( 1 ) THE petitioner T. Govinda Setty, a Govt Civil Servant, has filed this writ petition to quash the order d/30-6-77 (copy Ext. C) passed by the 1st respondent - the State Govt rejecting his claim to alter his date of birth as 15-2-1923 made in his application filed under Sec. 5 of the Karnataka state Servants (Determination of Age) Act, 1974 (shortly called the 'act') and to issue a writ of mandamus to the 1st respondent to accept his date of birth as 15-2-1923 as recommended by the 2nd respondent in his report (copy Ext. B) dated 14-10-1976. ( 2 ) THE facts of the case briefly stated are as follows: The petitioner'. . ? father late Thammiah alias Thimma Setty was an illiterate person. He got the petitioner admitted to School on 20-9-1927. While Admitting the petitioner, he gave the age of the petitioner approximately as 5 years. Accordingly, the date of birth of the petitioner was recorded in the school register as 20-9-1922 on the ba,sis of the approximate age of the petitioner furnished by his father at the time of his admission to the school. The mistake in the date of birth of the petitioner continued in the records including in his service register. He dame to know about the mistake only in the year 1975 when he accidentally got his horoscope (Kundali) in which his correct date of birth is mentioned as 15-2-1923. He filed an application under sec. 5 of the Act for the correction of the date of birth as 15-2-1923 instead of the wrong date of birth entered in the school register as 20-9-1922. The 1st respondent appointed the 2nd respondent for holding the enquiry on the application filed by the petitioner. After holding the enquiry, the 2nd respondent submitted his report Ext. B to the 1st respondent with a recommendation to accept the date of birth of the petitioner as 15-2-1923. The 1st respondent did not agree with the findings! of the 2nd respondent and rejected the application of the petitioner as per its order under Ext. C. It is the correctness and legality of this order of the 1st respondent that is under challenge in this writ petition. ( 3 ) THE contentions of Shi A. Ananda Shetty, learned Counsel appearing for the petiioner were three-fold. of the 2nd respondent and rejected the application of the petitioner as per its order under Ext. C. It is the correctness and legality of this order of the 1st respondent that is under challenge in this writ petition. ( 3 ) THE contentions of Shi A. Ananda Shetty, learned Counsel appearing for the petiioner were three-fold. His first contention was that the 2nd respondent who was appointed as the officer for the purpose of making enquiry on the application filed by the petitioner was deemed to be a civil court, that the procedure followed in the conduct of the enquiry was a judicial proceeding and as such the 1st respondent was bound by the findings recorded by the 2nd respondent. Secondly it was contended that the 1st respondent passed the impugned order Ext. C without affording an opportunity to the petitioner of being heard and as such it offends the rules of natural justice. Thirdly it was contended that the findings of the 1st respondent in making the impugned order were based on misappreciation and misreading of the evidence and as such it is wholly erroneou 5. ( 4 ) THE age of State servaints relating to their conditions of service was being determined under Rule 404 of the Karnataka Financial Code, 1958. The provisions of Rule 404 are now replaced by the provision's of the act and all the State servants are now governed by the provision of the Act for the determination of their age relating to their conditions of service. Sec. 3 of the Act provides for determination of the age of a State yeivant on his entry into the State service. Sub-sec (1) stipulates that every person on appointment as a State servant shall declare his age along with the date of birth and in support of such declaration shall furnish to the appointing authority the documents referred to in the said sub-section. Sub-sec. (2) empowers the appointing authority to accept the age and date of birth which, in its opinion, is satisfactorily established after considering the evidence produced by the State servant and to inform him about it and also record or cause to be recorded in his service register or book or any other record of service the age and date of birth so accepted. If the age and date of birth of the State servant has been determined by a decree of a Civil court obtained by the State servant after he becamp the State servant against the State Govt and which has become final before the commencement of the Act, the age and date of birth so determined shall be accepted as the age and date of birth of the Govt servant as provided under the proviso to sub-section (2 ). Sub-sec (3) provides that notwithstanding anything contained in sub-sees (1) and (2), the age and date of birth of the State servant accepted and recorded in his service register or book or any other record of service before the date of commencement of the Act in accordance with the Rules then in force shall be deemed to be the age and date, of birth of such State servant accepted and recorded as provided under sub-section (2 ). Sub-section (4) lays down that the age and date of birth accepted and recorded or deemed to have been accepted