D.P. Gupta, J.
1. The petitioner entered the service of the Municipal Board, Phalodi in the district of Jodhpur (hereinafter referred to as 'the Board') as an Accounts Clerk on April 8, 1954. The date of birth of the petitioner as entered in his service book was August 31, 1919. The petitioner continued to work in the service of the Board as an Upper Division Clerk and subsequently as officiating Executive Officer of the Board. According to the petitioner, an anonymous complaint was made against him before the Sub Divisional Officer, Phalodi on September 13, 1972 on which the aforesaid officer made an inquiry and as a result thereof he came to the conclusion that August 31, 1919 was the correct date of birth of the petitioner and further that there was no reason to doubt the entry made in respect thereof in the service record of the petitioner. A copy of the order of the Sub-Divisional Officer, Phalodi dated December 3, 1972 rejecting the complaint filed in this respect has been produced as Ex. 1.
2. The petitioner, however, received an order from the Chan man of the Board on December 16, 1972 to the effect that he was retired from the service of the Board from that very day. as he had attained the age of superannuation. The petitioner's case is that if the date of birth of the petitioner, as entered in his service record, was taken into consideration then the petitioner would have attained the age of superannuation, namely 55 years, on August 31, 1974 and he could not have been superannuated on December 16, 1972. The petitioner made a representation in this respect to the Board. The Board in its meeting dated January 5, 1973 directed the petitioner to produce his Matriculation certificate A. suggestion, made by one of the members of the Board in the aforesaid meeting that the petitioner may be allowed to produce any other evidence that he may like to produce in respect of his date of' birth was not accepted. As the petitioner was unable to produce a copy of his Matriculation certificate, the Board by its subsequent resolution dated November 30, 1973 confirmed the order passed by the Chairman of the Board on December 16, 1972 accepting the date of birth as entered in the School Leaving Certificate namely, October 1, 1917 as the correct date of birth of the petitioner. It may be mentioned here that the writ petitions as originally presented in this Court, did not challenge the last mentioned order passed by the Board on November 30, 1973, but it was subsequently amended and the order passed by the Chairman of the Board dated December i6, 1972 and the resolution passed by the Board dated November 30, 1973 both are now sought to be quashed in this writ petition
3. The submission of the learned Counsel for the petitioners, Mr. Joshi is that the date of birth of the petitioner as mentioned in his service record namely August 31, 1919 was duly verified by the then Secretary and Chairman of the Board on June 21, 1962 and the Board could not have altered the date of birth entered in the petitioner's service record, without furnishing the petitioner an opportunity of showing cause against the proposed alternation in the entry relating to the date of birth in his service book. According to the petitioner's learned Counsel, the Chairman of the Board and for that matter even the Board did not give any notice to the petitioners of its intention to alter the date Of his birth, as entered in the petitioner's service book nor the petitioner was made aware of any material in the possession of the Board relating to the date of birth of the petitioner.; on these grounds it is urged that the retirement of the petitioner from the service of the Board before he attained the age of 55 years and without making any correction in the date of his birth as entered in the service book maintained by the Board, v as against the1 principles of natural justice/as also' the provisions of the relevant rules applicable to the petitioner.
4 Mr. Mridul appearing for the Board contended that the Board was insisting upon the petitioner to produce the Matriculation certificate in support of the recorded entry relating to his date of birth in the service book find as the petitioner, failed to, produce a copy of his Matriculation certificate inspite of several opportunities, being given to him in that matter, the Chairman of the Board had no alternative but to retire the petitioner from the service of the Board by his order dated December 16, 1972 and that this order was later on confirmed by the Board wide its resolution dated November 30, 1973 Learned counsel further contended that according to the amended provisions of Article 226 of the Constitution the petitioner should avail of another remedy available to him, of filing a suit in a civil Court for the decision of the dispute relating to the correct date of his birth & that this Court should hot interfere in its extraordinary jurisdiction under Article 226 of the Constitution and that no prejudice has been proved to, have been caused to the petitioner and no substantial failure of justice has resulted on account of the retirement of the petitioners on his attaining the age of superannuation.
