on this page should be renewed or re-attested at least every five years, and the signature in lines 12 and 13 should be dated". It is pertinent to refer in this connection to the provisions of Rule 145 of the Indian Railway Establishment Code, Volume I. Sub-rules (1) and (3), which are relevant, are quoted hereinbelow:

(1) Every person on entering railway service shall declare his date of birth which shall not differ from any declaration expressed or implied for any public purpose before entering railway 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 illeterate staff, the declared date of birth shall be recorded by a senior Class III railway servant and witnessed by another railway servant. (3) The date of birth as recorded in accordance with these rules shall be held to be binding and no alteration of such date shall ordinarily be permitted subsequently. It shall, however, be open to "the President in the case a gazetted railway servant, and a General Manager in the case of a non-gazetted railway servant to cause the date, to be altered-

(i) where in his opinion it had been falsely stated by the railway servant to obtain ah advantage otherwise in admissible, provided that such alteration shall not result in the railway servant being- retained in service longer than if the alteration had not been made, or

(ii). where, in the case of illiterate staff, the General Manager is satisfied that a clerical error has occurred, or

(iii) where a satisfactory explanation (which should ordinarily be submitted within a reasonable time after joining service) of the circumstances in which the wrong date came to be entered is furnished by the railway servant concerned, together with the statement of any previous attempts made to have the records amended.

