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AJAY MOHAN GOEL, J. (ORAL) –

By way of this writ petition, the petitioner has prayed for quashing of office order dated 22.07.2023, appended with the petition as Annexure P-6, in terms whereof, the Authority has ordered deemed retirement of the petitioner on attaining the age of superannuation in the afternoon of 28.02.2023. The petitioner has also prayed that respondents be directed to allow the petitioner to continue to serve till she attains the age of superannuation on 31.05.2026 in terms of her corrected date of birth.

2. The case of the petitioner is that she joined the services of the respondent-Department as a Staff Nurse in the year 1987. She filed representations for correction of her date of birth from 01.03.1965 to 01.06.1968, from time to time. As per the petitioner, the first representation which was filed by her in this regard was filed on 10.01.1991 and this representation has been placed on record by the petitioner alongwith CMP No. 10672 of 2023. To cut the controversy short, the request of the petitioner for carrying out necessary correction in her date of birth was acceded to by the Department in terms of Annexure P-4, i.e. Corrigendum dated 23.08.2014, which reads as under:-

“Please read date of Birth (1.6.1968) instead of Date of Birth (1.3.1965) in r/o Miss Vijay Laxmi Bhargav Ward Sister DDU Hospital Shimla appeared at Sr. No. 185 in the tentative seniority list of Ward Sister issued vide this Directorate letter of even number dated 31.08.2010.”

3. Thereafter, the petitioner continued to serve the Department and all of a sudden, in terms of the impugned notification Annexure dated 22.07.2023, the Authority has retired her w.e.f. 28.02.2023, on the basis of her earlier date of birth, which in the year 2014, stood corrected by the department itself.

4. Learned Counsel for the petitioner has argued that the impugned notification is not sustainable in the eyes of law for the reason that when the request of the petitioner for correction of date of birth was acceded to by the department and that too as far back as in the year 2014, then there was no occasion for the department to undo its decision after a long span of time. He argued that the impugned notification was not sustainable also for the reason that the same was passed at the back of the petitioner, without issuance of a show cause of notice as to why the petitioner should not be superannuated w.e.f. 28.02.2023. Accordingly, he prayed that as the impugned act of the department is bad and not sustainable in law, therefore, the present petition be allowed as prayed for.

5. Learned Additional Advocate General has submitted that the order passed by the Authority is correct. By referring to the contents of the reply filed to the petition, he submitted that the petitioner was able to gain fresh entries entered in the official record qua her date of birth by producing false/illegal documents, therefore, notification under challenge was correctly passed by the State so that the petitioner was not able to take benefit of her own wrong deeds. However, on a query to learned Law Officer, it could not be pointed out that the impugned notification was issued by adhering to the principles of natural justice.

6. Having heard learned Counsel for the parties and having perused the impugned order as well as other documents on record, this Court is of the considered view that the impugned notification is bad as it has been passed by the department without adhering to the principles of natural justice. No show cause was issued to the petitioner and she was not called upon to state or submit her response as to why she be not retired deeming her to superannuate w.e.f. 28.02.2023. The action in terms of notification Annexure P-6, which has civil consequences as far as the petitioner is concerned, was taken at her back and on this count itself, the action has to go.

7. Hon’ble Supreme Court of India in D.K. Yadav Versus J.M.A. Industries Ltd.² [²(1993) 3 Supreme Court Cases 259], was pleased to observe that the cardinal point that has to be borne in mind, in every case, is whether the person concerned should have a reasonable opportunity of presenting his case and the authority should act fairly, justly, reasonably and impartially. Hon’ble Supreme Court further held that it is not so much to act judicially but is to act fairly and the procedure adopted must be just, fair and reasonable in the particular circumstances of the case. Hon’ble Supreme Court further held that in other words, application of the principles of natural justice that no man should be condemned unheard intends to prevent the Authority from acting arbitrarily affecting the rights of the person concerned. It further went on to hold that it is fundamental rule of law that no decision must be taken which will affect the right of any person without first being informed of the case and giving him/her an opportunity of putting forward his/her case and therefore, an order involving civil consequences, must be made consistently with the rules of natural justice.

8. Reverting to the facts of the present case, the principles as enunciated by Hon’ble Supreme Court, have been flouted on the face of it by the respondent by passing the impugned notification without adhering to the principles of natural justice. As it is not in dispute that on the representation made by the petitioner, her date of birth was altered by the department in the year 2014, the impugned order could not have been passed without at least intimating the petitioner of the proposed act of the Department of doing so and calling upon the petitioner to submit her response thereto and thereafter proceeding with the matter in accordance with law by adhering to the principles of natural justice.

9. Accordingly, this petition is allowed. Impugned notification Annexure P-6 is quashed and set aside. However, as the impugned notification has been quashed by this Court for want of the Department adhering to the principles of natural justice, the respondents are at liberty to proceed against the petitioner on the same cause strictly in accordance with law. It goes without saying that the petitioner shall be permitted to serve the Department as the impugned notification, as of now, stands quashed by the Court.

Pending miscellaneous application(s), if any also stand disposed of accordingly.

Petition allowed.

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