5. The provisions of Rule 36 of the Rajasthan Municipal Subordinate and Ministerial Service Rules, 1963 have made the Rajasthan service Rules 1951 applicable to the employees of the Municipal subordinate and Ministerial Service in so far as they are not inconsistent with the provisions of the aforesaid 1963 Rules. The note 3 given below rule of 7 of the Rajasthan service Rules runs as under:
It has come to the notice of the Government that one officer accepted the entry given in respect of the date of birth in the Patwari School Certificate as the correct date of birth of a Patwari as against the entry made in the Service Book of official. The correct procedure is, that so far as the date of birth is concerned, the entry given in the Service Book of a Government servant should be adhered to, failing which date of birth given in the personal file should be accepted. If there is no Service Book or Personal File or no entry is available in either of them, the date of birth given in the School Certificate may be taken as the authentic date of birth. If this is also not available, the date of birth given in Municipal Birth Certificate mix be accepted. If by chance there is no mention in the Municipal Records either, reliance may be placed on the date of birth given in the Horoscope provided it was prepared soon after the alleged date of birth.
6. Thus it appears that the correct procedure as laid down by the State Government in this regard, is that the entry given in the Service Book of an employee should ordinarily be adhered to so far as his date of birth is concerned. Of course, the employer enjoys the undisputed right of making an alteration in the date of birth as entered in the service records of the employee, but that could only be done after making an inquiry for the purpose of re-fixing the date of birth of such employee and undoubtedly such an inquiry must be made in a manner consonant with the concept of justice and fair play. It is beyond doubt that the State or the Board is authorised to compulsorily retire an employee on his attaining the age of superannuation, but when it is intended to retire an employee on the ground that he has attained the age of superannuation with reference to some other date of birth, which is not in consonance with the date of birth entered in the service record of such employee, then in such cases it is incumbent upon the employer to inform the concerned employee about the case of the employer and the evidence in his possession in support thereof and the employee should thereafter be afforded a fair and reasonable opportunity of meeting the case alleged by the employer, before a decision adverse to the employee is arrived at. These are the basic rules of natural justice and fair play applicable to the matter in hand. The employer cannot, in those cases where specific entry exists in the service record of such employee relating to his date of birth, direct the employee concerned to retire by superannuation, with reference to some supposed date of his birth, which is different from that entered in the service record and of which the said employee has no previous notice.
7. In the present case, the principles of natural justice as well as the provisions of Rule 7 of the Rajasthan Service Rules were completely ignored when the Chairman of the Board informed the petitioner by his letter dated December 16, 1972 that the petitioner has retired from the service of the Board with effect from the after-noon of that date, as he had attained the age of superannuation on October 1, 1972. The Executive Officer of the Board by his letter dated April 9, 1971 (Ex. R/1) required the petitioner to submit certificates in respect of his date of birth and educational qualifications and the petitioner was informed that if the requisite certificates were not produced upto April 14.1971 suitable action shall be taken against him under service rules. In reply to the aforesaid letter, the petitioner informed the Executive Officer of the Board that the petitioner entered the service of the Board almost 20 years back and that the date of birth of the petitioner has been duly recorded in his service book and also in the other service records available with the Board. He also drew the attention of the concerned officer to the fact that the entry made in the service book regarding the petitioner's date of birth was' by itself substantial and reliable proof of his correct date of birth. The petitioner also informed the Board by a subsequent letter dated May 3, 1971 that the Matriculation certificate of the petitioner was not traceable and as such he was unable to produce the same. It was also submitted by him that the entry relating to the date of birth of the petitioner, as made in the service book, has been duly verified by the competent authorities of the Board and as such the production of the Matriculation certificate may not be insisted upon. It was at that stage probably that the matter, was agitated by fore the Sub-Divisional Office Phalodi, who after making an inquiry into the matter passed his order dated December 3, 1972 holding that the date of birth of the petitioner as entered in his service book was the correct date of birth & that the complaints made in connection were without any substance. The petitioner by his letter dt. Dec. 12, 1972 drew the attention of the Board 10 the aforesaid order passed by the Sub-Divisional Officer and urged that no further action in the matter was required, in view of the decision arrived at by the said officer. However, even thereafter the Chairman of the Board by his order dated December 16, 1976 without making any enquiry held that the date of birth of the petitioner was October 1, 1917 and relied in support of his conclusion upon the so railed School Leaving Certificate of the petitioner obtained from the Pushtikar Higher Secondary School, Jodhpur and directed that the petitioner be retired from the service of the Board with immediate effect.
