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2004 DIGILAW 1224 (PAT)

Shivpayari Devi v. State Of Bihar

2004-12-09

CHANDRAMAULI KR.PRASAD

body2004
Judgment Chandramauli Kr.Prasad, J. 1. This writ application was filed by Ram Baran Singh (hereinafter referred to as the petitioner) and after his death it is being pursued by his legal heir for issuance of a writ in the nature of certiorari for quashing the order dated 20th of September, 1999 (Annexure-1). 2. Short facts giving rise to the present application are that the petitioner passed the Secondary School Examination conducted by the Bihar School Examination Board in the year 1954 and his date of birth recorded in the said certificate is 9th of June, 1935. According to the petitioner his date of birth is 9.6.1937 and an affidavit to that effect dated 4.8.1960 (Annexure-2) was sworn by his father. Petitioner was appointed as Assistant Teacher on 19.5.1964 and according to him the upper age limit for appointment at that time was 27 years. It is not disputed that in the Service Book of the petitioner both the dates i.e. 9.6.1935 and 9.6.1937 have been recorded against the column of the date of birth in accordance with the Matriculation Certificate and the affidavit respectively. It seems that by order dated 8.10.1977 of the District Superintendent of Education petitioner was transferred to middle school, Jagapakar from middle school, Mangalpur and the later by his letter dated 13.10.1977 (Annexure-3) informed that petitioners date of birth is 9.6.1937. Petitioner had also placed on record the application filed by him for admission to the provident fund which also shows his date of birth as 9.6.1937. The teachers register maintained by the Headmaster has also been placed on record to show that the date of birth of the petitioner is 9.6.1937. All went well with the petitioner till then. 3. However, by memo dated 30th of August, 1997 (Annexure-5A) the District Superintendent of Education wrote to the Area Education Officer with regard to the discrepancy found in the date of birth of the petitioner and accordingly the Area Education Officer as also the petitioner was asked to appear. Petitioner appeared on the date fixed and filed an application stating therein that on the basis of the date of birth mentioned in the affidavit i.e. 9.6.1937 the writ petitioner continued in service till 30th of June, 1997. However, he admitted that his date of birth in the Matriculation Certificate is 9th of June, 1935. A report was also submitted by the Headmaster of the School. However, he admitted that his date of birth in the Matriculation Certificate is 9th of June, 1935. A report was also submitted by the Headmaster of the School. On consideration of the aforesaid the date of birth of the petitioner has been held to be 9.6.1935 and accordingly writ petitioner was directed to refund the emolument and other allowances which he got on account of his continuance in service on the basis of the date of birth being 9.6.1937. 4. Mr. Rajendra Prasad Singh, Senior Advocate appearing on behalf of the petitioner submits that the date of birth mentioned in the affidavit i.e. 9.6.1937 was accepted by the authority which would be evident from the fact that not only the said date of birth has been mentioned in the service book but also on the ground that had the said date of birth not accepted, the petitioner should not have been appointed being over age on the date of appointment. This factor, according to Mr. Singh, clearly indicates that the date of birth of the writ petitioner as claimed in the affidavit was accepted. J.C. to S.C. Ill, however, contends that there is provision for condoning the upper age limit for appointment and as the petitioner has crossed the upper age limit, it shall be deemed that the same was condoned. He also draws my attention to Rule 96 of the Bihar Financial Rule which, inter alia provides that the date of birth as recorded in the matriculation certificate is the determining factor. He highlights that the petitioner had no where disputed that his date of birth, 9.6.1935 has not been recorded in the matriculation certificate and at no point of time he had got it corrected. 5. Having considered the rival submission, I do not find any substance in the submission of Mr. Singh. There is nothing on record to show that upper age limit was relaxed while appointing the petitioner but at the same time there is nothing on record to show that the date of birth of the petitioner as mentioned in the affidavit i.e. 9.6.1937 was ever accepted. Had it been so there was no occasion to enter the two dates of birth in the service book i.e. 9.6.1935 and 9.6.1937. Had it been so there was no occasion to enter the two dates of birth in the service book i.e. 9.6.1935 and 9.6.1937. In a situation like this, when Rule 96 of the Bihar Financial Rules provides that the date of birth should be in conformity with what has been mentioned in matriculation certificate, I am of the opinion that the date of birth of the petitioner i.e. 9.6.1935, mentioned in the matriculation certificate shall determine his age for the purpose of retirement. 6. Mr. Singh then contends that the petitioner continued in service beyond the date of superannuation treating the date of birth to 9.6.1937 but in the absence of any fraud or misrepresentation, impugned direction for recovery is illegal and in support of the submission, reliance has been placed on a decision of this Court in the case of Most. Kanti Devi & Ors. V/s. The State of Bihar & Ors. ( 2003(1) PLJR 9 ) and my attention has been drawn to paragraph 4 of the judgment, which reads as follows: "Rightly or wrongly, the petitioner Sridhar Pandey was permitted to work and draw his salary. The period of which he worked he will be entitled to the emoluments. If he was given work as a result of any collusion between the officials it is upto the State Government to take action against the officer concerned, who permitted this extension of service beyond retirement. On record, there is nothing against the petitioner that he may have committed any misrepresentation or fraud so as to extract from the period of retirement." 