IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10698 of 1997 SRI RAMNARAYAN SINGH, s/o Late Parilal Singh, village Tekanpura, P.O. Dapharpur, Anchal Naokothi, District Begusrai. Versus 1.THE STATE OF BIHAR through the Education commissioner, New Secretariat, Patna. 2.The Regional Dy. Director of Education, Primary School, Darbhanga. 3.The District Magistrate Cum Chairman, District Education Organising Committee, Begusrai. 4.The District Education Superintendent, Begusrai. ----------- 7 10.8.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “That this application is against the order communicated to the petitioner by the District Education Superintendent, Begusrai vide his letter No. 1600- 03 dated 26th February, 1997 and letter No. 11658- 60 dated 22nd October, 1997 by which the petitioner has been made to retire from frbruary, 1997 a day much before his date of superannuation.” Mr. M.M.P. Sinha, learned counsel appearing on behalf of the petitioner has submitted that the date of birth of the petitioner was entered in the service book as 1.1.1939 and therefore the impugned order dated 26th February, 1997 and 22nd October, 1997 as contained in Annexures- 1 and 1/A to the writ application cannot be sustained by which the petitioner has been made to retire with retrospective effect w.e.f. 28.2.1996 on the ground that the date of birth of the4 petitioner was wrongly recorded in the service book as 1.1.1939 and in fact it ought to have been 4.2.1936. 2 Mr. Sinha, in this context has explained that the petitioner had appeared and passed the matriculation examination in the year 1961 as stands supported from Matriculation Certificate issued by Bihar School Examination Board showing his date of birth as 4.2.1936, but then as there was a mistake in recording such date of birth, the petitioner had immediately after passing the matriculation examination on the basis of the affidavit sworn by his father got his entry of date of birth of 4.2.1936 changed to 1.1.1939 while undergoing Teachers‟ Training Course, in Teachers Training College, Shahpur in 1964-65 Session and the same was also accepted by the same Bihar School Examination Board while recording his date of birth as 1.1.1939 in the Certificate issued on 25.12.1965. Mr. Sinha, therefore, submits that this date of birth of the petitioner of 1.1.1939 was also entered into the service book opened by the authority when the petitioner was appointed on the post of Teacher in a Government Primary School on 6.6.1972 and the same could not have been changed unilaterally and arbitrarily after more than 25 years in 1997 that too without following the principles of natural justice. In this context he has placed reliance on Rule 96 of the Bihar Financial Rules, which according to him does not lay down that the matriculation certification is the only conclusive proof for the date of birth of the persons seeking employment in the government service. He further relies on a judgment of the Apex Court in the case of „State of Orissa Vs. Dr. (Miss) Binapani Dei & Ors’ 3 reported in AIR 1967 S.C. 1269 and also on the judgment of this Court in the case of „Mubarak Hussain Vs. The State of Bihar & Ors’ reported in 1996 (2) PLJR 166. Counsel for the State, on the other hand, in the light of his stand taken in the counter affidavit has submitted that the petitioner having passed the matriculation examination in the year 1961 with the recorded date of birth of 4.2.1936 he could not have been allowed to change his date of birth for entry in the government service, inasmuch as, the date of birth recorded in the matriculation certificate is the only conclusive proof for recording the age of the persons intending to join the government service. He would in this regard also submit that the authorities who had opened the service book of the petitioner in fact had committed a mistake in recording the date of birth of the petitioner as 1.1.1939 on the basis of the certificate issued by the Bihar School Examination Board with regard to the Teacher‟s Training course undergone by the petitioner in 1965. In the opinion of this Court, the position in law is well settled that normally and usually the date of birth as declared in the matriculation certificate has to be given preference and/or precedece to any other proof of date of birth recorded in other certificates/documents. Rule 96 of Bihar Financial Rules, however, does not lay down that the matriculation certification has to be the sole document for its being made a basis for recording the date of birth of persons entering in service. Rule 96 of the 4 Bihar Financial Rules 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 the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certification, municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. 