and recorded in the service register or book or any other record of service under sub-section (2) or sub-section (3) shall be applicable for all purposes relating to the condition of service including superannuation and retirement of the State servant concerned subject to any alteration made under section, 5 of the Act. Sec. 4 provides for a bar to alter the age or date of birth of the State servant accepted and recorded or deemed to have been accepted and recorded under Sec. 3 in so far as it related to his conditions of service as such State servant except in accordance with Sec. 5. Sec. 5 is the relevant provision the material portion of which reads:" Alteration of age or date of birth of State servants_ (1) Subject to subjection. Sec. 5 is the relevant provision the material portion of which reads:" Alteration of age or date of birth of State servants_ (1) Subject to subjection. (2), the State Government may, at any time, after an inquiry, alter the age and date of birth of a State servant as recorded or deemed to have been recorded in his service register or book or any other record of service : provided that no such alteration shall be made if the age and date of birth of a State servant has been accepted and recorded or deemed to have been accepted and recorded in the service register or book or any other record of service in pursuance of a decree of a civil court obtained by the State servant againsft the State Government: provided further that no such alteration shall be made without giving the State servant concerned a reasonable opportunity of being heard. (2) No such alteration to the advantage of a State servant shall be made unless he has made an application for the purpose within three years from the date on which his age and date of birth isl accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of this Act, whichever is later. (3) The State Govt may by notification in the Official Gazette appoint such officer as it deems fit for the purpose of making an inquiry under this section. " ( 5 ) IT is seen from the provisions of Sec. 5 that alteration of the age and date of birth of a State servant once Becorded or deemed to have been recorded in his service register or book or any other record of service could be made only by the State Govt after an inquiry subject to the conditions stipulated in the various sub-sections. Sub-sec (2) provides that no such alteration to the advantage of a State servant shall be made unless the State servant makes an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of the Act whichever is later. Sub-sec (3) provides for the appointment of an officer for the purpose of making an enquiry under Sec. 5. The powers of the officer appointed for making enquiry are enumerated under sub-sec (4 ). The officer so appointed is deemed ,to be a 'civil Court' as per the provisions of sub-section (4 ). ( 6 ) THE scheme of Sec. 5 provides that the State Govt is the final authority to alter the age and date of birth of a State servant as recorded or deemed to have been recorded in his Service Regr or book or any other record of service after holding an inquiry. For the purpose of making an inquiry, the State Govt is authorised to appoint an officer who is deemed to be a 'civil court' with powers enumerated under sub-sec (4) of Sec. 5. The functions of the officer appointed for making the inquiry under sub-section (3) would be to hold an inquiry and make his report to the state Government. The inquiry officer while making inquiry shall have to give opportunity to the State servant to adduce evidence in support of his claim and make a report on the basis of the material so placed before him to the State Govt. Thereupon, it is the function of the State Govt to assess the evidence adduced by the State servant including the report of the Inquiry Officer and make a final order relating to the claim of the state servant for alteration of his age or date of birth. This is very clear from the language employed in sub-sec (1) of Section 5 of the Act. What could be assigned to the officer appointed for making the inquiry is only to hold an 'inquiry' and not to 'decide' the claim of the State servant finally. The final decision rests solely with the State Government even though the officer appointed to hold an inquiry is deemed to be a civil court invested with the power of a civil court. I am unable to read into the provision of s. 5 that the findings of the Inquiry Officer are binding on the State Govt while disposing of the matter. The records of the proceedings of the inquiry and the report of the Inquiry Officer are only the materials for the state Govt to reach its own conclusion in the matter. I am unable to read into the provision of s. 5 that the findings of the Inquiry Officer are binding on the State Govt while disposing of the matter. The records of the proceedings of the inquiry and the report of the Inquiry Officer are only the materials for the state Govt to reach its own conclusion in the matter. They will not have any binding nature on the State Govt. In this view of the matter, it seems to me that the first contention canvassed on behalf of the writ petitioner has no legs to stand. ( 7 ) NOW coming to the second contention it was not the case of the 1st respondent that the petitioner was afforded