JUDGMENT M.L. Bhatt, J.
1. By this writ petition the petitioner challenges his order of retirement. It is asserted that on the basis of incorrect entry of date of birth in his service record, he was retired prematurely. The facts lie in brief compass.
2. The petitioner is a lines-man in the office of the respondent. He was firstly appointed on the post of coal coolie in Agra Electric Company Limited in the year 1967 by the Resident Engineer. Photostat copy of his appointment order is annexed with the petition as Annexure-1. The said company was taken over by the U.P. Electricity Board and employees of the Company were absorbed in the Board. That is how the petitioner came to be employed in the Board. The petitioner was promoted on the post of fuse-man by the Board.
3. In the year 1716, as contended by the petitioner, he came to know about his incorrect entry of date of birth which was recorded as 1932. He made an application to the respondent for correction of his date of birth and informed him that his actual date of birth was 5.1.1946. In support of his application the petitioner is said to have furnished a copy of his school leaving certificate. Copy of his application and copy of the school leaving certificate are marked as Annexure-2 and 3 respectively, to the writ petition. It is averred that he met the respondent personally and he was assured that the matter was being looked into. He made several representations for correction of his date of birth. Last representation made by the petitioner was dated August 25, 1989.
4. It is stated in the petition that the petitioner's date of birth as recorded in the service record is incorrect and based on no evidence. The evidence which the petitioner adduced has not been considered and he has been incorrectly retired at the age of 44 years which is arbitrary and illegal. He has a right to continue in service till he completes the age of superannuation. The impugned order of retirement is challenged as being opposed to the principle of natural justice. There is manifest error committed by the respondent in issuing the impugned order. A mandamus is also sought that the respondent allow the petitioner to continue in service till he attains the age of superannuation.
5. The respondent has filed an affidavit in reply to the writ petition. The respondent has raised a preliminary objection to the maintainability of the writ petition. It is averred that the petitioner has an alternative remedy to file a claim petition before the U.P. Public Services Tribunal under Section 4 of the U.P. Public Service Tribunal Act. Therefore, the present writ petition is liable to be dismissed. It is further stated that according to the service book available with the respondent, the date of birth of the petitioner is recorded as 1932. The petitioner had declared his date of birth in 1967 when he joined the services of the Company. The said company was transferred to the Board w.e.f. December 18, 1973 and services of the petitioner also were transferred to the Board. The Board also prepared the service record of the petitioner and his date of birth was mentioned as 1932 which was duly acknowledged by the petitioner by putting his signature in the service book. Annexure-2 is copy of the document with the counter in support of this contention. The respondent has denied to have received any representation in 1979. It is contended that in view of statutory provisions applicable to the Board, the date of birth mentioned in the service book is conclusive and no application or representation can be entertained for affecting any change in the same. Copy of Rules to this effect is contained in Annexure-3 to the counter. It is stated that the petitioner did not raise any dispute with regard to his date of birth, nor did he meet the respondent for affecting correction in his date of birth. He, for the first time submitted a representation on August 25, 1989 for change in his date of birth which was not maintainable in view of the statutory provisions applicable to the Board. It is stated that the petitioner's declaration about his date of birth in the High School Examination in the year 1988 would not alter the position.
6. In the rejoinder-affidavit filed by the petitioner he admits to have signed the original of Annexure-2 to the counter but contended that his date of birth was not recorded then, nor was he told that 1932 was being recorded as his date of birth. The service record is said t6 have been manipulated. The Petitioner never made any declaration about his date of birth. He has reiterated what is stated by him in the writ petition.
7. From examination of the pleading and documents placed in the record, it appears that the petitioner had joined the respondent's Company, which was subsequently taken over by the Board, in 1967. The Photostat copy, Annexure 1 to the writ petition, contains the particulars which are recorded by the Company when the petitioner was initially appointed as coolie by the company. His date of birth is recorded as 1932. No date or month is recorded with the year of birth. The age, at the time of his appointment, has been shown as 35 years and at the foot of the petitioner is shown to have put his signatures. As to whether the petitioner had signed the form after particulars were recorded or he has signed the form before the particulars were recorded, is not known. On what basis the petitioner's age and date of birth was recorded when he entered in the service pf the company, is also not known. Thereafter, the company was taken over by the Board and Board seems to have prepared the service record which is F.R. Form No. 13 on the basis of the record maintained by the Company. The Board also does not seem to have demanded any proof in respect of the date of birth of the petitioner and date of birth 1932 is written without there being any actual date of birth or month of birth, only year of birth is recorded.
