WP/16974/2009 of S.B. Singh, Vs APSRTC, Rep by its Managing Director, on 30 December 2009

ORDER :

THE HON’BLE Ms. JUSTICE G. ROHINIWRIT PETITION No.16974 OF 2009

The petitioner herein is working as a Driver in the A.P. StateRoad Transport Corporation (APSRTC). By order dated 18.05.2004 hewas removed from service. However, I.D.No.72 of 2006 preferred bythe petitioner before the Labour Court, Hyderabad under Section 2-A(2) of Industrial Disputes Act, 1947., was held in his favour and byAward dated 3.6.2009 the removal order was set aside and reinstatement was ordered with continuity of service but without back-wages and other attendant benefits.

On the basis of the said award, when the petitioner made arepresentation dated 29.7.2009 requesting to reinstate him intoservice, the 2[nd] respondent by order dated 3.8.2009 informed thepetitioner that he had already attained the age of superannuation on31.12.2007 and therefore he shall be deemed to have retired from theservices of the Corporation w.e.f. 31.12.2007 itself. It is also stated inthe said order that on verification of the personal records of thepetitioner, it was revealed that the Medical Officer, Tarnaka Hospital,assessed the age of the petitioner as 30 years vide Medical CertificateNo.81912, dated 5.12.1979 at the time of the initial appointment andtherefore his date of birth is 5.12.1949.

Aggrieved by the same, the present writ petition is filedcontending inter alia that his date of birth as entered in the ServiceRecord is 10.11.1952 but not 5.12.1949 and therefore he is entitled tocontinue in service upto 30.11.2010 on which date he would attain theage of superannuation of 58 years. It is also contended that thoughthere was a medical check-up on 5.12.1979 at the time of hisappointment, it was only for the purpose of certifying the physicalfitness but not for assessment of age as sought to be contended in theimpugned order.

In the counter-affidavit filed on behalf of the Corporation, the factthat the petitioner’s date of birth has been recorded in his Service Record as 10.11.1952 has not been disputed. However, it iscontended that since the petitioner failed to produce any evidence ofhis age, he was subjected to medical examination by the Doctor ofAPSRTC Hospital, Tarnaka for assessment of his age and the Doctorvide Medical Certificate No.81912, dated 5.12.1979 had assessed thepetitioner’s age as 30 years as on that date. It is also pleaded thatbasing on the said certificate the petitioner’s date of birth was recordedas 5.12.1949 and therefore it shall be deemed that the petitioner hadretired from service on 31.12.2007 on attaining the age ofsuperannuation.

I have heard the learned counsel for both the parties.

The learned counsel for the petitioner, while pointing out that the petitioner’s date of birth has been recorded in his Service Recordas 10.11.1952, vehemently contended that the date of birth so enteredcannot be altered at the fag end of service. While relying upon adecision of this Court in KOTTE RAJAM v. SINGARENI COLLIERIESCOMPANY LTD., KOTHAGUDEM, KHAMMAM DISTRICT ANDOTHERS[[1]], the learned counsel further contended that the date ofbirth entered in the service record is binding not only against theemployee but also against the employer.

On the other hand, the learned counsel for the Corporation while relying upon Regulation 19 (2) (b) of the APSRTC EmployeesService Regulations, 1964 contended that since the petitioner couldnot furnish any evidence to substantiate his date of birth as10.11.1952, his age was rightly got assessed by the Medical Officerof the Corporation and the age as assessed by the Medical Officershall be final.

Rule 19(2) (b) of the APSRTC Employees Service Regulations,

1964, runs as under :

19. Date of Birth:

( 1 ) Every person on entering the service of theCorporation shall declare his date of birth which shallnot differ from any declaration, express or implied, madeby him for any public purpose before entering suchservice. For this purpose, the date of birth as recordedin a school or college certificate shall be adoptedwithout any modification.

(2) (a) When the year of year and month of birth areknown but not the exact dated, the 1[st] July or 16[th] ofthat month, respectively, shall be treated as the date ofbirth.

(b) Where the person concerned is unable tofurnish satisfactory evidence of his age, it should beassessed by a Medical Officer of the Corporation andthe age so assessed or the age as declared by theperson, whichever is more, shall be accepted as finaland the employee shall be assumed to have completedthat age on the date of attestation by the Medical Officer.

The fact that the petitioner in the instant case could not furnishproof of his date of birth is not in dispute. However, it is the case of thepetitioner that there was no assessment of his age by the MedicalOfficer of the Corporation and his date of birth was recorded in theService Record as 10.11.1952. The fact that the petitioner’s date ofbirth was recorded in the service record as 10.11.1952 at the time ofhis appointment and that the same remained as such even till todaycould not be disputed by the Corporation. However, the Corporation placed strong reliance upon a Medical Certificate found in the Service Record of the petitioner in which it is certified as under :

“I do hereby certify that I have examined (name)S.B. Singh, S/o. Bujang Singh (age) 30 years, acandidate for appointment (designation) driver (class)A-1 in the A.P.S.R.T.C. Department whosesignature/thumb impression has been appendedbelow in my presence. I consider fit for such appointment.

Sd/- Civil Surgeon/Medical Officer 5.12.1979

N.B. Form of Certificate to be used when a candidateis medically examined for fitness for appointment.”

A reading of the above certificate makes it clear that it wasnothing but certificate of fitness for appointment. Though the petitionerwas described as aged 30 years, nothing could be placed before thisCourt by the Corporation to show that there was any assessment of thepetitioner’s age by the Medical Officer before issuing the saidCertificate. It is also relevant to note that the petitioner’s age wasentered in the service record as 10.11.1952 but not as 30 years as onthe date of appointment as claimed by the Corporation. Hence, theimpugned action of the Corporation in retiring the petitioner w.e.f.31.12.2007 undoubtedly amounts to altering the date of birth enteredin the service record without notice to the petitioner.

In the circumstances, the stand taken by the respondents in theimpugned order dated 03.08.2009 that the petitioner shall be deemedto have retired from service from 31.12.2007 cannot be accepted.

Accordingly, the impugned order being arbitrary and illegal ishereby set aside and the Writ Petition is allowed as prayed for.

No costs.

_____________G. ROHINI,J.

Dt. 30.12.2009 gbs

[1]2008 (6) ALD 668