P.P. Gupta, J.@mdashThe petitioner, Shyam Lal, was appointed as a Safai Karamchari by the Municipal Board, Rampur, respondent No. 3. He is presently posted as Safai Naib (Safai Supervisor). At the time of his appointment, it is said, the petitioner submitted a declaration form (Annexure IV to the petition) declaring his date of birth as May 4, 1929. Apart from this declaration, there was no other proof of his age. Since he had not passed High School or any equivalent examination, there was no certificate recording his date of birth.
2. In or about the year 1963, dispute arose regarding the correct date of birth of Class IV employees of whom there was no written record regarding their dates of birth. Respondent No. 1 took a decision that all such Class IV employees be required to appear before the Civil Surgeon, Rampur for medical examination of their age, who in turn was required to certify their age and the age so certified would be the dates of birth of such employees. In pursuance of the said order, the petitioner was also required to appear before the Civil Surgeon, Rampur by a letter dated December 27, 1963 issued by the Municipal Medical Officer (Health), Municipal Board, Rampur, respondent No. 4.
3. The petitioner appeared before the Civil Surgeon, Rampur, who, after examining him, gave a certificate certifying his age as about 30 years on December 28, 1963. This date of birth, as certified by the Civil Surgeon, was accepted by the appointing authority as also by the Board and an entry to that effect was made in the service book of the petitioner mentioning his date of birth as December 28, 1933. Thus, any dispute regarding date of birth of the petitioner was fully decided by the competent authority.
4. Later on, the Municipal Board was suspended and the duly elected Board was replaced by a nominated Administrator, who, nearly-after 23 years and without any notice or opportunity having been given to the petitioner, reviewed the decision of the Board and by an order dated July 7, 1987 passed an order that the petitioner''s date of birth was May 4, 1929. The order was communicated to the petitioner by respondent No. 4(Annexure ''III'' to the petition). Against the aforesaid order, the petitioner filed an appeal before the Additional Commissioner (Administration), Moradabad Division, Mora-dabad, respondent No. 1, who, by an order dated March 25, 1988, rejected the appeal. This order was communicated to the petitioner nearly after a year, i.e. on February 14, 1989. In pursuance of that order, the petitioner received another order dated April 20, 1989, communicated to him by 5 respondent No. 4, that he would retire on May 31, 1989. The contention of the petitioner was that on the facts and circumstances of the case he was to continue in service till December 31, 1993 and the order dated April 20, 1989 was illegal Despite sufficient time having been given to the respondents, no counter affidavit was filed.
5. The learned counsel for the petitioner and the learned Standing Counsel were heard.
6. The petitioner was appointed as a Safai Karamchari by the Municipal Board, Rampur in a substantive capacity in Class IV cadre. He did not possess any educational qualification. In the declaration form, allegedly submitted by the petitioner, the date of birth was shown as May 4, 1929 by the petitioner. Although the petitioner has denied having filed this declaration, but there is no cogent evidence in proof of his contention that this declaration form was not filed by him and it does not bear his thumb-impression. It is, therefore, to be accepted that at the time of his appointment the petitioner did give a declaration form giving his date of birth as May 4, 1929.
