B. K. Sharma, J.;- This writ appeal is directed against the judgment and order dated 20.5.09 passed by the learned Single Judge in WP (C) 175(K)08 dismissing the writ petition and thereby up­holding the decision of the respondents that the petitioner (appellant herein) retired from service on attaining the age of superannuation of57yearsw.e.f. 30.6.05. Be it stated here that the retirement age in the State of Nagaland is either 60 years of age or 35 years of service, whichever is earlier. On that basis on completion of 35 years of service, the appellant claims that he was prematurely made to retire w.e.f. 30.6.05 instead of 31.12.2010, on which date he would com­plete 35 years of service. Be it also stated here that there is no dispute that in the Serv­ice Book, the date of birth of the petitioner stands recorded as 15.6.1961 and the same has not been altered till date. The petitioner/ appellant would attain the age of 60 years on that basis on 15.6.2021. 2. The petitioner had occasion to file the instant writ petition when he was released from service w.e.f. 7.10.2005 purportedly on attaining the age of superannuation age of 57 years w.e.f. 30.6.2005. Same was done by order dated 7.10.2005. For a ready refer­ence, the order is quoted below:- "Government of Nagaland Office of the Deputy Commandant Village Guards Kiphire: Nagaland" No. VG/KPE/EST-4/2005-06/1061 -1066 Dated Kiphire, the 7th Oct./2005. RELEASED ORDER Shri Tochimong, Jamadar (VG) of Zimkiur Village is hereby released from this establish­ment on 07.10.2005 (AN) on attaining the Superannuation Age of 57 years w.e.f. 30.06.2005. vide Addl. Chief Secretary & Commissioner, Nagaland, Kohima Sig. No. VG-87/97 dated 5.10.05, even his Office Order No. VG-87/97/1825 Dated 29.9.2005. Sd/- (Thsandong Yimchunder) Deputy Commissioner, Village Guard." 3. The petitioner was enrolled as Consta­ble Village Guard on 1.1.1976. He was pro­moted to the post of Jamadar in 2004 and thus the aforesaid release order was passed while he was holding the promotional post of Jamadar, Village Guard. 4. Pursuant to the aforesaid release order, the petitioner was granted leave encashment for 36 days and his case for GIS was sent to the Addl. Chief Secretary and Commissioner by letter dated 2.12.2005. 5. After the aforesaid development, the petitioner sworn an affidavit in which state­ment was made that in some of the seniority lists, his date of birth was wrongly entered as 1.7.1948 instead of 15.6.61. Chief Secretary and Commissioner by letter dated 2.12.2005. 5. After the aforesaid development, the petitioner sworn an affidavit in which state­ment was made that in some of the seniority lists, his date of birth was wrongly entered as 1.7.1948 instead of 15.6.61. According to the petitioner he had submitted the said affidavit to the authority. By letter dated 18.9.06 addressed to the Additional Chief Secretary. Nagaland by the Commandant Village Guard. Tuensang, it was intimated that no records relating to appointment of the petitioner were available in the office and that he was promoted to the post of Jamadar w.e.f 12.8.04 after the particular bifurcation. It was also intimated that according to the petitioner he had joined in Village Guards' service on 1.1.1976 and his date of birth is 15.6.1961 and accordingly when he had joined the serv­ice, he was below 15 years of age. Thereaf­ter, Dy. Commandant, Village Guard, Kiphire, by his letter dated 29.7.2007 submitted de­tails of service records of the petitioner with reference to his service and confirmed that his date of birth is 15.6.1961. 6. The petitioner filed the writ petition on 20th Oct, 2008 with the following prayer:- "In the premises aforesaid, it is most respect­fully prayed that your Lordships would graciously be pleased to admit this petition, called for records and issue rule calling upon the re­spondents to show cause(s) as to why a writ in the nature of Certiorari and/or Mandamus and/ or any other appropriate writ or direction should not be granted and upon cause/causes being shown be pleased to make the rule absolute in the following term: (a) Quash and set-aside the impugned re­lease order bearing No. VG/KPE/EST-4/2005-2006 dated 7th Oct., 05, forcefully releasing the Petitioner from service permanently by 16 years. (b) Impugned Order No. VG/KPE/PEN-4/ 2005-2006 dated 2nd Dec., 2005 and Letter No. VG/KPE/ACT-2/2004-05 granting leave encash­ment and GIS to the Petitioner. And direct the respondents to: (c) Re-instate the petitioner in service with full back wages with arrears. And/or pass any such further order(s)/direction (s) as your Lordships may deem fit and proper in the fact and circumstances of the case." 7. And direct the respondents to: (c) Re-instate the petitioner in service with full back wages with arrears. And/or pass any such further order(s)/direction (s) as your Lordships may deem fit and proper in the fact and circumstances of the case." 7. From the above, two things have emerged which are, in the writ petition there was no challenge to the above quoted release order dated 7.10.2005 and that as per the own admission of the petitioner, on the basis of his sworn affidavit dated 1.5.06 referred to above, in some of the seniority lists, his date of birth was shown as 1.7.48 instead of 15.6.61. 