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2003 DIGILAW 1044 (PAT)

Radha Kishun Ram v. State of Bihar

2003-09-23

S.N.JHA

body2003
ORDER The dispute in this case relates to date of birth and, consequently, the date of superannuation of the petitioner. The petitioner was Choukidar within Sikrahta Police Station of Bhojpur district. His case is that after death of his father, who too was Choukidar, he was appointed in his place in 1980. Pursuant to policy decision of the government giving Choukidars the status of regular government servant, he was appointed on the post in 1990. According to the petitioner in the service book which was opened pursuant to such appointment, his year of birth was initially mentioned as 1938 which was later corrected as 1952 on the basis of assessment of age by the Medical Board. However, arbitrarily, he was retired from service with effect from 31.12.95. He came to this Court in CWJC No. 11157/2002 which was disposed of on 11.2.2003 with liberty to file fresh representation, and a direction to the District Magistrate to consider the same and pass speaking order. In the light of the aforesaid order the District Magistrate considered the petitioner's claim and rejected the same by the impugned order dated 12.6.2003. The petitioner has again come to this Court challenging the said order. 2. Shri S.J. Rahman, learned Government Pleader No.7 appearing for the respondents stated that the year 1952' in the relevant column of the service book was an apparent mistake. The fact of the matter is that the Medical Board had assessed the petitioner's age as 52 years on 18.9.90 but instead of recording petitioner's age as 52 years in the column of date of birth, year 1952' was recorded which is being used by the petitioner as the basis of his claim. Counsel produced the original service book and the records of the Medical Board from which it appears that a large number of Choukidars and Dafadars working in the district were subjected to Medical Board for determination of their age from 17.5.90 and onwards. The petitioner appeared before the Medical Board along with 91 others on 18.9.90 when his age was assessed as 52 years. In view of the said record, it is difficult to accept the petitioner's case about his age. 3. Counsel for the petitioner submitted that a direction may be issued for fresh determination of his age. The petitioner appeared before the Medical Board along with 91 others on 18.9.90 when his age was assessed as 52 years. In view of the said record, it is difficult to accept the petitioner's case about his age. 3. Counsel for the petitioner submitted that a direction may be issued for fresh determination of his age. Since the above said determination was in presence of the petitioner, and against which no objection was filed, I do not think a fresh determination is required at this stage. Counsel then submitted that in any view, as he had worked during the relevant period, he should be paid salary and, further, direction to recover the amount paid to him in the earlier period should be set aside. Counsel for the State relying on Radha Kishan Vs. Union of India, 1997 (2) P.L.J.R. 129 (SC) submitted that petitioner is not entitled to any salary and the direction to recover the excess amount needs no interference. 4. In the above said case the Supreme Court observed that where the government servant knows his date of birth but continues to work beyond that age he cannot claim salary. The present case appears to be different. The petitioner belongs to lower strata of society and there does not appear to be any record of his exact date of birth. In fact, even the respondents proceeded on the basis of approximate assessment of age by the Medical Board. That being so it may not be said that the petitioner was aware of the date of his retirement so as to disentitle him salary for the subsequent period. The settled principle is that where an employee works beyond the due date of superannuation without any allegation of fraud or misrepresentation, and work is taken from him, he should be paid salary, if not for any reason, on the principle that every non-gratuitous service rendered by a person should be compensated. The case of the petitioner is that salary is due to him from January to November, 2000. He has been paid salary prior to January, 2000. 5. In the facts and circumstances, I would direct the respondents to pay him salary for January to November, 2000 provided he actually worked during that period, after due verification of the records. The direction for recovery of the amount already paid is set aside. 6. He has been paid salary prior to January, 2000. 5. In the facts and circumstances, I would direct the respondents to pay him salary for January to November, 2000 provided he actually worked during that period, after due verification of the records. The direction for recovery of the amount already paid is set aside. 6. The writ petition is disposed of with the observations and directions mentioned above.