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.” Note 1-No representation for rectification of mistake in the date of birth as entered in the records of service of a Government servant shall be entertained, if it is not submitted within a period of ten years of the date of his entry into Government service. Representation submitted, thereafter will be summarily rejected by the authority competent to pass final orders under this rule unless there are very exceptional cases to relax this time- limit. Note 2- Heads of departments are authorized to exercise this power in the case of non- gazetted Government servants under their control.” From a bare reading of the aforesaid provision it becomes clear that matriculation certificate is one of many possible confirmatory documentary evidence at par with municipal birth certificate and in this regard the expression “soon” used in Rule 96 by itself would indicate that there can also be some other documentary evidence as well which can be acted upon for the purpose of recording the date of birth of a new entrant appointed in the government service. The emphasis under the Rule 96 therefore is only on confirmatory document/evidence which may be matriculation certification/ Municipal birth certificate by way 5 of evidence of date of birth. In this background the submission of Mr. Sinha has to be tested that when the petitioner had got his matriculation certificate with date of birth as 4.2.1936 and yet he had declared his date of birth in the Teachers Training School examination as 1.1.1939, immediately after passing matriculation examination in 1961, it was definitely no fraud on the part of the petitioner to have also claimed the benefit of his corrected date of birth in 1965 to the authority while seeking employment in the government service in 1972. Thus on facts when it is also found from the entry in service book of petitioner that he had declared to have passed matriculation examination his date of birth of 1.1.1939, as recorded in Teachers‟ training certificate as 1.1.1939 this Court will have to hold that the entry of date of birth of the petitioner in the service book in the year 1972 was made on 1.1.1939 without any fraud or misrepresentation on his part. Such entry of 1.1.1936 therefore if had to be changed to 4.2.1936 it could have been done only after adopting procedure known to law, but that was not admittedly followed in the case of the petitioner. As noted above, the petitioner was continued in service from 1972 without any impediment on the basis of date of birth as 1.1.1939 till the month of January, 1997 and only in the month of February, 1997 the petitioner was given a show cause notice on 26.2.1997 asking him to show cause as to why his date of birth should not be changed. Rule 96 of the Bihar Financial 6 Rules when it talks of a bar in accepting the request for change of date of birth from a employee after a period of ten years, the government also can not normally resort to its power for changing the date of birth as recorded in the service book at any point of time and recourse to it can be taken only in case of fraud. The date of birth entered in the service book otherwise has to be respected by both the sides. Moreover in this case when the district level authority, namely the District Superintendent of Education, Begusrai had issued notice to the petitioner on 26.2.1997 for change of his date of birth, he being definitely not the Head of the department in terms of Rule 96 of the Rules could not have by himself taken a decision in the matter even if he had some impression that the petitioner had suppressed his date of birth as declared in the matriculation certificate. In the Bihar Service Code in Appendix-I the delegation of power for this purpose including for relaxation of age has been vested only in the government or in the head of the department and thus similar correction of date of birth in service book under Rule 96 can be made only by the head of the department. Therefore the decision taken by the District Superintendent of Education, Begusrai or the Establishment Committee headed by the Collector of the District under whose orders the two impugned orders contained in Annexure-1 and 1/A have been issued, on the face of records is wholly without jurisdiction. 7 The submission of the learned counsel for the State as to whether the petitioner could have been appointed in the year 1972 on the basis of the age shown in the matriculation certificate or in the Teachers‟ training certificate, in this case will also pale into insignificance, because the petitioner in either case was above 25 years of age in 1972 in terms of maximum age provided in Rule 54 of the Bihar Service Code. The position which therefore emerges is that the petitioner in the year 1972 was appointed on the basis of his date of birth recorded in the Teachers‟ training certificate, on a post of teacher, for which requirement of being trained was a condition precedent. Once the authority therefore had accepted the date of birth of the petitioner of 1.1.1939 as recorded in the Teachers‟ training certificate, it could have not been changed without undergoing a full fledged enquiry. Apparently, no such enquiry was ever held and in fact as noted above, the petitioner was only given a show cause on 26.2.1997 giving him seven days time to explain but was already given marching orders on 28.2.1997 even before expiry of period of one week, which could have expired only on 4th March, 1997, by directing him to have retired from service w.e.f. 28.2.1996. The impugned order as contained in Annexure-1, therefore, the manner in which it was passed, at least cannot be sustained as it is in teeth of the principles of natural justice. The Apex Court considering almost an identical situation in the case of Binapani Dei (Supra) had found the similar procedure in the matter of changing the date 8 of birth entered in the service book to be wholly illegal while holding as follows:- “It is true that some preliminary enquiry was made by Dr. S. Mitra. But the report of the Enquiry Officer was never disclosed to the first respondent. Thereafter the first respondent was required to show cause why April 16, 1907, should not be accepted as the date of birth and without recording any evidence the