8. The petitioner, thereafter, had submitted a copy of the School Leaving Certificate where his date of birth is recorded as 5.1.1946. It is excluded from the consideration by the respondent on the ground that his date of birth once recorded cannot be changed. However this Court on March 26, 1990 had directed the Executive Engineer Head Quarter, Electricity Urban Distribution Circle, U.P. State Electricity Board, Allahabad to decide the representations of the petitioner dated August 20, 1989 and January 27, 1990, copies whereof are An-nexure-4 and 5 to the writ petition. It was submitted at Bar that these representations were considered in terms of the Court's order and rejected.
9. A preliminary objection raised by the learned counsel for the respondent about the maintainability of the writ petition has no force because a valuable right of the petitioner, if taken away at his back, would give him a right to approach the High Court under Article 226 of the Constitution of India. Learned counsel for the respondent submitted that the petitioner has as an alternative remedy, therefore, the writ petition on which every writ petition can be dismissed. The bar of exhaustion of alternative remedy is subject to certain exceptions. One of the exceptions is that when the impugned act complained of, has been passed without observing principle of justice the writ petition would be competent and the Bar of exhaustion of alternative remedy would not stand in its way to receive consideration by the High Court under Article 226 of the Constitution. Another exception is when the action taken is ultra vires of the Constitution. The High Court can entertain a writ petition even though alternative remedy may be available to a litigant in the matter. Therefore, for not resorting to alternative remedy every writ petition cannot be dismissed though it is a practice that where there is alternative remedy available that may be resorted to in the first instant before the Court jurisdiction under Article 226 of the Constitution of India is invoked. In the present case the order of retirement is based on a date of birth which is challenged and the department has not considered the representation of the petitioner for its correction and has passed an order without hearing the petitioner, Therefore, it violates the principle of natural justice. In such circumstances the writ petition cannot be thrown out merely because the petitioner has an alternative remedy available which he has not invoked. The alternative remedy must be effective, if it is cumbersome, it will lose efficacy and may not be effective so as to bar the jurisdiction of the High Court to entertain a writ petition.
10. The second question that falls for consideration is whether the rules invoked by the respondent about a date of birth once recorded in the service record not being amenable to change on any ground whatsoever. Before this, rule is invoked by the respondent, it has to satisfy the Court that it was the petitioner who had declared his age before the erstwhile company and the company has not recorded the date of birth of its own. The respondent has only carried forward the entry of date of birth from the record of the company which was taken over by it. What was the basis for the company to record the date of birth of the petitioner is not clearly spelled out. The rule on which respondent is relying conceives of a situation where the date of birth was correctly recorded that may not be amenable to any change subsequently, at the instance of the employee. Whether the date of birth of the petitioner was correctly recorded by the company or not is not known. Therefore, in the absence of any proof in this regard, the rule invoked by the respondent cannot be allowed to operate in the present case. The determination of date of birth may involve collection of evidence and it may not be possible for the High Court to record evidence with regard to the disputed fact, but it can certainly issue direction about the method and manner in which controversy about the date of birth can be settled. There are conceivable situations where the date of birth recorded is incorrect for many reasons. It may be due to inadvertence, it may be due to mistake in ;he record and so on and so forth. If the rule contained in Annexure-3 relied upon by the respondent is invoked, even a clerical mistake in the date of birth cannot be corrected. Therefore, the rule has to be interpreted reasonably so as to make it meaningful to serve the cause of justice. The rigid interpretation placed on the rule by the respondent will defeat the object of the rule and the law relating to the service matters. Therefore, the rule invoked by the respondent in the present case making the date of birth, once recorded, unalterable can be relied upon only in those cases where the date of birth is correctly recorded and where there is no dispute about the actual date of birth.