8. After going through the entire record of the proceedings produced on behalf of the-Board, it is not possible to accept the contention of the learned Counsel for the Board that the principles of natural justice were substantially complied with in the instant case. There was no inquiry made by the Board with the intention of altering the date of birth of the petitioner as entered in his service book nor the Board gave any notice to the petitioner of its intention to change the entry relating to the date of birth of the petitioner as contained in his service book, nor the petitioner was informed of the evidence in possession of the Board namely, the alleged School Leaving Certificate, on the basis of which the date of birth of the petitioner was considered by the Chairman of the Board as October 1, 1917. The petitioner was time and again asked to submit his Matriculation Certificate in respect of his date of birth and educational qualification, merely on the pretext that the same was not on the record of the Board The petitioner bonafide contended in reply that he passed the Matriculation examination about 20 years ago and the Matriculation Certificate was not traceable and it was not possible now even to obtain a duplicate copy thereof, as the petitioner was not in possession of his Roll number at the said examination. The petitioner naturally relied upon the entry made in the service book regarding his date of birth and drew the attention of the authorities concerned to the fact that the same was duly verified on June 21, 1962 and attested as correct by the then Secretary and Chairman of the Board on the aforesaid date. Moreover, the petitioner also drew attention to the other records of the Board, namely the budget proposals made by the Board for the years 1960-61 and 196162 recording the date of birth the petitioner as August 31, 1919. It is thus clear that the petitioner was neither informed by the Board that it proposed to reopen the matter relating to the entry which existed with regard to the date of his birth in the service book nor he was ever informed of the material in possession of the Board relating to his date of birth nor the petitioner was afforded an opportunity to produce other evidence in his possession regarding the date of his birth. The Board insisted on the production of the Matriculation certificate alone, which according to the petitioner, was not traceable There was no rule or law in existence at the time when the petitioner entered the service of the Board to the effect that only the Matriculation certificate should be accepted as the proof of the date of birth of an employee. The Board insisted upon the petitioner to produce his Matriculation certificate only because in his statement the petitioner stated that the entry relating to the date of his birth in the service book was made on the basis of the Matriculation certificate and it also indicated to the petitioner that it would accept no other evidence in proof of the date of birth of the petitioner except the Matriculation certificate. According to the note under Rule 7 of the Raj. Service Rules, referred above, the entry in the service book of an employee should be adhered to and in case there is no such entry then the date of birth given in the personal file should be accepted. It is only in cases where there is no service book or personal file or no entry is available in either of them, relating to the date of birth of the concerned employee, then only the date of birth given in the School certificate may be taken as the authentic date of birth of such an employee. In the present case, the date of birth was duly entered in the service book of the petitioner when it was prepaid in the year 1962, and further the same was duly verified and attested by the then Secretary and Chairman of the Board on June 21, 1962. There should have been some plausible reason for departing from the entry made almost ten years ago in the service book of the petitioner, relating to his date of birth. Moreover, it is difficult to accept that merely from the insistence of the authorities of the Board upon the petitioner for the production of his Matriculation certificate, he should have known that an inquiry was being made with (he intention of altering the date of his birth as entered in his service book and with this assumption he should have produced other relevant evidence relating to his dale of birth, before the Board.
