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Judgment
Heard learned counsel for the petitioner and learned counsel appearing on behalf of the State-respondent.
The present writ application has been filed by the petitioner seeking for the relief of quashing of the order as contained in Memo No. 157/pension dated 23.06.2015, communicated vide Nawada District Order No. 926/2015 (also referred to as 926/2016), whereby the petitioner has been made to superannuate from service with effect from 30.06.2015, on the basis of an Age-Service Register entry, despite his Service Book reflecting his date of birth as 16.05.1959, under which he ought to have continued in service until May 2019.
And for further directing State Respondents to reinstate/treat him in service up to 16.05.2019 and to compensate him by paying arrears of salary for the period he was compelled to prematurely superannuate.
Brief facts emerging from the pleadings are that the petitioner was appointed as Peon-cum-Khansama (Cook) on 21.08.1978, in the Police Hospital, Nawada. Subsequently, as per the representation dated 13.09.1995, for framing of his Service Book, his Service Book was duly prepared in 1995, wherein his date of birth was recorded as 16.05.1959, which was based on his School Transfer Certificate dated 28.01.1977, issued by Ramanandan Middle School, Samyagarh.
However, vide Memo No. 157/pension dated 23.06.2015 / District Order No. 926/2015, the respondents directed his superannuation with effect from 30.06.2015 on the premise that his birth year was 1955 as per Age-Service Register / Medical Board report.
Consequent upon the issuance of the impugned order dated 23.06.2015, the petitioner was compelled to superannuate four years prior to his due date of 16.05.2019. The petitioner made several representations before the Superintendent of Police, Nawada on 22.07.2015, 27.08.2015, and 27.04.2017, pointing out that his Service Book entry clearly records his date of birth as 16.05.1959. Having received no positive response, the petitioner approached this Court by filing the present writ application.
Learned counsel appearing on behalf of the petitioner submits that once the date of birth of an employee is duly entered in the Service Book as 16.05.1959, based on valid educational documents, the employer cannot alter it unilaterally at the fag end of his career without giving any show-cause notice or opportunity of hearing. It has been submitted that the petitioner was kept in the dark regarding the constitution of any Medical Board and its report was neither served upon him nor disclosed to him prior to passing of the retirement order. Reliance was placed upon the settled principle of law that altering service records to the detriment of an employee without complying with natural justice is completely arbitrary and illegal.
Per contra, learned Counsel for the State has supported the impugned order and submitted that at the time of appointment of class-IV employees like the petitioner, dates of birth were often not recorded in service records. It was contended on behalf of the State that vide District Order No. 286/2006, a Medical Board was constituted under the Chief Medical Officer, Nawada, which assessed the age of the petitioner as 50 years as on 24.12.2005, fixing his year of birth as 1955. Therefore, the respondents acted in accordance with provisions of the Bihar Service Code by superannuating the petitioner upon completion of 60 years of age on 30.06.2015.
Having heard learned counsel for the parties and having perused the materials on record, the principal issue which falls for consideration is whether the respondents were legally justified in altering the recorded date of birth of the petitioner from 16.05.1959 to the year 1955 based on an ex-parte Medical Board assessment, and making him superannuate prematurely on 30.06.2015, without providing a fair opportunity of hearing.
The law regarding the finality of service book entries and late-stage alterations of date of birth is well settled. In State of U.P. v. Shiv Narain Upadhyaya reported in(2005) 6 SCC 49, the Hon'ble Supreme Court emphasized that the date of birth recorded in official service records determines the predictability of superannuation and administrative stability.
The Apex Court observed that settled entries in service records cannot be casually re-opened or altered after long delays, as the sole object of service rules governing age entries is to prevent last-minute modifications on the eve of retirement. It has been categorically observed that -
“11...when the entry was made in the service record and when the employee was in service he did not make any attempt to have the service record corrected, any amount of evidence produced subsequently is of no consequence...”
This principle of stability and non-alteration at the fag end of service applies equally to the employer. In Shankar Lal v. Hindustan Copper Limited and Others reported in (2022) 6 SCC 211, the Hon'ble Supreme Court categorically held that unilateral exercise of correcting or altering an age entry in service records on the perception that an error was being corrected, without granting an opportunity of hearing to the employee, is impermissible.
The Apex Court observed that the very reasons for which an employee is not permitted to raise an age-correction plea at the fag end of his career apply equally to the employer. An employer who has maintained official service records carrying a specific date of birth cannot unilaterally alter it to the employee's detriment in violation of the principles of natural justice. This principle was laid down by the Court in the paragraph 29 of this judgement, which reads as follows:
“29…The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latter's service tenure and they ought not to be permitted to fall back on the Form B which would curtail the VRS benefit of the appellant."
Applying the aforesaid case at hand, it is incumbent upon the Authority to adhere strictly to procedural fairness and natural justice before making any variation in the established service record of an employee. This can only be done when an opportunity of hearing is provided to the employee. The doctrine of Audi Alteram Partem, the fundamental rule of natural justice that "no person shall be condemned unheard" directly targets the State's administrative lapse in altering the petitioner's service records behind his back. The actions of the respondents in referring the petitioner to a Medical Board without putting him on notice that his Service Book entry was being re-opened and subsequently applying a vague birth year of "1955" to superannuate him four years early, constitutes a blatant violation of the cardinal principles of natural justice. An administrative order carrying grave civil consequences passed without serving a prior show-cause notice or affording a reasonable opportunity to be heard is an absolute nullity in the eye of the law. On a scrupulous reading of the facts and documents on record, it is crystal clear that the petitioner’s Service Book (Annexure-4), was formally prepared by the authorities in 1995, wherein his date of birth was explicitly recorded as 16.05.1959. The respondents, in their counter affidavit, have failed to show that any formal proceeding was ever initiated to cancel or modify this entry in the Service Book after serving notice upon the petitioner.
