Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 1203 (PAT)

Ram Dayaloo Sharma v. State Of Bihar

2004-12-03

NAVIN SINHA

body2004
Judgment Navin Sinha, J. 1. Heard learned counsel for the petitioner and learned counsel appearing for the respondents. 2. In the present application, the petitioner seeks quashing of the order dated 10.5.1999, Annexure-1, by which the order dated 2.9.1995 retiring the petitioner from service with effect from 1.9.1995 has been upheld. The petitioner had come to this Court earlier in CWJC No. 595 of 1997 which was disposed of on 30.11.1998 with a direction to the respondents to hold an enquiry afresh and then pass appropriate orders, in pursuance of which Annexure-1 came to be issued. In the aforesaid order, this Court had also observed that whether the petitioner would retire on 1.9.1995 or whether he would be deemed to continue in service till 31.12.1997 and would be, therefore, entitled to his salary till that date would abide by the final decision. 3. The case of the petitioner is that he was appointed as Naik Instructor in the Bihar Homeguards on 18.10.1963 when his service book was also opened. The service book at this point of time recorded his date of birth as 23.12.1939. The petitioner continued in service of the Bihar Homeguards when a gradation list came to be published in the year 1993. The date of birth of the petitioner in accordance with the entry in the service book was also recorded in the gradation list as 23.12.1939. The petitioner, in the circumstances was clearly to superannuate in October, 1997. On 2.9.1995, respondents issued an order retiring the petitioner from service with effect from 1.9.1995 on the basis of his date of birth allegedly being 1.9.1937. The petitioner assailed the same in CWJC No. 595 of 1997 on the ground that prior to the alteration of his date of birth he was not heard. This Court, by order dated 30.11.1998 set aside the order dated 2.9.1995 with directions to hold a fresh enquiry. Respondents then issued notice to the petitioner and passed final order on 10.5.1999 maintaining their original order of 2.9.1995 retiring the petitioner from service in 1995. 4. Learned counsel for the petitioner submitted that the respondents do not dispute that the issue of entry in the service book of the petitioner showing his date of birth as 23.12.1939 recorded at the time of his entry into service in 1963 surfaced just two years prior to his superannuation in the year 1997. 4. Learned counsel for the petitioner submitted that the respondents do not dispute that the issue of entry in the service book of the petitioner showing his date of birth as 23.12.1939 recorded at the time of his entry into service in 1963 surfaced just two years prior to his superannuation in the year 1997. Learned counsel placed reliance upon Rule 96 of the Bihar Financial Rules to submit that if the petitioner could not have been permitted to assail the date of birth at this belated stage, the same principle would apply to the respondents. Learned counsel qualifies the submission by pointing out that there is no allegation of any fraud having been practised by the petitioner and neither such allegations have been the subject matter of any enquiry. It is further submitted that in pursuance of the enquiry conducted after the order of this Court, the enquiry report, Annexure-4 would reveal that verification in the Office of Ram Kishore High School, Chapra, a Government schcool from where the petitioner had been issued the transfer certificate in question confirmed that a list of 88 students in whose favour transfer certificates were issued, the name of the petitioner was at serial 17 in that list. It is submitted that once the correctness of the transfer certificate submitted by the petitioner in support of proof of his "date" of birth as 23.12.1939 was confirmed in the enquiry, there is no justification for the respondents not to accept the same and insist upon production of original matriculation certificate and other records in that regard to the prejudice of the petitioner. Learned counsel emphasises that the said High School is a Government School whose records have been taken into consideration for ascertaining the genuine date of birth of the petitioner. The genuineness of the transfer certificate is not in dispute. It is further submitted that the respondents have proceeded on assumption based on their conclusion that Rules for training under the Home Guards required candidate to be 19 years of age on the date that he commences the training and on that basis they have fixed his date of birth as 1.9.1937. Learned counsel for the petitioner submits that the same is clearly not permissible when unimpeachable documentary evidence in support of proof of the age of the petitioner was available. 5. Learned counsel for the petitioner submits that the same is clearly not permissible when unimpeachable documentary evidence in support of proof of the age of the petitioner was available. 5. Learned State counsel submits that in absence of the original records of the concerned school from which the petitioner cleared his matriculation, the authorities have proceeded on assumption with regard to his age basing the same as 19 years on the date that he commenced training in the year 1956 as a Home Guard and thus fixed his date of birth as 1.9.1937. He also placed reliance upon two orders of this Court, Annexures C and D to the counter-affidavit. 6. Having considered the submissions of the learned counsel for the parties, this Court holds that there are no allegations of fraud on the part of the petitioner in having his date of birth recorded as 1.9.1939 in the service book at the time of his entry in service in 1963. Moreover, the petitioner has produced the transfer certificate in support of his date of birth issued to him by the Government School which has been verified in course of an enquiry and found to be genuine by respondents. This Court, therefore, finds that in absence of any allegation of fraud, to permit the respondents to proceed on assumptions at such belated stage two years prior to his scheduled superannuation in 1997 would clearly not be in the interest of justice. If the petitioner could not have been permitted to reopen the matter two years prior to his superannuation the same reasoning would apply to the respondents also. This Court finds that the two orders of this Court relied upon by respondents are different in nature as in those two cases no enquiry had been done in pursuance of the orders of the Court and final orders passed thereafter as in the present case. 7. This writ petition is, therefore, allowed. The petitioner would deemed to have been continued in service till superannuation i.e. 31.12.1997. Respondents would, therefore, be required to comply with the observations made by this Court with regard to the petitioners grievance in CWJC No. 595 of 1997. There shall be no order as to costs.