In the instant case there is no dispute that the petitioner entered into the railway service sometime in 1951 and it is also not disputed that in accordance with the procedure vaid, down by Rule 1931 or 1932 whichever is applicable the petitioner has to declare his age and he being a literate staff he has to put his signature and thumb impression, after giving such declaration in accordance with such rules in the Service Book which has been opened for him by the railway authorities. It has been stated in the petition itself that the petitioner who was formerly a resident of Bangladesh after partition came over to India some time in 1948 and at that time he also brought with him the school leaving certificate issued by the Headmaster, Elashin T.J.H.E. School of Mymensingh dated 22nd September, 1948. It is evident from the certificate that he read upto pretest in. that school and his age on 31st December, 1944 according to the school admission Register was mentioned in the certificate as 16 years, 9 months, i,e, his date of birth was 31st March, 1928. It is also not disputed that prior to the issuance of the letter being letter No. CLW/CRJ, E.O. no. 803 dated 20th September, 1982 annexed as annexure ''D'' to the writ application issued by the Works Manager it was not brought to his notice that his service book wherein he declared his date of birth was lost or missing. It is only when the aforesaid letter was issued by the Works Manager to him in September, 1982, the petitioner came to know for the first time that he was to retire on attaining the age of superannuation, that is, 58 years, of age on 31st July, 1983. It appears that the petitioner immediately on receipt of the said letter on 15th November, 1982 made a representation to the Works Manager of the Electrical Loco Fabrication, Chittaranjan Locomotive Works, the respondent no. 4, specifically stating therein that there has been a mistake in calculating his age of superannuation and he requested the Works Manager, to calculate his age on the basis of the age stated in his school certificate which he produced at the time of joining his service, i.e., 31st March, 1928. There was no reply to this letter. Another representation was made by the petitioner on 25th February, 1983 whereby the same request for reconsideration of his age according to the declaration given by him and recorded in his own hand-writing in his Service Book. Nothing was done by the authorities concerned. On the other hand, it appears that on 25th, April 1983 the Deputy Chief Personnel Officer by his memo no. MW/K-V/26/448 intimated the petitioner that his date of birth was recorded as 15/7/25 at the time of his appointment in all official staff register, seniority list, etc. and it has been further stated therein that this age had been admitted by the petitioner as he had signed the medical index card issued On 7.8.75 that he is to retire on 15th July, 1983. This letter was dated 25th april, 1983. Thereafter the petitioner made a representation on 10th May, 1983 wherein he requested the Deputy Chief Personnel Officer to consider the date of birth as recorded by him in his service Book and also to consider the xerox copy of the school certificate dated 22nd September, 19 48 and the Life Insurance Corporation Form No. 4104 dated 20th August, 1963 wherein his date of birth was shown as 31st March, 1928. This representation was made on 10th May, 1983. This was not considered at ail and hence the petitioner moved a writ application before this court which was disposed of by this Hon''ble Court directing the. General Manager, Chittaranjan Locomotive Works, the respondent no. 2, to consider the same and to decide the date of birth of the petitioner on considering the documents i.e., the school certificate and other documents produced by the petitioner. On 13th July, 1983 the Said representation was rejected; on simply endorsing the findings of the Deputy Chief Personnel Officer wherein it has been stated that the date of birth of the petitioner is 15/7/25 and there is nothing for altering the same. It "is very relevant to note in this connection that by an order of this court'' on 4th August, 1984 this court while hearing the application for interim order specifically directed the respondent no. 2, the General Manager, to state on oath since the impugned order is a cryptic one without recording any reason how the findings have been arrived at that the date of birth of the petitioner is 15th July, 1925 and not 31st March, 1928, without any reasons recorded therein as to how the said findings have been arrived at and if the relevant documents produced by the petitioner have been considered or not. The General Manager in such circumstances was directed to state on oath the reasons for coming to that decision and also to state specifically whether he considered two documents, namely, the school leaving certificate and the certificate of the Life Insurance Corporation of India, Form No. 4104 dated 20th august, 1963 where the date of birth of the petitioner was recorded as 31st March, 1928. It was also directed by this Court to state in whose custody the service record was and when for the first time it was detected that the service record was missing or lost. It was also directed by this court to have an affidavit affirmed by that officer as to when such loss occurred and how it came to the notice of the officer concerned for the first time and what steps were taken to reconstruct the record and what steps were taken to ascertain the actual date of birth of a literate employee and whether any query was made from the petitioner about his date of birth. Curiously enough the affidavit sworn by a responsible officer like the General Manager of the Chittaranjan Locomotive Works, the respondent no. 2, is totally silent on the specific directions contained in the order of this Court. The General Manager, the respondent no. 2, has stated in his affidavit-in-opposition in paragraph 6 that the Service Book of the petitioner was presumably lost before 1979 and the same deponent in paragraph 10 has stated that the Service Book of the petitioner was found to be missing since March, 1980. These two statements are per se contradictory and misleading and it is unfortunate that such a misleading statement will be made on oath by a responsible officer like the General Manager of Chittaranjan Locomotive Works to mislead this Court and it will not be unjust if it is held that this statement has been made deliberately and purposely to mislead this Court. The General Manager, the respondent no. 2, was directed specifically by an order of this Court to produce the order sheets in original at the time of hearing of this application, unfortunately though the statements in paragraph 6 to 10 have been affirmed as true to his information, derived from the records, the records have not been produced consisting of the original sheets. This is very unfortunate and this at once goes to show that if the records were produced before this Court it would have unveiled the real story which will go thoroughly against what was purported or attempted to be stated before this Court by the authorities concerned. There was a specific direction to state on oath who was the officer concerned, in whose custody the service records are kept and there was a direction upon him to state or; oath how he came to know for the first time that the Service record of an employee which is a very valuable document has been missing or lost from his custody and how it came to be detected for the first time by that officer. There is no statement made on this specific direction made by this Court either by the General Manager in his affidavit-in-opposition or the General Manager thought it fit to state on oath before this Court in compliance with the directions of this Court, namely, how the officer who at the relevant time was in custody of this valuable record, that is, the service book, came to know about the missing of the same though the same was signed, witnessed and attested by a responsible officer of the railway. This at once clearly goes to show that the Railway authorities are trying to withhold the service record from being scrutinised by this Court for ulterior purposes. Rule 1931 or for that Rule 1932 of the Indian Railway General Code clearly enjoins that a service record of each non-pensionable or pensionable non-gazetted railway servant has to be kept and maintained in the specific Form No. G-1931, Form No. G-1932 and in these Form No. G-1931 and Form No. G-1932 there is specific column for recording the date of birth and also for the signature of the Government servant concerned, who declares his date of birth. There is also a column with the signature and designation of the head of the office or other attesting officer who attested the said declaration made by the employee concerned has to be signed. This being the position, the service book is a very vital document and it is the duty of the Railway authorities to keep it properly. It is no use saying that it has been lost or missed and this matter cannot be taken so lightly as on it depends the service career of a particular employee concerned and also his period of service, that is, the fixation of his age of superannuation which has to be computed in accordance with the date of birth of the particular employee concerned. Moreover, Rule 1942 of the Indian Railway General Code, Vol- I clearly provides that it shall be the duty of every Head of Office to initiate action to show the service book to Railway servants governed by Pension Rules under his administrative control every year and to obtain their signatures thereon in token of their having inspected the service book. A certificate to the effect that