This Court thus, finds that the impugned superannuation order dated 23.06.2015, was passed in complete defiance to the cardinal principle of law, that is to say, in flagrant violation of the principles of natural justice. The petitioner was neither served with any show-cause notice nor was served with a copy of the alleged Medical Board report, before revising his date of birth to his severe detriment.
At this juncture, it is apposite to examine Rule 96 and Rule 97 of the Bihar Financial Rules (Vol. I), which governs the declaration and determination of date of birth for Government servants.
“Rule 96 - Every person newly appointed to a service or post under Government should at the time of the appointment declare the date of his birth. The actual date or the assumed date determined under Rule 97 should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government servant’s service under Government and once recorded, it cannot be altered, except in the case of a clerical error without the orders of the State Government."
Note 1 to Rule 96 stipulates that no representation for rectification of a mistake in the date of birth as entered in service records shall be entertained unless submitted within ten years of entry into service. However, as laid down by this Court in Jai Nath Tiwari v. State of Bihar, 2019 (3) BLJ 632, where an employee does not claim a new or different date of birth and their claim is based on contemporaneous documentary evidence accepted by the employer at entry, the bar under Rule 96 cannot be permitted to create a situation where respondent authorities alter or correct their own alleged recording errors to the detriment of the employee without due process. It would be inequitable and unjust to make an employee suffer for the unilateral administrative lapses of the authorities.
Furthermore, under Rule 97(1) of the Bihar Financial Rules, if a Government servant is unable to state their exact date of birth, only then is an approximate date determined at the time of initial entry into service. Under Rule 97(3), where an age is deduced at the time of attestation or appointment, the note to Rule 97 explicitly provides that "Cases in which the date of birth has been deduced from the age at appointment or attestation by any other method, need not be re-opened."
On a scrupulous reading of the facts on record, the petitioner’s Service Book was formally prepared in 1995 recording his date of birth as 16.05.1959 based on his 1977 School Transfer Certificate. Under Rules 96 and 97 of the Bihar Financial Rules, once this date was entered into the official Service Book, it attained finality and could not be altered except through a formal order of the State Government following due process. The respondent authorities had no legal sanction under Rule 96 or Rule 97 to arbitrarily re-open settled service records decades later via an ex-parte Medical Board evaluation. The actions of the respondents in referring the petitioner to a Medical Board without putting him on notice that his Service Book entry was being re-opened, and subsequently applying a vague birth year of "1955" to superannuate him four years early, are inherently improbable, arbitrary and unsustainable.
From the materials on record, it is evident that the petitioner’s actual date of superannuation, as per his Service Book entry of 16.05.1959, was stipulated to be on 31.05.2019. By compelling him to superannuate on 30.06.2015, the respondents illegally deprived him of his service and emoluments for the intervening period from 01.07.2015 to 31.05.2019.
It is not out of place to mention that unilateral administrative actions causing civil consequences without notice are a nullity in the eye of law. In similar circumstances, courts have consistently held that arbitrary alteration of age without notice violates Article 14 and Article 16 of the Constitution of India. Article 14 strikes at arbitrary, unfair, and discriminatory state action. Retiring the petitioner prematurely based on an uncommunicated, ex-parte Medical Board report, in total disregard to his established Service Book entry finalized in 1995 is inherently arbitrary and lacks rational justification. Unilaterally altering the petitioner’s recorded date of birth to his detriment without issuing a show-cause notice, providing the Medical Board report, or offering a fair opportunity of hearing renders the superannuation order in nullity. Moreover, unlawfully cutting short the petitioner's career four years prior to his actual superannuation date infringes upon his right to continue in public employment as per the governing service rules.
Considering the facts and circumstances of the case at hand, this Court finds that the impugned superannuation order dated 23.06.2015, was passed in complete violation of principles of natural justice.
The record discloses that the petitioner had consistently asserted his date of birth as 16.05.1959, which was corroborated by his School Transfer Certificate of 1977 and the official Service Book maintained since 1995. The respondents could not have unilaterally wiped out the Service Book entry by relying on an Age-Service Register or an ex-parte medical assessment.
Given the facts and circumstances of the case, it is apparent that the petitioner had already crossed the legitimate age of superannuation (31.05.2019), during the pendency of this writ petition, therefore, physical reinstatement is no longer feasible. However, in the considered opinion of this court, it is needless to state that the Petitioner is entitled to be treated, as having been in continuous service up to 31.05.2019 for all intent and purposes, including full pay, allowances, and consequential retiral benefits.
This Court, therefore, holds that the action of the respondents in superannuating the petitioner on 30.06.2015 is wholly illegal, arbitrary, perverse and unconstitutional. Consequently, this Court deems it fit and proper to set aside the impugned order as contained in Memo No. 157/pension dated 23.06.2015 (Nawada District Order No. 926/2015).
The respondents are henceforth, directed to treat the petitioner as having continued in active service up to 31.05.2019, and to pay him full salary and allowances for the period from 01.07.2015 to 31.05.2019. The respondents shall also re-calculate and release pensionary and retiral benefits of the Petitioner, by treating his date of retirement as 31.05.2019. A reasoned order and full financial settlement in accordance with law shall be passed within three months from the date of production of this judgment.
The writ petition is allowed.
There shall be no order as to costs.