D.P. Gupta, J.
1. This is a writ petition under Article 226 of the Constitution challenging the order of the Assistant Engineer, Irrigation, Jodhpur Subdivision, dated December 15, 1959 (Ex. 3), directing that the petitioner Poosa Ram be retired from Govt. Service with effect from Dec. 15, 1969 on attaining the age of superannuation i.e. 58 years. The petitioner was employed Initially as a driver in the Public Works Department of the former State of Jodhpur in the year 1933. On the amalgamation of the former States to form the United State of Rajasthan, the petitioner was appointed as a workcharge driver in the Irrigation Department of the Rajasthan State. By an order of the Assistant Engineer, Irrigation Department, Jodhpur sub-division dated June 23, 1968, the petitioner was intimated that his Services would be terminated with effect from July 1, 1967 on his completing the age of 55 Years. However, OQ the petitioner's representation, this order appears to have been withdrawn and the petitioner was allowed to continue in the service of the Irrigation Department. Thereafter, on December 15, 1969, the Assistant Engineer again passed on order (Ex. 3) retiring the petitioner with effect from the dale of that order on account of to attaining the age of superannuation, comely 58 years.
2. The case of the petitioner is that his date of birth was September 1, 1918 and that he did not complete the age of 58 years on December 15, 1969 and as such, the order of his retirement (Ex. 3) was illegal and invalid He has further submitted that his service book has been interpolated by the respondents.
3. The respondents did not submit any reply to the writ petition although they were all served upto January 1971 and almost four Years have elapsed since then learned Additional Government Advocate sought to place on record a reply yesterday, after the argument had already been partly heard on 10-1-1976 Such a belated reply deserves to be rejected, more so as the petitioner would have no opportunity now to rebut the allegation made therein. This Court has pointed out on numerous occasions the desirability of the respondents submitting their replies within reasonable time after they are served, say, within four months ct the date of service, yet as the reply was not filed in the present case for almost four Years, the name cannot be taken into consideration.
4. The respondents rely upon a seniority list issued on April 27, 1964 in which, the date of birth of the petitioner has been mentioned as August 16, 1911 and it is stated on behalf of the respondents that the said seniority list was circulated and notified amongst all concerned and objections wt re invited in respect thereof and that the petitioner never raised and objection in respect of the entry relating to his date of birth in the aforesaid seniority list It is further submitted on behalf of the respondents that a Committee was constituted for the purpose of collecting the necessary data of the Jawai Canal Division of the Irrigation Department and petitioner was a member of that Committee, representing the workmen, in his capacity as the General Secretary of the Labour Union. The respondents contend that it was on the basis-of the report of that Committee that the seniority list dated April 27, 1904 was issued and therefore, the petitioner was bound by the entries made in the said seniority list. On the other hand, the learned Counsel for the petitioner contends that the seniority list dated April 27, 1964 was merely a provisional one and it has not been finalised since then and further that the petitioner raised objections, immediately on obtaining knowledge of the aforesaid seniority list, on respect of the erroneous entry relating to his date of birth. The petitioner filed an affidavit on December 14, 1970 to this effect that he raised objections in respect of the incorrect entry relating to his date of birth in the aforesaid seniority list soon alter the same was published.
5. There in nothing on record to show that the petitioner was a party to the preparation of the seniority list dated April 27, 1964. On the last date of hearing, I had directed the learned Assistant Government Advocate to produce the original seniority list which might have been prepared by the Committee alleged to have been set up for the purpose but be was unable to do so when the case was again taken up for hearing. The petitioner has not admitted that he was a member of the Committee which is alleged to have prepared the seniority list. It these circumstances, I am unable to accept the plea advanced by the learned Assistant Government Advocate that the petitioner was a party to the preparation of The said seniority list. Learned Assistant Government Advocate was also directed to produce the original service book of the petitioner which was produced by him at the time of hearing. On a perusal of the service book of the petitioner, it was found that the date of birth of the petitioner was originally entered therein as September 1, 1914. It also bears the signature of the petitioner as also marks of his thumb and fingers & is attested by the Assistant Engineer, Irrigation Department West Banas Subdivision, Sarupganj. It further appeared that the date of birth of the petitioner as mentioned in his service book has been tampered with and the date originally entered there in namely '1st September 1914', was struck off and '16-8-1911' has been written in its place against column No. 4 pertaining to the date of birth. I here is no initial or signature of any person in respect of the afore-side alteration in the death of birth of the petitioner Learned Additional Government Advocate was unable to submit as to then and by whom the aforesaid alteration in the date of birth of the petitioner, as entered in the service hook, was made. It is on the basis of this altered date of birth, recorded in the service bock of the petitioner, that the respondents considered the petitioner's date of birth to be August 16, 1911 although there is no authenticity at all in respect of the aforesaid altered date. It clearly emerges form a perusal of the service book of the petitioner that the date of birth originally entered in it was September 1, 1914 and that date appears to have been duly accepted by the petitioner and attested by the Assistant Engineer concerned If any orange was to be made in the entry relating to the death of birth as entered in service record of the petitioner, then it was incumbent upon the officer concerned to give proper notice in respect thereof to the petitioner as also to initial he entry as corrected and to mention the date on which such alteration or correction was entered into.
