MAHESHWARI, J. - (1.) THE petitioner, while stating his date of birth as 10. 02. 1940, entered the government service as Patwari on 15. 03. 1963 but continued till 01. 05. 2001 when the Collector Chittorgarh terminated his service after noticing that his date of birth was unauthorisedly changed in the service record to 10. 02. 1944, has preferred the instant petition for writ assailing the order passed by the Collector, Chittorgarh in departmental proceedings on 25. 05. 2002 (Annex. 9) directing adjustment of the amount unauthorisedly received by the petitioner beyond the age of superannuation, from 01. 03. 1998 to 01. 05. 2001; and that passed by the Divisional Commissioner, Udaipur on 29. 06. 2004 (Annex. 13) rejecting his appeal.
(2.) FACTUAL matrix relevant for the present petition, as available from the material placed on record and more or less of undenied and undeniable facts, could be taken into comprehension thus: The petitioner entered into the services on being appointed as Patwai on 15th March 1963 stating his date of birth as 10th February 1940. The petitioner, while submitting his Annual Performance Appraisal Reports ('apars') until the year 1982 continued to state his date of birth as "10. 02. 1940". However, in the APARs from the year 1983-84 onwards, the date of birth of the petitioner was mentioned as "10. 02. 1944". Copies of relevant parts of some APARs upto the year 1980-81 have been placed on record by the respondents as Annexure-R/1; and a copy of the relevant part of the APAR for the year 1983-84 has been placed on record as Annexure-R/2. The respondents have also pointed out that after joining services, in his first declaration for State Insurance, the petitioner stated his date of birth specifically as 10th February 1940 (Annexure-R/3 ). It may be pointed out that in accord with such date of birth at 10. 02. 1940 as entered in the service record and continued till the year 1981-82, the petitioner was to reach the age of superannuation of 58 years on 10. 02. 1998; and thus, was to retire on the last day of the month of February 1998. However, for the date of birth having been changed to 10. 02. 1944, the petitioner continued in service beyond the month of February 1998. The petitioner has averred in the writ petition that an anonymous complaint was sent to the Collector, Chittorgarh on 03. 05. 2000 (Annex. 1) stating his overstaying in service for his actual date of birth being of the year 1940 and having been changed to that of the year 1944; that an enquiry was conducted on the said complaint and by his report dated 30. 5. 2000 (Annex. 2) the Sub-Divisional Officer, Nimbahera found the complaint to be a false one. However, yet another complaint was made (on or about 21. 9. 2000 - Annex. 3) this time by an employee Narendra Kumar, again stating that the petitioner got altered his date of birth in the service book from 10. 2. 1940 to 10. 2. 1994 and was illegally continuing in service; and this time, after a preliminary enquiry, the Collector, Chittorgarh proceeded to serve a charge- sheet on the petitioner on 29. 12. 2000 (Annex. 4), who was then working as Land Record Inspector, stating the charge that he got the date of birth altered from "10. 2. 40" to "10. 2. 44" by overwriting in his service book either himself or with the help of any other employee, and attempted to continue in government service beyond the actual date of retirement. The charge against the petitioner reads thus: *** The reply (Annex. 5) made by the petitioner on 10. 1. 2001 to such charge-sheet and memorandum of charges makes an interesting reading. The petitioner stated that when a proof was sought for the purpose of stating his birth date in the service record in words, he obtained his horoscope from his late father wherein his date of birth was stated at "10. 02. 1944" and showed it in the office; and while verifying his date of birth, if the office has altered the date from "10. 2. 40" to "10. 2. 44", he was not guilty therefor. The petitioner further stated that till obtaining horoscope from his late father, he too believed his date of birth to be 10. 02. 1940 only and thus stated so until the year 1981-82; and the same was correctly stated at 10. 02. 1944 after finding the horoscope. The petitioner also contended that the allegation against him of attempting to overstay in the employment was incorrect for even before commencement of the proceedings, he had applied for voluntary retirement in the month of October 2000. The petitioner asserted that he remained only on field postings and the allegation of his altering the date of birth in the service record was absolutely baseless and imaginary. The significant aspect of the matter remains that in the said reply the petitioner categorically stated that he would have no objection if made to retire while taking his date of birth at 10. 02. 1940 because he had already applied for voluntary retirement; and that the decision to be taken by the Government in relation to the pay and allowances from the date of retirement after 1st March 1998 would remain binding. The said proposition of the petitioner in the reply (Annex. 5) reads thus: *** It appears that before any further proceedings in the matter, the Collector concerned, of course, issued a common order on 30. 03. 2001 (Annex. 6) stating the date of retirement of 9 employees and therein, the petitioner's date of retirement was stated at 28. 02. 2002, obviously on the basis of and with reference to his date of birth then available in the service record i. e. , 10. 02. 1944.
(3.) THE Collector, however, having regard to the circumstances of the case and the reply submitted by the petitioner, and after hearing him, found that the matter was of serious concern as the date of birth of the petitioner had been altered in the service record though it was continuously maintained until the year 1983 as 10. 02. 1940; and the alteration in the figures and so also insertion of the words came up later on. THE learned Collector proceeded to pass the order on 01. 05. 2001 (Annex. 7) appointing the Sub-Divisional Officer, Nimbahera to enquire into the matter thoroughly and to ascertain the persons guilty in the matter; and at the same time ordered that the petitioner be immediately retired from service; that the departmental proceedings shall be decided on merits finally after receipt of the inquiry report; and till then, no payment be made to the petitioner towards gratuity and if he be found entitled to pension, then provisional pension be accorded taking his date of birth as 10. 02. 1940. The Inquiry Officer proceeded to state in his report (Annex. 8) that merely on the basis of horoscope, the date of birth of the petitioner could not be determined at 10. 02. 1944; and the petitioner has failed to adduce any other proof in relation to his date of birth. The Inquiry Officer also opined that the petitioner got altered the date of birth in his service record by overwriting either himself or in connivance with other employee; and that charges against the petitioner stood proved. The learned Collector heard the petitioner before passing the impugned order on 15. 05. 2002. The petitioner took the stand that his date of birth of 10. 02. 1944 was stated in the words also as *** (10th of February Nineteen Forty Four) and contended that if there was any overwriting, the same would have affected such wordings too. The Collector examined the record and found that at the time of entry of the petitioner into the service, his date of birth was entered in Indian numerals at "10. 2. 40" and at that time, such particulars were not entered in the words. The learned Collector found that at the time of getting the date of birth verified from the Head of Office, the year stated in the earlier date of birth at "40" was changed by altering the numeral "0" in the Indian style to "4" and at the same time, the date was stated in words too; and the interpolation in numeral was carried out in such a manner that even an examination from the Handwriting expert was not possible. The learned Collector also observed that the persons who were in service at the relevant time when such alteration was carried out were not likely to be in State service now; and it would be difficult to obtain the sample handwriting of such persons. In the circumstances of the case, the Collector found proved the charge against the petitioner; held him liable to retirement on the last date of February 1998; and ordered that the amount illegally received by the petitioner from 01. 03. 1998 to 01. 05. 2001 be adjusted from his pension and gratuity. However, looking to the facts and stating a liberal view, the Collector ordered that FIR be not lodged in the matter. ;