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2000 DIGILAW 65 (PAT)

Gholam Rasool v. State Of Bihar

2000-01-13

RADHA MOHAN PRASAD

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Judgment Radha Mohan Prasad, J. 1. In this was petition the petitioner is aggrived by the order dated 3.5.1993 issued by the Director, Personnel, Bihar State Electrical Board (respondent no. 2) and the order dated 24.1.1996 issued by the Deputy Director, Personnel, Bihar State Electrical Board (respondent no. 4) contained in Annexure 1 and 2, whereby and whereunder the Board has accepted the original entry of date of birth of the petitioner as recorded in his Service Book and treated May, 1987 as the effective date of superannuation of the petitioner from the service of the Board. However, the Board has further ordered that the excess salary paid for the period 1.6.1987 to 31.1.92 shall not be recovered from the petitioner, but his post retiral dues shall be determined on the basis of the service rendered by him till 31.5.1987. 2. In short, the relevant facts are that the petitioner was initially appointed as Junior line-man under the Electrical Supply Subdivision, Samastipur. Admittedly "11.5.1927" was entered as his date ot birth in the Service Book. However, at the fag end of his service the petitioner made a representation for change of his date of birth and on consideration of the same the Electrical Superintending Engineer, Samastipur Electrical Circle (respondent no. 6) passed order on 13.6.1987 contained in Annexure 3 determining the petitioners date of birth as 31.1.1932 instead of 11.5.1927. Pursuant to the said order the Electrical Executive Engineer, Samastipur (respondent no. 7) issued order dated 5.9.1991 contained in Annexure 4 retiring him from service of the Board on 31.1.1992 treating his date of birth as 31.1.1932 to be correct. 3. From the counter affidavit filed on behalf of the respondents it appears that the matter regarding payment of pension to the petitioner was referred to the General Manager by the Electrical Superintending Engineer and ultimately the Board on consideration of the entire facts and the circumstances of the case passed orders contained in Annexure 1 and 2, which have been impugned in this writ application. 4. 4. It appears that the petitioner has filed the present writ application after lapse of more than four years of the first impugned order dated 3.5.1993 (Annexure 1) passed by the respondent-Board determining that the petitioner would be treated to have retired in May, 1987 and further rejecting his claim with respect to the pension as the said claim was introduced from a later date i.e. 6.11.1987. 5. According to the counter affidavit of the respondents the case of the respondents-Board is that the change of the date of birth made by the Electrical Superintending Engineer (respondent no. 6) was in violation of Rule 86 (sic96 ?) of the Bihar Financial Rules, 1950 (hereinafter to be called as "the Rules") as well as uncalled for and without jurisdiction. The learned counsel for the petitioner has failed to show that the Electrical Superintending Engineer was competent authority" to permit the said change in the date of birth of the petitioner and that too at the fag end of his service. Moreover, the writ application is also fit to be dismissed on the sole ground that the petitioner did not challenge the validity of the first order dated 3.5.1993 (Annexure 1) for over four years without any plausible explanation. He placed reliance on the decision of the Supreme Court in the case of Burn Standard Company and ors. V/s. Dinbandhu Majumdar & anr. reported in A.I.R. 1995 S.C. 1499. 6. This Court finds substance in the said submission of the learned counsel for the Board. In the case of Burn Standard Company and ors. (supra) the Apex Court has held that the writ petition for correction of date of birth at the fag end of service should not ordinarily be entertained. In the instant case the petitioner sought change of his date of birth at the fag end of his service which was, however, finally turned down by the Board vide order contained in Annexure 1, the validity of which was not assailed for four years. Under such circumstances the writ petition on the ground of delay and laches itself is fit to be dismissed. 7. Under such circumstances the writ petition on the ground of delay and laches itself is fit to be dismissed. 7. However, under Rule 96 of the Bihar Financial Rules every person newly appointed to a service or post under Government is required to declare his date of birth by the Christian era at the time of appointment and once it is recorded it cannot be altered, except in the case of a clerical error without the orders of the State Government. Note 1 of the said Rules provides that no representation for rectification of mistake in the date of birth as entered in the records of service of a Government shall be entertained, if it is not submitted within a period of ten years of the date of his entry into Government service. It is further provided therein that representation submitted thereafter will be summarily rejected by the authority competent to pass final orders under the said Rules unless there are exceptional cases to relax this time limit. 8. In the instant case there is no explanation given on behalf of the petitioner to invoke the power of relaxation. Admittedly the representation filed by the petitioner for change of the date of birth was much after expiry of the aforesaid time limit, i.e. ten years of his appointment. Thus, the order of the Electrical Superintending Engineer was legally not justified in making change in the date of birth of the petitioner. The learned counsel for the petitioner has submitted that before passing of the impugned orders the petitioner was entitled for at least a show cause notice. This Court in the facts and circumstances of the case aforesaid does not find any substance in the said submission of the learned counsel for the petitioner. From the very order passed by the Electrical Superintending Engineer (respondent no. 6) as contained in Annexure 3 itself, it is evident that "11.5.1927" was recorded as the date of birth in the Service Book of the petitioner and change of the same was brought by the said respondent no. 6 on the representation filed by the petitioner after expiry of ten years. However, it is not the case of the petitioner also that change was sought within the time that is fixed in the aforesaid Rule 96 of the Rules. As such this Court does not find any infirmity in the impugned orders. 6 on the representation filed by the petitioner after expiry of ten years. However, it is not the case of the petitioner also that change was sought within the time that is fixed in the aforesaid Rule 96 of the Rules. As such this Court does not find any infirmity in the impugned orders. The writ application is thus dismissed but without cost. 9. However, if any post retiral dues have not been paid to the petitioner till date, the respondents are directed to pay the same within two weeks of the receipt/production of the copy of this order. It is needless to say that the petitioner shall be entitled for statutory interest or interest as provided in the Government Circular on delayed payment of the post retiral dues, which shall also be calculated and paid, if found payable within the aforesaid time.