JUDGMENT 1. - In the instant petition the impugned order dated 23-3-92 contained in Annexure.3 by which the petitioner was compulsorily retired, is under challenge. 2. The facts are not in dispute. The petitioner was employed by the respondents as class IV employee vide appointment letter dated 1-2-1967 and at the relevant time the petitioner had filed a School Leaving Certificate with the respondents contained in Annexure. P.1 to the petition, according to which the petitioner's Date of Birth was 15-7-1942. The petitioner continued in the service with the respondents and vide letter dated 22-2-92 contained in Annexure.P.2 to the petition, he was directed to appear before the Medical Board for determination of his age. In pursuance of the said order the petitioner appeared before the medical Board and vide impugned order dated 23-3-92 the petitioner was compulsorily retired holding that as per the medical report the petitioner was found to be of sixty years of age and he had reached the age of superannuation. Being aggrieved and dissatisfied, petitioner preferred/filed the instant petition. 3. Heard Mr. Manoj Pareek, learned counsel for the petitioner; Mr. R.P. Pahawa, and Mr. M.D. Agarwal and Miss Sumitra Goyal, Additional Government Advocates. 4. Learned counsel for the respondents have fairly conceded that except asking the petitioner to face the Medical Board, no other notice was ever served upon him and after receiving the report of the Medical Board the impugned order of compulsory retirement was straight-away passed without giving any opportunity of hearing to the petitioner. 5. The instant petition raises two main questions whether (i) the issue of Date of Birth can be re-opened either by the employee or the employer after the lapse of twenty-five years of service particularly in a case where it has not been alleged by the respondents that the date of birth given by the employee/petitioner was a mis-representation or fraud, or the School leaving Certificate filed by him was a forged or fabricated document; and (ii) whether the impugned retirement order dated 23-3-92 could have been passed by the respondents without giving an opportunity of hearing to the petitioner/employee ? 6. 6. So far as issue No.1 is concerned, it is settled law that even the employee cannot ask the employer to change or to make any correction in his date of birth after serving for a long period and if it does so, the employer is under no obligation to consider such an application. (Vide Secretary and Commissioner, Home Department and others v. R. Kirubakaran, 1994 Suppl. (1) SCC 155 Chief Medical Officer v. Khadeer Khadri, 1995(2) SCC 82 , Burn Standard Company Ltd. and others v. Deen Bandhu Majumdar and another, AIR 1995 SC 1499 , Union of India v. Miss Saroj Bala, 1996 (2) SCC 81 , Vishakhapatnam Dock Labour Bord v. E. Atchanna and others, 1996 (2) SCC 484 , Union of India v. Harnam Singh, 1993(2) SCC 162 , International Airport Authority v. M.A. Wahab, 1994(4) SCC 439 and the Collector of Madras and another v. Raja Manikam, 1995(2) SCC 98 7. In State of Tamil Nadu v. T.V. Venugopalan, 1994(6) SCC 302 the Hon'ble Apex Court has observed as under:- "It is well known that the service record would be opened after the Government servant enters the service and the record would be counter-signed by the Government servant. The date of birth, as entered in the school record, is the source of material for making entry in the service record." 8. The said judgment has been approved, reaffirmed and applied by the Hon'ble Apex Court in State of Orissa and others v. Sri Ramanath, JT 1997 (4) SC 660 . 9. There is another aspect of the matter. Unless it is held that the school leaving certificate is a forged or fabricated document or there is manipulation in that certificate regarding the date of birth, such a certificate becomes admissible piece of evidence under the provisions of Section 35 of the Evidence Act, 1872. (Vide Mohammed Ikram Hussain V. State of Uttar Pradesh, AIR 1964 SC 1625 and Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 . 10. (Vide Mohammed Ikram Hussain V. State of Uttar Pradesh, AIR 1964 SC 1625 and Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 . 10. In Union of India v. M/s. Kantilal Himmat Ram Pandiya, AIR 1995 SC 1437 the Apex Court has stressed upon not to place any reliance on a document or certificate of date of birth which comes into existence after joining the service by an employee as the correctness and genuineness of such a certificate may not be free from doubt and the same might be obtained for achieving the ulterior purpose. Such a document, if produced at the verge of retirement, needs to be scrutinised carefully and interference made sparingly and with circumspection. The approach had to be cautious and not casual." 11. Similar view has been taken by the Allahabad High Court in R.S. Mehrotra v. Central Government Industrial Tribunal, 1991 (63) FLR 76 , Nagar Mahapalika, Bareilly v. Labour Court, Bareilly and another, 1995 (71) FLR 950 , and by the Bombay High Court in Maharashtra State Electricity Board v. Sukha Ram Sita Ram Sinde, 1996 (72) FLR 562 . 