he has done so in respect of the preceding financial year should be submitted by him to his next superior officer by the end of every September. The Railway servants shall inter alia ensure before affixing their signatures that their services have been duly verified and certified as such. If the story that has been tried to be told before this Court as evident from the averments made in paragraphs 6 and 10 of the affidavit-in-opposition that the service book-was presumably lost in March, 1979 or since March, 1980, then how the Head of the office complied with the specific mandatory obligations enjoined by Rule 1942 of the General Code, Vol-I. It appears that the averments made in the affidavit-in-reply by the petitioner in para-13 that if the service book was found missing, then the alleged review made in March, 1980 was unauthorisedly made, if at all, as the petitioner was not given any notice that the review was to be made for recording the fact that the service book was found missing. Moreover, even if, it is assumed for argument''s sake that the service book has been lost or missing from the custody of the officer-in-charge keeping those documents, is it not the responsibility and solemn duty of the Railway authorities concerned that before re-constructing the service record which is a very vital document involving the service career of an employee that the employee (petitioner in the instant case) has to be given an opportunity to produce the relevant documents and to consider the same before reconstructing the records or the service book determining the age of the petitioner or for that the date of birth of the petitioner? It is really, surprising that the railway authorities and more particularly responsible officer of the statute of the General Manager, respondent no. 2, has set up a general practice of reconstruction of service book of an employee on the basis of staff register and the seniority list and the medical index card which according to him are the most vital documents as stated by him from which the age of the incumbent concerned can be appropriately and properly re-constructed. The staff register was produced before this Court. I am sorry to observe that nowhere it is written that it is maintained according to the staff rules. I carefully scrutinished all the pages of the staff register. Though I found remarks regarding review but unfortunately, who is the author of this remark about the service career of the employees mentioned therein could not be found out. The manner in which it has been kept inspires instead of any confidence, suspicion about its authenticity. I asked Mr. Banerjee to place before this Court the relevant rules of the Railways whereby it has been enjoined that the staff register in such a fashion is provided to be maintained, nothing has been produced before this Court. Regarding the medical index card which has been produced, I find in one card of 1975, the signature undoubtedly of the petitioner is there but it is astonishing and surprising too that though a column was not there, viz. column No. 6A, it was subsequently written in hand writing and the ink both differ where it has been written age and date of retirement of the employee in whose name the medical index card has been issued. Mr. Banerjee has tried to clarify this inconsistency by referring to a circular. This circular is of a much later date and the signature of the employee was taken before this column 6A was written in hand after the signature of the card-holder was taken. Can it be said on the basis of such identity card that this is an admission on the part of the card-holder regarding his knowledge of the date of retirement or for that of his age when he will reach the age of superannuation? As regards the seniority list, I am really surprised that there is a specific averment in para-19 of the Writ Petition to the effect that in one such seniority list published in 1978 and circulated in shop No. 26 that the petitioner''s date of birth was shown as 15th July, 1930 and in another seniority list published on 18th April, 1981, which was not circulated in shop No. 26, the petitioner''s date of birth was shown as 15th July, 1925. In para-34 of the affidavit-in-opposition affirmed by the respondent No. 2, this specific averment has not been specifically controverted except a plain denial, to the effect that the contentions in para-19 are denied and disputed the submissions made in the said paragraph. There is no specific denial as to whether these statements are correct or pot. On the other hand, the seniority list of 1978 was, produced before this Court and it appears that the name of the petitioner appears in item No. 40 and in column No. 4 his date of birth has been shown as 16th July, 1930. In these circumstances, I am unable to accept the case of the respondents that the service record of the petitioner was reconstructed and his date of birth was noted therein as 15.7.25 on the basis of the age as mentioned in the (sic)ff register, seniority list as well as the medical identity card. As I have said already that the petitioner was not given any opportunity nor he was intimated at any point of time that his service record is missing or lost and he is required to produce the relevant documents in proof of his age or date of birth to be entered in the reconstructed service record. It has been stated in the affidavit-in-opposition by the respondent No. 2 that he was verbally intimated by the shop-in-charge. This is as vague as statement as possible. There is no specific mention of the name of particular officer who held the position of shop-in-charge nor there is any specific statement as to when and on what date the particular shop-in-charge intimated the petitioner to produce all his relevant documents in �roof of his age. On the other hand the petitioner has produced before this Court the original certificate granted in 1948 by the Headmaster of T.J.H.E. School, Mymensingh on 22.9.48 where the petitioner read up to Class X in 1944 and his age on 31st December, 1944 as recorded in the School admission register was mentioned as 16 years 9 months, i.e. his date of birth was 31st March, 1928. It also appears from the certified copy of the extract granted by the Branch Manager, Life Insurance Corporation of India, in Form No. 4104 dated 20.3.63 that the age of the insurer was recorded as 16 years 9, months on 31.12.44,. i.e., his date of birth was recorded as 31st March, 1928. In the Insurance policy issued by the Aryasthan Insurance Co. Ltd. in June, 1949, the age of the petitioner was recorded as years on 26th July, 1949. Similarly in the Insurance Policy issued by the Hindus than co-operative insurance society on 18th September, 1953 the age of the insurer was recorded as 26 years on 18.8.53, In the policy that has been issued by the Life Insurance corporation of India on 19th September, 1961, the age of the insurer was admitted as 16 years 9 months on 31.12.44, i.e. his date of birth is 31.3.28. All these documents were produced before respondent No. 2 and the petitioner, as I have stated hereinbefore, made a representation specifically requesting the respondent No. 2 to consider all these documents in order to determine his representation as to the date of birth and his reaching the age of superannuation. Respondent No. 2 as I find from the records did not at all consider all these documents though he was specifically directed to do so while determining the representation made by the petitioner in 1983. But he simply dittoed and/or endorsed the opinion made by the Deputy Chief Personnel Officer and the impugned order was made rejecting the petitioner''s representation and the same was communicated to the petitioner by the Deputy Chief Personnel Officer. In these circumstances, I am constrained to hold that the duty that has been cast upon the authorities concerned by Rule 145 of the Railway Establishment Code, Vol-I has. not at all been complied with nor there has been any compliance with the solemn direction made by this Court on 8.1.83 while disposing of the Civil Order no. 6132(W)/83. I have already said that the determination of age of the petitioner has been made illegally, arbitrarily and in violation of all. canons of natural justice and in total non-consideration of the relevant and vital documents like the School Certificate issued as early as in 1948, verification of the age of the petitioner and recording the same in. three Life Insurance Policies issued by the Life Insurance Corpn. of India, Hindusthan Co-operative Insurance Society and Aryasthan Insurance Society. This total non-consideration of these relevant documents and also non-recording of any reason why the respondent No. 2, a responsible officer of the status of the general Manager of Chittaranjan Locomotive Works has come to form the opinion that the age as recorded in the staff Register, seniority list and the Medical Index Card will be sacrosanct and will prevail over the Certificate that has been issued by the Headmaster of the, School wherein the petitioner read up to Class-X and it was granted as early as in 1948 and on the basis of the age entered in the said certificate, the Life Insurance Corporations accepted the age and entered the same in the policies concerned after duly verifying the same. There is also, as. I have said hereinbefore, another statement of the respondent No. 2 to the effect "The service record presumably lost in March, 1979" and also he has said at the next breath since March 1980. This clearly goes to show that the respondent No. 2 as also not sure whether the service record all been (sic) or has been lost. If that be so, there cannot be a prevaricating statement as to the time when the same is missing or lost.

