IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.1393 of 2007 Ghughalee Ram @ Ghughulee Ram, aged about 68 years, son of Late Munilal Ram, resident of village- Khajee-Chak, P.O. – Ram- Sahar, P.S. Badahara, District- Bhojpur (Arrah) and at present address Chitrakut Nagar, Digha-Ghat, Danapur, Patna ….. …. Petitioner Versus 1. The State Of Bihar, through the Secretary-cum- Commissioner, Department of Home, Bihar, Patna, Respondent no.3 2. The Chief Secretary, Government of Bihar, Patna 3. The Secretary cum Commissioner, Department of Home, Bihar, Patna 4. The Director General and Inspector General of Police, Bihar, Patna 5. The Deputy Director General of Police (Adm.) Bihar, Patna 6. The District Magistrate cum Collector, Patna 7. The Senior Superintendent of Police, Patna 8. The Deputy Superintendent of Police, Account Head Quarter, Patna 9. The District Provident Fund Officer, Patna 10. The Treasury Officer, Danapur, Patna 11. The Accountant Genera, Bihar, Patna …. Respondents ---------------------------------- For the Petitioner :Mr. Harendra Pratap Singh, Advocate For the State :M/s Ajay Bihari Sinha, S.C.19 & Sanjeev Kumar Sinha, A.C. to S.C.19 For the Accountant General :Mr. Viveka Nand Kumar, Advocate 03/ 01.08.2011 Heard learned counsel for the petitioner and the State. 2. Petitioner earlier served on the post of Constable in the Bihar Police. He has been superannuated with effect from 1.7.1996 as in his service book 1938 has been recorded as the year of 2 birth. 3. It is submitted on behalf of the petitioner that as the year of birth of the petitioner has only been recorded in his service book, petitioner should have been allowed to continue in service until the last date of the year in which he attained the age of superannuation i.e. 31.12.1996. Raising the aforesaid grievance, petitioner filed C.W.J.C. No. 12608 of 1999, which was disposed of under orders dated 6.1.2000, Annexure-8 to this writ petition directing the authorities to examine the case of the petitioner in the light of law laid down by the High Court in the case of Devendra Kumar Mishra Vrs. State of Bihar & Ors., reported in 1999 (3) PLJR 700 whereunder this Court held sub-rule (1) of Rule 97 of the Bihar Financial Rules (hereinafter referred to as the Rules), which, inter alia, required the government servant whose year of birth is only mentioned in the service book to superannuate with effect from 1st July of the year in which he attained the age of superannuation wholly irrational which cannot be sustained and quashed the order superannuating the 3 Government servant with effect from 1st July of the year in which Government servant attained the age of superannuation directing computation of the entire benefits including retiral benefits treating the date of birth/ superannuation to be the last day of the year in which Government servant attained the age of superannuation. In support of the aforesaid submission, learned counsel for the petitioner further relied on the earlier judgment of the Division Bench in the case of Kashi Nath Thakur Vrs. State of Bihar & Ors. dated 6.9.1993, reported in 2008(4) PLJR 241 as also other judgment of the Division Bench in the case of the State of Bihar & Ors. Vrs. Bharat Singh @ Bharat Rao dated 23.11.2000, reported in 2002(1) PLJR 228, Annexure-14. Besides relying on the aforesaid two Division Bench judgments, learned counsel for the petitioner in support of the aforesaid submission, has also relied on the judgment of another Single Judge in the case of Radha Kant Mishra Vrs. The State of Bihar and ors. and Shiva Nath Ram Vrs. State of Bihar & Ors, reported in 2004(3) PLJR 190 and 2007(4) PLJR 379. 4 4. Learned counsel for the State has opposed the aforesaid submissions with reference to sub-rule (1) of Rule 97 of the Rules and submitted that petitioner was directed to superannuate with effect from 1.7.1996 as in his service book it is clearly indicated that his year of birth is 1938 and in appreciation of such entry he was made to retire with effect from 1.7.1996. The direction given in the case of the petitioner under order dated 6.1.2000, Annexure-8 is with reference to the order of the High Court passed in the case of Devendra Kumar Mishra (Supra) against which State- respondents preferred appeal and Division Bench of this Court taking into account the provisions of sub-rule (1) of Rule 97 of the Rules as also sub-rule (iii) of Rule 233 of the Board Miscellaneous Rules under order dated 12.1.2001, reported in 2001 (1) PLJR 667 held that the government servant in whose case only the year of birth is recorded in the service record ( service book) should be made to retire with effect from 1st July of the year in which he attains the age of superannuation and appreciating the direction of the 5 Division Bench in appeal filed by the State of Bihar against