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2007 DIGILAW 797 (PAT)

Bihar State Electricity Board v. Sita Ram Pathak

2007-04-19

J.N.BHATT, S.K.SINHA

body2007
Judgment 1. In this Letters Patent Appeal, under clause 10 of the Letters Patent of the Patna High Court, the challenge is against the legality and validity of the judgment of the learned Single Judge, dated 17.11.2006, passed in CWJC No. 2844 of 1998. 2. The original writ petitioner, respondent herein, by filing the aforesaid writ petition sought a direction against the appellant Bihar State Electricity Board (Board) to treat 10.2.1938 to be his date of birth, and not 4.6.1936 and he also questioned the legality of Order no. 289, dated 30.9.1997, whereby, he came to be superannuated treating 4.6.1936 to be his date of birth, after allowing almost more than 16 months period beyond the period of service, in view of the change made in the service book well in time. 3. The original writ petitioner respondent joined the service of the appellant as Line Khalasi, Grade III, in view of office order no. 57 dated 5.2.1960. There is specific stipulation in the appointment order that it was subject to production of the medical certificate of health and fitness and proof of age. The original writ petitioner was examined by the competent doctor of Sub-divisional Office, Buxar, and was issued a certificate, dated 10.2.1960. As per the medical certificate, the petitioners age was assessed 21 years and by appearance about 22 years. In the service record, thereafter, "4.6.1936" was recorded as birth date. Two decades, later, the writ petitioner-respondent came to know about the entry regarding date of birth and submitted an application for correction of the same which was considered by the authority and was corrected to be 10.2.1938 in place of 4.6.1936. There is no dispute about the fact that it was done by the Electrical Executive Engineer, one Mr. R. Ahmad, in own hand writing on 2.3.1984. Thereafter, the writ petitioner continued in service not upto 30.4.1996 but till 30.7.1997 and, all on a sudden the appellant Board woke up from the slumber and served the original writ petitioner with the order of superannuation. 4. There is no satisfactory explanation as to why despite the correction of the birth date in the service record effected by the Electrical Executive Engineer, as early as 1984, the original writ petitioner was allowed beyond the period of 30.4.1996 till 30.9.1997. 4. There is no satisfactory explanation as to why despite the correction of the birth date in the service record effected by the Electrical Executive Engineer, as early as 1984, the original writ petitioner was allowed beyond the period of 30.4.1996 till 30.9.1997. It has been contended before us that the person who entertained the application and corrected the date of birth is not the competent authority. Where was this plea lying for almost 12 years? 5. It is not the case that the original writ petitioner played fraud or is a privy of misrepresentation or that it was he, on whose conduct, surreptitiously, the alleged entry came to be made. It has been done by the officer concerned. It is given in official way. It came to be considered and then came to be decided. Nothing has been shown that the Electrical Executive Engineer was not competent to consider the application and correct the date of birth. Apart from that, short circuiting the service period without giving opportunity of hearing to the original writ petitioner, cannot be sustained. If there has been correction of mistake or any change in the service record regarding birth date by the person not competent, it was not fault of the original writ petitioner. He should have been heard as he is visited with civil and evil consequences on account of his superannuation as per his date of birth. Therefore, the view taken by the learned single Judge could not be faulted. 6. In our opinion, the fault lies in the mistries of the Board and not with the impugned order. The writ petition was rightly allowed. This Letters Patent Appeal, therefore, is meritless and, hence, it has to be dismissed at the threshold after hearing the learned counsel for the appellant at great length. 7. The benefit available because of succeeding the legal battle, in terms of money, shall be paid to the original writ petitioner, after making deductions of the amount already paid, within a period of three months from today- else, it shall carry interest at the rate of 6% per annum from the date of expiry of three months from today till the date of payment. No costs. Rule is made absolute.