- (1.) VINEET Saran, J. The petitioner was initially engaged on 1-3- 1978 on daily wage basis as Barrier Guard in the Public Works Department of the State Government. He was regularized in service on 27-5-1988. Admittedly, the petitioner was not High School pass, thus for recording his date of birth in the service book, he was directed to appear before the Chief Medical Officer for determination of his age. In pursuance thereof, the Chief Medical Officer certified the date of birth of the petitioner to be 17-4-1959, which was recorded in his service book. Then, after more than 20 years of the petitioner joining service, on 18-8- 1999, one Amar Bahadur Singh (who was a relative and neighbour of the petitioner) made a complaint against the petitioner to the effect that the actual date of birth of the petitioner was 5-1-1938 as had been recorded in the Junior High School where he is alleged to have studied and that the said certificate had deliberately not been produced by the petitioner. In response thereto, on 26- 8-1999 the Executive Engineer, Provincial Division, P. W. D. , Basti, respondent No. 2 wrote a letter to the Junior High School concerned for the purposes of verification of the age of the petitioner, and forwarded a copy of the same to the petitioner for submitting his reply. The petitioner thereafter wrote to the respondent that he had not received any education from the school concerned and that his date of birth recorded on the basis of certificate of the Chief Medical Officer was correct. Pursuant thereto the Executive Engineer, vide order dated 27-11- 1999, rejected the complaint of the said Amar Bahadur Singh, Advocate clearly holding that according to the Rules, if an employee had not passed High School, his date of birth, for the purposes of recording the same in his service records, was to be as determined by the Chief Medical Officer. Thereafter, on 20-4- 2001, the respondent No. 2 passed another order holding that the date of birth of the petitioner was 5-1-1938 and as such he ought to have retired from service on 31-1-1998, i. e. , on the last date of the month in which he attained the age of 60 years. Consequently, recovery of a sum of Rs. 1,31,775/- was directed to be made from the petitioner on account of excess payment of salary made to him after such date of retirement. Aggrieved by the said order the petitioner has filed this Writ Petition.
(2.) I have heard learned Counsel for the petitioner as well as learned Standing Counsel appearing for the respondents. Pleadings have been exchanged and with consent of learned Counsel for the parties, this Writ Petition is being disposed of at this stage. It is the categorical case of the petitioner that prior to the passing of the impugned order dated 20-4- 2001, he was not given any notice or opportunity of hearing. It has been submitted that the respondent No. 2 had already rejected the complaint of said Amar Bahadur Singh, Advocate on 27-11-1999, which was also with regard to the date of birth of the petitioner and the same could not have been reviewed. It has also been contended that in terms of Rule 2 of the Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules, 1974, since the petitioner had not passed High School or equivalent examination at the time of his entry into the Government service, his date of birth as recorded in the service book at the time of entry in service, on the basis of the report of the Chief Medical Officer, shall be deemed to be correct and the same could not have been changed by the respondents, especially without issuing any notice or giving any information to the petitioner. Learned Standing Counsel has, however, submitted that the impugned order has been passed on the basis of information given to the respondent by the Basic Shiksha Adhikari with regard to the date of birth of the petitioner as mentioned in the records of the Junior High School and, as such, since the petitioner had concealed material information of having passed Junior High School, where his date of birth had been so recorded, the same would amount to the petitioner playing fraud and misrepresenting at the time of entry in the Government service and, thus, passing of the impugned order was fully justified.
(3.) HAVING heard learned Counsel for the parties and considering the facts and circumstances of this case, in my view, the order impugned in this Writ Petition deserves to be set aside. Rule 2 of the Rules of 1974, which is relevant for deciding this case, is being reproduced below : "determination of correct date of birth or age.- The date of birth of a Government servant as recorded in the certificate of his having passed the High School or equivalent examination at the time of his entry into the Government service or where a Government servant has not passed any such examination as aforesaid or has passed such examination after joining the service, the date of birth or the age recorded in his service book at the time of his entry into the Government service shall be deemed to be his correct date of birth or age, as the case may be, for all purposes in relation of his service, including eligibility for promotion, superannuation, premature retirement or retirement benefits, and no application or representation shall be entertained for correction of such date of age in any circumstances whatsoever. " (Emphasis supplied);