8. hi the writ proceeding, the respondents did not file any counter affidavit but only pro­duced the letter dated 25.11.08 purportedly written by the petitioner to the Commissioner, Nagaland, accepting the release order and praying for his entitled retirement and pensionary benefits. The letter is quoted be­low:- "To The Commissioner, Nagaland, Kohima. (Through the Deputy Commandant V. G. Kiphire). Sub: withdrawal of the agitated petition on superannuation of age. Sir, On the subject cited above, I have the honour to state that I would like to withdraw my petition which I have submitted earlier (copy enclosed). That Sir, I am accepting with the Released Order which was issued to me as per Govt. vide No. VG/KPE/EST-4/2005-2006/1061-1066dated Kiphire, the 7th Oct. 2005. In this regard, I im­plore your esteemed authority may kindly grant whatsoever benefits are entitle for the pensioner. This is for your kind information and fur­ther necessary action please. Yours faithfully, Date: 25.11.2008 Sd/- Tochimong Retired Jamadar (VG) Under Deputy Commandant VG Office, Kiphire." 9. It is on the above basis and also in view of the fact that if the date of birth of the petitioner is taken to be 15.6.1961 than the peti­tioner would have been under aged for Govt. job, the learned Single Judge has dismissed the writ petition by the impugned judgment and order dated 20.5.09. 10. In the writ appeal while narrating the facts of the case, the appellant has contended that the respondents in the writ proceeding, instead of filling any counter affidavit, produced the above quoted letter dated 25.11.2008 purportedly written by the peti­tioner but before any clarification could be made by him, the writ petition was finally dis­posed of by the aforesaid impugned judgment and order. It is the specific stand of the appellant/petitioner that he had never written such letter but he was made to sign a letter to with­draw the case exerting pressure on him that if the writ petition was not withdrawn, he would forfeit the pensionary and other retirement benefits. Thus, what has been contended is that if an opportunity had been given before placing reliance on the said purported letter, the appellant could have clarified the position by filling an affidavit. 11. As in the writ petition, in the writ ap­peal also, the respondents have not filed any response, although the matter is pending for the last one year. 12. We have heard Ms. Z. Zhimomi, learned counsel for the petitioner/appellant as well as Ms. Lucy, learned State Counsel, Nagaland. We have also gone through the entire materials on record including the Serv­ice Book produced by the learned State Counsel. 13. On perusal of the Service Book, it appears that the same was opened in the year 2004 after the promotion of the appellant to the post of Jamadar w.e.f. 12.8.04. Be that as it may. in the Service Book, the date of birth of the appellant has been recorded as 15.6.1961 and as a mark of acceptance of the entries made including the entry relating to the date of birth, the signature of the ap­pellant as well as finger impressions were taken in the Service Book and the Service Book was signed by the Dy. Commandant, Village Guard, Kiphire. As stated above, the said date of birth recorded in the Service Book still stands and there is no alteration to the same. Even if any alteration was made, same could not have been done without af­fording an opportunity of being heard to the appellant. 14. The learned Single Judge has passed the impugned judgment and order on the ba­sis of the fact that if the date of birth of the appellant is 15.6.1961, he would have been under aged for any Govt. job on 1.1.1976 on which date he had entered the Govt. service. As recorded in the impugned judgment and order, he would have been 14 years and few months. However, Ms. Zhimomi, learned counsel for the appellant during the course of hearing submitted that although the appellant was under aged at the time of entering the Govt. job on 1.1.1976 on which date he had entered the Govt. service. As recorded in the impugned judgment and order, he would have been 14 years and few months. However, Ms. Zhimomi, learned counsel for the appellant during the course of hearing submitted that although the appellant was under aged at the time of entering the Govt. job but as per the provisions of Rule 13 of the CCS (Pension) Rules, such service is not wholly impermissible. Upon a reference to the administrative instructions framed under the said rules, she also submitted that a person who is appointed in service under the Govt. before attaining minimum age of 18 years, such services rendered before completion of 18 years, would be treated as "Boy Service". Rule 13 of the CCS (Pension) Rules and the aforesaid executive instruction (Clause-35), are quoted below:- "13. Commencement of qualifying service Subject to the provisions of these rules, qualifying service of a Government servant shall commence from the date he takes charge of the post to which he is first appointed either substantively or in an officiating or temporary capacity: Provided that officiating or temporary serv­ice is followed without interruption by substantive appointment in the same or another service or post: Provided further that (a) in the case of a Government servant in a Group 'D' service or post who held a lien or a suspended lien on a permanent pensionable post prior to the 17th April, 1950, service rendered before attaining the age of sixteen years shall not count for any purpose, and (b) in the case of a Government servant not covered by Clause (a), service rendered before attaining the age of eighteen years, shall not count, except for compensation gratuity. Clause-35 A person who is appointed in service under the Government before attaining minimum age of 18 years and thus service rendered before completion of 18 years will be treated as 'Boy service' under Rule-13 of CCS (Pension) Rules. 1972." 15. On the other hand, Ms. Lucy, learned State Counsel, submitted that the appellant having accepted the release order dated 7.10.2005 without any reservation and also having written the above quoted letter dated 25.11.08, cannot now resile back from the said position so as to contend that the action on the part of the respondents is illegal. 1972." 15. On the other hand, Ms. Lucy, learned State Counsel, submitted that the appellant having accepted the release order dated 7.10.2005 without any reservation and also having written the above quoted letter dated 25.11.08, cannot now resile back from the said position so as to contend that the action on the part of the respondents is illegal. She also submitted that the petitioner-appellant have not challenged the release order dated 7.10.2005 and he also having filed the writ petition after 3 (three) years of the said or­der, is not entitled to any relief. 16. On perusal of the release order dated 7.10.2005, it is seen that the appellant was released from service w.e.f. 30.6.05 on at­taining the superannuation age of 57 years. However, till completion of this proceeding, nothing has been brought on record as to on what basis the said decision was arrived at. If the petitioner-appellant had attained the su­perannuation age of 57 yeas w.e.f. 30.6.05, there must be some basis for that and could not be on air. However, the basis has not been disclosed. It is only on perusal of the affidavit sworn by the petitioner-appellant on 1.6.06 it appears that in some of the seniority list, his date of birth was shown as 1.7.48. If the said date of birth is taken into account, he would have attained the age of superannuation on 1.7.05. However, in absence of any counter affidavit or any other material disclosed by the respondents, it is not discernible as to whether the release order was passed on the basis of the subsequent date of birth recorded as 1.7.1948. 17. As indicated above, the service book which has been produced by the learned State Counsel and a copy of which was also annexed to the writ petition is of 2004 and the same was opened at a time when the petitioner-appellant was promoted to the post of Jamadar w.e.f. 12.8.04. As per the information furnished by the Commandant, Village Guard, Tuensang, by his letter dated 18.9.06 on the basis of the said Service Book, the date of birth of the petitioner-appellant is 15.6.1961. However, the said letter also revealed that no records pertaining the earlier period of service of the appellant was available in the office. However, by letter dated 29.7.07, the Deputy Commandant, Village Guard, Kiphire mrnished information to the Addl. However, the said letter also revealed that no records pertaining the earlier period of service of the appellant was available in the office. However, by letter dated 29.7.07, the Deputy Commandant, Village Guard, Kiphire mrnished information to the Addl. Chief Secretary that as per the Service Book, his date of birth is 15.6.1961. 18. The above information was furnished purportedly on the basis of the Service Book but there is no indication as to whether the service book was pertaining to his earlier pe­riod of service or the service book that was opened in the year 2004. The letter speaks of furnishing detail clarifications of age and service of the appellant but the respondents have chosen not to place those records, in absence of which it is not discernible as to whether in the original service book pertain­ing to the earlier period of service, the date of birth of the petitioner-appellant stood re­corded as 15.6.1961 or 1.7.1948 and also even if was recorded as 15.6.1961, but later on stood corrected as 1.7.1948. This is a rel­evant aspect of the matter, inasmuch as, as per the own admission of the petitioner-ap­pellant, the