12. Thus, in view of the above, if it is not permissible for an employee to agitage the issue of correction of the date of birth at such a belated stage, the natureal corollary of it is that the employer also cannot be permitted to raise such an issue unless there is some unimpeachable piece of evidence in his possession to prove that the date of birth given by the employee at the time of joining the service was not correct. 13. Learned counsel for the respondents could not explain as to what was the justification to issue the order dated 22.2.92 to the petitioner to face the Medical Board as there was no complaint against him nor it is said that the school leaving certificate produced by him in 1967 was a forged or fabricated document. I am of the considered opinion that the impugned order dated 23.3.92 contained in Annexure. 3 has been passed adopting the unfair labour practice just to get rid of the petitioner and the respondents State, being model employers, cannot be permitted to adopt such an attitude. 14. I am of the considered opinion that the impugned order dated 23.3.92 contained in Annexure. 3 has been passed adopting the unfair labour practice just to get rid of the petitioner and the respondents State, being model employers, cannot be permitted to adopt such an attitude. 14. Even otherwise if the respondents had reason to believe that the date of birth given by the petitioner was wrong, asking him to appear before the Medical Board and giving him compulsory retirement straight-way on the basis of the medical report without giving any opportunity to the petitioner to furnish explanation for the same, vitiates the impugned order of compulsory retirement dated 23.3.92. Even in a case the employee does not cooperate with the enquiry, the employer is bound to ensure the compliance of law aped proceed ex-parte. (Vide State of Uttar Pradesh v. T.P. Lal Srivastava, 1996 (10) SCC 702 . 15. Nearly a Constitution Bench of the Supreme Court in Udit Narain Singh Malpahriya v. Member, Board of Revenue, Bihar, AIR 1963 SC 786 has held that it would be against all principles of natural justice to make an order adverse to a party behind its back and any order so made cannot be effective one. If an Authority passes an order in such a manner, the order can be ignored by such a party as not being binding on it. In Director, E.S.I. Scheme v. Dr. Sabita Mohanty, 1995 Suppl. (2) SCC 369 the Apex Court explained the scope of principles of natural justice by lacing reliance on the judgment in General Medical Council v. Spackman, 1943 AC 627 , wherein it has been observed as under: "If the principles of natural justice are violated in respect of any decision, it is, in deed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision" (Emphasis added). 16. In Municipal Corporation v. Chelaram & Sons and another, 1996 (11) SCC 127 it has been observed that it is not only necessary to give an opportunity of hearing but also to--pass a speaking order. In Move Steel (India) Ltd. V. M.C.D. and others, 1995(3) SCC 127 ". The decision must be declared to be no decision" (Emphasis added). 16. In Municipal Corporation v. Chelaram & Sons and another, 1996 (11) SCC 127 it has been observed that it is not only necessary to give an opportunity of hearing but also to--pass a speaking order. In Move Steel (India) Ltd. V. M.C.D. and others, 1995(3) SCC 127 ". the Hon'ble Supreme Court has observed that if an order is passed without hearing a. party and it adversely affects it, the exercise of power would be unwarranted, irrelevant and arbitrary. 17. Learned counsel for the petitioner has placed reliance upon the judgment of this Court dated 25.5.92 passed in S.B. Civil Writ Petition No. 3120/1992, Amar Singh v. Bharatpur Central Cooperative Bank Ltd. etc . By the said judgment a large number of writ petitions had been allowed by this Court wherein the employees had been given retirement on the basis of the similar medical reports. The direction issued to them to appear before the medical board and the order giving retirement for reaching the age of superannuation are of the same date which is involved in the instant case. This Court has quashed the said orders of retirement and declared that the employees involved therein were to be treated to be in service and entitled for all consequential reliefs. It appears that this order of termination is nothing but a by-product of a conspiracy by the respondents to get rid of its employees by giving them retirement on whimsical ground without ensuring the compliance of law and to achieve some ulterior purpose. The rule of law inhabits arbitrary action and any arbitrary action is laiable to be invalidated. The action of the State instrumentalities or the State should be without any affection or oversion. It should not be even suggestive of discrimination or bias. 18. The impugned order of retirement given to the present petitioner and a large number of others, which had been declared invalid by this Court earlier vide its judgment and order dated 25.5.92 has been passed in flagrant violation of the law. The impugned order has been passed without any sense of responsibility and application of mind. The conduct of the respondents becomes reprehensible. Though there is no allegation of malafides against any individual officer but the order itself speaks that it had been passed for extraneous consideration. The impugned order has been passed without any sense of responsibility and application of mind. The conduct of the respondents becomes reprehensible. Though there is no allegation of malafides against any individual officer but the order itself speaks that it had been passed for extraneous consideration. In Erason Equipment and Chemicals Ltd. v. State of West Bengal, AIR 1975 SC 266 the Hon'ble Supreme Court has observed that the activity of the State and State instrumental ties have public element and, therefore, there should be complete fairness in their conduct. The State need not enter into any contract with any one but if it chooses to do so, it must act fairly without any favour and without adopting any unfair procedure. 