JUDGMENT 1. In this application under Article 226 of the Constitution the petitioner's grievance is that his date of birth was not correctly recorded in his service record in due compliance with Rule 145(1) of the Railway Establishment Code, Volume I 2. The petitioner was initially appointed as Khalasi in Class IV category in Loco Shop No.4, Kanchrapara Railway Workshop in May, 1944. At present he is posted as Drop Stamper High Still, Grade-I, Shop No. V, Kanchrapara Workshop of the Eastern Railway. It is the case of the petitioner that after his appointment in the Railway Service, the petitioner was never asked to produce any document for the purpose of recording his date of birth in his service record. The petitioner was served with superannuation notice being No. 4/31E dated 30th November, 1981, from where the petitioner came to learn for the first time that his date of birth was not correctly recorded in his service record and as such he was sought to be superannuated in July, 1981. Upon enquiry the petitioner came to know that in his service record the date of birth was recorded as 1st July, 1924 and not 1st May, 1926 which is the correct date of birth of the petitioner according to his school certificate. 3. It is the case of the petitioner that he was a student of Upper Primary School, Tara Narahawan and be read upto Class V in the said school. On 16th January, 1941 the Headmaster of the said school issued a transfer certificate to the petitioner from where it would appear that according to the school register the petitioner’s date of birth is 1st May, 1926. The said transfer certificate is dated 15th January, 1941 being Annexure 'A' to the writ application. After the petitioner came to know about the incorrect recording of the date of birth in his service record, the petitioner on 5th February, 1982 made a representation to the Additional Chief Electrical Engineer, Eastern Railway, Kanchrapara for correction of his recorded date of birth on the basis of the said school certificate. The Additional Chief Electrical Engineer, Kanchrapara by his Memo dated 17th March, 1982 informed the petitioner that his request to after the recorded date of birth could not be acceded to. No reason was assigned. 4. The Additional Chief Electrical Engineer, Kanchrapara by his Memo dated 17th March, 1982 informed the petitioner that his request to after the recorded date of birth could not be acceded to. No reason was assigned. 4. Thereafter on 26th April, 1982 the petitioner through his Advocate made a further representation to the General Manager of the Eastern Railway requesting him to alter the recorded date of birth on the basis of the said school certificate issued by the Headmaster in the year 1941. The petitioner did not get any reply to the said representation. 5. Since the petitioner was going to be superannuated on the basis of the recorded date of birth on 30th June, 1982 the petitioner moved this Court under Article 226 of the Constitution. On the said application B.C. Ray, J. issued a Civil Order on 29th June, 1982 directing the maintenance of status quo of the petitioner. 6. The parties agreed that the matter should be disposed of as a contested application after the affidavits are completed. Mr. Bhagawati Prosad Banerjee, learned Advocate appearing for the petitioner has submitted that provisions of Rule 145(1) of the Railway Establishment Code, Volume 1 had not been complied with in the instant case and the said Rule 145(1) provides as follows:- "Date of birth (1) every perform, 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 servants’ own handwriting. In the case of illiterate staff, the declared date of birth shall be recorded by a senior Class III Railway Servant and witnessed by another railway servant." 7. According to Rule 145(1) in the case of literate staff, the date of birth shall be entered in the record of service in the railway servants' own handwriting and in this case of illiterate staff, the declared date of birth shall be recorded by a senior Class III Railway Servant and witnessed by another railway staff. The contention of the petitioner that he is an illiterate person cannot be accepted inasmuch as he read upto Class V in Upper Primary School. He has put his signature in the writ petition as well as in some declarations found in the Service Record. The contention of the petitioner that he is an illiterate person cannot be accepted inasmuch as he read upto Class V in Upper Primary School. He has put his signature in the writ petition as well as in some declarations found in the Service Record. Therefore, it is not necessary that the declared date of birth shall be recorded by a senior Class III Railway Servant and witnessed by another railway servant as contended by Mr. Banerjee, But, then on perusal of the service record which was produced before me by Mr. P.K. Ghosh, learned Advocate appearing for the respondents, it appears to me that Rule 145(1) as is applicable to the case of a literate staff has not been complied with in the instant case. It is the mandatory provision that the date of birth in case of literate staff shall be entered in the record of service in the railway servant's own handwriting. It is evident from the service record that the date of birth as recorded "1924 (1.7.1924) First July of Nineteen Hundred and Twenty three” is not in the handwriting of the petitioner. It appears that there was one left thumb impression but that was cancelled with the remark "rejected" and the date given is 23rd December, 1958. Another thumb impression which has been put in is of 1982 as would appear from the attestation made by an officer of the Railways. The date is 11th May, 1982. It is not known why he should put his thumb impression while he was a literate staff and when he signed some of the declaration in Hindi. It is, therefore, clear that the date of birth of the petitioner was not recorded in the record of service in petitioner's own handwriting as required by Rule 145(1). 