JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. This is an appeal from an order of Hon'ble Mr. Justice Sabhajeet Yadav passed on 10.11.2004 allowing the respondent's writ petition and quashing the office order dated 31.12.2003 whereby the respondent was sought to be retired with retrospective effect from 31.10.2001.
2. His Lordship has ordered that the respondent should be treated as in service up to 30.9.2004 and the effect of this order is that the period of about nine months at the end of this period, when the respondent was not allowed to work, would not go as salariless for the respondent and the respondent would be entitled to receive salary and all other benefits for this period also.
3. Since it is an age determination matter, in a writ application, the basic facts need to be clearly looked into and understood. The writ petitioner joined service on 22.10.1961 as a Cleaner. For about 16 years he worked without any material event occurring.
4. The service book was written up for the first time in 1977 at the instance of the employer The Chief Medical Officer, at that point of lime, examined the respondent on 7.9.1977 and opined that he would be about 31 years of age at that time.
5. On the basis of that Medical Report, the service book was written up. If that writing up of the service book is correct, then the Hon'ble Single Judge's finding is perfectly in order and the respondent would retire with the expiry of the month of September 2004. On behalf of the appellant, who was the respondent in the Court below, it is argued that on the basis of the entered date of birth, the entry into service of the writ petitioner on 22.10.1961 would mean that he would have joined the service at the age of 15 years only. The rule requires a minimum age of 22 years. The age of majority requires that he be at least 18 when he goes into service. It is also argued that by the impugned order the respondent would be getting the benefit of nine month's salary without working.
6. Various age correction cases are already reported. We refer to three Supreme Court cases, being those of State of Orissa v. Dr. (Miss) Binapani Dei reported at AIR 1967 SC 1269, the case of State of Assam v. Daksha Prasad Deka reported at AIR 1971 SC 173 and the case of Burn Standard Co. Ltd. v. Dinabandhu Majumdar reported at AIR 1995 SC 1499.
7. A careful reading of these eases would show that in each one of these the Supreme Court entered into the facts with great detail and care. In the manner, we respectfully read the Supreme Court's judgments, the principle of law applicable to the writ Court in the determination of these age correction matters is as follows.
8. The Court has to exercise an equitable discretion in this matters The Court has to judge whether it is a fit and proper case for entering into the factual dispute. Both these problems are solved very largely, if not wholly by taking a good grip over the facts whereafter the law looks after itself and the equitable finger can be seen to point quite clearly and un-mistakally in one direction only.
9. This is how the above principles work put in the present case. If the writ petitioner was admitted into service below age, both parties were equally guilty; no misrepresentation of the writ petitioner is on record. The service that was rendered by the writ petitioner which still under age, was paid for by the appellant, and no more. The breach of rules on both sides cannot make the writ petitioner get born earlier.
10. So far as the end period of the service is concerned, and the direction for payment of nine months' salary, even for at this time there is nothing on record to show that the writ petitioner was not willing to work; he was prevented from working. If he was prevented from working unjustly, the writ petitioner cannot be made to suffer for the wrong of another.
11. Thirdly, the service book was entered up by the appellants themselves. The writ petitioner merely wants enforcement of that service book and the entry it contains in his favour. It was entered up on the basis of a factual assessment of a Chief Medical Officer at the relevant and material point of time. It would be incorrect and unequiable to correct a factual assessment on the basis of merely what should have been or what should not have been done 16 years before the factual assessment had actually been made.
12. Lastly, although this is slightly in the region of conjecture, it is not unknown that "Bachchas" or under age boys often used to be employed as Cleaners of vehicles, even if that is not now done, at least in the early 1960s and also the 1970s.
13. The facts and the justice of the case point in only one direction. We also should not in the Court of appeal upset an order passed on the use of discretion by the learned Single Judge, unless something perverse can be shown to have been decided or some misdirection in law can be demonstrated. These vitiating factors are not there. The appeal is dismissed without any order as to costs.