1 IN THE HIGH COURT OF JUDICATURE FOR RAJATSHAN AT JODHPUR ORDER LRS OF MISHRI NATH VS. STATE OF RAJASTHAN & ORS (S.B. CIVIL WRIT PETITION NO.1889/1995) Dated : 03.03.2008 HON'BLE MR. SANGEET LODHA, J. Mr. P.P. Choudhary, for the petitioners. Mr. G.S. Choudhary for Mr.G.M. Bhandari, for the respondents. Reportable 1. This writ petition is directed against order dated 18.1.95 passed by the Assistant Engineer, Rajasthan State Electricity Board, Sojat City, whereby the petitioner Shri Mishrinath (deceased )was sought to be retired from service on attaining age of superannuation i.e. 58 years w.e.f. 30.6.95. During the pendency of the writ petition, Shri Mishri Nath expired on 11.02.02, therefore, on application being preferred his legal representatives Smt. Panchi Devi & Ors., were substituted as petitioners. 2. The background facts giving rise to the present writ petition are summarized thus : The petitioner Shri Mishri Nath entered the services of the respondents as daily wages casual labour on 03.01.67, 2 however, his services were regularized w.e.f. 01.04.72. Vide order dated 13.11.91, on completion of 15 years satisfactory service, the petitioner was upgraded to the next higher post i.e. post of C.C.A. III. According to the petitioner, at the time of his entering into the service, his date of birth was recorded as 28.01.49, however, vide order dated 18.01.95, the petitioner was sought to be retired on attaining age of superannuation i.e. 58 years taking his date of birth to be 01.07.37. The petitioner made a representation against his premature retirement and submitted that on the basis of the school certificate and the order earlier issued by the Department, his date of birth was recorded as 28.01.49, but the same has wrongly been recorded in his service book as 01.07.37. In support of the submission made the petitioner produced a copy of the transfer certificate issued by the Head Master, Government Secondary School, Pipaliya Kallan, a copy of the order dated 13.11.91 issued by the Superintending Engineer, Rajasthan State Electricity Board, Pali, upgrading the petitioner to the next higher post in the pay scale No.2, wherein in the relevant column, his date of birth is specified as 28.01.49. According to the petitioner, apparently his date of birth in 3 the official record was recorded as 28.01.49 but all of a sudden, he was sought to be retired from 30.6.95 treating his date of birth as 01.07.37. The stay petition preferred by the petitioner seeking interim order, was rejected by this Court, therefore, in terms of order dated 18.1.95, petitioenr stood retired from service w.e.f. 30.6.95. 3. A reply to the writ petition has been filed on behalf of the respondents, wherein it is stated that at the time of entery into the services, the petitioner had not submitted any certificate of the school, but he had furnished the information that he was 30 years of age and later on he disclosed his date of birth as 01.07.37 while submitting his Declaration and Nomination Form for the purpose of Provident Fund. It is further submitted that the said form was filled in by the petitioner himself disclosing his date of birth as 01.07.37, the same was entered in his service book and was verified by the competent authority, therefore, it cannot be said that his date of birth as 1.3.1937 has been recorded wrongly in the service book. It is contended by the respondents that at the time of entering in the service, the petitioner had not produced any certificate, therefore, at this stage, question of asking him to produce the certificate 4 or relying upon the certificate produced by him, does not arise. It is submitted that in respect to the certificate, a separate inquiry was conducted by the respondents to find out the correctness of the information. It is submitted that entry of the date of birth in the service book appears to have been manipulated by the petitioner. 4. Vide order dated 24.08.05 passed by this Court, the respondents were directed to produce the original service record of the petitioner for perusal of the Court. In pursuance of the said order, the original service record was produced before the Court by the learned counsel appearing on behalf of the respondents. After perusal of the entry in the service record, this Court observed that there are two dates of birth shown in the service book i.e. 28.01.49 and 01.07.37. This Court further observed that apparently both the dates of birth were not entered in the service book at the time of initial appointment, date of birth 28.01.49 was entered in the service book on the basis of seniority list, reference of which was not given in the service book and the date of birth 01.07.37 was entered treating the petitioner's age at the time of entry in the service as 30 years. Accordingly, vide order dated 29.8.05 passed by this 5 Court, the respondents were directed to get the matter inquired by their personnel officer. It was further directed that the personnel officer shall inspect the record pertaining to the petitioner. In compliance of the aforesaid order, the respondents have submitted the inquiry report prepared by the personnel officer after due inquiry. 5. During the course of inquiry, inter alia, following facts emerging from the available record have been noticed by the personnel officer: "1. The service book of incumbent was opened in the year 1974 by office of concern Assistant Engineer(REC), RSEB,Sojat City. Date of birth of incumbent was neither entered nor attested by Assistant Engineer concern at that time. 2. At the time of publishing temporary seniority list vide No:18 dated 02-04-1987 keeping date of birth column of incumbent blank, incumbent late Sh. Mishri Nath was asked vide office letter No: 21 dated 02-04-1987 to submit his date of birth cetificate either issued from school or by Chief Medical & Health Officer. 