an opportunity of being heard before making the impugned order Ext. C. What was contended at the time of the argument by the learned High Court Govt Pleadure was that since the petitioner was given an opportunity to take part in the inquiry before the 2nd respondent, there was no need to give another opportunity for him of being heard before passing the impugned order by the 1st Respt. ( 8 ) COUNTERING this argument, Shri A. Ananda Shetty, learned Counsel appealing for the petitioner vehemently argued that since the 1st Respt has to come to its own conclusion on the basis of the material collected at the inquiry and the report of the inquiry officer, rules; of natural justice would demand on opportunity to the petitioner of being heard before the 1st respondent takes a final decision in the matter. According to him, it would have been more so when the 1st respondent is not, inclined to accept the claim of the State servant on the basis of the material produced by him and the report of the Inquiry Officer as in the instant case. ( 9 ) IT seems to me there is very much force in this submission of shri Ananda, Shetty. The State Govt is empowered under sub-sec (1) of S. 5 to alter the age and date of birth of a, State servant as recorded, or deemed to have been recorded in his service register or book or any other record of service at any time after holding an enquiry. The State Govt is empowered under sub-sec (1) of S. 5 to alter the age and date of birth of a, State servant as recorded, or deemed to have been recorded in his service register or book or any other record of service at any time after holding an enquiry. This general power of alteration of the age and date of birth of a State servant given to the state Govt is subject to the conditions land down by the opening words of sub-sec (1) viz, "subject to sub-section (2 ). Sub-sec (2), stipulate that no alteration of the age or date of birth of a Govt servant to his advantage shall be made unless the State servant makes an application for the purpose within three years from the date On which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of the Act whichever is later. The first proviso to sub-section (1) provides that no such alteration shall be made if the age and date of birth of a state servant has been accepted and recorded or deemed to have been accepted and recorded in the service register or book or any other record of service in pursuance of a decree of a civil court obtained by the State servant against the State Govt. The second proviso stipulates that no such alteration shall be made without giving the State servant concerned a reasonable opportunity of being heard. The proviso makes it abundantly clear that before making any alteration in the age and date of birth of a State servant as recorded or deemed to have been recorded in his service register or book or any other record of service either to his advantage or to his disadvantatge, a reasonable opportunity of being heard shall be afforded to the State servant concerned. In my opinion, this proviso governa not only sub-sec (1) but also sub-sec (2) of Sec. 5 of the Act. ( 10 ) THE State Govt, instead of conducting the inquiry by itself, has appointed the 2nd respondent as the Inquiry Officer to conduct the inquiry. The 2nd respondent after completing the inquiry, submitted all the material collected at the inquiry along with his report to the 1st respondent. ( 10 ) THE State Govt, instead of conducting the inquiry by itself, has appointed the 2nd respondent as the Inquiry Officer to conduct the inquiry. The 2nd respondent after completing the inquiry, submitted all the material collected at the inquiry along with his report to the 1st respondent. Since the 1st respondent is the final authority to decide the claim of the petitioner, it looks to me that the petitioner should have been given an opportunity of being heard by the 1st respondent before passing the impugned order Ext. C. This is a 'must' where the State Govt is not inclined to accept the claim of the State servant on the basis of the material produced at the inquiry and the report of the Inquiry Officer. In my view, the opportunity given to the State servant to take part in, the inquiry proceedings before the Inquiry Office will not be an answer for denying an opportunity to the State servant of being heard before making the final order by the State Govt after the submission of the records of the inquiry by the inquiry Officer. It would have been more so in the instant case because the report Ext. B Submitted by the 2nd respondent after the inquiry was in favour of the petitioner and the 1st respondent did not think fit to accept the material produced by the petitioner as well as the report of the inquiry officer. Therefore, the impugned order is liable to be set aside. ( 11 ) IN view of my above finding, I do not propose to exprets any opinion on the third contention canvassed before me. ( 12 ) IN the result, for the foregoing reasons, rule is made absolute. The impugned order Ext. C is hereby quashed and the case is remitted to the 1st respondent with a direction to dispose of the matter afresh after giving an opportunity to the petitioner of being heard in the light of the observations made in the body of the order. No order as to costs. --- *** --- .