IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1879 of 1997 MADHUSUDAN SHARMA, S/O LATE MISHIRI SHARMA, R/O VILLAGE SALIMPUR, P.S BAKHTIARPUR, DISTRICT PATNA. .............PETITIONER. Versus 1.THE STATE OF BIHAR. 2.THE COMMANDANT GENERAL, BIHAR HOME GUARDS, CHAJJUBHAGH, PATNA. 3.THE DEPUTY COMMANDANT GENERAL, HOMEGUARD, CHAJJUBAGH, PATNA. 4.THE COMMANDANT, BIHAR HOME GUARDS, PATNA. ...........RESPONDENTS. ----------- For the Petitioner : Mr. Gyanand Roy, Advocate For the State : ---------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (12.05.2011) Mihir Kumar Jha, J. Heard counsel for the petitioner. No one appears for the State. In this writ application, petitioner has prayed for following relief:- 'That this writ application has been filed for quashing force order no. 35/97, communicated vide Memo No. 458 dated 04.02.1997 issued under the signature of Commandant, Bihar Homeguards, Patna respondent no. 4, by which the petitioner has illegaly been retired from the post of Havildar, with effect from 31.01.1997 whereas according to the date of birth of the petitioner in the service book, i.e. 06.10.1942, the petitioner was due to retire from service on 31.10.2000. The respondent authority has wrongly treated the date of birth of the petitioner as 03.11.1936 instead of 06.10.1942. This writ application has also been filed for commanding the respondents to allow the petitioner to continue in service till 31.10.2000 on which date the petitioner will retire from service according to the date of birth (06.10.1942) entered in the service book of the writ petitioner. This writ application has also been filed for holding that the respondent authority has illegaly and wrongly revised the date of birth of the petitioner in violation of provision of Rule 96 of Bihar Financial Rules and Rule 1041(1)of Police Manual, after 30 years 2 of appointment of the petitioner in regular establishment, without there being any material for the same and also without holding any proceeding and allowing the petitioner to place his case. This writ application is also being filed for commanding the respondents to allow the petitioner to continue in service without any hindrance and further make payment of arrears as well as current salary and allowances till the actual date of superannuation i.e. 31.10.2000.' Mr. Gyanand Roy, learned counsel for the petitioner would submit that the petitioner was appointed as Homeguard on 06.04.1965, (his date of birth being 06.10.1942) and on that basis he had continued in service till 18th March 1996, when he was subjected to a show cause notice alleging that he had misrepresented his date of birth, inasmuch as, his age recorded in the official records at the time of his being sent to training on 03.11.1961 was 25 years which would make his date of birth in or around 3.11.1936 and as such he ought to have superannuated w.e.f. 30.11.1994 but he had fraudulently continued in service even after that day. He has submitted that the petitioner pursuant to the said show cause notice dated 18th March 1996 had also submitted his show cause reply on 31.03.1996, but the impugned order was passed on 04.02.1997 holding that the date of birth of the petitioner as per the training register should have been 03.11.1936 and petitioner therefore, was sought to be superannuated w.e.f. 30.11.1994. Assailing the aforementioned order Mr. Roy would submit that first of all the change of date of birth at the end of the career of the petitioner was not permissible either on fact or in law specially when the proof alleged 3 entry of his age in the training register was never furnished to him and yet an adverse decision merely on the basis of a report dated 07.02.1996 was taken even without supplying him of the copy of the same much less disclosing its content. He would accordingly submit that the entire procedure adopted for premature retirement of the petitioner by unilaterally changing his date of birth cannot be sustained either on fact or in law. In this regard reliance has been placed by him on the Division Bench judgment in the case of Awadh Narain Singh vs The State of Bihar & Ors reported in 2002(1) PLJR 567 and in the case of Devi Dayal Giri vs The State of Bihar & Ors reported in 2006(3) PLJR 362. In the counter affidavit, the respondents in defence of their action have taken a plea that the entry made in the service book recording the date of birth of the petitioner as 06.10.1942, was found to be incorrect because of an earlier existing entry in the register of Basic Training of Homeguard in Central Training Institute, Bihta wherein the age of the petitioner was recorded 25 years as on 03.11.1961. As noted above the counsel for the State has not appeared to support the impugned order and the pleading in the counter affidavit is also vague and in sufficient to approve the impugned action on the post of the Respondents which would actually cut short the working service length of the petitioner by a period of more than six years inasmuch 4 as the petitioner on the basis on the age recorded in his service book could have retired on 31.10.2000. The respondents have also not brought the extract or the copy of the aforementioned entry in the training register on record which could have shown as to whether such entry and declaration was actually made by the petitioner with his signature thereon or such entry was unilaterally made by the authority on the basis of their own estimation of age of the petitioner