ORDER
Dipak Misra, J.
1. The mythical King Yajati exchanged his old age with his youthful son, and in the instant case, the petitioner though has not intended to travel to that extent yet has vehemently opposed and resisted with indefatigable spirit the action of the State Government, his employer, by whose action the date of birth of the petitioner, as pleaded by him, has been substituted as 1-12-1938 though it was 1-12-1940. We say so as Mr. N.S. Ruprah, learned Counsel appearing for the petitioner, canvassing the case of the petitioner and assailing the order passed by the Madhya Pradesh Administrative Tribunal (in short 'the Tribunal') in O.A. No. 980/99 has urged with all the emphasis at his command that the State Government has failed in its obligation to behave like a model employer and visited him with such consequences at the fag end of his service career which is neither permissible in law nor in equity.
2. The factual score to wit is that the petitioner (hereinafter referred to as 'the applicant') was appointed as Patwari on 4-1-1958. While he was continuing in service on 15-4-1999 a notice to show cause was issued to him vide Annexure P-5, requiring him to offer an explanation as to why his date of birth should not be changed as there had been an interpolation and he was the beneficiary. The applicant filed his reply on 22-4-1999 controverting the contents made in the notice to show cause. Thereafter the competent authority passed an order vide Annexure P-7, dated 9-5-1999 retrospectively retiring the applicant from 30-11-1996.
3. Being dissatisfied with the aforesaid order the applicant knocked at the doors of the Tribunal invoking its jurisdiction under Section 19 of the Administrative Tribunals Act, 1985. Before the Tribunal the applicant contended that the order of retirement could not have been passed retrospectively; that at the fag end of the career of an employee the State Government, the employer, is not entitled to initiate a proceeding of this nature; that the action taken by the employer was absolutely unreasonable being barred by principle of delay and laches; and that the order passed by the authority is beyond jurisdiction inasmuch as Rule 84 of the M.P. Financial Code (for brevity 'the Code') does not so authorise.
4. The Tribunal by the impugned order dated 4-7-2002 (Annexure P-1), referring to the aforesaid contentions, the return and the rejoinder and further placing reliance on two decisions rendered in the cases of R.S. Masawan v. Municipal Council, AIR 1999 SC 705 and Ram Kishan v. Union of India and Ors., (1997) SCC (L & S) 1185, arrived at the conclusion that the order by the competent authority had been rightly passed and it did not require lanceting.
5. Assailing the aforesaid order Mr. N.S. Ruprah, learned Counsel for the petitioner has raised three fold contentions, namely, (i) Rule 84 of the Code only authorises the State Government to make a change in regard to date of birth if it relates to the field or arena of clerical error and thus, any other kind of rectification is impermissible; (ii) the State Government could not have passed order of retirement with retrospective effect as that specifically affects the service conditions of the applicant and no service condition can be retrospectively altered; and (iii) that the action was initiated in the year 1999 almost after rendering of 40 years of service by the petitioner and therefore, such an action is sensitively susceptible being hit by doctrine of laches.
6. Mr. Hemant Shrivastava, learned Government Advocate for the State has supported the order passed by the Tribunal.
7. To appreciate the first submission of Mr. Ruprah, learned Counsel for the petitioner it is apposite to refer to Rule 84 of the Code. It is relevant to state here the Rule which has been brought on record is in Hindi, translation of the same, in essence, would be as under :--
'Every appointee, at the time of his appointment, under the Government service on any designation, shall declare his date of birth in Christian Era supporting documents thereto, viz., matriculation certificate and birth certificate issued by the Municipality etc. If the exact date of birth is not known then an approximate date of birth shall be mentioned. Service description, service book or other documents pertaining to the date of birth which are kept on record, shall mention/state the exact date of birth of an employee or a date of birth determined under Rule 85 of the Code shall be mentioned therein. As such the noted date of birth shall be treated as final. Except clerical error, no other modification/correction shall be made later on.'