6. A government employee has a right to continue in service until he attains the age of superannuation or is compulsorily retired or his services are terminated in accordance with the contract of service or the relevant rules or he is removed or dismissed from service within the meaning of Article 311 of the Constitution after following the prescribed procedure. The aforesaid right of the employee cannot be lightly interfered with by any official in whose custody or control his service record is kept and the practice of altering the date of an employee behind his back and without notice to him and even without putting the signatures or initials of the person making the correction or interpolation in that entry, as has be'n done in the case of the petitioner, must be highly deprecated. If there is any plausible basis, then the authority concerned can effect an alteration or correction in the entry relating to the date of birth of an employee after giving him prior notice and affording him an opportunity of furnishing his explanation in respect thereof. But any refixation of the date of birth of an employee cannot be made without holding an enquiry in accordance with the well established principles of natural justice. In State of Orissa v. Dr. (Miss) Binapari Dei and Ors. : (1967)IILLJ266SC , while dealing with a case of change in the date of birth of an employee of the State Government, their Lordships of the Supreme Court were pleased to observe:.An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basis rules of justice and fair play. The deciding authority, it is true, is not in the position of a Judge called upon to decide an action between contesting parties, and strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his version or defence and an opportunity to correct or to controvert any evidence in the possession of the authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the case he is called upon to meet, and evidence in support thereof The rule that a party so whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed; it need not be shown to be superseded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an older to the prejudice of a person is made, the order is a nullity. That? is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case.
As the alteration in the entry relating to the date of birth of the petitioner has been made by someone, without any enquiry and as it does not appear as to who made The alteration & at what time, the alteration in the said entry must be ignored. I am, therefore, 1 ft with the position that according to the Service book of the petitioner, the date of his birth initially entered therein should be accented as his correct date of birth, which was September 1, 1914. In Binapani Dei's casc : (1967)IILLJ266SC their Lordships of The Supreme Court also observed that although the order altering the date of birth of an employee is administrative in character, yet in cases where an administrative order involves civil consequences, the rules of natural justice must be consistently observed. The sonority list in which the date of birth of the petitioner is entered as, August 16, 1911, was merely provisional and according to the petitioner, he raised objections in respect of the aforesaid entry in the said seniority list. Further the said entry in the seniority list is not in consonance with the original entry made in the Service book of the petitioner relating to his date of birth. In these circumstances the entry relating to the date of birth the petitioner as made in the seniority list, cannot be accepted.
7. Rule 9 of the Rajasthan Public Works Department (Buildings & Roads) including Gardens, Irrigation, Water Works and Ayurvedic Departments' Workcharee Employees' Service Rules 1964 (hereinafter called 'the Rules'), by which the petitioner was governed, provides that where the date of birth is not recorded in the service record or where the service record is not available, the date of birth entered in the Municipal Birth Register or School Leaving Certificate/High School Certificate/horoscope prepared at the time of birth as the case may be, snail be accepted as the date of birth in all cases in which intimation regarding date of birth on the basis of the above mentioned record has been furnished by the employee. As, in the case of the petitioner, his service record is available, the date of birth as entered in the service record must be accepted as the correct date of his birth. I have already observed above that the alteration in the entry relating to the date of birth in the Service book of the petitioner has not been signed or even initialed by any person and further, the respondents have been unable to throw any whatsoever regarding the circumstances in which the aforesaid alteration was made, it would be proper, in my view, to accept the original entry made in the service book of the petitioner, namely September 1, 1964, as his correct date of birth. Thus, the petitioner did not attain the age of 58 years on December IS, 1969, taking September 1, 1914 as the correct date of his birth and therefore, the order of the Assistant Engineer Ex. 3 is invalid and illegal. As the petitioner had. not, attained the age of, superannuation till then, his removal from service was contrary to the rules, governing his service conditions and amounted to his removal from service within the meaning of Article 311 of the Constitution., Admittedly, no disciplinary proceedings were taken against the petitioner and as such, he could not have been removed from service until he attained the age of superannuation, namely 58 years, in accordance with the rules.
8. Consequently, the writ petition is allowed and the, order passed by the Assistant Engineer (Ex 3) dated December 15, 1969., retiring the petitioner with effect from that date as quashed, as the petitioner, did not attain. The age of 58 years on that date. The petitioner was entitled to continue in 8 service until he attained the age of 58 years and should be treated, to have continued as such. The parties are left to bear the own costs.