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2013 DIGILAW 297 (PAT)

Shankar Suwan Jha v. State of Bihar

2013-03-05

MIHIR KUMAR JHA

body2013
ORDER Learned counsel for the petitioner seeks to correct the name of the petitioner as Shankar Suwan Jha instead of Shankar Suman Jha mentioned in the petition. 2. In view of the fact that the Vakalatnama also has been executed in the name of Shankar Suwan Jha and the affidavit also has been sworn with the same name, this Court would allow the prayer of the petitioner to correct the name as Shankar Suwan Jha in course of the day. 3. Heard counsel for the parties. 4. Assailing the correctness of the impugned order dated 16.3.2012, as contained in Annexure 1 to the writ application, Mr. Rajendra Prasad Singh, learned Senior counsel for the petitioner, has submitted that unilateral act of change of date of birth of the petitioner from 5.5.1953 to 2.4.1950 is bad both on fact and in law. On fact because such entry of the petitioners date of birth in service book was made on 22.1.1977 pursuant to the appointment of the petitioner on the post of Assistant Teacher on 23.11.1976 and the said entry was never rescinded till the impugned order was passed on 16.3.2012. He has accordingly submitted that the change of date of birth of the petitioner after almost 34-35 years of its being recorded in the service book is wholly illegal arbitrary. 5. He has also submitted that such action of the respondent District Programme Officer (Establishment) would be in violation of settled principles in law that the date of birth cannot be changed at the fag end of career and without giving a reasonable opportunity to the affected person. In this context he would refer to the judgment of the Apex Court in the case of State of Orissa vs. Dr. (Miss) Binapani Dei & ors., reported in AIR 1967 SC 1269 , and also line of cases followed by this Court including in the case of Pashupati Nath Singh vs. the State of Bihar & ors., reported in 2005(3) PLJR 460 . 6. (Miss) Binapani Dei & ors., reported in AIR 1967 SC 1269 , and also line of cases followed by this Court including in the case of Pashupati Nath Singh vs. the State of Bihar & ors., reported in 2005(3) PLJR 460 . 6. Learned counsel for the State, who has fairly produced the original service book of the petitioner, has, however, submitted that it was actually a case of fraud played by the petitioner and therefore, there would be no question of limitation in correcting such fraud, especially when it was proven beyond doubt that the petitioner at the time of getting admitted in Class VIII had declared his date of birth as 2.4.1950. On that basis he has also proceeded to explain that the petitioner was given a show cause notice and the impugned order has been passed only after considering the show cause reply of the petitioner, which would meet the requirement of the principles of natural justice. 7. In the considered opinion of this Court in the facts and circumstances of this case it would be difficult to bring this case in the category of fraud. The petitioner had passed Madhyama Examination conducted by Kameshwar Singh Darbhanga Sanskrit University and the Registrar who had issued the original certificate (Annexure 14) had certified that the petitioner had passed the Madhyama Examination from the University and his date of birth was recorded as 5.5.1953. On the basis of this Madhyama Examination, which is equivalent to Matriculation, the petitioner also got his Teachers Training and had appeared in the examination conducted by the Bihar School Examination Board wherein on 26.9.1975 when the petitioners mark sheet (Annexure 15) was issued certifying him to have passed the Teachers Training Examination his date of birth was specifically mentioned therein as 5.5.1953. 8. All these events took place prior to petitioners entry in service and in fact his order of appointment dated 15.11.1976 alongwith 41 other persons vide Memo No. 33515-33625 dated 15.11.1976 will itself go to show that there was a reason for opening of service book of the petitioner on 22.1.1977 with an entry of his date of birth as 5.5.1953. All these events took place prior to petitioners entry in service and in fact his order of appointment dated 15.11.1976 alongwith 41 other persons vide Memo No. 33515-33625 dated 15.11.1976 will itself go to show that there was a reason for opening of service book of the petitioner on 22.1.1977 with an entry of his date of birth as 5.5.1953. The column meant in the service book for recording date of birth had specifically contained an endorsement that such entry of date of birth of the petitioner as 5.5.1953 was being made on the basis of certificate of Madhyama Examination of the petitioner bearing No. 1632. It is this certificate which has been produced by the petitioner before this Court and therefore, it cannot be said that the entry of date of birth of the petitioner in the service book on 22.1.1977 was not in keeping with the requirement of Rule 96 of the Bihar Financial Rules, which reads as follows: “Every person newly appointed to a service or post under Government should at the time of appointment declare the date of his birth by Christian era with as far as possible confirmatory documentary evidence such as a Matriculation certificate, municipal birth certificate and so on, if the exact date is not known, an approximate date may be given. The actual date or assumed date determined under rule 97 should be recorded in the history of service, the service book, or any other record that may be kept in respect of the Government servants service under the Government and once recorded, it cannot be altered, except in the case of a clerical error without the orders of the State Government.” 