1998 Supreme(Raj) 963
RAJASTHAN HIGH COURT AT JAIPUR BENCH
B.S.Chauhan, J.
Ghantoli Singh - Appellant
Versus
State of Rajasthan & ors. - Respondent
S.B. Civil Writ Petition No. 2531 of 1992.
Decided On : 27-02-1998
The issue of date of birth cannot be reopened after twenty-five years of service unless there is unimpeachable evidence to prove that the date of birth given by the employee at the time of joining the service was incorrect. An impugned retirement order passed in violation of the principles of natural justice is liable to be quashed.
Headnote:
COMPULSORY RETIREMENT - DATE OF BIRTH - CHANGE OF DATE OF BIRTH - OPPORTUNITY OF HEARING - NATURAL JUSTICE - ARBITRARY ACTION - QUASHING OF RETIREMENT ORDER - BACK WAGES AND CONSEQUENTIAL BENEFITS - INTEREST ON ARREARS - ENQUIRY AGAINST ERRING OFFICERS - RECOVERY OF ARREARS FROM ERRING OFFICERS - REPORT TO COURT WITHIN FOUR MONTHS - [ARTICLE 226 OF THE CONSTITUTION OF INDIA] - [SECTION 35 OF THE EVIDENCE ACT, 1872] - [RULE OF LAW] - [PRINCIPLES OF NATURAL JUSTICE] - [FAIRNESS IN CONDUCT OF STATE INSTRUMENTALITIES] - [PREVENTION OF PERPETUATION OF LEGAL FRAUD] - [MAINTENANCE OF SOCIAL BALANCE BY HIGH COURT] - [ABUSE OF POWER] - [COLOURABLE EXERCISE OF POWER].
Fact of the Case:
The petitioner, a class IV employee, was compulsorily retired by the respondents based on a medical report that determined his age to be sixty years. The petitioner challenged the retirement order, arguing that the issue of date of birth could not be reopened after twenty-five years of service and that he was not given an opportunity of hearing before the retirement order was passed.
Finding of the Court:
The court held that the impugned retirement order was passed in violation of the principles of natural justice as the petitioner was not given an opportunity of hearing. The court also held that the respondents could not raise the issue of the petitioner's date of birth unless there was unimpeachable evidence to prove that the date of birth given by the petitioner at the time of joining the service was incorrect.
Issues: 1. Whether the issue of date of birth can be reopened after twenty-five years of service? 2. Whether the impugned retirement order was passed in violation of the principles of natural justice?
Ratio Decidendi: 1. The court held that the issue of date of birth cannot be reopened after twenty-five years of service unless there is unimpeachable evidence to prove that the date of birth given by the employee at the time of joining the service was incorrect. 2. The court held that the impugned retirement order was passed in violation of the principles of natural justice as the petitioner was not given an opportunity of hearing.
Final Decision: The court quashed the impugned retirement order and directed the respondents to reinstate the petitioner with full back wages and consequential benefits. The court also directed the respondents to hold an enquiry against the erring officers and to recover the amount of arrears from the officer who had passed the retirement order.
JUDGMENT
1. - In the instant petition the impugned order dated 23-3-92 contained in Annexure.3 by which the petitioner was compulsorily retired, is under challenge.
2. The facts are not in dispute. The petitioner was employed by the respondents as class IV employee vide appointment letter dated 1-2-1967 and at the relevant time the petitioner had filed a School Leaving Certificate with the respondents contained in Annexure. P.1 to the petition, according to which the petitioner's Date of Birth was 15-7-1942. The petitioner continued in the service with the respondents and vide letter dated 22-2-92 contained in Annexure.P.2 to the petition, he was directed to appear before the Medical Board for determination of his age. In pursuance of the said order the petitioner appeared before the medical Board and vide impugned order dated 23-3-92 the petitioner was compulsorily retired holding that as per the medical report the petitioner was found to be of sixty years of age and he had reached the age of superannuation. Being aggrieved and dissatisfied, petitioner preferred/filed the instant petition.
3. Heard Mr. Manoj Pareek, learned counsel for the petitioner; Mr. R.P. Pahawa, and Mr. M.D. Agarwal and Miss Sumitra Goyal, Additional Government Advocates.
4. Learned counsel for the respondents have fairly conceded that except asking the petitioner to face the Medical Board, no other notice was ever served upon him and after receiving the report of the Medical Board the impugned order of compulsory retirement was straight-away passed without giving any opportunity of hearing to the petitioner.
5. The instant petition raises two main questions whether (i) the issue of Date of Birth can be re-opened either by the employee or the employer after the lapse of twenty-five years of service particularly in a case where it has not been alleged by the respondents that the date of birth given by the employee/petitioner was a mis-representation or fraud, or the School leaving Certificate filed by him was a forged or fabricated document; and (ii) whether the impugned retirement order dated 23-3-92 could have been passed by the respondents without giving an opportunity of hearing to the petitioner/employee ?
6. So far as issue No.1 is concerned, it is settled law that even the employee cannot ask the employer to change or to make any correction in his date of birth after serving for a long period and if it does so, the employer is under no obligation to consider such an application. (Vide Secretary and Commissioner, Home Department and others v. R. Kirubakaran, 1994 Suppl. (1) SCC 155 Chief Medical Officer v. Khadeer Khadri, 1995(2) SCC 82 , Burn Standard Company Ltd. and others v. Deen Bandhu Majumdar and another,AIR 1995 SC 1499 , Union of India v. Miss Saroj Bala, 1996 (2) SCC 81 , Vishakhapatnam Dock Labour Bord v. E. Atchanna and others, 1996 (2) SCC 484 , Union of India v. Harnam Singh, 1993(2) SCC 162 , International Airport Authority v. M.A. Wahab, 1994(4) SCC 439 and the Collector of Madras and another v. Raja Manikam, 1995(2) SCC 98
7. In State of Tamil Nadu v. T.V. Venugopalan, 1994(6) SCC 302 the Hon'ble Apex Court has observed as under:-
"It is well known that the service record would be opened after the Government servant enters the service and the record would be counter-signed by the Government servant. The date of birth, as entered in the school record, is the source of material for making entry in the service record."
8. The said judgment has been approved, reaffirmed and applied by the Hon'ble Apex Court in State of Orissa and others v. Sri Ramanath, JT 1997 (4) SC 660 .
9. There is another aspect of the matter. Unless it is held that the school leaving certificate is a forged or fabricated document or there is manipulation in that certificate regarding the date of birth, such a certificate becomes admissible piece of evidence under the provisions of Section 35 of the Evidence Act, 1872. (Vide Mohammed Ikram Hussain V. State of
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