On a consideration of all these facts and circumstances, I am constrained to hold that the impugned order has been made arbitrarily and in violation of the principles of natural justice as well as in violation of the specific direction made by this Court. The documents referred to hereinbefore namely, the School Leaving Certificate, three Life Insurance Policies, go to prove successfully that the date of birth and the age of the petitioner as mentioned in the School Certificate is the correct date of birth of the petitioner and the correct age recorded therein. According to this date of birth as recorded in the School Certificate, the petitioner has not reached the age of superannuation and he is not yet to reach the age of superannuation some time in March, 1986.

The Rule is therefore made absolute. The contentions made on behalf of the petitioner succeed.

Let a writ of Mandamus issue commanding the respondents to forbear from giving any effect or further effect to the impugned order annexed as annexure "D" as well as annexure "L-2" to the Writ application. Let a Writ of Certiorari issue quashing, canceling and/or setting aside the impugned orders contained in annexure "D" and "L-2" to the Writ petition. The respondents are directed to allow the petitioner to join his duties and to post him in the post he is entitled to be posted and to pay him all the increments computing his service from the date when he was illegally retired from service on a wrong computation of the age of superannuation. The Railway authorities are further directed to pay all his arrears of pay in accordance with law as early as possible preferably within a period of two months from this date deducting therefrom the amounts that have already been paid to the petitioner.

There will be no order for costs.

Player for stay of this order is rejected.