Pramatha Nath Choudhury () v. The State Of West Bengal And Others (S).

Banerjee, J.:— This appeal arises out of an application challenging the order passed by the respondent directing the petitioner to retire on his age of superannuation on 30th June, 1975. It appears that the petitioner-appellant was appointed as a Constable on 21st December, 1938 by the S.P Chittagong Dist. The appellant passed the Matriculation Examination before joining the service in March, 1938 from the University of Calcutta and the age given in the certificate was 1st day of March, 1938. He was 16 years 2 months that is to say his date of birth was 1-1-1922, The appellant's date of birth as recorded in the Government record was 1917. On the basis thereof the appellant will have naturally to retire on his attaining the age of 58 calculated from 1917. The appellant made an application on receipt of the letter that is to retire on 30th June, 1975. He made a representation for correction of his date of birth and he produced the original Matriculation Certificate. But his prayer was rejected by order dated 1st of July, 1975 being annexure ‘C’ to this petition. The said order runs as follows:—

“Please inform S.T Pramatha Nath Chowdhury of your unit prayer for alteration of his date of birth has been rejected by P.D Vide Org. No. 1536(A) dated 30-6-75.”

2. Thereafter, the appellant made a representation to the Additional Inspector General of Police but it was also rejected. In the affidavit-in-opposition filed it is stated that the date of birth as recorded in the record is right, whereas, the appellant contended that on the basis of his Matriculation certificate it is patently wrong.

3. The learned Single Judge was of the opinion that the petitioner-appellant himself gave the date of birth when he entered into the service as a Constable. He cannot be allowed to say now that his date of birth was wrongly recorded. It is stated in the said judgment that rule 9(6) of the West Bengal Service Rule, Part-I does not apply in the petitioner's case and moreover it is not incumbent on the part of the respondents to give reasons for rejection.

4. At the time of hearing of this appeal Mr. Majumdar produced before us the original Matriculation Certificate. We directed Mr. Majumdar to file a supplementary affidavit annexing a xerox copy of the original Matriculation Certificate. Mr. Yousuf, learned Advocate appearing for the respondents could not deny the genuineness of the said xerox copy of the Matriculation Certificate filed by the petitioner-appellant which supports the petitioner's age. In that view of the matter, in our opinion the date of birth as recorded is patently wrong. Mr. Yousuf submitted that this should be sent to the Inspector General of Police or the competent authority for consideration. In our view, when the original certificate is produced before us and no reply is possible in the facts of this case, we have no hesitation to accept the case of the petitioner-appellant that his date of birth as stated in the Matriculation Certificate must be accepted to be correct. In that view of the matter, in our opinion, the petitioner-appellant cannot be superannuated in 1975 as his date of birth was January, 1922, or in other words, the petitioner-appellant is to retire on his superannuation on 1st of January, 1980. In that view of the matter, in our opinion the petitioner-appellant must be deemed to be in service from the date when he was compulsorily retired in June, 1975 till 1st of January, 1980 and therefore, during that period he must be paid all the salaries and emoluments as if he was in service.

5. The rule is made absolute to the extent indicated above.

6. The appeal is allowed. There will be no order as to costs.

7. Appeal allowed.