ORDER
Dipak Misra, J.
1.The petitioner was appointed in the post of Patwari on 3-9-1964. Vide order dated 2-3-1996 he was compulsorily retired. The order was passed on 1-3-1996 asking the petitioner to handover the charge. It is urged in the petition that the respondent No. 2 issued a notice on 1-3-1996 requiring the petitioner to clarify the discrepancy that had crept in his service-book due to overwriting. The petitioner submitted a detailed reply on 2-3-1996.
2. According to the writ petition, his date of birth is 20-4-1940 as per the service book but his school leaving certificate shows it to be 1-1-1932. The petitioner filed series of documents in support of the proof that his date of birth is 20-4-1940. The respondent No. 2 without holding any inquiry and ascribing cogent reasons retired the petitioner on 2-3-1996. It is contended that the said order passed vide Annexure A-1 is illegal and invalid as the same is done without holding an inquiry. In this backdrop the prayer has been made to quash the impugned order contained in Annexure A-1.
3. A counter affidavit has been filed contending, inter alia that on 14-2-1996 the Tehsildar, Khandwa issued a letter for verification of the age of the Patwaris and accordingly steps were taken directing the Patwaris to produce the original documents regarding their dates of birth. It is also putforth that the service book was not verified in the year 1966 but the thumb impression and the signature of the applicant were attested by the Tehsildar. After instructions were issued by the Tehsildar, Khandwa the petitioner submitted his school leaving certificate mentioning the date of birth. It is also setforth that there has been some tampering with regard to the date of birth. It is setforth that the proper procedure was followed to find out the real date of birth but the petitioner failed to produce the school leaving certificate. It is urged that the Head Master of the School issued a certificate recording the date of birth as 1-1-1932. It is contended that the petitioner filed an affidavit in support of his date of birth as 20-4-1940 but the photocopy of the affidavit was not clear. It is also putforth that the petitioner was given adequate opportunity before the change of date of birth had taken place and hence, the impugned order does not deserve to be lanceted.
4. I have heard Mr. Riaz Mohammad, learned Counsel for the petitioner and Miss Anjali Banerjee, learned Counsel for the State.
5. It is submitted by Mr. Riaz Mohammed that once there had been a proper entry in the service book the same can not be changed by the authorities as the same is final and binding. To bolster his submission he has placed reliance on the decisions rendered in the cases of Komalchandra v. Indore School of Social Works and Anr., 1992 MPLJ 181 and Bhan Singh Bhadoria v. State of M.P. and Ors., 2002(3) M.P.H.T. 428 (DB) = (2002) 3 MPLJ 195. In addition to the aforesaid submission, it is contended by Mr. Mohammad that there has been no inquiry with regard to change in the date of birth. In this regard he has placed reliance on the decision rendered in the case of Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran, (1994) Suppl. (1) 155.
6. Ms. Anjali Banerjee, per contra, has submitted that the decisions relied upon by the learned Counsel for the petitioner to support the contention that there can not be a change of date of birth by the employer do not really govern the field as the ratio of both the decisions is quite different. As far as the inquiry is concerned, it is urged by her that there was proper inquiry.
7. I shall deal with the first contention first. The centripodal issue that Mr. Riaz Mohammad has endeavoured to build is that once there has been an entry in the service book the same is absolutely final and unrectifiable by the employer. In this regard he has commended me to Komalchandra (supra) wherein in Paragraphs 16 and 17 the Division Bench held as under :–
“16. Rule 84 of the M.P. Financial Code is reproduced here under for ready reference :–
“Rule 84. Every person newly appointed to a service or a post under Government should at the time of the appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certificate. Municipal Birth Certificate and so on. If the exact date is not known, an appropriate date may be given. The actual date or the assumed date determined under Rule 85 should be recorded in the history of service, service book or any other record that may be kept in respect of the Government servant’s service under Government. The date of birth, once recorded in this manner, must be deemed to be absolutely conclusive, and except in the case of a clerical error no revision of such a declaration shall be allowed to be made at later period for any purpose whatsoever.”
17. A mere reading of this rule would reveal the high handed arbitrary action of respondent No. 1. Annexures R-2 and R-3 can by no stretch of imagination be a substitute for compliance of rules of natural justice, as urged by respondent’s Counsel. For the foregoing reasons this petition deserves to be allowed. It is accordingly allowed. Annexure P-15 intimating the petitioner of his superannuation on 2-11-1991, based on his date of birth as 2-11-1931 is liable to be quashed and is accordingly quashed, and the petitioner’s date of birth 9-11-1934 as entered in the service, shall remain in force unless otherwise altered in accordance with law. It is this date 9-11-1934 which shall be the basis for determination of petitioner’s superannuation.”