date of birth of the appellant was shown as 1.7.1948 in some of the seniority lists. Admittedly, there was no objection on the part of the petitioner appellant to such recording of date of birth in the seniority list. 19. From the above discussion, the fol­lowing points have emerged for considera­tion: i) Whether the date of birth of the petitioner-appellant was recorded as 15.6.1961 in the service book that was opened in 1976 or thereafter upon entering the services as Constable, Village Guard. ii) Even if his date of birth was recorded as 15.6.1961, whether the same was changed to 1.7.1948. iii) On what basis the date of birth of the petitioner-appellant was shown as 1.7.1948 in some of the seniority lists. iv) If there was no change in the service book, both original and the one opened in 2004 and the date of birth of the petitioner-appellant remained as 15.6.1961, whether the petitioner could have entered into Govt. iii) On what basis the date of birth of the petitioner-appellant was shown as 1.7.1948 in some of the seniority lists. iv) If there was no change in the service book, both original and the one opened in 2004 and the date of birth of the petitioner-appellant remained as 15.6.1961, whether the petitioner could have entered into Govt. service before attaining the permissible age of 18 years, v) Whether the period of service ren­dered by the petitioner-appellant before attaining the age of 18 years could be treated as "Boy Service" which, as per the provisions of Rule 13 would disentitle him to count the same as qualifying service except for compensation gratuity. vi) If the date of birth of the petitioner-appellant is taken to be 15.6.1961 than he would go on retirement w.e.f. 31.12.2010 on completion of 35 years of service. vii) However, in the eventuality of ac­ceptance of the above (clause-vi), the pe­titioner-appellant will not be entitled to any back wages, inasmuch as, he had filed the writ petition only on 20th Oct. 2008 after he was released from service 3 (three) years before by the release order dated 7.10.2005 w.e.f. 30.6.2005. However, in the eventuality of a decision as in clause (vi), he will be entitled to reinstatement in service forth with and will continue in service till 31.12.2010. 20. In absence of any counter affidavit, it is also not discernible as to whether the peti­tioner-appellant had written the above quoted letter dated 25.11.2008 under duress and/or compulsion or the same was a voluntary act on his part as he himself has stated in his affi­davit that in some of the seniority lists, his date of birth was recorded as 1.7.1948. The affidavit gives an impression that the petitioner-appellant knew it will that on the basis of the date of birth shown in the seniority lists, he would retire on 30.6.05 and accordingly had sworn the affidavit only thereafter on 1.5.06, praying for correction of the said DOB as 15.6.1961 in place of 1.7.1948. In this connection, the particular statement made in the affidavit may be referred to which is- "2. That my birth has been entered in some of my seniority list as 1st July 1948 instead of 15th June 1961. 3. In this connection, the particular statement made in the affidavit may be referred to which is- "2. That my birth has been entered in some of my seniority list as 1st July 1948 instead of 15th June 1961. 3. That my correct birth is 15th June 1961 and as such wherever 1st July 1948 years to mean my birth may be recorded as 15th June 1961 is corrected accordingly." 21. The above points which have come to our notice will have to be answered by the respondents, upon hearing the petitioner-ap­pellant. It is not possible for us to arrive at any positive findings in absence of the stand disclosed by the respondents. The matter will have to be decided necessarily on the basis of the records which have also not been pro­duced before us. However, the learned Sin­gle Judge has passed the impugned judgment and order on the basis of the said letter dated 25.11.08, which the petitioner-appellant has denied to have been voluntarily written and the fact that the petitioner-appellant would have been under aged when he entered serv­ice on 1.1.1 976. While doing so, the learned Single Judge did not deal with the above as­pects of the matter. 22. For all the aforesaid reasons, the im­pugned judgment and order dated 20.5.2009 passed by the learned Single Judge in WP (C) 175 (K)/2008 stands set aside and quashed. The matter is remanded back to the respondents for their necessary order meet­ing with the aforesaid points/aspects recorded in paragraph 18 and consistently with the observations made therein. 23. Let the entire exercise be carried out by the competent authority of the respond­ents as expeditiously as possible but at any rate not latter than 30th October, 2010. The said decision shall be arrived at after hearing the petitioner and on perusal of the relevant materials. 24. Writ appeal is disposed of in term of the above directions, without however, any order as to costs.