7. It appears that sometime in the year 1963 a dispute arose regarding the dates of birth of Class IV employees. A decision was, therefore, taken by the Board that such Class IV employees should appear before the Civil Surgeon, Rampur for medical examination, who was to certify their age. In pursuance of the said order, the petitioner was also required to appear before the Civil Surgeon, Rampur, by a letter dated December 27, 1963, issued by respondent No. 4 (Annexure ''V'' to the petition). It mentions that the President was pleased to allow the low paid employees, who had no documentary proof of age, to submit certificate from the Civil Surgeon, Rampur, It was, therefore, ordered that the petitioner should get himself medically examined by the Civil Surgeon, Rampur on presentation of this order at his own costs and submit a certificate from the Civil Surgeon in support of proof of his age within seven days from the date of receipt of this order. It was on the strength of his letter that the petitioner appeared before the Civil Surgeon, Rampur, who examined him and certified that the age of the petitioner was about 30 years. The certificate was issued by the Civil Surgeon on December 28, 1963, which is Annexure ''VI'' to the petition. The date of birth of the petitioner, as certified by the Civil Surgeon, was accepted by the appointing authority as also by the Board and an entry to that effect was made in the service book of the petitioner mentioning his date of birth as December 28, 1933. A true copy of extract from the service book of the petitioner is Annexure ''VII'' to the petition. It, inter alia, mentions the date of birth of the petitioner as December 28, 1933. The earlier date, i.e., May 4, 1929 which was based on the declaration form given by the petitioner at the time of his appointment was scored out. It is, therefore, clear from these documents and the history of the case, that the date of birth of the petitioner, i.e. December 28, 1933 as certified by the Civil Surgeon. Rampur, was accepted by the Board and the appointing authority.
8. It transpires that the Municipal Board, Rampur, was subsequently superseded and was replaced by a nominated Administrator, who, nearly after 23 years, reversed the decision of the Board and by an order dated July 7, 1987 ordered that the petitioner''s date of birth would be May 4, 1929 instead of December 28, 1933, This order was passed without any notice to the petitioner or affording him an opportunity of being heard. Obviously, this order was arbitrary and violative of the principles of natural justice. There was no occasion or basis for the Administrator to review the earlier order of the Board and that too without any opportunity having been given to the petitioner. This order cannot, therefore, be sustained.
9. In the absence of any certificate of his having passed the High School or any equivalent examination at the time of his entry into the service, the date of birth or the age recorded in his service book must be deemed to be his correct date of birth for all purposes in relation to his service including eligibility for promotion, superannuation, premature retirement or retirement benefits. In the instant case although originally the date of birth as shown in the service book of the petitioner was May 4, 1929, it is, however, an accepted contention that it was not the correct date of birth of the petitioner. It was for this reason that the Board took a decision that all such Class IV employees should get a certificate of then age from the Civil Surgeon, Rampur. The petitioner also received a communication in this regard from respondent No. 4. He was ordered to get himself medically examined by the Civil Surgeon, Rampur and to obtain a certificate regarding his age. The petitioner did appear before the Civil Surgeon, Rampur and got himself medically examined. It was thereafter that the Civil Surgeon, Rampur, issued a certificate on December 28, 1963 to the petitioner certifying his age to be about 30 years. It was on the strength of this certificate and also by the decision of the Board which was communicated to the petitioner (Annexure ''V'') that the original date of birth, i.e. May 4, 1929, as entered in the service book of the petitioner was scored out and was substituted by his date of birth as December 28, 1933. It clearly shows that this date of birth certified by the Civil Surgeon, Rampur, was accepted and acted upon by the Board which is evident from the fact that this was entered in the service book of the petitioner. Therefore, in these circumstances, the actual date of birth of the petitioner will be December 28, 1933, as entered in his service book. The impugned orders dated March 25, 1988 passed by respondent No. 1, and April 20, 1989, passed by respondent No. 4, are, therefore, illegal and cannot be sustained.
10. In view of the above discussion, the petition is allowed and the impugned orders dated March 25, 1988, passed by respondent No. 1 and April 20, 1989, passed by respondent No. 4, are set aside. For purposes of superannuation and other benefits, the date of birth of the petitioner shall be December 28, 1933 and not May 4, 1929. The petitioner shall be deemed to be in continuous employment of the Board and shall get his salary and other allowances as admissible to the post till he is superannuated treating his dale of birth as December 28, 1933. The respondents shall allow the petitioner to work on the post held by him before his illegal retirement from the date a certified copy of this order is produced before them and shall pay him the arrears of salary and other allowances admissible to the post from the date of his illegal retirement till the date of his resuming duties within three months thereafter. Costs of the petition are made easy.
