IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6457 of 1998 In the matter of an application under Article 226 of the Constitution of India. BIRBAL PRASAD, SON OF LATE FAKIRCHAND PRASAD, RESIDENT OF MOHALLA-NANDU TOLA, KHAGAUL, POLICE STATION- KHAGAUL, DISTRICT- PATNA. ……………PETITIONER Versus 1. THE STATE OF BIHAR THROUGH ITS SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, SICHAI BHAVAN, PATNA. 2. THE ADDITIONAL SECRETARY, WATER RESOURCES DEPARTMENT, GOVERNMENT OF BIHAR, SICHAI BHAVAN, PATNA. 3. THE CHIEF ENGINEER (RESEARCH & TRAINING) HYDRAULIC RESEARCH INSTITUTE, KHAGAUL, PATNA. 4. ADDITONAL DIRECTOR, HYDRAULIC RESEARCH INSTITUTE, KHAGAUL, PATNA. 5. DEPUTY DIRECTOR, HYDRAULIC RESEARCH INSTITUTE, DIVISIONA NO.3, KHAGAUL, DISTRICT-PATNA. 6. ACCOUNTANT GENERAL, BIHAR, PATNA. ………RESPONDENTS. ----------- FOR THE PETITIONER: KISHORE KUMAR THAKUR,ADVOCATE. FOR THE RESPONDENTS: PRABHAT KUMAR SINGH,SC-XX1. O R D E R J. N. Singh, J. Petitioner in this case has prayed for quashing of Annexure-1, an office order of Additional Director dated 18.4.1998, by which while sanctioning payment of Rs.23,544/- towards earned leave encashment the same has been ordered to be adjusted towards excess salary drawn by the petitioner having worked beyond his actual date of retirement. He has further prayed for quashing of Annexure-2, another order of Additional Director of the same date, by which the Accountant General 2 has been instructed to sanction and issue payment order of pension and other retiral dues of the petitioner after adjusting an amount of Rs.68,589/- towards excess salary paid to the petitioner. Further prayer has been made for a direction for payment of full amount of gratuity, the amount of leave encashment as deducted, increment and other retiral dues. A prayer has also been made for allowing the petitioner to exercise his right of commutation of pension also. The case of the petitioner is that he was initially appointed as class-IV employee on the post of Gardener (Mali) on 31.10.1956 under respondents. After his appointment his service book was opened in which his date of birth was mentioned as 1.8.1938. As per the said date of birth the petitioner was to retire on 31.7.1996. After more than 30 years of service, petitioner received a letter from the respondent Deputy Director dated 27.9.1989 (Annexure-3), by which the petitioner was asked to furnish proof of his age for the purposes of opening his service book. It appeared to the petitioner that the service book opened earlier was misplaced and therefore, may be, for that reason he was being asked to 3 produce the proof of his age. Hence, in compliance to the said letter of Deputy Director, Annexure-3, petitioner got himself medically examined by the Assistant Civil Surgeon, State Dispensary, Khagaul, who issued certificate to the petitioner with regard to his age. As per the said certificate, petitioner’s date of birth was determined as 1.8.1938. By Annexure-3, another Class-IV employee, namely, Dinesh Ram was also directed to produce proof of his age which he had also complied. On the basis of said certificate, service book of the petitioner was opened and his date of birth was recorded as 1.8.1938, relevant extract of which is at Annexure-4. It is stated by the petitioner that in the year 1987, for the purposes of opening of his account of G.P.F., he had been asked by the authorities to put his signature on an application form. As the petitioner was illiterate, the form was filled up by the Assistant concerned in the office and petitioner merely signed the same. As later on transpired to the petitioner, the said Assistant of G.P.F. office had put the date of birth of the petitioner on the application as 24.7.1936. Petitioner continued in service for many years 4 without any further action by the respondents. However, taking into account the date of birth of the petitioner mentioned on the said application for opening of account of G.P.F., respondents issued a letter vide Memo No. 261, dated 8.4.1994, intimating petitioner that he was to superannuate on 31.7.1994. As the petitioner found that the date of birth mentioned in the service book on the basis of medical certificate had been ignored by the respondents, he submitted a representation before the Additional Director requesting him to take into account the date of birth mentioned in the service book for the purposes of determining the date of his superannuation. After receipt of the representation of the petitioner, respondent Additional Director took cognizance of the matter and a letter was issued to the concerned Medical Officer vide Annexure-6, who had issued medical certificate in respect of the petitioner, requesting him to verify issue of the said certificate. The said Medical Officer replied through his letter dated 27.7.1994, vide Annexure- 7, and certified that he had, indeed, issued the said certificate in respect of the petitioner. After receipt of the said verification report by 5 the Medical Officer with regard to medical certificate issued by him in respect of the petitioner, the respondent Additional Director forwarded the same to the Chief Engineer vide Memo No. 41 dated 29.7.1994, as contained in Annexure-8, communicating his order that in view of the verification of the medical report the date of birth of the petitioner mentioned on the pass book and on the account of provident fund should be cancelled and the date of birth of the petitioner on the basis of medical certificate should be accepted. He further ordered that till receipt of further directions the operation of office order contained in letter no. 261 dated 8.4.1994 is stayed and the Chief Engineer was requested to make necessary corrections in the records as a consequence of stay order of Additional Director, as contained in the said Annexure-8. The chief Engineer made a note on the said letter that the Additional Director was himself competent to issue orders in this regard. Accordingly, the Additional Director issued order dated 2.12.1994, vide Annexure-9, giving formal recognition of date of birth of the petitioner on the basis of said medical certificate. On the 6 basis of said medical certificate, petitioner, who was to retire on 31.7.1994, was allowed to continue in service till 31.8.1996 on which date on the basis of his date of birth as 1.8.1938 he superannuated. After superannuation, petitioner submitted his pension papers to the respondents. After waiting for quite a long time, petitioner received orders of sanction of 