9. The law in this respect has been laid down by their Lordships of the Supreme Court in State of Orissa v. Binapani Devi : (1967)IILLJ266SC wherein Lordships recognise d the right of the employer to make an inquiry with the intention of altering the accepted date of birth of an employee 'if there existed sufficient grounds for holding such an inquiry.' The basic rules of natural justice in conducting such an inquiry have been laid down by their lordships in the case as under:
He is, however, under a duty to give the person against whom an enquiry is held an opportunity to set up his vision or defence and an opportunity to correct or to controvert any evidence in the possession of 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 the evidence in support thereof. The rule that a party to 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 super-added. 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 order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law.
10. In Poosa Ram v. State of Rajasthan and Ors. 1975 WLN 22 this Court observed:
A Government employee has a right to continue in service until 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 been done in the case of the petitioner, must be highly deprecated. If there is any plausible basis, then the authority concerned can affect 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 there of. 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.
11. In E. Ramavarma Raja v. State of Kerala 1970 SLR 550 the date of birth entered in the service record of the employee on the basis of horoscope was sought to be altered on the basis of an entry in the scholar's register. It was held by a Full Bench of the Kerala High Court that such an alteration could only be made on the basis of an inquiry which would satisfy the requirements specified by the Supreme Court in Binapani Devi's case : (1967)IILLJ266SC . It was pointed out in the aforesaid case by their Lordships that the inquiry must be made in consonance with the principles of natural justice and that such an inquiry should not be held with a pre-determination of the issue, by adherence to a single item of evidence but should be held with an open mind and the entire material relevant to the issue should be taken into consideration.
12. Applying the principles laid down in the aforesaid cases, the Board was not precluded from making an inquiry regarding the correct date of birth of the petitioner, if it had any plausible reason to hold an inquiry in the matter and for departing from the date of birth of the petitioner as entered in his service book. But in the instant case, the petitioner was never informed by the Board of its intention to make such an inquiry regarding the re-fixation of the date of his birth and further the evidence in possession of the Board regarding the alleged date of birth of the petitioner should have been communicated to him and he must have been afforded a fair and reasonable opportunity of meeting that case, before a decision adverse to him was taken by the Chairman or the Board. The petitioner was not given an opportunity in this case of meeting or explaining the evidence which was allegedly in possession of the Board, regarding the date of birth of the petitioner, in the form of School Leaving certificate from Shri Sumer Pushtikar Higher Secondary School, Jodhpur. In all fairness, the petitioner should have been afforded an opportunity to meet the aforesaid evidence which was in possession of the Board and to explain the document in question. Curiously enough, the order regarding the retirement of the petitioner issued by the Chairman of the Board, dated December 16, 1972 (Ex 2) did not even make any reference to the alleged evidence in possession of the Board namely, the School Leaving Certificate from Shri Sumer Pushtikar Higher Secondary School, Jodhpur. A copy of the aforesaid Scholar's Register of Shri Summer Pushtikar Higher Secondary School has been produced as Ex-R/12 and perusal thereof shows that a Scholar by the name of Krishan Gopal Joshi was admitted to the school on July 7, 1928 and he was removed from the rolls of the School on August 2, 1928 on the ground of 'long absence'. The very fact that the said scholar was removed from the Rolls of the School on account of absence for a period of less than a month, which by no standard can be called as 'long absence' casts considerable doubt up in the veracity of the statements contained in the said certificate. More over a perusal of the aforesaid certificate also discloses a curious discrepancy. 