ASHA MUKUL PAL, J. ( 1 ) THIS is an application under Article 226 of the Constitution filed by the petitioner for issuance of a Writ in the nature of Mandamus for quashing the Order No. F/104/84 dated 6. 3. 84 directing the petitioner herein to retire from the afternoon of 30. 4. 84. This matter came up before me. I directed affidavits to be filed and this matter came up before me as contested application on 1st June, 1984 till which date there was an interim order passed by me restraining the opposite parties from giving effect to the order of retirement. ( 2 ) THE petitioner's case is that he was born on 16th of April, 1936 and he was selected and appointed as a mechanic driver of the railways under the Divisional Superintendent, Eastern Railway, Howrah on 19th April, 1955. The age restriction to the recruitment to the said post was declared to be between 18 and 25 years and at the time of such appointment the age of your petitioner was 19 and his date of birth was 16th April, 1936. ( 3 ) THE petitioner's case is that he was an illiterate person and he did not know English and at the time of his appointment recording of his date of birth, Rule 145 (1) of the Indian Railways Establishment Code, Vol. 1 was not complied with. His case is that recording of his date of birth was done entirely according to the self-assessment and guess work without affording the petitioner and opportunity to explain the service book although it is the specific case of the petitioner that he "categorically disclosed 16. 4. 36 as his date of birth". ( 4 ) MR. Banerjee's main contention is that (as stated in paragraph 11 of the petition) that the provisions of Rule 145 of the Indian Railways Establishment Code, Vol. 1 have not been complied with. His argument is that in the case of an illiterate person the declared date of birth shall be recorded by a senior Class III Railway servant and witnessed by another Railway servant that not having been done in this case the recording of age of the petitioner is bad in law. 1 have not been complied with. His argument is that in the case of an illiterate person the declared date of birth shall be recorded by a senior Class III Railway servant and witnessed by another Railway servant that not having been done in this case the recording of age of the petitioner is bad in law. He further contends that the age of appointment being 18 to 25 the petitioner could not be appointed at the age of 29 which would be the age of the petitioner at the time of appointment if the date of birth as recorded by the Railway authorities is accepted. Mr. Banerjee's further contention is that date of birth once recorded can only be revised by the General Manager if he is satisfied that a clerical error had occurred. ( 5 ) IN the affidavit-in-opposition it has been stated that medical examination report at the date of appointment recorded that the age of the petitioner was 29 years as on 16. 4. 55 (Annexure 'a' ). The petitioner himself stated at the time of his appointment that his date of birth was 16th April, 1926. It was also indicated in the medical identity card that his date of retirement was 30. 4. 1984. ( 6 ) THE railway in paragraph 14 of the affidavit in opposition stated "regarding observance of Rule 145 (1) of the Railway Establishment code, Vol. 1 it is stated that the petitioner had declared his age under his own signature and the same was recorded in the service record duly verified by the Divisional Personnel Officer. Rule 145 (3) of the Railway Establishment Code quite rightly it has been stated" does not appear to be applicable in this case because the petitioner did not come up for alteration of the date of birth originally within a reasonable time after joining service. ( 7 ) MR. Banerjee relied upon a judgment (unreported, delivered by our Divisional Bench on 3rd May, 1978) passed in an appeal from the original order 3998 of 1978 against the order of one of the learned Judges of the Court in C. R. No. 13080 (W) of 1975 dated 11th August, 1977. Their Lordships set aside the order of the learned Judge because there has been violation of Rule 145 as thee was not proper recording of the date of birth of the appellant. Their Lordships set aside the order of the learned Judge because there has been violation of Rule 145 as thee was not proper recording of the date of birth of the appellant. In the instant case however throughout the petitioner accepted his age as in the service record and according to which his date of retirement falls on the afternoon of 30th April, 1984. ( 8 ) MR. Chakraborty has contended that purposely in Ground 7, page 8 of the petition the petitioner has not given the particulars that in which way Rule 145 (1) or Rule 145 (3) of the Railway Establishment Code Vol. I have been violated. The petitioner although accepted the position but only when the real date of retirement comes, he resorts to the technical stand that 145 (1) and (3) having not been complied with the recording of his age is erroneous and unentertainable in law. ( 9 ) CONSIDERING all these facts I come to this finding that admittedly Rule 145 (1) of Indian Railway Establishment Code was not complied with in this case. ( 10 ) I do not accept in any event I cannot reconcile myself with the idea that inaction of an illiterate person (one may call it acquiescence) can override totally the provision of Rule which has been undoubtedly violated in this case due to the remissness or omission of the competent authority. Following the unreported judgment referred to above and after considering the facts of the case in my opinion ends of justice will suffer if an order of reassessment of his age is not made. ( 11 ) HENCE it is ordered that the Chief Personnel Officer, respondent No. 2 would consider the representation of the appellant which he will make within one month from date, to the said respondent No. 2. As regards his date of birth keeping in view amongst other matter one particular fact whether he could be appointed at an age above twenty-five. The said respondent No. 2 will give a hearing to the petitioner before he comes to a final decision regarding his age. If the said respondent No. 2 comes to a finding in his favour he will be reinstated and will continue in service till the completion of the fifty eighth year as per the finding of age by the respondent No. 2. If the said respondent No. 2 comes to a finding in his favour he will be reinstated and will continue in service till the completion of the fifty eighth year as per the finding of age by the respondent No. 2. It may be noted here that the said respondent No. 2 will decide the matter within six weeks of the filing of representation by the petitioner and if the petitioner succeeds he will be deemed to be in the service without break. The application is disposed of accordingly. I make no order as to costs. The annexure A and C to the petition stand modified in the light of the observation and order passed by me herein so far the petitioner is concerned.