1. This is a petition under Article 226 of the Constitution submitted by the petitioner for the issue of a writ of mandamus or certiorari or any other kind of writ or direction.
2. The case of the petitioner is that he had been employed as a Circle Inspector in the Police Department of the State of Madhya Pradesh till 13-8-1962 when he was retired on the ground that he had attained the age of superannuation in spite of his protest, and that he had not reached the age of Fifty-five on that date. According to the petitioner his real date of birth was 18-12-1911 and that that date had been accepted as such for the purpose of his life-Insurance by the Life, Insurance Department of the Holkar State as far back as on 7-12-1934, after getting him medically examined on 22-12-1932; that he had passed the Patwari's examination in the year 1928 from the State of Jhalarapatan and the certificate of passing dated 26-10-1928 issued under the signature of the Revenue Minister of the State mentioned his date of birth as 18-12-1911; that in spite of this the petitioner was taken to have been born on 13-8-1907 on the basis of a statement in the certificate of the State Assistant Surgeon dated 13-8-1929 below the certificate of fitness for admission to the service of the State to the effect that by appearance he was 22 then although, according to the petitioner's statement, also mentioned in the same certificate he was stated to be of 19 years of age; that the petitioner had a right safe-guarded by Article 311(2) of the Constitution to continue in service of the State of Madhya Pradesh until he attains the age of superannuation and his retirement earlier than, that amounted to his dismissal or removal from service without giving any opportunity to show cause against his removal and without making any inquiry. On these grounds he prayed for the issue or a writ or direction against the State Government as indicated above. He produced in support his horoscope, his policies issued by the Insurance Committee (of ?) Holkar State as also that issued by the Life Insurance Department of Madhya Bharat State, the certificate of Revenue Minister of Jhalawar State as to his passing Patwari's examination and the copy of the register of pupils of the Government Higher Secondary School Gangadhar Jhalawar State of his being a pupil in the School from 1-11-1925 to 15-4-1928.
3. in the return submitted on behalf of the State it was contended that the petitioner had declared his age to be 19 years at the time of his entry in the service of the Police Department of Holkar State on 13-8-1929 but tnat he had been found to be of 22 years of age then by the Assistant Surgeon of the State. This latter date was accepted as the correct date of birth of the petitioner at the time of his enlistment. It was also contended that the certificate at Patwari's examination of Jhalawar State mentioned his name merely as Nandlal. It was pointed out that at the time of the petitioner's entry in the service of Holkar State he must have been in possession of the certificate of his passing Patwari examination but the same was not shown as in that case he would not have been admitted in service and would not have been enrolled. It was also asserted that the Life Insurance Department of the State of Madhya Bharat had accepted the date of birth of the petitioner as 18-12-1911 on the basis' of declaration made by the petitioner himself before 'the District Magistrate. Submission of all the documents now produced in these proceedings to the departmental officers was not disputed but it was contended that these materials were considered as unreliable. Lastly it was urged that the petitioner had been given opportunities to secure correction of entry as to his age along with all others in his position by the State of Madhya Bharat in 1950 as also in 1954. The petitioner failed to seize these opportunities. Reference was also made to Regulation No. 45 of Holkar State which provided fot minimum age qualification for entry in the service of Police Department of the State! as 18 years and on the age now alleged he could not have entered the service.
4. There was no reply in the return as regards the petitioner's allegation that no inquiry as to his correct age was held. The reason, apparently, was that no such inquiry was called for as the authorities were satisfied that the conclusions reached by them were correct.
5. Now material questions which arise for consideration are:--
1. Whether the date mentioned in the enlistment orderand the service-book at the time of the petitioner's entry in the Police Department of the State represented his correct date of birth. If, not, whether prima facie his date of birth was later than that recorded therein.
2. If it so appears later whether the order directing his retirement on the assumption of that date of birth prima facie amounted to his removal from service within the meaning of the term as contemplated under Article 311 of the Constitution.
3. Whether in that event it is necessary to give him opportunity to prove his age after giving him notice to Show cause why he should not be removed from service.
4. Whether failure to give such opportunity before directing his retirement constituted infringement of guarantee under Article 311(2) of the Constitution.
6. As regards (1) it is obvious that 13-8-1907 could not have been his correct date of birth. This date was put on the basis of a surmise by the then Medical Officer of the Holkar State not on any scientific data but as a layman merely from his appearance. To that Medical Officer he appeared to be of 22 years of age although the petitioners statement that he was 19 too was mentioned by the Medical Officer. The surmise as of a layman was the basis of the entry in the enlistment order and service-book that his date of birth was 13-8-1907 which meant that he was born exactly 22 years before his entry. The materials produced on behalf of the petitioner namely his horoscope, the certificate of his passing the Patwari examination in 1928 i.e. before the date of his entry in the service of Holkar State, the date of his birth accepted by the Life Insurance Department of the Holkar State for the purpose of insurance of his life after he had been medically examined on 22-12-1932 all indicate that his date of birth was 18-12-1911.
7. The petitioner had sought corroboration of that date but that was turned down without any opportunity to prove his correct age by means of an inquiry.