'Record B' of the said certificate shows that the highest class from which the scholar was promoted as fit for promotion on leaving his last school namely, D.V.M. School, Phalodi was class VII, but Record G of the same certificate shows that the said scholar was admitted on July 7, 1928 in class VI of Shri Sumer Pushtikar Higher Secondary School, Jodhpur. It is difficult to understand as to how a scholar was admitted on July 7, 1928 in class VI of Shri Sumer Pushtikar Higher Secondary School, Jodhpur. It is difficult to understand as to how a scholar having been promoted from class VII at the school last attended by him came to be admitted in Glass VI instead of in Class VIII at the aforesaid School. One more striking feature, which appears on the face of the copy of the Scholar Register, Ex. R/12, is that the age of the scholar at the Lime of his admission to the school is given as 10 years and 9 months and to assume that a boy of that age would have passed VII Class from the Phalodi School in the year 192b would also not be reasonable. Moreover the short duration, during which the scholar's name appears to have been borne on the rolls of Shri Sumer Pushtikar Higher Secondary School, itself render the said entry not worthy of much credence. It may be that the said entry, for such a short duration of Jess than a month, might have come into existence only for the purpose of creating evidence against the petitioner. learned Counsel for the petitioner also brought to my notice that a similar School Leaving Certificate from Shri Sumer Pushtikar Higher Secondary School, Jodhpur was not relied upon by this Court in the case of Nathraj v. State of Rajasthan and Anr. (S.B. Civil Writ Petition No. 1629 of 1970) decided on January 13, 1972. In that case the said School Leaving Certificate was not considered of any importance for the purposes of making an alteration in the date of birth as entered in the service roll. In view of the aforesaid facts, the entry in the certificate Ex./12 appears to be highly suspicious in nature and to my mind it could not be safely relied upon to alter or amend the settled date of birth of the petitioner as entered in his service book. If the petitioner would have been allowed an opportunity to meet the evidence contained in the aforesaid certificate he might have explained as to whether it related to him or not and he would have also offered his explanation in respect of the discrepancy between the dates of birth as entered in his service book and as given in the School Leaving Certificate Ex. R/12.
13. In the case of Mrs. Mohini Devi v. State of Rajasthan and Ors. (S.B. Civil Writ Petition No. 1628 of 1970) decided on January 27, 1975 the order of retirement of a School Mistress was set aside by this court in very similar circumstances. In that case also the entry relating to the date of birth in the service record maintained by the State Government was sought to be altered and the employee was asked to produce her educational certificate on the basis of which the date of birth was entered in the service record. It was observed by a learned judge of this court in that case that 'it is thus evident that the officer who was making (he inquiry had tried to pin down the petitioner only to the production of a certificate' relating to her educational qualifications. Following the decision of their Lordships of the Supreme Court in Binapani Devi case : (1967)IILLJ266SC it was held in the aforesaid case:
Any way, before treating the age of the petitioner to be one different from what appeared in the Service Book it self, it was the duty of the respondents to make a proper inquiry after affording the petitioner an opportunity of meeting the date on which the authorities were inclined to rely to change the date of birth of the petitioner from November, 1924 to August, 1915. It was further necessary for the authorities to have apprised the petitioner of what Mrs. V.M. Kaula had said in her report Ex. R/5.
The aforesaid facts and circumstances lead to the conclusion that the petitioner did not get a fair deal in the present case and no inquiry in accordance with the settled principles, as enunciated by their Lordships of the Supreme Court in Binapani Devi case : (1967)IILLJ266SC was made. On the other hand, the proceedings of the Board produced before this Court leave an impression on my mind that the Chairman of the Board and the Board as well were determined to make an alteration in the date of birth of the petitioner as entered in his service book without making a proper inquiry in accordance with law and merely on the basis of a single piece of evidence namely, the School Leaving Certificate Ex. R/12, which as stated above, was of doubtful value and it is difficult to place implicit reliance on such a document. It appears probable that they wanted to shed off an inconvenient officer by applying this uncommon procedure of altering his date of birth, without informing him about the document Ex. R/12, which they intended to utilise for achieving the said result.
