Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 2061 (PAT)

Dharamdeo Yadav v. State Of Bihar

2010-09-07

NAVIN SINHA

body2010
JUDGEMENT 1. Heard learned counsel for the petitioners and learned counsel for the State. 2. Both the writ applications raise the same issues of law arising out of a marked similarity on facts and therefore are being disposed by this common order. 3. In C.W.J.C. No.3132/2010 the petitioner is stated to have been appointed as a Choukidar on 29.10.1980. The year of birth entered in the service book is 1942. It is signed by the petitioner. In C.W.J.C. No.3155/2010 the petitioner was appointed as a Choukidar in 1975. His service book likewise at Annexure-1 specifically records his year of birth as 1943 in Hindi and 1.7.1943 in English. It is also signed by the petitioner. The petitioners continued to discharge their duties till Choukidars were declared as Government servants with effect from 1.1.1990. The petitioner in C.W.J.C. No.3132/10 claims to have obtained a transfer certificate on 12.1.1986 from his erstwhile school which he joined on 6.1.1966 stating his date of birth as 19.1.1955. It is therefore contended that corrections were accordingly made in his service book by incorporating a second date of birth along side 1942. 4. If the petitioner was aware of his correct date of birth as 19.1.1955 based on entries made in the school which he joined on 6.1.1966, on the date of his appointment i.e. 28.10.1980 be was well aware of his correct date of birth as 19.1.1955 and not 1942. No explanation is forthcoming from the petitioner under what circumstances he himself acknowledged his date of birth as 1942 in the service book not to question the same for considerably long years till February, 2008 when on an alleged enquiry by the Anchal Adhikari a report dated 12.8.2008 came to be submitted that on enquiry it has been ascertained that his correct date of birth is 19.1.1955. If his date of birth is 1942 he was scheduled for superannuation in the year-2000 and if his date of birth is 1955 he is scheduled for superannuation in 2015. Even if the contention of the petitioner is accepted, the issue of correction of his date of birth appears to have originated in context of a letter dated 6.2.2008 of the Additional Collector, General Section much beyond the period of 10 years of his acquiring the status of a Government servant on 1.1.1990 as prescribed under Rule-96 of the Bihar Finance Rules. In AIR 2006 SUPREME COURT 2735 (State of Gujarat V/s. Vali Mohmed Dosabhai Sindhi) it has been observed in paragraph-10 as follows:- "10. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding correction, of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant. 5. The contention of the petitioner that it could be raised three years prior to superannuation based on certain orders of this Court is not considered necessary for the present controversy as on the facts placed by the petitioner himself, this Court is satisfied that the issue of his age raises serious disputed questions of fact which cannot be adjudicated in a writ application. 6. In C.W.J.C. No.3155/10 the situation is the same, if not worse, as the transfer certificate on basis of which the fresh date of birth is claimed has been issued on 5.8.1993. The significance of the same for 1.1.1990 when Choukidars were recognized as Government servants again cannot be lost sight of. If the correct date of birth of the petitioner be 1.7.1942, his superannuation falls due on 1.7.2000 and if it be 15.4.1957 he will retire on 1.5.2017. For like reasons as discussed above, this Court is satisfied that the plea based on the transfer certificate for admission in the school on 20.2.1962 when the correct date of birth was naturally available there is no explanation how another date of birth came to be recorded at the time of entry in service signed by the petitioner. The issue of age sought to be raised by the petitioner likewise raises serious disputed facts which cannot be enquired into in a writ application. 7. The issue of age sought to be raised by the petitioner likewise raises serious disputed facts which cannot be enquired into in a writ application. 7. In the same paragraph of Vali Mohmeds case (supra) it has further been held:- "An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is certainly an important and relevant aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible. Before any such direction is issued or declaration made, the Court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be within at least a reasonable time. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove about the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the Court or the Tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their date of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the Tribunal must, therefore, be slow in granting an interim relief or continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and thereby caused injustice to his immediate junior." 8. Learned counsel for the petitioner relies upon a Division Bench decision reported in 2004(1) P.L.J.R. 247 (Most. Kanti Devi & Ors. V/s. State of Bihar) to submit that if the petitioners are taken to have superannuated in the years-2000 and 2001, at least that part of the impugned orders which directs recovery of wages be quashed. 