the order passed in the case of Devendra Kumar Mishra Vrs. State of Bihar & Ors. (supra), salary paid to the petitioner for the period between 1.7.1996- 31.12.1996 is required to be recovered and as salary paid to the petitioner is to be recovered, there does not arise any occasion to revise the pension of the petitioner in the light of the salary paid to him on 31.12.1996. In this connection, learned counsel for the State, with reference to order dated 6.1.2000, Annexure-8 categorically stated that the direction of the learned Single Judge in the case of the petitioner was to consider the case of the petitioner in the light of the order passed in the case of Devendra Kumar Mishra (supra) and once the order passed in the case of Devendra Kumar Mishra (supra) has been set aside by the Division Bench there is no occasion for the State-respondents to grant revision of pension payable to the petitioner in the light of the salary paid to him on 31.12.1996. 5. Learned counsel for the petitioner, in rejoinder, submitted that while allowing the appeal of 6 the State of Bihar filed against the order passed in the case of Devendra Kumar Mishra (supra), the Division Bench under order dated 12.1.2001 failed to consider the earlier two Division Bench judgments dated 6.9.1993 passed in the case of Kashi Nath Thakur (supra) as also the subsequent Division Bench decision dated 23.11.2000 passed in the case of State of Bihar & Ors. Vrs. Bharat Singh @ Bharat Rao (supra) and as the aforesaid two Division Bench judgments have not been considered while taking the contrary view in the subsequent appeal of the State of Bihar filed against the order passed in the case of Devendra Kumar Mishra on 12.1.2001, the subsequent judgment of the Division Bench in the case of State of Bihar & Ors. Vrs. Devendra Kumar Mishra is per incuriam of the earlier two Division Bench judgments and should not be followed by this Court for refusing the relief prayed for in the writ petition. In support of the aforesaid submission, learned counsel for the petitioner also relied on the judgment of the Hon’ble Supreme Court in the case of Usha Kumar Vrs. State of Bihar & Ors., reported 7 in (1998) 2 S.C.C. 44, paragraph 3 wherein the Hon’ble Supreme Court having noticed the contrary Division Bench judgments of this Court observed that judicial discipline require that if two Division Bench judgments of the same High Court take different view, the matter should be referred to a Larger Bench. 6. Having heard counsel for the parties and having perused the Division Bench judgment of this Court in the case of Kashi Nath Thakur (supra) and the State of Bihar & Ors. Vrs. Bharat Singh @ Bharat Rao, Annexure-14, I am of the view that the two judgments have been rendered without taking notice of sub-rule (1) of Rule 97 of the Rules, which, inter alia, require the government servant whose year of birth is only recorded in the service book to superannuate with effect from 1st July of the year in which he attains the age of superannuation, but while recording the two judgments in the case of Kashi Nath Thakur, State of Bihar Vrs Bharat Singh @ Bharat Rao (supra), their Lordships did not consider the provisions of sub-rule (1) of Rule 97 of the Rules, 8 in my opinion, therefore, the aforesaid two judgments have been rendered per incuriam the provisions of the Rules which require the government servant in whose case only year of birth is mentioned in the service book to superannuate with effect from 1st July of the year in which he attains the age of superannuation. The subsequent Division Bench judgment in the case of State of Bihar & Ors. Vrs. Devendra Kumar Mishra (supra) has been rendered taking into account the provisions contained in sub- rule (1) of Rule 97 of the Rules and sub-rule (iii) of Rule 233 of the Board Miscellaneous Rules, which, inter alia, require the government servant in whose case only year of birth is mentioned in the service record to superannuate with effect from 1st July of the year in which the Government servant attained the age of superannuation. In my opinion, as the subsequent judgment in the case of State of Bihar Vrs. Devendra Kumar Mishra, although having been rendered without the benefit of the earlier two Division Bench judgments, but since the same takes into account the relevant provisions of law Bihar 9 Financial Rules, Board Miscellaneous Rules, I am persuaded to follow the Division Bench judgment rendered in the case of State of Bihar & Ors. Vrs. Devendra Kumar Mishra (supra) which has been rendered in the light of the aforesaid Rules and hold that the petitioner has been rightly superannuated with effect from 1.7.1996 as in his service book 1938 has been recorded as the year of birth. 7. Accordingly, I do not find any merit in this writ petition, which is dismissed. AFR Arjun/ ( V. N. Sinha, J.)