9. As would be noted above, the first document under Rule 96 of Bihar Financial Rules which has to be taken into cognizance for recording the date of birth in the Government service is matriculation certificate. Here in this case the Madhyama certificate equivalent to matriculation certificate was issued by the Kameshwar Singh Darbhanga Sanskrit University which without any iota of doubt went to show that the date of birth of the petitioner was 5.5.1953 and that date was also recorded in the service book of the petitioner. Further this very date of birth has also been substantiated from the subsequent Teachers Training certificate issued by Bihar School Examination Board, as has been explained earlier. 10. Further this very date of birth has also been substantiated from the subsequent Teachers Training certificate issued by Bihar School Examination Board, as has been explained earlier. 10. In view of above, the case of the respondents that at one point of time that the petitioner had declared his date of birth as 2.4.1950 at the time of seeking admission in Class VIII will be of no avail, especially when such recording of date of birth was not taken to be the basis for recording the date of birth of the petitioner in Madhyama Examination or Teachers Training Examination. The issue as to whether the petitioner was born on 2.4.1950 or 5.5.1953 could not have been resolved by the District Superintendent of Education because if the State wanted to make change in the entry made in the service book of the petitioner recorded in the year 1977 it had to itself file a suit for correction of the same because that was not based on any fraud committed by the petitioner. The document namely Madhyama Certificate definitely went to show that there was a basis for acceptance of date of birth of the petitioner as 5.5.1953 which infact was duly recorded in the service book at the time of entry of the petitioner in service in 1977. 11. The law in this regard is also well settled that the long standing entry of date of birth in the service book cannot be changed to disadvantage of the employer the same principle has to be also followed even in the case of an employee. If the State is not bound to make the date of birth on an evidence led by the employee after expiry of the period of ten years which is normal period given for correction of date of birth the same restriction of period shall also apply with full force even for the employer. The only exception will be of course in case of the detection of fraud and since fraud vitiates everything there would be no difficulty for the employer to make change in the date of birth after complying the principles of natural justice even after a period of ten years and/or even at the fag end of service career. Barring such eventualities, arising out of fraud, the date of birth of the employee cannot be changed on mere ipsi dixit. 12. Barring such eventualities, arising out of fraud, the date of birth of the employee cannot be changed on mere ipsi dixit. 12. In the present case some entry in some admission register of a school where the petitioner was reading in Class VIII being not a concluded fact, even if is accepted for the sake of argument to be existing there would not be better evidence than ultimate entry made in the Matriculation (Madhyama) certificate which has been acted upon not only by the Kameshwar Singh Darbhanga Sanskrit University but also by the Bihar School Examination Board. 13. Thus, for all these reasons the impugned order passed by the District Programme Officer (Establishment), as contained in Annexure 1, must be held to be bad and is accordingly quashed. As a consequence of quashing of the impugned order the petitioner shall be reinstated in service because he still has to complete 60 years of age on the basis of his date of birth of 5.5.1953 and in fact as per this date his date of superannuation will be 31st May, 2013. 14. This application is, accordingly, allowed and the respondents, who have prevented the petitioner from working on the post of Assistant Teacher for all these period, are hereby directed to pay full salary and emolument of the petitioner from the date of the impugned order i.e. 16.3.2012 to the date the petitioner would continue in service i.e. 31.5.2013. 15. With the aforesaid observation and direction this writ application is disposed of.