19. Similarly, in Ramanna Dayaram Shetty v. the International Airport Authority of India and others, AIR 1979 SC 1628 the Apex Court has observed that in a democratic set-up of Government the Rules of law is to be preserved and no authority can exercise the powers arbitrarily just to diminish the interest of an individual. The action of the State Instrumentalities must be in the form of reason and should be free from arbitrariness" as this is very essence of rule of law and its bare minimum requirement." 20. The same view has been expressed by the Hon'ble Apex Court in Haji T.M. Hassan Ravither v. Kerala Finance Corporation, AIR 1988 SC 157 Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 , Sirsi Municipality v. Coceila Com. Fransis Telis, AIR 1973 SC 855 and Sukhdeo Singh and others v. Bhagat Ram Bhagwan Singh Sardar and others, AIR 1995 SC 1331 . 21. In Andra State Financial Corporation v. Gar Re-Rolling Mills, 1994(2) SCC 647 the Supreme Court has observed as under:- "A Court of equity while exercising its equitable jurisdiction under Article 226 of the Constitution of India, must so act to prevent perpetuation of a legal fraud and the Courts are obliged to do justice by promotion of good faith, as far as it lies within their powers. Equity is always known to defend the law from crafty evasions and subtleties and invented to evade law." 22. Equity is always known to defend the law from crafty evasions and subtleties and invented to evade law." 22. Similarly, the Supreme Court, in the case of State of Maharashtra and others v. Prabhu, 1994(2) SCC 481 has observed as under:- "It is the responsibility of the High Court as custodian of the constitution to maintain the social balance by interference where necessary for the sake of justice and refusing to interfere where it is against social interest and public good." 23. The facts revealed by the record of this case are found to be stinking and smelling arbitrariness. The order of retirement has not been passed only against the present petitioner but against a large number of persons on the same date as explained in the judgment and order of this Court dated 25.5.92. It speaks a conspiracy of the higher officials against the Class IV employees. Thus, merely quashing the impugned order of retirement would not meet the ends of substantial justice. It requires that a higher officer in the respondent's department may examine the issue as under what circumstances and for what consideration the said impugned order of retirement had been passed and who were the officers responsible for passing such orders and what action should be taken against them ? 24. It requires that a higher officer in the respondent's department may examine the issue as under what circumstances and for what consideration the said impugned order of retirement had been passed and who were the officers responsible for passing such orders and what action should be taken against them ? 24. In view of the above, the petition succeeds and is allowed with the following directions : (1) the impugned order dated 23.3.92 contained in Annexure 3 is hereby quashed; (2) the petitioner shall be deemed to be in continuous service ignoring the said impugned retirement order dated 23.3.92; (3) The petitioner shall be entitled for full back wages with all consequential benefits and the arrears of salary shall be paid to him with interest @12% per annum and within a period of four months from the date of production of the certified copy of this order before the Managing Director, i.e., the respondent No.2; (4) The Registry is directed to send a certified copy of this judgment within a period of ten days straight-way to the respondent No.1, i.e., the Registrar, Cooperative Societies, Rajasthan, Jaipur, and the said respondent No. 1 is directed to hold an enquiry as under what circumstances the said impugned order had been passed against a large number of employees and after ensuring the compliance of this judgment and order in the letter and spirit as explained above, take apropriate action against the erring officers; (5) The respondent No. 1 is at liberty to pass an appropriate order to recover the amount of arrears etc. to be paid to the petitioner from the officer personally who had passed the order of retirement as the impugned retirement order has been passed in sheer abuse of power and the same amounts to colourable exercise of power. The court cannot pass such order directly as no person has been impleaded by name by the petitioner, but it does not mean that such an erring officer should go scot free; and (6) the respondent No. 1 shall take appropriate action, as stated above, and inform this court as what action it has taken against the erring officer, within a period of four months from today. *******