TRIBHUWAN SINGH Vs. DISTRICT MAGISTRATE

JUDGEMENT

(1.) THE petitioner was initially appointed as Supervisor Qanungo in 1956 -57. In 1977, he was promoted to the post of Naib Tehsildar. On 4.1.1989 he was promoted as Special Officer on special duty. The said post, according to the petitioner, is equivalent to the post of Tehsildar. In 1990 he was posted as Tehsildar and continued to work as Tehsildar at various places upto 4.5.1995. On 5.5.95 the District Magistrate, Maharajganj reverted him to the post of Additional Tehsildar. The petitioner challenged that order in writ petition No. 13169 of 1995, in which this court had passed interim order dated 17.5.95 staying the operation of the reversion order. The District Magistrate, Maharajganj, thereafter passed an order dated 22.5.95 retiring the petitioner with immediate effect. Being aggrieved by it, the petitioner has filed this writ petition. The respondents have filed counter affidavit and the petitioner has filed rejoinder affidavit in reply thereto. We have heard learned counsel for the parties.

(2.) THE impugned order has to be set aside for two reasons, namely -(I) Although the impugned order adversely affects the petitioner but it was passed without giving him any opportunity of being heard. The District Magistrate, Maharajganj Vide his order dated 1.1.95 had informed the petitioner that he would be retiring on 31.12.95 treating 1.1.1938 as his date of birth. However, vide impugned order dated 22.5.95, the petitioner has been informed by another District Magistrate that he is retired with immediate effect treating 1.1.1936 as his date of birth. By the said order the earlier order dated 1.1.95, mentioned above, has been revised, but no opportunity of being heard was given to the petitioner before passing that order. In paragraphs 18 and 21 of the writ petition the petitioner has specifically stated that no opportunity of being heard was given to him before passing the impugned order. The reply of paragraphs 18 and 21 of the writ petition is contained in paragraphs 15 and 17 of the counter affidavit. In paragraph 15 of the counter affidavit the respondents have stated that as the petitioner has prepared a forged service book and is guilty of forgery, it was not necessary to give him opportunity of hearing before passing the impugned order. This contention of the respondents cannot be accepted for two reasons, namely - -(a) the question as to whether the petitioner is responsible and guilty of forgery in preparation of the service book could not have been decided without giving him an opportunity of being heard and (b) there is nothing on record to establish that the petitioner is in any way responsible for the preparation of service book. That apart the service book produced by him, contains 1.1.38 as the date of his birth which is in consonance with the High School Certificate of the petitioner. There is nothing on record to establish that 1.1.1938 is not date of birth of the petitioner. Moreover, the Collector himself has passed an order dated 1.1.95 informing the petitioner that he would retire on 31.12.95. If the Collector wanted to change that order directing the retirement of the petitioner prior to 31.12.95, it was his duty to give him an opportunity of being heard before passing such an order, but that was not done.