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2014 DIGILAW 842 (PAT)

TAJUDDIN KHAN v. STATE OF BIHAR

2014-08-05

ANJANA MISHRA, I.A.ANSARI

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Order I.A. Ansari, J. The appellant passed his matriculation examination from Bihar School Examination Board, Patna, in the year 1967, as a student of High School, Masarh, Bhojpur (Bihar). The appellant came to the appointed, vide Bhojpur District Order No. 514 of 1976, dated 07.03.1976, as a Constable. In course of time, he was promoted to the post of the Sub-Inspector of Police. At the time of his superannuation, the appellant was posted in the Police Force at Saran. 2. By Memo No. 2105, dated 29.07.2011, the Superintendent of Police, Saran, called for a report from the Superintendent of Police, Bhojpur, with regard to the date of birth of the appellant on the ground that the appellant’s date of birth stood recorded, in the service book, as 01.01.1951; whereas the certificate of academic qualification, annexed to the service book, reflected the appellant’s date of birth as 01.01.1953. A copy of the said letter was also forwarded to the appellant for information and doing the needful. 3. The Superintendent of Police, Bhojpur, vide Memo No. 2697, dated 04.08.2011, informed the Superintendent of Police, Saran, that the relevant register of the year 1976 of the School, where the appellant had studied, stood destroyed in flood and it was, therefore, not possible to verify appellant’s date of birth. 4. In response to the letter, contained in Memo No. 2105, dated 29.07.2011, aforementioned, the appellant, on 25.09.2011, submitted his reply/explanation contending to the effect, inter alia, that he was born on 01.01.1953 and not on 01.01.1951, as stood recorded in the service book, and he, therefore, sought for correction of his date of birth as 01.01.1953. 5. Following the reply/explanation, dated 25.09.2011, of the appellant, the Superintendent of Police, Saran, vide Memo No. 3457, dated 05.12.2011, directed the appellant to appear, along with all his educational qualification certificates, or else, date of birth of the appellant, recorded in the service book as 01.01.1951, would be deemed to be true inasmuch as the Superintendent of Police, Bhojpur, had reported that the relevant school register, where the appellant had studied, stood destroyed due to floods. 6. 6. The appellant, then, approached the Principal of the Government High School, Masarh, Bhojpur, where the appellant had studied, and requested the Principal to issue a certificate with regard to his date of birth and the Principal of the said School issued a certificate, on 08.12.2011, specifying the appellant’s date of birth as 01.01.1953. 7. Pursuant to the direction of the Superintendent of Police, Saran, the appellant appeared with an application, dated 14.02.2011, as well as the certificate, issued by the Principal of the said School, with a request to verify the date of birth from the relevant records. 8. Notwithstanding the request so made by the appellant and the certificate, which had been issued by the Principal of the High School, Masarh, Bhojpur, the appellant was forced to superannuate, vide Memo No. 2539, dated 27.07.2012, issued under the signature of the Superintendent of Police, Saran, with effect from 31.12.2010. This apart, a direction was also issued by the Superintendent of Police, Saran, to realize/recover the excess payment, which had been made to the appellant after 31.12.2010 until the time the appellant was superannuated vide Memo No. 2539, dated 27.07.2012. 9. The appellant, then, on 29.07.2012, applied to the Bihar School Examination Board, under the Right to Information Act, 2005, seeking to know his date of birth as recorded by the Board, but the said information was not supplied to the appellant. 10. Aggrieved by the fact that his date of birth had not been treated as 01.01.1953, he had not been allowed to work until 31.12.2012, his services, vide Memo No. 2539, dated 27.07.2012, had been brought to an end, and payment of salary and allowances, made with effect from 01.01.2011 until his superannuation, were sought to be recovered, the appellant came to this Court with a writ petition, made under Article 226 of the Constitution of India, seeking necessary reliefs. The writ petition gave rise to CWJC No. 18066 of 2012. 11. By order, dated 28.01.2014, as the writ petition has been dismissed on the ground that the entry, in the service book as regards date of birth, cannot be changed after ten years, this appeal has been preferred. 12. We have heard Mr. Bindhyachal Singh, learned Counsel for the appellant, and Mr. Prabhat Bharti, learned Assistant Counsel to Government Pleader No. 23, appearing for the State. We have also heard Mr. 12. We have heard Mr. Bindhyachal Singh, learned Counsel for the appellant, and Mr. Prabhat Bharti, learned Assistant Counsel to Government Pleader No. 23, appearing for the State. We have also heard Mr. Girijesh Kumar, learned Counsel, appearing on behalf of the Bihar School Examination Board, Patna. 13. While considering the present appeal, what needs to be carefully noted is that in the writ petition, the Secretary, Bihar School Examination Board was made a party. 