3. In response, incumbent has submitted certificate issued on plain paper by Head Master, Government Primary School, Dornadi No: 76 dated 24-05-1987 describing his date of birth as 28-01- 1949. 4. While asking by department vide letter No: 155 dated 05-05-1990 for formal T.C., the Head Master, Government Primary School, Dornadi on dated 16-05-1990, re-confirming his date of birth as 28-01-199 has intimated that T.C. has already 6 been made available to the incumbent. 5. Attested copy of a formal T.C. issued by Head Master, Government Primary School, Dornadi vide No: 10 dated 05-07-1961 is available in office records describing date of birth of incumbent as 28-01-1949. 6. Further, attested copy of school admission form of Government Middle School, Pipliya Kallan (Pali) issued by Head Master on dated 24-04-1991 and original formal T.C. issued by Head Master, Government Middle School, Pipliya Kalan (Pali) No: 11 dated 14-05-1990 describing date of birth 28- 01-1949 are also available in office records. 7. In continuation, copies of letter of the Personnel Officer (O&M), R.S.E.B., Pali No:564 dated 10-05-1995 requesting the Development Officer, Panchayat Samiti, Sojat City to arrange certain school documents related with incumbent and, response letter of the Development Officer, Panchayat Samiti, Sojat City No:3932 dated 08- 06-1995 with advise for further enquiry at Government Upper Primary School, Karmawas Patta, Sojat City are available in records. 8. Two photocopy pages appearing to be a part of any register describing particulars of persons are available on records." 6. It is contended by the learned counsel for the petitioner that after due inquiry the date of birth of the petitioner was recorded by the respondents as 28.1.49 . No notice whatsoever was issued to the petitioner for correction of the date of birth and all of a sudden, vide impugned order Annexure 3 dated 18.1.95 the petitioner 7 was informed that he shall stand retired from service w.e.f. 30.6.95 on attaining the age of superannuation, treating his date of birth as 1.7.37. The learned counsel submitted that the respondents had no authority to change the date of birth recorded in service record in a perfunctory manner without giving an opportunity of hearing to the incumbent. While relying upon the inquiry report submitted by the personnel officer in compliance of the directions by this Court, the learned counsel urged that on the basis of the documentary evidence on record, it is manifestly clear that the correct date birth of the petitioner is 28.1.49 and on 1.7.37 as presumed by the respondents without any basis. The learned counsel submitted that solely on the basis of the entry of the date of birth in the Nomination Form for Provident Fund, which has not been filled in by the petitioner himself, it cannot be concluded that the date of birth of the petitioner is 1.7.37 . Accordingly, it is urged by the learned counsel that the impugned order passed by the respondents is ex facie illegal arbitrary so as to violative of Article 14 and 16 of the Constitution of India. 7. Per contra, it is contended by the learned counsel appearing on behalf of the respondents that at the time of 8 entry in the service, the petitioner had not submitted any certificate issued of the Primary School but, he disclosed his age as 30 years and later on he mentioned his date of birth as 1.7.37 while submitting his declaration and nomination form in respect of Employees General Provident Fund and Gratuity on 16.2.89, wherein the date of birth was specifically mentioned as 1.7.37. The learned Additional Government Counsel submitted that the transfer certificate later submitted by the petitioner showing his date of birth as 28.1.49 does not appear to be genuine else the same would have been produced by the petitioner initially at the time of his entry in the service. It was submitted at the verge of retirement, the petitioner cannot raise a dispute regarding his age on the basis of the school certificates. The learned counsel submitted that even the personnel officer who has conducted the inquiry has expressed his doubt about the genuineness of these certificates , therefore, the order passed by the respondents retiring the petitioner from service on attaining age of superannuation treating his date of birth as 1.7.37 cannot be faulted with. On being asked pointedly by this Court that what was the basis for recording the date of birth of the petitioner as 9 1.7.37, the learned counsel submitted that while preparing the service record in the year 1974, the age of the petitioner was assessed to be 30 years and accordingly, the date of birth was recorded as 1.7.37 inasmuch as the petitioner has entered into service w.e.f. 3.1.67 and the said date further stands corroborated from the declaration and nomination form submitted by the petitioner in respect of Employees General Provident Fund. An additional affidavit has also been filed on behalf of the respondents wherein it is categorically stated "that except verbal communication and Annexure R-1 (i.e. Declaration and Nomination Form), there is no basis for date of birth of the petitioner noted in the service book as 1.7.37. 8. I have considered the rival submissions and perused the documents on record. 