11. The petitioner's case is that he had detected the mistake in 1979 but he does not seem to have taken any step to get his date of birth corrected. However, his representation dated August 25, 1989 was directed to be considered by the Court. In my opinion the consideration accorded to the representation dated August 25, 1989 is not valid. That was the only earliest representation which could be considered. Its consideration should have been objective and not subjective. The authority to whom it was referred has not said anything about the date of birth of the petitioner recorded by the company in 1967 and about the basis on which this date of birth was recorded. Nor has the authority said anything about the school leaving certificate of the petitioner in which the petitioner's date of birth is shown as January 5, 1946. The authenticity of this certificate could be doubted, but only on cogent reasons and after application of mind.
12. The retirement of the petitioner without consideration of his representation in accordance with law is, therefore, violative of principle of natural justice. While the disputed question of fact cannot be considered by this Court, but this Court can certainly issue directions for consideration of a disputed question of fact.
13. In State of Orissa v. Dr. (Miss) Binapani Dei and Ors. ((1967) 2 LLJ 266) was said that-Under Article 226 of the Constitution the High Court is not precluded from entering upon a decision on questions of fact raised by the petition. Where an enquiry into complicated questions of fact arises in a petition under Article 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined, the High Court may in appropriate cases decline to enter upon that enquiry and may refer the party claiming relief to a suit. But the question is one of discretion and not of jurisdiction of the Court. In the present case the question in dispute was about the regularity of the enquiry and the High Court was apparently of the view that the question whether the State acted arbitrarily did not raise any question of investigation into complicated issues of fact. No interference with the exercise of the discretion of the High Court is, therefore, called for."
14. After the High Court directed to consider the representation of the petitioner with regard to the correction of the date of birth of the petitioner it was necessary for the respondent to associate the petitioner with any enquiry in which consideration of the representation was made. By a judicial order the representation of the petitioner was required to be considered. How that representation was considered is not known. Even administrative order which involves civil consequences have to be passed consistently with the rules of natural justice. Where representation is directed to be considered, the consideration must be in accordance with law. The person who was directed to consider it was required to hear the petitioner and allow him to adduce such evidence as may have been in his possession. It has also to give reasons in his order as to why he did not rely on any document in support of the. date of birth of the petitioner and what was the reason for its rejection. The consideration given to the petitioner's representation is, therefore, bad and violative of principle of natural justice. That being so, petitioner's representation is required to be considered afresh in accordance with the rules after observing principle of natural justice. The respondent has closed the matter on his part by rejecting the petitioner's representation. Therefore he has made-up his mind and it will not be proper to ask the same man to consider the representation. Accordingly, it is commanded that the representation of the petitioner shall be reconsidered by the person other than the respondent, to be nominated by the Chief Engineer concerned who shall decide the representation after allowing the petitioner reasonable opportunity of being heard and after allowing him to adduce evidence in support of his claim and after allowing him to cross examine any witness which may appear against him. Thereafter, the controversy about the petitioner's date of birth be settled by ignoring the purported service Rules contained in Annexure-3 to the counter filed by the respondent. From the date of service of this order the enquiry shall be completed within six months and representation of the petitioner be decided by a reasoned and speaking order after keeping the observations of this Court in mind and after following the principles of natural justice.
15. If the petitioner's date of birth is held to be January 5, 1946 as contended by him, he shall be taken back in the service on the post from which he was retired and shall be deemed not to have been retired at all by virtue of the impugned order. In that case he shall be given back wages also for the period for which he has remained out of service alongwith all benefits which are admissible to him under the service rules. In case his date of birth is found to be 1932 on enquiry, he shall stand retired from the date mentioned in the impugned order. The respondents shall settle his pension case and pay him all other benefits which are due to him under the service rules.
16. In case the enquiry is not completed within six months as directed by this judgment, the petitioner shall be taken back in service at the expiry of the period of six months and his contrnuance in service shall be subject to the result of the enquiry, that is directed to be held with regard to the representation made by the petitioner.
17. There will no order as to costs.