14. Pursuant, therefore, to the direction of this Court, the Board has produced the relevant Tabulation Register, which shows that the appellant’s date of birth was recorded by the Board as 01.01.1953. 15. In the backdrop of the above facts, we are of the view that merely because the service book mentions the date of birth of the present appellant as 01.01.1951 and not 01.01.1953, his date of birth ought not to have been treated as 01.01.1951, especially, when the Superintendent of Police, Saran, had himself given an opportunity to the appellant to appear with necessary papers/documents in support of the appellant’s claim that his date of birth is 01.01.1953 and the appellant had produced the certificate from the Principal of the School, where the appellant had, admittedly, studied, treating his date of birth as 01.01.1951. 16. The learned single Judge has placed immense reliance on the date of birth, which stands recorded in the service book of the appellant and completely ignored the fact that the Board was a party to the writ petition and could have given requisite information with regard to date of birth of the writ petitioner (i.e., the present appellant). 17. 16. The learned single Judge has placed immense reliance on the date of birth, which stands recorded in the service book of the appellant and completely ignored the fact that the Board was a party to the writ petition and could have given requisite information with regard to date of birth of the writ petitioner (i.e., the present appellant). 17. It is true that Rule 96 of Bihar Financial Rules, 1950, provides that every person, newly appointed to a service or post under Government, should, at the time of the appointment, declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence, such as, a matriculation certificate, municipal birth certificate and so on and if the exact date is not known, an approximate date may be given, and that the actual date or the assumed date, determined under Rule 97, should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government servant’s service under Government and once recorded, it cannot be altered, except in the case of a clerical error without the orders of the State Government. 18. However, it has been the consistent view of this Court that the date of birth mentioned in Rule 96 of Bihar Financial Rules, 1950, is not mandatory and, in an appropriate case, correction of the date of birth may be made even after the expiry of the period mentioned in Rule 96 of the said Rules. 19. Ordinarily, the date of birth, recorded in the Government employee’s service book, cannot be changed. This does not, however, mean that in an appropriate case, date of birth of the Government employee concerned, as recorded by the competent Board, which conducts the examination, cannot be looked into for the purpose of verification. The idea behind Rule 96 of the Bihar Financial Rules, 1950, is to make a Government employee retire on reaching the date of superannuation. However, the object behind Rule 96 of Bihar Finance Rules, 1950, is not to punish a Government employee if his date of birth recorded is of a date earlier than the date of birth, which stands recorded in the relevant records of the Board or recorded in the records of the municipality concerned. However, the object behind Rule 96 of Bihar Finance Rules, 1950, is not to punish a Government employee if his date of birth recorded is of a date earlier than the date of birth, which stands recorded in the relevant records of the Board or recorded in the records of the municipality concerned. A reference, in this regard, may be made to the cases of Murli Manohar Tiwary v. The State of Bihar and others, reported in 1986 P.L.J.R. 1180, and Ram Sobbhit Rai v. The State of Bihar and others, reported in 1989 B.B.C.J. 141. In this regard, reference may also be made to a decision of the Division Bench of this Court in Siyaram Singh v. State of Bihar, reported in 1995(1) P.L.J.R. 691 . 20. In the circumstances, indicated above, the order, contained in Memo No.2539, dated 27.07.2012, issued by the Superintendent of Police, Saran, making the appellant superannuate, cannot be sustained and, in consequence thereof, direction given for recovery of the salary and allowance, already paid to the appellant, can also not survive. 21. In the result and for the reasons discussed above, this appeal succeeds. The order, dated 28.01.2014, passed in C.W.J.C. No.18066 of 2012, is hereby set aside. We also set aside and quash the order, contained in Memo No.2539, dated 27.07.2012, issued by the Superintendent of Police, Saran, whereby the appellant was made to superannuate and the subsequent direction to recover the amount, which had been paid to the appellant until the date of his forced superannuation. We further direct that the appellant be paid his salary and allowances until 31.12.2012, when he would have superannuated, had he not been forcibly retired from service, and no recovery shall be made of any amount, which might have been received by him as salary and allowance during the period, when he remained in service. 22. No order as to costs. Anjana Mishra, J. : I agree.