8. Mr. Banerjee has relied on an unreported Division Bench decision of this Court in the case of (1) Manindra Lal Dutta v. The General Manager, Eastern Railway dated 3rd May, 1978 (In Appeal No. 399 of 1978) where the Division Bench construe Rule 145(1) as applicable to an illiterate person. He submits that the said judgment" is also applicable to the facts and circumstances of this case. He submits that the said judgment" is also applicable to the facts and circumstances of this case. M.M. Dutt, J. speaking for the Division Bench observed as follows:- "It is not disputed that the appellant is illiterate under Rule 145 of the Indian Railway Establishment Code, in case of illiterate staff, they declared the date of birth shall be recorded by a senior Class III, Railway Servant and witnessed by another railway servant. Mr. Roychoudhury, learned Advocate appearing on behalf of the respondents, has produced before us the service record of the appellant. It appears from the said record that the appellant had put his thumb impression as also his signature and that the same were attested by B. Ghosh. The entry regarding the date of birth alleged to have been declared by the appellant has not been witnessed by any railway servant. Under Rule 145, the declaration of the date of birth shall be witnessed by a railway servant. It is true that a railway servant has witnessed the signature and the thumb impression of the appellant, but in our view, that is not compliance with the provision of Rule 145. The authorities concerned have not also considered the trade test certificate which was granted by the military authorities after the completion of the training by the appellant. The trade test certificate shows the year of birth of the appellant as 1921. After his selection for the post the appellant was sent for training and there he declared his date of birth as 1921 which was accepted and recorded in the trade test certificate granted to the appellant. In our view, the trade test certificate is a material piece of evidence which should have been considered by the authorities concerned. Instead, they took the view that as the appellant had put his signature in the service record, he accepted his date of birth as July 1, 1917. The view which has been taken by the authorities is contrary to the provision of Rule 145". 9. In my judgment, the present application must succeed for more than one reason. It cannot be disputed that the petitioner as literate staff. The date of birth in his case should have been entered in the record of service in the petitioner's own handwriting which has not been done. 9. In my judgment, the present application must succeed for more than one reason. It cannot be disputed that the petitioner as literate staff. The date of birth in his case should have been entered in the record of service in the petitioner's own handwriting which has not been done. The thumb impression against the column "date of birth" was cancelled with the remark "rejected" sometimes in 1953. The next thumb impression which has been recorded is dated 11th May, 1982, but prior thereto, on 5th February, 1982 the petitioner made representation before the Additional Chief Electrical Engineer, Eastern Railway, Kanchrapara, that his date of birth was not recorded correctly in the service book. The petitioner also produced contemporaneous document with regard to his date of birth as recorded in the transfer certificate from the school. It is nobody's case that the said transfer certificate is not genuine or does not retire the correct state of affairs. This evidence should have been considered by the concerned authorities. The provision of Rule 145 has not been complied with. In that view of the matter the order of retirement of the petitioner cannot be sustained. Further, on the strength of the interim order the petitioner has continued in service, and on the basis of the date of birth which the petitioner has claimed to be his correct date of birth, he will retire after expiry of 30th April, 1984. 10. In the premises, the determination of age of the petitioner should not be left to the respondents. The petitioner's date of birth has been shown in the School certificate as 1st May, 1926. The respondents are, therefore, directed to make necessary rectification of the service book taking the said date as the correct date of birth. The respondents are also directed to know the petitioner all retirement benefits as would be admissible to the petitioner on the basis of his superannuation on 1st May, 1984 and not on the basis of the notice of superannuation dated 30th November, 1981. The respondents are restrained from taking any step or further steps in pursuance of or in furtherance of the notice of superannuation being No.4/31E dated 30th November, 1981. The respondents are directed to give all retirement benefits to the petitioner within 6 months from date. There will, however, be no order to costs.