8. In the case of Bhan Singh (supra) another Division Bench expressed the view as under:–
“6. The learned Government Advocate has contended that the documents produced on behalf of the department clearly indicate that the enquiry regarding school leaving certificate revealed that it was found false by the school authority. In this respect copies of School Register as well as different certificates regarding verification of the date of birth of the petitioner clearly indicate that he has given wrong date of birth. We have perused the photocopies of these documents, as brought on record and there seems to be some discrepancies regarding the serial number of the Register and there is also difference in name of schools, which goes to indicate that the date of birth as given by petitioner/employee, may or may not be correct. In such a situation, it is not a mere clerical error in the date of birth which can be changed by the department concerned without conducting a regular departmental enquiry, in accordance to the relevant provisions of law.
7. Insofar as the present case is concerned, where the department has verified the date of birth as supplied by the Government servant/petitioner, in his service record and no objection was raised till he reached the date of superannuation and at that stage when the department suspected his date of birth was incorrect, it had no authority to change the date of birth unless it amounts to merely a clerical error. But, where if it is found that an employee had defrauded the department by giving totally wrong date of birth, the only course left to the department is that of conducting a regular enquiry and then to terminate the service of the employee and can also launch a prosecution against him. Without following the procedure laid down under the law, it is not open to the department to retire a Government servant at the fag end of his service life by making such an enquiry behind his back and without affording him an opportunity to cross-examine the witnesses to controvert the documents/material collected against him. In the circumstances, in our opinion, the impugned order is not sustainable under the eye of law.
Consequently, the petition is allowed and it is directed that the petitioner is entitled to all the benefits had he not been retired as treating his date of birth as 19-7-1940. We would also like to make it clear that it is also open to the department concerned to conduct any regular departmental enquiry against the petitioner, if it is permissible under the relevant provisions of law.”
9. Submission of Mr. Mohd. is that as there is conflict between two decisions the earlier one would prevail. To appreciate the submission of the learned Counsel for the petitioner, I have carefully perused both the judgments. Rule 84 which has been reproduced in the first case has really not been interpreted and the Bench held that it can not be changed without following the principles of natural justice. In the second one also there has been no interpretation of the Rule. When the Rules have not been interpreted, I am of the considered opinion that both the decisions lay down that there can not be change of date of birth without following the principles of natural justice. Once there is an entry in regard to date of birth in the service book the same has to be treated unequivocally correct and the employer has no power to rectify is not in consonance with the language in which the Rule has been couched. The language employed in the Rule is quite different. It has to be given a purposive and acceptable interpretation. It is noticeable that the Rule clearly states that declaration with regard to date of birth is final. The declaration is given by the employee. Once the employee gives a declaration and is signatory to it, the same is binding on him. From the aforesaid it can not be construed that if the declaration is vitiated by fraud, misrepresentation and manipulation on the part of the employee, the employer would be estopped to rectify the same. Such an interpretation would lead to absurdity. Hence, I am of the considered opinion, the interpretation which is sought to be placed in the Rule by the learned Counsel for the petitioner does not flow from the aforesaid Rule. Thus, I am not disposed to accept the contention of Mr. Riaz Mohammad, though urged with immense vehemence.
10. As far as the second limb of argument is concerned submission of the learned Counsel for the petitioner is that there has been no proper inquiry. On a perusal of the documents it appears that though the petitioner was asked to show cause while documents were sought to be corrected as is perceptible, it was done behind his back. It is well settled in law that if the employer wants to change the date of birth it is obligatory on his part to follow the principles of natural justice. In this regard I may profitably refer to the decision rendered in the case of State of Orissa v. Dr. (Miss) Binapani Dei and Ors., AIR 1967 SC 1269.
11. In view of the aforesaid enunciation of law, I am inclined to direct that there should be a proper inquiry with regard to the determination of the date of birth of the petitioner. However, I am not inclined to quash the impugned order. I am only disposed to direct that if the petitioner proves that his date of birth is in consonance with the entry of the service record he would be allowed to reap all the consequential benefits. Inquiry in this regard be completed within a period of four months from the date of receipt of the order passed today. The petitioner shall extend the fullest cooperation in this regard and the department shall also grant him adequate opportunity to putforth his case.
12. The writ petition stands disposed of without any order as to costs.
