A unilateral change in an employee's recorded date of birth, impacting pension benefits, violates natural justice principles, requiring notice and an opportunity to be heard.

JUDGMENT :

Prafulla S. Khubalkar, J.

RULE. Rule is made returnable forthwith and heard finally with consent of the counsel for the parties.

2. Impugned in the petition is the judgment and order dated 03.11.2020 passed by the School Tribunal, Amravati (for short, ‘the Tribunal’) in Appeal No.20 of 2018 by which the appeal filed by the petitioner came to be dismissed by holding that his date of birth would be considered as 15.09.1960 for the purpose of determining his pensionary benefits by discarding his date of birth as 01.10.1962 which was although recorded in his service book.

3. The facts giving rise to the instant petition are succinctly put below:-

(i) The petitioner was appointed as an assistant teacher on 17.03.1989 and at the time of his entry in the Service, his date of birth was recorded as 01.10.1962 on the basis of a Kotwal book entry and his affidavit dated 29.12.1983.

(ii) After rendering service of about 29 years, in the year 2018, the Respondent No.3-Education Officer served a copy of communication dated 27.03.2018 addressed to the Headmaster of the school on the petitioner thereby informing that the petitioner’s date of birth is confirmed and approved as 15.09.1960.

(iii) Feeling aggrieved by this letter, by terming this communication as a notice of retirement, the petitioner filed appeal before the Tribunal bearing Appeal No.20 of 2018.

(iv) The Respondent No.1-Management appeared before the Tribunal and raised a preliminary objection about maintainability of the appeal alleging that the appeal under section 9 of the Maharashtra Employees of Private Schools (Conditions of Service), Act, 1977 (for short, ‘the Act of 1977’) was not maintainable since there was no challenge to any kind of order of dismissal or removal or otherwise termination.

(v) By order dated 11.09.2018, the Tribunal upheld the preliminary objection and dismissed the appeal filed by the petitioner.

(vi) The petitioner challenged the aforesaid order before this Court vide Writ Petition No.6189 of 2018 contending therein that the impugned communication amounts to otherwise termination of the petitioner and hence the appeal was maintainable.

(vii) By order dated 03.04.2019, this Court allowed the petition holding, thereby, that the communication issued by the Education Officer which was subject matter of challenge in the appeal was a decision of the Management and resultantly held that the appeal was maintainable.

(viii) During the pendency of aforesaid writ petition, the petitioner had continued to work and after the matter was reminded back to the Tribunal, the petitioner remained in service and during pendency of the appeal, the petitioner retired from service on 01.10.2020 on attaining the age of superannuation.

(ix) The petitioner was paid with regular salary for the period for which he had worked. Since the impugned communication has the effect to retire the petitioner on 30.09.2018 by considering his date of birth as 15.09.1960, prejudicially affecting his entitlement for the pensionary benefits, the appeal was contested by both the parties.

(x) On 03.11.2020, the Tribunal passed the final judgment and dismissed the appeal.

(xi) The petitioner has challenged the said judgment of the Tribunal by the instant writ petition.

4. Shri R.L. Khapre, learned Senior Advocate strenuously submitted that the petitioner’s date of birth is recorded in the service book as 01.10.1962 on the basis of extract of the birth register maintained by the Kotwal and affidavit of the petitioner. He submitted that the said entry was verified by the competent authority and countersigned by the concerned headmaster and