LETTERS PATIENT APPEAL No.987 OF 2006 ------ Against the order and judgment dated 04.09.2006 passed in C.W.J.C. No. 14305 of 2004 by Hon’ble Mr. Justice V.N. Sinha. ----- 1. The State of Bihar through the Secretary, Home Department, Government of Bihar, Patna. 2. The Director General-cum-Inspector General of Police, Bihar, Patna. 3. The D.I.G., Personnel, Police Head Quarters, Patna. 4. The D.I.G., Special Branch, Police Head Quarter, Patna. 5. The S.P. (A), Special Branch, Police Head Quarter, Patna. -Versus- Jagdish Rai, son of late Sudama Rai, resident of village Rajauli, P.S. Baniapur, District- Saran. ---- For the Appellants : Mr. Chhotelal Narain Singh, S.C. I With Mrs. Babita Kumari, A.C. to S.C.1 For the Respondent: Dr. Mayanand Jha with Mr. Uday Kumar, Advocates. P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ----- Shiva Kirti Singh & Birendra Pd. Verma,JJ: Heard learned counsel for the appellants and learned counsel for the State. 2. The Officers of the Police Department and the Government of Bihar have preferred this appeal under Clause-10 of the Letters Patent to assail the order of the learned Single Judge dated 04.09.2006 whereby writ petition preferred by the respondent was 2 allowed by accepting his alternative prayer that if his date of birth, as claimed by him before the authorities, is not accepted, he should be made to superannuate at the end of the year 2004 instead of w.e.f. 30.06.2004. The writ Court followed the judgment and order dated 04.08.2003 passed in C.W.J.C. No. 6080 of 2003 (Balmiki Sharma Vs. State of Bihar & Ors.) where-under a Government employee whose date of birth was recorded in the service book only by year of birth without mentioning the date and month was permitted the benefit of service for the whole year, i.e, till the last date of the year when he attained the age of superannuation. On that basis the order of the authorities dated 28.05.2004, contained in Annexure-7 to the writ petition was modified and the authorities were directed to pay the arrears of salary to the petitioner until 31st December, 2004 and also to revise the pensionary benefits within a period of three months. 3. Learned counsel for the appellants has submitted that at the stage of admission of this appeal, the Division Bench stayed the impugned order on 17.08.2007 after noticing that matter requires interpretation of Sub-Rule (1) of Rule 97 of the Bihar Finance Rules ( hereinafter referred to as “the Rules” ). The learned counsel for the appellants has taken us to the unreported judgment in the case of Balmiki Sharma Vrs. State of Bihar & Ors. , which is Annexure-8 to the writ petition to show that in that case while deciding a similar dispute the learned Single Judge did not consider the aforesaid Rule 97(1) of the Rules. That submission appears to be correct and on 3 that account we are required to apply ourselves to the aforesaid Rule and for this purpose the judgment in the case of Balmiki Sharma ( Supra) cannot be taken to be a good precedent. 4. There is no dispute that in the service book of the writ petitioner (respondent herein) the date and month of his birth are not mentioned. As per his declaration that he was 21 years of age at the time of appointment as a constable on 10.11.1967, his years of birth only has been mentioned as “1946” . There is no dispute that appended to Rule 96 there is Note 1 which bars entertaining a representation for rectification of mistake in the date of birth in the records of service after a period of ten years from the date of its entry in the service book. There is similar bar in Rule 104 of the Bihar Police Manual. Admittedly the petitioner did not take any step by filing representation or otherwise for any correction in his date or year of birth in the service book within ten years. In the counter- affidavit filed in the writ proceeding there is an averment that in 1976 the State of Bihar under a policy permitted one year period for filing claims for correction of date of birth on the basis of matriculation certificate, if any. The petitioner claims to be a matriculate but he did not avail of that opportunity also. In that view of the matter, the writ Court did not accept the prayer of the writ petitioner to correct his date of birth on the basis of matriculation certificate which would have entitled the writ petitioner to continue in service till 31.05.2005. But as noticed earlier, his alternative prayer has been accepted that he will be 4 treated to have continued in service till 31.12.2004, the last date of the year in which he completed 58 years of age as per service book. 5. Learned counsel for the appellants placed reliance on Rules 96 and 97(1) for the submission that a newly appointed government servant may mention only the year of his birth. This is clear from Rule 96 which is not in dispute. The relevant Rules, which require interpretation are Sub- Rule (1) and Sub-Rule (2) of Rule 97 which run as follows :- “ 97.(1) – If a Government servant is unable to state his exact date of birth but can state the year, or year and month of birth, the Ist July or the 16th of the month respectively, may be treated as the date of his birth. (2) If he is only able to state his approximate age, his date of birth may be assumed to be the corresponding date, after deducting the number of years representing his age from his date of appointment.” 6. A bare perusal of aforesaid provisions in the Rules show that the stand of the appellants, i.e., the State of Bihar is correct. If a Government servant has stated only the year of his birth in that event by virtue of Rule 97(1) his date of birth has to be treated as Ist July of that particular year . However, if the Government servant is unable to give the date of his birth but has given out the year and month of birth then 16th of that month has to be treated as the date of his birth. 7. In view of the aforesaid clear provisions in the Rules the 5 appellants were justified in treating the date of birth of the respondent- writ petitioner as Ist of July 1946 and in fixing his date of superannuation as 31st June, 2004 when he attained 58 years of age. 8. In view of the aforesaid discussion and findings this appeal has to be allowed. Accordingly, the order under appeal is set aside and the writ petition is dismissed. The appeal stands allowed. There shall be no order as to cost. ( Shiva Kirti Singh, J ) Patna High Court Dated 23rd July, 2010 BTiwary/ A.F.R. ( Birendra Prasad Verma, J)