On a perusal of the aforesaid Rule it becomes graphically clear that the said Rule postulates that how a clerical error can be rectified in the date of birth. But to say so that the Rule does alone govern the field and the employer does not have any authority to rectify the situation despite any mischief coming to the knowledge, would be travesty of justice. Reliance on the Rule can be made to some extent but that cannot be the summum bonum of the entire action conceivable at the instance of an employer. In the instant case, the notice sent by the Sub-Divisional Officer clearly shows that the factum of interpolation came to the knowledge of State Government when there was a scrutiny with regard to some other aspects. If any interpolation is noticed, definitely, in our considered opinion, the Rule would not be the governing factor but principle of inherent power has to be invoked and it can be exercised after following the principles of natural justice. In the present case as interpolation was noticed, action could have been initiated despite the language couched in the Rule 84 of the Code. We have no hesitation to say that Rule 84 of the Code is not the only power conferred on the authority, the employer, to correct the date of birth if circumstances otherwise so warrant. It does not limit the power. On the contrary, it only enables the authority to rectify a clerical error. Thus, Rule 84 of the Code is in a different realm whereas taking action after following due procedure by law meaning thereby the principles of audi alteram partem for curing any kind of mischief or put the controversy to rest is in another compartment. This, in fact, is a part of general power which ordinarily rests with the employer.
8. The second limb of submission of Mr. Ruprah is that the power has been exercised quite belatedly and the interpolation has not been proved. To buttress his submission he has placed reliance on the decisions rendered in the cases of Deen Dayal Ojha v. U.P. Public Service Tribunal No. V, Lucknow and Ors., AIR 1993 SC 2475, and Secretary and Commissioner, Home Department and Ors. v. R. Kirubakaran, AIR 1993 SC 2647. The ratio laid down in the aforesaid cases is not applicable to the present case inasmuch as in the case at hand the employee did not seek change at the fag end of his career. In the present case, in contradistinction, the employer came to know that there had been interpolation and accordingly action was taken. It cannot be forgotten that date of birth is within the special knowledge of a person and, therefore, doctrine of delay and laches is not applicable, as there are thousand of employees working under the State and at every stage there is no possibility to verify and proceed. We find no reason not to hold that power can be exercised at any stage when the fact usurps or springs us. Annexure P-5 clearly states that it came to the knowledge of the authority when the service record of the petitioner was scanned. Hence, in our considered opinion, the decisions cited by Mr, Ruprah are clearly distinguishable. The submission that Annexure P-7 does not contain any reason is without any substance inasmuch as the initiation has been done after due issuance of notice to show cause to the applicant, which we shall deal with at a later stage.
9. The third plank of submission relates to the proof of age which is in a different frame. Submission of Mr. Ruprah is that assuming the authority has the power, there has been no positive proof to put the blame on the petitioner. To appreciate the aforesaid submission, we have carefully perused the reasonings ascribed by the Tribunal. It is noticeable from the documents on record that the gradation list was published in the year 1974 wherein the name and date of birth of the applicant was shown as 1-12-1940 but there was overwriting. It is also perceivable that the service book of the petitioner was produced before the Tribunal and the same clearly reflects the date of birth to be 1-12-1938 mentioned both in words and in figures. It is canvassed by Mr. Ruprah that earlier gradation lists were not brought on record before the Tribunal. At this juncture, we may profitably refer to Annexure R-1, the gradation list published for the year 1970-71. True it is, the same was not filed before the Tribunal. In the said gradation list the date of birth of the applicant is mentioned as 1-12-1938. Be that as it may, if the finding of the Tribunal is tested on the touchstone of the service book and the documents presently brought before this Court, we have no hesitation in holding that the date of birth of the petitioner is 142-1938 and hence, the finding recorded by the Tribunal cannot be flawed.
10. Quite apart from the above, the Tribunal scrutinising the facts in entirety came to the conclusion that the date of birth of the petitioner is 1-12-1938 and there is no justification to dislodge the same in exercise of power under Article 226/227 of the Constitution.
11. The last contention of Mr. Ruprah is that the impugned order could not have been given retrospective effect. Aforesaid submission of Mr. Ruprah is sans substance as the petitioner continued beyond the age of superannuation because of wrong entry in his service book. In this context, the Tribunal has referred to the decisions rendered in the cases of R.S. Masawan v. Municipal Council, AIR 1999 SC 705, and Ram Kishan v. Union of India and Ors., 1997 SCC (L & S) 1185. In both the cases it has been held that an employee can retrospectively be superannuated. In the present case, we are of the. considered view, passing of an order of superannuation with retrospective effect is not violative of any law.
12. The next aspect which Mr. Ruprah has highlighted before us is that the petitioner has rendered services and, therefore, there could not be recovery of the amount. It is noticeable that the Department has not put the blame on the petitioner that he had committed any fraud, or indulged in forgery. That apart, there was some anomaly with regard to date of birth and upon enquiry the date was determined. In view of this we are inclined to direct that there shall not be any recovery from the petitioner but his retiral benefits would be computed on the basis that he stood retired on 1-12-1996.
13. With the aforesaid modification in the order of the Tribunal, the writ petition stands disposed of without any order as to costs.