- (1.) VINEET Saran, J. This writ petition has been filed with a prayer for quashing the order dated 23-4-2002 passed by respondent No. 3, the Deputy Registrar (Administration-II), Banaras Hindu University, Varanasi whereby the petitioner has been directed to have retired on 30-9-1996 on the basis that his date of birth was 18- 9-1936 and recovery of excess amount paid has also been directed. A further prayer has also been made for a direction to the respondents to restore the services of the petitioner as Ward Sahayak treating his date of birth to be March, 1948 and accordingly he be permitted to continue till he attains the age of 60 years on the basis of said date of birth.
(2.) BRIEF facts relevant for the decision of this case are that the petitioner was initially appointed on 16- 12-1970 as Washerman in Sir Sunder Lal Hospital, Banaras Hindu University, Varanasi. Thereafter on 14- 1-1971, the matter regarding date of birth, of the petitioner was referred to the Medical Board constituted by Sir Sunder Lal Hospital itself which reported that the petitioner was about 24 years at that time. Thereafter the post of Washerman was abolished and the petitioner was appointed as Ward Boy on probation. By order dated 1-4-1975 the petitioner was confirmed on the post of Ward Sahayak. After confirmation, the petitioner was again required to appear before the Medical Board and vide its report dated 6-9-1978 the date of birth of the petitioner was determined as March, 1948. It is not disputed by Sri Pankaj Naqvi, learned counsel appearing for the contesting respondents that in his service book the date of birth of the petitioner has been recorded as March, 1948. However on 23-4- 2002 the respondent-authorities passed the impugned order whereby the date of birth of the petitioner was determined as 18-9-1936 and thus it was directed that the petitioner should be treated retired from the University services on 30-9-1996, on his attaining the age of superannuation i. e. 60 years. The recovery of excess amount paid to the petitioner with effect from 1-10-1996 till the passing of the impugned order had also been directed. Having heard Sri Lal Ji Chaudhary, learned Counsel for the petitioner as well as Sri Pankaj Naqvi, learned Counsel appearing for the contesting respondent Nos. 1, 2, 3 and 4 and Sri K. R. S. Jadaun, learned Counsel appearing for the respondent No. 5 and on perusal of record and considering the facts and circumstances of this case, in, my view, the impugned order dated 23-4-2002 deserves to be set aside. It is admitted to the contesting respondent Nos. 1 to 4 that right from the beginning, in the service book of the petitioner, his recorded date of birth has been March, 1948. There has never been any dispute with regard to such date of birth. In the counter affidavit, the respondents state that at the time of his appointment as Ward Sahayak the petitioner had produced a school leaving certificate from Mahamana Malviya Uchchatar Madhyamik Vidyalaya, Bachhon, Varanasi wherein the date of birth of the petitioner had been recorded as 18-9-1936 and the petitioner is said to have passed Class IX from the said school in the year 1952. The petitioner however disputes having ever filed such certificate and alongwith the supplementary rejoinder affidavit he has filed a certificate of the Principal of the Mahamana Malviya Inter College, Bachhon, Varanasi wherein it has been stated that the said college was established in the year 1961 and had been accorded recognition as Junior High School only in the year 1964. The petitioner thus contends that the said certificate of the petitioner having left the school in 1952 could not have been issued as the school itself came into existence in the year 1961. It has further been contended by the petitioner that before changing the date of birth of the petitioner from March, 1948 to 18-9-1936, the petitioner was never given any notice or opportunity of hearing and since certain rights had accrued in his favour on the basis of the date of birth recorded in his service book i. e. he was to retire on attaining the age of 60 years in the year 2008, any change in his date of birth could not have been done without following the principles of natural justice. Such contention of the petitioner has force.
(3.) IT has further been contended that the respondents themselves have always treated the date of birth of the petitioner as March, 1948 as they themselves permitted the petitioner to work beyond September, 1996 and in case if any such documents relating to his date of birth i. e. school leaving certificate was available at the time of his appointment then the question of determining the age of the petitioner by the Medical Board at the time of his appointment could not have arisen. Such contention of the petitioner also has force. Thus, in my view the impugned order dated 23-4-2002 by which the petitioner has been made to retire with effect from September, 1996 and further recovery of excess amount paid to him from 1-10- 1996 has been directed, is liable to be set aside and is hereby quashed. It is further directed that the petitioner shall be treated to be in continuous service and shall be entitled to all consequential benefits.;