IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.1078 of 2010 1. Virendra Prasad Gupta, S/O Late Ram Anugrah Narayan Lal, R/O Mohalla Sadar Bazar, Phulwarisharif, P.S. Phulwarisharif, District- Patna……Appellant Versus 1. The State Of Bihar. 2. The Director General Of Police,Govt. Of Bihar,Patna. 3. The I.G. (Wireless),Bailey Road, P.S. Shastrinagar, District- Patna. 4. The D. I. G. Central Range, Govt. Of Bihar, Patna. 5. The D. I. G. (Wireless),Govt. Of Bihar, Patna. 6. The S. P. (Wireless), Bailey Road, P.S. Shastrinagar, District- Patna. 7. The D.S.P. Cum Enquiry Officer (Wireless), Wireless Office ,Bailey Road, P.S. Shastrinagar, District- Patna……….Respondents ----------- 04/ 20th July 2011 This Letters Patent Appeal has been filed against the order and judgment dated 12.5.2009 passed in CWJC No. 5899 of 2009. The petitioner/appellant filed the said petition by being aggrieved of initiation of departmental proceeding under Rule 43-B of the Bihar Pension Rules. The departmental proceeding was initiated on the ground that the petitioner’s date of birth was recorded in High School Certificate as 23.11.1940, while the petitioner concealed this fact and obtained service on the basis of an affidavit filed by her mother. Learned single Judge has recorded a finding that the date of birth as was given through affidavit by his mother was accepted by the State Government and 2 the appointment was given to him and thereafter has partly allowed the writ petition and has held that the petitioner shall be paid pension which shall be fixed on the basis of date of period of service rendered by the petitioner and has also held that four years salary should be computed towards his retirement benefit on the head of gratuity, leave encashment etc. Since the petitioner was appointed in service on the basis of the date of birth disclosed in the affidavit, had the date of birth recorded in the High School certificate been taken into account, the petitioner would have become overage and could not have been appointed. Thus, giving appointment in service was the date of birth disclosed in affidavit filed by the mother of the petitioner on the basis of which the entire service record was prepared, therefore, in our opinion the State Government is not fair in its conduct and cannot initiate departmental proceeding and withhold the pension as the petitioner was not at fault anywhere. It was, in fact, the State Government who committed such mistake in accepting the date of birth stated in the affidavit filed by the mother of petitioner and provided the employment 3 to the petitioner and allowed him to continue in service and after serving full service, he retired. After retirement it was not open for the State to have initiated the proceeding on the basis of the date of birth recorded in the High School certificate as the same was not the basis of entering into service. Thus, the portion of the judgment where it has been held that the salary of four years should be computed toward his retirement benefit on the head of gratuity, leave encashment etc, is set aside and further we hold that no recovery shall be made from the appellant and full pension shall be paid to the appellant in accordance with law. perwez (Prakash Chandra Verma, J.) (Aditya Kumar Trivedi, J.)