order was passed. We think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No. such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State.” The impugned order therefore in the present case is in violation of principles of natural justice. This court, in fact, had also stayed operation of the impugned order so far it related to the recovery of salary, because the petitioner had continued in service and had worked from the month of March, 1996 to February, 1997 when he was made to retire on the basis of his date of birth recorded in matriculation certificate as 4.2.1936 w.e.f. 28.2.1996. The issue of recovery of a person who was allowed to continue in service even after completing the age of superannuation has been appreciated by this Court in the case of Mubarak Hussain (Supra), where it has been held as follows:- “Having heard the counsel for the parties and taking into note the reasons shown in the impugned order, as contained in Annexure-2, 9 according to me, the respondents cannot recover any amount from the post retirement benefits of the petitioner with respect to the period the petitioner has actually performed his duties, if the respondents for one or the other reason allowed the petitioner to perform his duties upto 22nd April 1993 even if the same was illegal, the petitioner having performed such duties and having received salary for the same, no recovery with respect to such payment can be made from the petitioner. Further the date of birth of the petitioner recorded in the service book is 24th January, 1937. Till the date, the petitioner remained in service of the respondent State, no correction of date of birth as recorded in the service book was made by the respondents. In this back ground, after retirement of the petitioner, the respondents cannot treat the date of birth of the petitioner as 1st January, 1936 as recorded in the matriculation certificate which was never acted upon during the service tenure of the petitioner.” In the case of the petitioner there is an identical situation, inasmuch as, nothing has been brought on the record by the respondents in their counter affidavit to show that the date of birth of the petitioner in the service book was either corrected rather only Annexure-1 and 1/A was passed for holding the petitioner to have retired from service w.e.f. 28.2.1996. Entry of age in the service book is the first most important piece of evidence for the purpose of reckoning the date of retirement and if that was not changed the petitioner cannot be forced to retire with retrospective effect i.e, on 28.2.1996 by an order passed on 26.2.1997. The submission of counsel for the State that the petitioner had been too late for getting his date of birth changed in the service book recorded and therefore he cannot be allowed to take the benefit of his own fraud, is also to be noted for its being 10 rejected. The petitioner, in fact, had declared the date of birth as recorded in Teachers‟ training certificate issued by the same examination Board, namely, the Bihar School Examination Board in 1965 which had earlier issued the matriculation certificate of the petitioner in 1961 and in the service book entry there is a clear mention that the petitioner had passed matriculation examination in the year 1961 which would a proof of the fact that the petitioner did not suppress about his being a matriculate or his date of birth of 4.2.1936 recorded in the matriculation certificate. In that view of the matter, recording of the date of birth by the authority in the service book as shown in Teachers‟ Training Certificate in preference to the date of birth in the matriculation certificate cannot be held to be at least committing fraud on the part of the petitioner especially when Rule 96 of the Bihar Financial Rules also does not limit the matriculation certificate to the sole evidence for recording the date of birth. *Therefore, this Court must reject the contention of the learned counsel for the State that the petitioner had played fraud at the time of his appointment or opening of service book in 1972. It has to be kept in mind that the service book in the case of the petitioner had been opened after six years of his appointment by the competent authority in the year 1978 and that too by mentioning of both of the matriculation examination and the training examination while recording the date of birth as 1.1.1939 as shown in the Teachers‟ training certificate issued by the Bihar 11 School Examination Board in 1965, followed by the Intermediate Admit Card and Certificate of the 1974. In such a situation, this Court must hold that the petitioner was forcibly denied to complete his service for the period of almost two years, inasmuch as, the petitioner was entitled to continue in service till 31.12.1998 on the basis of his date of birth of 1.1.1939 and therefore this Court while quashing both the impugned orders as contained in Annexure 1 and 1/A would direct respondent nos. 3 and 4 to pay full salary for the period 1st March, 1997 to 31.12.1998, but only after deducting the amount of pension already paid to the petitioner for this period. The petitioner will also be entitled for recalculation of his pensionary benefit by treating his length of service from 1972 to 31st December, 1998. Such exercise for payment of balance of salary and the consequential difference of the amount of retirement benefit, if any, must be completed within a period of six months from the date of receipt/production of a copy of this order. Abhay Kumar ( Mihir Kumar Jha, J.)