9. The service books of the petitioners, as a matter of fact contains two dates of birth. If a subsequent entry was being made, the earlier entry should have been scored out. That was the obligation of the respondents. Their failure to do so enabled the petitioners to continue in service. The entire responsibility for their lapses cannot be fastened on the petitioners alone. They have to share a part of the blame for the lapse. There are no allegations of fraud or manipulation against the petitioners, much less a finding arrived at to that effect after an opportunity to defend. 10. The entire responsibility for their lapses cannot be fastened on the petitioners alone. They have to share a part of the blame for the lapse. There are no allegations of fraud or manipulation against the petitioners, much less a finding arrived at to that effect after an opportunity to defend. 10. The Supreme Court in (2009) 3 SCC 117 (STATE OF BIHAR V/s.JAGDISHWAR PANDEY) has held at paragraphs-16,22, 24, 29 and 30 as follows:- "16. Moreover, for the sake of argument, even if we consider that the respondent had. fraudulently entered another date of birth in his service book, as had been alleged, it should have come to the notice of the authorities during his course of service, and not after he had attained the age of superannuation after the expiry of the date mentioned in the service book which was based on the affidavit of the respondent. To the contrary, none of the officials responsible had noticed this during his service period, even during his time of promotions when the service book was required to be inspected by the officials. Therefore, it clearly points out to the gross negligence and lapses on the part of the authorities concerned and in our view, the respondent cannot be held responsible to work beyond his date of birth as mentioned in the matriculation certificate when admittedly in the service book after the affidavit, some other date of birth was also evident. 22. As noted hereinearlier, in the service book of the respondent, two dates of birth have been mentioned, which is not permissible. It cannot be conceived of that the authorities could not examine the possibility of two dates of birth to be entered in the ccrvice book of the respondent. They ought to have deleted the initial date of birth based on the matriculation certificate if the appellants were of the view that the affidavit sworn by the respondent was correct and the date of birth appearing in the matriculation certificate must be found to be incorrect, it is needless to say that the affidavit sworn by the respondent must be on the basis of documents produced by the respondent to show that the date of birth entered in the service book initially was incorrect. Instead, the appellant had not issued any notice of retirement of the respondent on 28-2-2002, which was the date for retirement of the respondent on his attaining superannuation i.e. on the basis of the date of birth shown in the matriculation certificate. On the other hand, the appellant allowed the respondent to work and got works from him and paid salary. Only for the first time, the appellant took note of two dates of birth after he had completed two years from the date of his actual date of retirement. 24. Considering the fact that there was no allegation of misrepresentation or fraud, which could be attributed to the respondent and considering the fact that the appellant had allowed the respondent to work and got works done by him and paid salary, it would be unfair at this stage to deduct the said amount of salary paid to him. Accordingly, we are in agreement with the Division Bench decision that since the respondent was allowed to work and was paid salary for his work during the period of two years after his actual date of retirement without raising any objection whatsoever, no deduction could be made for that period from the retiral dues of the respondent. 29. It should also be kept in mind that the respondent might have expected that the second date of birth shown in the service book was accepted by the authorities for that reason he was allowed to continue in his service and was paid salary. In the absence of any proof that the respondent had manipulated his date of birth by entering a second date at a later stage, and that he had any mala fide intentions to continue his service, beyond his date of retirement, we are of the view that the decision in Radha Kishun V/s. Union of India4 would not be applicable in the facts of the present case. 30. There is another aspect in this matter. Although we have directed that the excess amount paid for two years to the respondent as salary cannot be recovered from the respondent, but we make it clear that for fixing the retiral benefits, the period of two years in respect of which salary was received by the respondent cannot be taken into consideration and the respondent would be entitled to fixation of retiral benefits as on the date of his superannuation i.e. 28.2.2002. 11. The respondents are therefore restrained from making any recovery from the petitioners for the days that they have worked after their scheduled superannuation in 2000 with the direction that for purposes of superannuation benefits the petitioners shall be deemed to have superannuated in 2000 as scheduled. 12. The applications are dismissed, except to the extent indicated with direction.