as was being done even by the doctors while giving the medical fitness certificate for acceptance of joining at the time of first appointment. In that view of the matter, it would be difficult for this Court to even otherwise accept the stand of the respondents that the actual date of birth of the petitioner was 03.11.1936, inasmuch as, Rule 96 of the Bihar Financial Rules itself classifies the documents which can be made the basis for entry of recording the age of a Government servant and including matriculation certificate, School Leaving Certificate and Municipal Certificate etc. but does not talk of any entry in training register which also does not give the exact date of birth and only an approximate age. Recording of age of a person by someone else and that too without its being authenticated by the person concerned can not bind him and at least when even that entry has not been produced before this court, it would be difficult to accept that the petitioner himself had declared his age as 25 years at the time of his appointment. 5 In any event, such a delayed action on the part of the respondents in changing the date of birth of the petitioner after continuation of 31 years of his service even otherwise is ordinarily not permissible unless a fraud on his part is alleged and established. It has to be noted that the petitioner had definitely fulfilled the requirement of age as prescribed under Rule-4 Homeguard Rules in the year 1965 which only prescribes that a person at the time of recruitment must be in the age group of 19 to 40 years. In that view of the matter, the appointment of the petitioner in the year 1961 with date of birth as 06.10.1942 can also not be said to be in violation of Rule on account of suppression of actual age by the petitioner inasmuch as, petitioner even otherwise being more than 18 years of age was eligible to be appointed as Homeguard in the year 1965. It is this aspect of the matter of continued acceptance of the date of birth of the petitioner for the period over 31 years and its sudden change by a mere show cause notice in absence of any authentic document to prove that the petitioner's date of birth was 03.11.1936 which would make judgment of the division Bench of this Court in the case of Awadh Narain Singh(supra) squarely applicable where it has been held that:- 'Having held so, the next question which falls for consideration is as to whether the employer can alter the date of birth on this basis at any time it likes. It no doubt true that an employer cant take action on detection of fraud. However, in the case in hand, it is not the case of the respondents that they were not aware of this fact earlier. The fact that the petitioner was below 19 years of age on the date of enrolment, came to be known to the employer when in the 6 year 1966, petitioner declared his date of birth to be 03.01.1945. The respondents accepted the same and for the first time on 15.03.1999, they decided to give show cause notice to the petitioner. Thus, the misrepresentation made by the petitioner was allowed to continue for a period of more than three decades . I am of the opinion, that the entry in regard to the date of birth is an important factor for the employee and the employer both. Change of the date of birth after passage of a long period at the fag end of service is generally not permitted either at the instance of the employee or the employer unless exceptional case is made out justifying interference to prevent miscarriage of justice. It is no doubt true that fraud is one of such instance where an employer can reconsider the matter. However, as stated earlier, the misrepresentation made by the petitioner was known to the employer and no action was taken for a period of more than three decades and in that view of the matter, I am of the opinion that in the fag end of service, the employer cannot be allowed to change the date of birth of the employee on the ground that initial entry of date of birth was made in breach of qualification regarding age, prescribed in the Rule.' The same view has been also reiterated by a learned single Judge of this Court in the case of Devi Dayal (supra) wherein the ratio laid down in the case of Awadh Narain Singh (supra) has been followed. In the considered opinion of this Court, the case of the petitioner is quite covered by the ratio laid down in the case of Awadh Narain Singh (supra). That being so, this writ application is allowed and the impugned order dated 04.02.1997 as contained in Annexure-1 is hereby quashed. The petitioner will also be entitled to all consequential benefits including payment of salary and emoluments for the period from 04.02.1997 to 31.10.2000 on which date he would have retired as per his recorded date of birth in his service book. It goes without saying that the qualifying service for the petitioner for 7 earning his retirement benefit will be treated up to 31.10.2000 and therefore, if the retirement benefit of the petitioner has been paid given by computing his service up to 31.03.1997, it should be recalculated on the basis of his last pay to which he was entitled to draw on 31.10.2000 and difference of such amount will also be paid to the petitioner in the period of three months from the date of receipt/production of a copy of this order. With the aforementioned observations and direction, this application is accordingly disposed of. (Mihir Kumar Jha, J) Patna High Court Dated the 12th May 2011 A.F.R./Ranjan