8. Now in case the petitioner's actual date of birth was later than 13-8-1907 his retirement before he reached the age of superannuation was clearly contrary to his service conditions and amounted to his removal from service as contemplated under Article 311 of the Constitution. This is clear from the decision Of the Supreme Court in AIR 1958 SC 36, P. L. Dhingra v. Union of India. It was observed in that case at p. 42 Para 12:--
'The position may therefore, be summarised as follows: In the absence of any special contract the substantive appointment to a permanent post gives the servant so appoiated a right to hold the post until, under the rules, he attains the age of superannuation or is compulsorily retired after having put in the prescribed number of years' service or the post is abolished and his service cannot be terminated except by way of punishment for misconduct, negligence, inefficiency or any other disqualification found against him on prior enquiry after due notice to him.'
Further at p. 47 it was observed:--
'Thus under Article 311(1) the, punishment of dismissal, or removal/cannot be inflicted by an authority subordinate to that by which the servant was appointed and under Article 311(2) the punishments of dismissal, removal and reduction in rank cannot be meted out to the Government Servant without giving him a reasonable opportunity to defend himself. The principle embodied in Article 310(1) that the Government servants hold office during the pleasure of the President or the Governor, as the case may be, is qualified by the provisions of Article 311 which give protection to the Government servants. The net result is that it is only in those cases where the Government intends to inflict those three forms of punishments that the Government servant must be given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. It follows, therefore, that if the termination of service is sought to be brought about otherwise than by way of punishment, then the Government servant whose service is so terminated cannot claim the protection of Article 311(2) and the decisions cited before us and referred to above, in so far as they lay down that principle, must be held to be rightly decided.
The foregoing conclusion, however, does not solve the entire problem, for it has yet to be ascertained as to when an order for the termination of service is inflicted as and by way of punishment and when it is not. It has already been said that where a person is appointed substantively to a permanent post in Government service, he normally acquires a right to hold the post until under the rules, he attains the age of superannuation or is compulsorily retired and in the absence of a contract, express or implied, or a service rule, he cannot be turned out of his post unless the post itself is abolished or unless he is guilty of misconduct, negligence, inefficiency or other disqualifications and appropriate pr6ceedings are taken under the service rules read with Article 311(2). Termination of service of such a servant so appointed must per se be a punishment, for it operates as a forfeiture of the servant's rights and brings about a premature end of his employment.'
9. It is also not disputed that in case the retirement or the petitioner on 13-8-1962 amounted to punishment of removal from service no opportunity had been given to him to show cause why he should not be so removed.
10. Next question is: was any such opportunity called for? it was contended that if such a thing was necessary the Government will have to hold an enquiry in every case in spite of the fact that the age of the Government servant is recorded in his service-book and other departmental papers where the servant concerned disputes these entries,
11. in my opinion no uniform rule either for holding or not holding an enquiry can be laid down and it will depend upon circumstances of a particular case whether the claim as to age is justified or not.
12. in the present case the age of the petitioner in the service-book of Holkar State was put down on the basis of a surmise by looking at him. This is obviously not a correct basis. The petitioner, no doubt, could have got the age corrected but does his failure estop him from dome it later or does any valid rule prevent him from so doing; No rule has been brought to our notice to that effect, It may be possible to suggest that, since he had represented his age as 19: years in order to secure entry into the service of Holkar State Police Department rules for which provided for minimum age of 18 years, he ought to be estopped from denying that fact because by reason of such erroneous representation the Government of Holkar State accepted mm in the service of the State. What exactly would be the Implication of such representation needs no consideration here because even taking the age of the petitioner as la years on 13-8-1929 his retirement on 13-8-1962 would be unjustified.
13. it was contended on behalf of the State by the learned Government Advocate that decision to accept the age mentioned in the service-book as the correct age cannot amount to an act of removal of the petitioner from service.
14. To accept the age given in the enlistment certificate or service-book may be a good workable rule because in majority of cases that is done on the basis of the information supplied by the servant concerned or because there is scrutiny of his age based on scientific material which the petitioner had sufficient opportunity to challenge. But where such acceptance is based neither on the representation of the servant concerned nor on any scientific basis nor on any tangible material but on surmise of a person without any scientific basis there is no reason why the complaint of the servant that it is not correct ought not to be examined with opportunity of hearing being given to him. It might have been possible for the Government or the authority concerned to retire the petitioner by reason of his having completed twentyfive or thirty years of service but in the present case that is not the basis of the order. He has been retired because, according to the authorities, he had completed his 55 years of age on 13-8-1962.
15. The retirement in the present context amounts to loss of his pay and other benefits to which he would be entitled if he continued in accordance with the date of his birth as claimed by him. It would: therefore amount to removal from service, if his claim is correct, which cannot be done unless he is given opportunity of showing cause against the action proposed to be taken against him.
16. The petition is, therefore, allowed and the order of the Superintendent of Police Jhabua dated 14-8-1962 ordering petitioner's retirement is quashed.
17. it is open for the State to take any lawful action under the rules. In case the action now taken is considered necessary the petitioner will have to be given opportunity to show cause sgainst such an action.
18. The petitioner is entitled to get his costs of this petition from the other side. Counsel's fee shall be taxed at Rs. 50/-.