Bhagabati Prasad Banerjee, J.@mdashThis is an appeal against the judgment and order dated May 6, 1993, passed in Matter No. 156 of 1993
by the learned trial Judge dismissing the application. The subject-matter of the writ application was for correction of the date of birth of the
Appellant writ Petitioner. Originally, the Respondent company was a private company known as ''Bengal Immunity Company Limited.''
Admittedly, the Appellant-Petitioner joined the service on May 1, 1993. At the time of entering into his service, on the basis of the declaration
made by him, his date of birth was recorded as on March 21, 1935. Thereafter, on October 30, 1956, the Appellant- Petitioner made a
declaration required for the purpose of gratuity fund in which he had declared his age on September 21, 1956, as 21 years 6 months on the basis
of horoscope which tallies with the date of birth initially declared by him as'' March 21, 1935. While he was in service the Appellant-Petitioner
appeared as a private candidate in School Final Examination conducted by the West Bengal Board of Secondary Education in March 1962 and he
passed in 3rd Division, and on the basis of his own statement made before the Board his date of birth was recorded in the School Final Certificate
as ''10th June, 1939''. Admittedly, after passing the School Final Examination no reference was made to the authority concerned for correction of
his ''date of birth in the records. But, according to the Appellant-Petitioner, he wrote a letter to the authority concerned on January 9, 1979, for
treating him as School Final passed and accepting the date of birth as ''10th June, 1939'' as was recorded in the said Certificate. Incidentally, for
17 years he was keeping significantly silent with regard to the dispute of his date of birth, and again he made a representation on February 2, 1985.
2. It appears that the Appellant-Petitioner was president of the Bengal Immunity Workers'' Union and on March 20, 1984, a meeting was held by
and between the management and the workmen in which the Appellant- Petitioner participated as a President and for the purpose determining the
age, Age Dispute Committee was constituted formulating the principle and procedure to be followed for the purpose of settlement of age dispute
by bipartite agreement between the management and the workmen. The said Age Dispute Committee was set up with a Chairman and three
members and on May 28, 1985, the Personnel Manager of the company issued a notice regarding age dispute intimating all workmen and all
concerned. The contents of the said notice dated May 28, 1985, is as follows:
From time to time, we have been receiving applications from workmen/employees disputing their date of birth/retirement as recorded with the
Company. Accordingly, an Age Dispute Committee with DM(A) as the Chairman has since been constituted and all such disputed cases have
been referred to the Committee which, in the meantime, has also settled many cases.
In this connection, it is notified that the workmen employees, having age dispute without yet referred, should submit their cases to DM(A), the
Chairman, Age Dispute Committee, on or before 21st June, 1985, after which no other case will be entertained and the age record as available
with the Company shall be final and binding.
3. On the basis of the date of birth as originally recorded and as originally declared which was supported by a subsequent declaration, a notice of
retirement was issued. This notice of retirement was the subject-matter of challenge in the writ application. In support of his case, that the
management has accepted his date of birth as June 10, 1939, instead of March 31, 1935, reliance was placed on a letter written by Shri G. Rai
Verman, the then Personnel Manager who was officiating in that post, addressed to the Appellant-Petitioner wherein the said authority has stated
that his date of birth was recorded in the records of service as June 10, 1939. The genuineness of that letter dated June 18, 1985, issued by Shri
G. Rai Verman was seriously disputed by the Respondent-company and in the affidavit-in-opposition it was categorically stilted in substance that
the said letter was a fake letter inasmuch as from the despatch register this letter with that number was not a letter addressed to the Appellant-
Petitioner at all, but to the National Insurance Company for a different purpose and further it was submitted by Mr. Chaudhuri, learned Counsel
appearing on behalf of the Respondent-company, that self-same authority had issued a notice on May 28, 1985. Admittedly, Shri G. Rai Verman
was not a member of that company exclusively entrusted to the Age Dispute Committee and after constitution of an Age Dispute Committee and
after issue of the notice, such dispute could not be adjudicated by the said Shri G. Rai Verman who was in probation and whose service was
terminated in August 1985 because of unsatisfactory work.