9. Admittedly, the petitioner was appointed as casual labour by the respondents w.e.f. 3.1.67 and thereafter his services were regularized w.e.f. 1.4.72. It is not in dispute that till 1974 no service book of the petitioner was opened by the respondents.According to the respondents the service book of the petitioner was for the first time opened by the office of Assistant Engineer(REC),RSEB, Sojat City in 10 the year 1974. At the time of opening of the service book the date of birth of the petitioner was not entered by the Assistant Engineer concerned, however, in Column no.3 of the service book which relates to date of birth ,the age of the petitioner was mentioned as 30 years. The case set out by the respondents is that the petitioner entered in the service as casual labour on 3.1.67 and accordingly, after deducting the age of the incumbent entered as 30 years , his year of birth was assessed as 1937 and in pursuance of the government circulars issued from time to time, the date of birth of the petitioner was assessed in the middle of the year and accordingly, his date of birth has been recorded as 1.7.37. Thus, it is apparent that the date of birth of the petitioner recorded in the service book as 1.7.37 is based on guess work and not on the basis of any documentary evidence on record or any information supplied by the petitioner in writing. 10. It is common ground between the parties that at the time of publishing tentative seniority list vide order dated 2.4.87 the column relating to the petitioner's date of birth was left blank and vide communication dated 2.4.87 the petitioner was directed to submit his date of birth certificate 11 either issued from school or by Chief Medical & Health Officer. As noticed by the personnel officer who has inquired into the matter in pursuance of the directions of this Court, in response to the said communication the petitioner submitted a certificate issued on plain paper by Head Master, Government Primary School, Dornari dated 16.5.90, wherein his date of birth was confirmed as 28.1.49 and it was further communicated that the transfer certificate has already been made available to the incumbent. The personnel officer has further noticed that a formal transfer certificate issued by the Head Master, Government Primary School, Dornari dated 5.7.61 is also available in office record describing date of the petitioner as 28.1.49. In the inquiry report, the personnel officer has further mentioned that during the course of inquiry, the school official apprised him that such inquiry was conducted nearly 10 years ago by some officers from REC/Vigilance. The personnel officer has investigated all available school records and has found that the certificate submitted by the petitioner mentioning his date of birth as 28.1.49 is genuine , however, a doubt has been expressed that Mishrinath to whom the said school certificate relates may not be one and the same person who 12 has served the RSEB. 11. Thus, from the perusal of the record, it is manifestly clear that at the time of the entry in the service the date of birth of the petitioner was not recorded. In the service book opened in the year 1974, the age of the petitioner was mentioned as 30 years by the Assistant Engineer and accordingly, his date of birth was entered as 1.7.37, however, it is absolutely not clear as to at what point of time, the date of birth of the petitioner was recorded by the respondents in the service book as 1.7.37. It is to be noticed that even in the seniority list issued vide order dated 2.4.87, the column of the date of birth of the petitioner was left blank, and accordingly, he was directed to produce the requisite certificates so as to ascertain his correct date of birth. Therefore, it appears that even till issuing the tentative seniority list in the year 1987, the date of birth of the petitioner in his service book was not recorded either as 1.7.37 or 28.1.49. From the perusal of the record, it is also clear that the date of birth of the petitioner was recorded as 28.1.49 after due inquiry, therefore, there was no occasion for the respondents to change his date of birth at the later stage on their own 13 without giving any opportunity of hearing to the petitioner. It is not in dispute that the date of birth of the petitioner has been recorded in the service book as 1.7.37 only on the basis of the guess work presuming the age of the petitioner at the time of entry in the service as 30 years. The respondents have not been able to show that as to why the record of the school including the transfer certificate issued way back on 5.7.61 certifying the date of birth of the petitioner as 28.1.49 should be disbelieved, more so, when the geunineness of the said record is not doubted. The doubt expressed by the respondents that Mishrinath to whom the said school record relates may not be one and the same person who has served RSEB to say the least, is absolutely baseless. 12. Thus, in my considered opinion, the respondents have have acted in perfunctory manner in changing the date of birth of the petitioner recorded after due inquiry and retiring him from service on attaining the age of superannuation treating his date of birth as 1.7.37. 13. In the result, the writ petition succeeds, it is hereby allowed. Order impugned Annexure P/3 dated 18.1.95 retiring the petitioner from service w.e.f. 30.6.95 is 14 quashed and set aside. The petitioner late Shri Mishrinath shall be treated to be in service till the date of his death . The respondents are directed to compute the consequential monetary benefits and make payment thereof to the legal representative of late Shri Mishrinath within a period of three months from the date of receipt of certified copy of this order, failing which the amount due shall carry interest @ 12% per annum. No order as to costs. (SANGEET LODHA),J.