JUDGMENT Rakesh Tiwari, J.
1. Heard counsel for the parties and perused the record.
2. The father of the petitioner was an employee of Nagar Palika Parishad, Jalabad, Shahjahanpur. He died in harness on 27.7.89. The petitioner was appointed on compassionate ground on the post of Safai Karmchari in Nagar Palika Parishad, Jalabad, Shahjahanpur and continued in service till 31.8.2004. On that date, the respondent No. 3, Executive Officer, Nagar Palika Parishad, Jalabad, Shahjahanpur terminated the services of the petitioner without any opportunity of hearing inter-alia, that the father of the petitioner had completed 60 years of age on 30.6.1988, hence he could not be deemed to have been in service as such the appointment given to the petitioner on compassionate ground was illegal.
3. The counsel for the respondents has relied upon the averments made in the counter affidavit and submits that according to records the father of the petitioner had not died in harness. He submits that he or some other person in his interest changed the date of superannuation of the father of the petitioner to 30.6.1988. As a result the father of the petitioner continued in service even after the date of superannuation and the petitioner as a consequence got employment on compassionate grounds. It is further submitted that an enquiry was held by the Additional District Magistrate, Jalabad, Shahjahanpur and the services of the petitioner were terminated on submission of enquiry report dated 5n August, 2004.
4. The counsel for the petitioner in rebuttal has relied upon the averments made in paragraphs 6 and 7 of the rejoinder affidavit wherein it is averred that the father of the petitioner continued in service till his death and the petitioner was entitled to be considered for appointment under the Dying in Harness Rules. It is urged that neither the petitioner received appointment by fraud or misrepresentation nor his services had been terminated as a consequence of any enquiry conducted against him for committing any misconduct and as such, the appointment of the petitioner can not be termed as illegal. It is specifically stated that the alleged enquiry by the Additional District Magistrate and the said enquiry report relied upon by the counsel for the respondents was also never served upon the petitioner and the enquiry was conducted exparte and no opportunity of hearing whatsoever was afforded to the petitioner.
5. The counsel for the petitioner has also placed the Retention and Retirement of Service of Municipal Board Regulations, 1965 which provides that an employee of the Municipal Board can continue in service up to the age of 62 years for special reasons. He has also relied upon averments made in paragraph 9 of the rejoinder affidavit wherein it has been stated that the petitioner cannot be penalized for the own mistake of the department and no action whatsoever was taken by the department for finding out who had manipulated the service records of the father of the petitioner.
6. It is urged that in fact the petitioner was continued by the Municipal Board and interpolation has been made by the respondents themselves in the service record of the father of the petitioner in order to create a ground for termination of the services of the petitioner which were in the custody of the respondents. It is vehemently urged that respondents are now stopped from challenging the appointment of the petitioner after 14 years back and that the appointment of the petitioner was not void abinitio as alleged by the respondents.
7. After hearing counsel for the parties and on perusal of the record 1 am of the opinion that the father of the petitioner had actually worked till his death and his service records were in the custody of the respondents. The application of the petitioner must have been forwarded for compassionate appointment after scrutiny of the service records of his father, hence it can be safely concluded that till his appointment there was no cutting or interpolation in the date of birth of the lather of the petitioner recorded in the service book. The petitioner was not even in service before the date of death of his father. Admittedly even according to the respondents nothing could be said with certainty as to who made interpolations, but one fact stands undisputed i.e. the father of the petitioner had worked in the respondents Corporation till his death. Admittedly, no enquiry has been conducted as to who is guilty of interpolation.
8. The ex-parte enquiry report dated 5th August, 2004 has neither been appended with the writ petition by the respondents nor has been shown before this Court.
9. In the aforesaid circumstances, the petitioner cannot be penalized for any alleged interpolation in the service record by some unknown person. What is the material is the fact that the father of the petitioner died in harness. There is no illegality in the appointment of the petitioner who has worked in the department for last about 14 years when his services have suddenly been terminated without affording an opportunity. The impugned order of termination is therefore out and out, illegal, arbitrary and without reasonable basis. A right of livelihood has accrued to the petitioner as enshrined under Article 21 of the Constitution, which cannot be taken away without proper opportunity of hearing even otherwise in the circumstances of this case.
10. No other point has been argued before me.
11. For the reasons stated above, the writ petition is allowed and the impugned order is quashed.