4. Regarding the declaration made for the purpose of gratuity fund that his date of birth is March 23, 1993, a point was specifically raised by the
Respondent-company in para. 5 of the affidavit-in-opposition. But the Appellant-Petitioner did not deny and dispute nor explain the circumstances
under which such admission was made. The learned trial Judge in his order stated that as because the Appellant-Petitioner had not explained the
position and as because he had not made out any case how he could be allowed to go back from the admission made by him in the said
declaration the learned trial Judge was unable to grant any relief in the matter.
5. After hearing the learned Counsel for the parties and after considering the facts and circumstances of the case, it is clearly evident that this
School Final Certificate was not a contemporaneous document. In this connection, a reference was made by the learned Counsel appearing on
behalf of the Respondent to the Special Bench decision in the case of Deputy Commissioner of Polices, Special Branch and Ors. v. Bhupesh
Chandra Karanjai 1993 (2) Cri. L.J. 74 wherein it was stated that the discrepancy of the date of birth in respect of the employee of the State
Government is governed by the provisions of the West Bengal Service Rule, Part I, particularly under Rule 9. It was held by the Special Bench
that, if there was any contemporaneous document or, in other words, if one has entered into the service, but at the time of entering into the service
Matriculation Certificate was missing and was not in his possession, he could apply to the authority, subsequently for the purpose of consideration
and correction of the date of birth, only on the basis of such contemporaneous document which was in existence before he had made any
declaration in ignorance of the age recorded in the Matriculation or other certificate, the genuineness of which was not disputed. In the instant case,
the School Final Certificate was not a contemporaneous document and there is a distinction between a student who had passed as regular student
and as a private student. In case of regular student, the age/date of birth is registered with the register of the School where the School Authorities
insist upon production of some records or documents or statements made from the guardian and the same is also considered in view of the
appearance of the boy by the trained and experienced teachers, and in such a case there is a very little scope for suppressing the real age or to
manipulate the age before the teachers who are dealing with thousand of similar students and in that case age recorded in the School register is
reflected in the Matriculation or School Final Certificate. That age is accepted because of certain safe-guards therein. But in case of a private
student the Board accepts the age declared by the candidate in the application form, without any verification and in case of a private candidate any
age may be declared suppressing real age and there is no machinery or there is no check and balance for verifying the actual age. As such, the
School Final Certificate in respect of a candidate appearing as a private candidate and a candidate appearing as a regular candidate cannot be
treated at par.
6. In these circumstances, no reliance could be placed on the letter issued by Shri G. Rai Verman dated June 18, 1985, in support of the
contention of the Appellant-Petitioner in view of the fact that the genuineness of the said letter is under challenge, as from the materials on record,
we cannot hold that the said letter was genuine or undisputed letter. Secondly, the writ Court decides the matter on affidavit of evidence. When
allegation is made by the management on affidavit that not only he had declared his age at the time of entering of service, but four years thereafter
he had also made a voluntary declaration about his age supported by a horoscope and for long 17 years he was keeping significantly silent when
his allegation is made in the affidavit-in-opposition and this allegation is not at all controverted in the affidavit-in-reply, in that event the Court is
bound to accept the position that he had no explanation to offer in this regard. He cannot be allowed to go back from the admission already made
in this behalf which is binding on him. The company was originally a private company. The company was taken over by the Government of India
undertaking On May 10, 1978, and only thereafter a move was made to get his date of birth corrected on the basis of age recorded in the School
Final Certificate in which he appeared as a private candidate wherein he had put his date of birth according to his choice. Subsequent
document/documents which had come into existence subsequent to his admission cannot be made a ground for correcting something with
retrospective effect. The Special Bench of this Court in that case decided that any contemporaneous document may be made a basis for claiming
the case for correction of a date of birth at a later date and not otherwise.
7. Considering the facts and circumstances of the case, we do not find any reason to interfere with the order passed by the learned trial Judge
inasmuch as no case has been made out by the Appellant-Petitioner for intervention of the order passed by the learned trial Judge. On the basis of
the materials on record, it is difficult for this Court to sustain the claim made ""by the Appellant-Petitioner.
8. Accordingly, we agree, with the view expressed by the learned trial Judge. We do not find any substance in the appeal. The appeal is
accordingly dismissed without any order as to costs.
Nikhil Nath Bhattacharjee, J.: I agree.