R.A. Sharma, J. - (1.) THE petitioner was initially appointed as Supervisor Qanungo in 1956 -57. In 1977, he was promoted to the post of Naib Tehsildar. On 4.1.1989 he was promoted as Special Officer on special duty. The said post, according to the petitioner, is equivalent to the post of Tehsildar. In 1990 he was posted as Tehsildar and continued to work as Tehsildar at various places upto 4.5.1995. On 5.5.95 the District Magistrate, Maharajganj reverted him to the post of Additional Tehsildar. The petitioner challenged that order in writ petition No. 13169 of 1995, in which this court had passed interim order dated 17.5.95 staying the operation of the reversion order. The District Magistrate, Maharajganj, thereafter passed an order dated 22.5.95 retiring the petitioner with immediate effect. Being aggrieved by it, the petitioner has filed this writ petition. The respondents have filed counter affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard learned counsel for the parties.
(2.) THE impugned order has to be set aside for two reasons, namely -(I) Although the impugned order adversely affects the petitioner but it was passed without giving him any opportunity of being heard. The District Magistrate, Maharajganj Vide his order dated 1.1.95 had informed the petitioner that he would be retiring on 31.12.95 treating 1.1.1938 as his date of birth. However, vide impugned order dated 22.5.95, the petitioner has been informed by another District Magistrate that he is retired with immediate effect treating 1.1.1936 as his date of birth. By the said order the earlier order dated 1.1.95, mentioned above, has been revised, but no opportunity of being heard was given to the petitioner before passing that order. In paragraphs 18 and 21 of the writ petition the petitioner has specifically stated that no opportunity of being heard was given to him before passing the impugned order. The reply of paragraphs 18 and 21 of the writ petition is contained in paragraphs 15 and 17 of the counter affidavit. In paragraph 15 of the counter affidavit the respondents have stated that as the petitioner has prepared a forged service book and is guilty of forgery, it was not necessary to give him opportunity of hearing before passing the impugned order. This contention of the respondents cannot be accepted for two reasons, namely - -(a) the question as to whether the petitioner is responsible and guilty of forgery in preparation of the service book could not have been decided without giving him an opportunity of being heard and (b) there is nothing on record to establish that the petitioner is in any way responsible for the preparation of service book. That apart the service book produced by him, contains 1.1.38 as the date of his birth which is in consonance with the High School Certificate of the petitioner. There is nothing on record to establish that 1.1.1938 is not date of birth of the petitioner. Moreover, the Collector himself has passed an order dated 1.1.95 informing the petitioner that he would retire on 31.12.95. If the Collector wanted to change that order directing the retirement of the petitioner prior to 31.12.95, it was his duty to give him an opportunity of being heard before passing such an order, but that was not done. (II) The impugned order suffers from another infirmity. The Government of U.P. has framed Rules known as the Uttar Pradesh Recruitment to Services (Determination of Date of Birth) Rules 1974 (hereinafter referred to as the Rules) for determination of date of birth of the government servant. Rule 2 has laid down that the date of birth of a government servant as recorded in High School Certificate at the time of his entry into the government service shall be deemed to be the correct date of birth for all purposes in relation to his service, including retirement. In the instant case, the petitioner has filed a photostat copy of High School Certificate which is annexed as Annexure -1 to the writ petition, according to which, his date of birth is 1.1.1938. He has also drawn the attention of the court to the Government of U.P. Gazette dated September 13, 1952 in which the result of High School Examination 1952 in which the petitioner appeared was published. In the said Gazette '1.1.38' has been shown as the date of birth of the petitioner. In view of the Rules, the Collector was bound to decide the question of date of birth on the basis of the High School certificate. Had he given an opportunity of being heard to the petitioner before passing the impugned order, the petitioner would have produced the High School Certificate in support of his claim. But no such opportunity was given to him. The District Magistrate, Maharajganj, passed the impugned order purely on the basis of seniority list ignoring the High School certificate and the Service Book. The impugned order passed by him is, therefore, without jurisdiction. This writ petition is allowed with costs. The impugned order dated 22.5.1995, annexed as Annexure -4 to the writ petition, is quashed. As the petitioner was entitled to continue to work upto 31.12.95, which is the date of his superannuation, the respondents are directed to pay salary and other allowances permissible under law to him with interest at the rate of 12 per cent per annum for the period during which he could not work due to the impugned order, within a period of three months from the date of production of certified copy of this order.;