IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.8067 OF 2007 RAMDEO CHOUDHARY,S/O LATE JANGI CHOUDHARY, R/O VILLAGE MIRDI, P.O. BHITHA, DHARAMPUR, P.S PUPARI, DISTRICT SITAMARHI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.THE COMMISSIONER CUM SECRETARY, DEPARTMENT OF HUMAN RESOURCE, GOVT. OF BIHAR, PATNA. 3.THE DIRECTOR, PRIMARY EDUCATION, GOVT. OF BIHAR, PATNA. 4.THE DISTRICT SUPERINTENDENT OF EDUCATION, SITAMARHI. 5.THE DISTRICT ESTABLISHMENT COMMITTEE, SITAMARHI. 6.THE BLOCK EDUCATION EXTENSION OFFICER, PUPARI, DISTRICT SITAMARHI. ………………………RESPONDENTS. ---------- 02/ 26.09.2011 No one appears for the petitioner. Counsel for the State is present. In this writ application, the prayer of the petitioner is for issuance of a direction to the respondents for payment of his salary from October-2005 onwards. Learned counsel for the State who has not filed any counter affidavit would submit that basically on account of dispute as with regard to the date of birth of the petitioner, the Authorities had withheld payment of his salary. He has also submitted that the petitioner, during the pendency of this writ application, has 2 already retired from service on 30.11.2007 and therefore, this writ application has become infructuous. In the considered opinion of this Court, the petitioner having entered into service in the year 1973 in terms of his order of appointment dated 04.12.1973 cannot be allowed to place reliance on an entry made in the Service Book showing his date of birth as 23.06.1947, especially when the Deputy Inspector of School was never authorized to make any entry in the Service Book much less about his date of birth. As a matter of fact when the Service-Book was opened on 06.07.1996 showing the date of birth of the petitioner as 23.06.1947, it becomes clear that such entry made in the Service Book of the petitioner as with regard to his date of birth was never authentic in terms of Rule 96 of Bihar Financial Rules. The payment of salary, however, even to a person who had worked despite attaining the age of his superannuation, due to the lapse and lach on the part of the Authorities cannot be withheld unless 3 it is shown that the person concerned had himself been responsible in making mis- representation or playing fraud. In the absence of counter affidavit, it would be very difficult for this Court to come to a conclusion especially when the counsel for the petitioner is also not present. In that view of the matter, this Court would dispose of this writ application with a liberty to the petitioner to claim his payment of salary for the actual period he had worked even after attaining the age of superannuation and if the Authorities find that the petitioner’s salary in view of his admitted work done is payable, the petitioner would be paid such salary. It is made clear that payment of such salary will not also make the petitioner entitled to compute the period of continuation after the age of superannuation towards qualifying service or make it the basis for his last salary for calculation of payment of retirement benefits to the petitioner. The petitioner’s retirement benefit will only be paid on the basis of the qualifying 4 service to which he was entitled in law on the basis of his original date of birth and his all retirement benefit shall be calculated to the last salary which he was authorized to withdraw on the date of his actual superannuation. With the aforementioned observation and direction, this application is disposed of. Ranjan (Mihir Kumar Jha, J.)