14. learned Counsel for the Board argued that there was no failure of justice in the present case and relied upon the decision of their Lordships of the Supreme Court in Krishna Chandra v. Union of India 1974 (2) SLR 178 Sahoodul Haque v. Registrar Co-operative Societies, Bihar 1974 (2) SLR 547 and R.C. Sharma v. Union of India : AIR1976SC2037 in support of the proposition that the power of this court under Article 226 should be exercised only if it is shown that there was substantial injustice caused by the deprivation of reasonable opportunity and not merely because there was a technical flaw in the proceedings. In Sahoodul Haque's case 1974 (2) SLR 547 their Lordships held that the fact that the employees had actually abandoned his post of duty for an exceedingly long period, without sufficient ground for his absence, was so glaring that giving him further opportunity to disprove what was practically admitted could serve no useful purpose. There is no such situation in the present case. As I have already observed above, the Board did not give the petitioner any opportunity to produce other reliable evidence in support of the entry relating to his date of birth but insisted merely on the production of the Matriculation certificate which was unfortunately not traceable after a lapse of so many years and had proceeded to rely on a single piece of evidence namely, the copy of the Scholar's Register which was itself of doubtful veracity, as pointed out by me above it cannot be said in these circumstances that no substantial prejudice was caused to the petitioner in the present case or no injustice resulted from the failure of the Board to conduct a proper inquiry in accordance with the well established principles of natural justice applicable to such cases A pointed out in Poosa Ram's case 1975 WLN 22 an alteration in the entry relating to date of birth of the employee made without proper inquiry deserves to be ignored. Moreover in the present case the date of birth of the petitioner, as entered in the service record was verified and accepted as correct by the then Secretary and President of the Board early as in June, 1962 and there was no substantial reason for the Board or its Chairman to depart from the aforesaid entry relating to the date of birth of the petitioner.
15. Lastly, it was urged by learned Counsel that under the amended provisions of Article 226 of the Constitution the petitioner had another remedy available to him of filing a suit. The amended provisions of Clause (3) of Article 226 to Sub-Clause (b) or (c) of Clause (x1) of that Article, preclude this court from entertaining a writ petition in case there is any other remedy made available to the petitioner by or under any other law. A general right of filing a suit cannot be said to be a remedy made available 'by or under any other law.' In my view, the other remedy which should be available to the aggrieved person must be one which is provided by or under a specific provision of particular law and the general remedy of a suit available to every person at common law cannot be included therein. If the provision of a statute or the rules made thereunder provide the remedy of a suit appeal revision, review or other proceedings, then naturally the aggrieved person must avail of such a remedy and in those cases the provisions of Clause (3) of the amended Article 226 would constitute a bar against the entertainment of a writ petition by this court, in matters covered by sub-Clauses (b) or (c) of Clause (1) of the said Article. But no such specific remedy any statute or Rules is available to the petitioner in the present case and as such it is not possible to hold that the writ petition is not maintained in view of the provisions of amended Article 226 of the Constitution, read with Sub-section (2) of Section 58 of the Constitution (Forty Second) Amendment Act, 1976.
16. It is not in dispute that according to the date of birth, as originally entered in the service book of the petitioner, he attained the age of superannuation i.e. completed the age of 55 years on August 31, 1974. In such circumstances, it is not necessary to pass any order regarding the reinstatement of the petitioner However, the petitioner would be entitled to his emoluments and all other service benefits for the period between December 16, 1972 and August 31, 1974, when he should have normally retired by superannuation.
17. In the result, the writ petition is allowed. The order passe d by the Chairman of the Municipal Board, Phalodi, dated December 16, 1972 and the resolution passed by the Municipal Board, Phalodi dated November 30, 1975 are quashed and it is held that the petitioner is entitled to get his emoluments and all other service benefits, as if he had remained in the service of the Municipal Board, Phalodi upto August 31, 1974. The petitioner will get his costs of these proceedings from the Municipal Board; Phalodi, which are assessed at Rs. 300/-.