7. Yet another decision on which reliance has been placed is the decision of this Court in the case of Bharat Deo Pathak & Anr. V/s. Bihar State Food & Civil Supply Corporation & Ors. ( 2003(4) PLJR 682 ) and my attention has been drawn to paragraph 16 of the judgment, which reads as follows: "Having given my anxious consideration to the matter I am of the opinion that it shall be inequitable to ask for deduction of the amount already paid to the petitioners after such a long time. It is not the case of the respondents that petitioners are either ineligible to holo the promoted post or for that matter their promotion was made by incompetent person. Further no fraud or misrepresentation has been alleged. It is not the case of the respondents that petitioners are either ineligible to holo the promoted post or for that matter their promotion was made by incompetent person. Further no fraud or misrepresentation has been alleged. Hence that part of the impugned order, which directs for recovery of the amount already paid to the petitioners cannot be allowed to stand." 8. J.C. to S.C. Ill, however, contends that the petitioner is not an illiterate person, he knew his date of birth entered into the matriculation certificate and hence ought to have superannuated from service on the basis of the date of birth entered in the matriculation certificate and in case he continued in service, he has done so at his own risk. In support of his submission he has placed reliance on a decision of the Supreme Court in the case of Radha Kishan V/s. Union of India & Ors. (1997(2) PLJR (S.C.) 129) and my attention has been drawn to paragraph 3 of the judgment, which reads as follows: "The learned counsel for the petitioner contends that since the petitioner has worked during the period, he is entitled to the payment of the pay and allowance from 1.6.1991 to 26.6.1994 and that he is also entitled to the payment of provisional pension, Death-cum-retirement gratuity, leave encashment, computation of pension amount, GPF money and the amount deposited under CGHS on the plea that he retired from service on May 31,1994. We are aghast to notice the boldness with which it is claimed that he is entitled to all the benefits with effect from the abovesaid date when admittedly he was to retire on May 31, 1991. It would be an obvious case of absolute irresponsibility on the part of the officer concerned in the Establishment in the concerned section for not taking any action to have the petitioner retired from service on his attaining superannuation. It is true that the petitioner worked during that period, but when he is not to continue to be in service as per law, he has no right to claim the salary etc. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances we do not find any illegality in the action taken by the authorities in refusing to grant the benefits." 9. It is not the case that he was re-employed in the public interest, after attaining superannuation. Under these circumstances we do not find any illegality in the action taken by the authorities in refusing to grant the benefits." 9. Having given my most anxious consideration to the rival submission, I do not find any substance in the submission of Mr. Singh and the decisions relied on are clearly distinguishable. In fact the decision of the Supreme Court in the case of Radha Kishan (supra) governs the case. Undisputedly in the matriculation certificate the date of birth of the petitioner has been mentioned as 9.6.1935. In case he wanted to get it corrected to 9.6.1937, he ought to have requested the Board from where he had passed the examination for that purpose. Not only this there is nothing on record to show that at any point of time he made any application for correction of the date of birth as mentioned in the matriculation certificate. The question of fraud or misrepresentation becomes relevant when there can be two possible views and in that contingency in the absence of fraud or misrepresentation, the amount withdrawn by the public servant is not recovered. Here in the present case on account of Rule 96 of the Bihar Financial Rule, the date of birth of the petitioner in the absence of any correction, has to be reckoned as 9.6.1935. Hence the continuance of the petitioner in service beyond the age of superannuation cannot enure to his benefit and the theory of fraud or misrepresentation in the context is alien. 10. Now reverting to the decision of this Court in the case of Most. Kanti Devi (supra) is concerned, it relates to an illiterate person who was appointed as Chowkidar and there was nothing on record, as in the present case, to show the exact date of birth. As regard the decision in the case of Bharat Deo Pathak (supra), it was a case in which recovery was sought to be made after finding the promotion granted to be bad. This is not the situation here. 11. Mr. Singh lastly submits that the writ petitioner having died, equity demands that recovery be not made from his heirs. In absence of any pleading it is difficult to ascertain as to whether the amount has already been recovered or not. This is not the situation here. 11. Mr. Singh lastly submits that the writ petitioner having died, equity demands that recovery be not made from his heirs. In absence of any pleading it is difficult to ascertain as to whether the amount has already been recovered or not. It seems that the order for recovery was made as back as on 20th of September, 1999. No stay order having been passed, it is expected that the recovery must have been made by now. Writ petitioner admittedly died on 16.5.2004. Further in my opinion an amount which the law permits to be. recovered cannot be stopped only on the ground that writ petitioner died, in absence of any extraordinary reason. No such reason exists in the present case. 12. In the result, I do not find any merit in the application and it is dismissed accordingly. No cost.