90% pension. However, since no other payment was released to the petitioner, he moved this Court through C.W.J.C. No. 2247 of 1997 praying therein for a direction to the respondents to sanction and pay all his retiral benefits. In the said writ application respondents appeared and filed counter affidavit in which they took the stand that the petitioner had continued in service beyond his correct date of retirement and he managed his original service book to disappear, compelling the respondents to open a new service book and the matter was pending before the competent authority for final decision. In view of the stand of the respondents, the said writ application was disposed of by order dated 27.1.1998 (Annexure-10) and the matter was remitted back to the Additional 7 Director for final decision. Consequent to the disposal of the writ application a notice was issued to the petitioner vide memo no. 184 dated 5.3.1998, asking him to submit an application along with evidences in respect of his date of birth. Petitioner appeared before the Additional Director and took stand that when once his date of birth as 1.8.1938 was accepted by the respondents and the same was entered into a service book on the basis of medical certificate and he was allowed to continue in service, it was not open to the respondents to turn back and take a stand that the date of birth was wrong and he overstayed in service. However, ignoring all the previous orders and decisions in this respect, the respondents issued order vide Annexure-1 holding the petitioner to have overstayed in service and directed for recovery of excess payments made to him on this account from his earned leave encashment and further directed to the Accountant General by Annexure-2 to adjust the amount of Rs.68,589/- and an amount of Rs.15,310/- paid to him by way of provisional pension from his sanctioned pension and gratuity. Learned counsel for the petitioner 8 contended that the respondents themselves had asked the petitioner to furnish proof of his age, in compliance to which he had furnished the medical certificate which was also verified by them and, thereafter, accepting the same, his date of birth as 1.8.1938 was recorded in the service book and orders, as contained in Annexures- 8 and 9, were issued. The petitioner was accordingly allowed to continue in service and superannuate with effect from 31.8.1996. Learned counsel for the petitioner further submitted that once the respondents had finally accepted the date of birth of the petitioner and had passed final orders, there was no occasion for the respondents to review their order and hold the petitioner to have continued in service beyond his acceptable date of retirement. It is further submitted that in any case, petitioner had continued in service in terms of the orders of the respondents and therefore it could not be said that he continued in service illegally making respondents entitled for recovery of the excess paid to him. It is also submitted that there was no misrepresentation or fraud on the part of the petitioner in the matter and, therefore, he could not be held responsible by the 9 respondents for permitting him to continue in service. A counter affidavit has been filed in the case in which stand has been taken that while sanction of final payment and gratuity of the petitioner was under consideration, it was discovered that his service book was tampered with and its relevant pages were replaced and they contained no signature. Therefore, matter was examined and it was found that the petitioner had mentioned his date of birth in his formal application for opening of G.P.F. account as 24.7.1936, whereas on the replaced papers of his service book, which contained no signature, his date of birth was mentioned as 1.8.1938. In the circumstances, accepting his date of birth as mentioned in the application for opening of the account, it was held that the petitioner was liable to retire on 31.7.1994 and he illegally overstayed in service, therefore, orders were issued for recovery of the excess amount paid to the petitioner during his period of overstay. It was also contended in the counter affidavit that the medical report obtained by the petitioner was not issued by the competent 10 authority i.e. Civil Surgeon and therefore, the same could not be relied upon or accepted for holding his date of birth as 1.8.1938. It is also contended that the petitioner was aware of the fact and, therefore, he was expected to invite attention of the Additional Director towards his date of birth mentioned in the said application for opening of G.P.F. account. Learned counsel for the respondent referred to one case of Sri Gobardhan Singh Versus The State of Bihar and Others reported in 1986 PLJR 109 to contend that State Government was not obliged to accept any medical report not issued by the Civil Surgeon and issued without referring to any scientific data collected for arriving at a conclusion with regard to age of the person examined. Learned counsel for the respondent also referred to a Supreme Court Judgment in the case of Radha Kishan Versus Union of India and Others reported in 1997 (2) PLJR 129 (SC) and the Full Bench Judgment of this Court in the case of Ram Binod Singh Versus The Bihar State Electricity Board reported in 2007 (3) PLJR 398 to contend that in case of illegal payment made to the petitioner, the respondents had ample authority to 11 recover the same from his post retiral benefits. A counter affidavit has been filed on behalf of the Accountant General in which it is stated that the authority slip was issued by his office in terms of the orders issued by the Department as contained in Annexure-2. After hearing the learned counsel for the respective parties and after going through the records there can not be any dispute that in the year 1989 petitioner was asked to furnish proof of his age for purposes of opening of his service book. This is also not in dispute that in compliance to the said communication petitioner obtained certificate of age from a Government Doctor and made the same available to the respondents. This is also not in dispute that thereafter no further query was made by the respondents nor any further enquiry was held by the respondents and petitioner continued in service for years without any further doubt being expressed by the respondents about the correctness of the said medical certificate produced by the petitioner. It was only in 1994 that the petitioner was served with letter dated 8.4.1994 by which petitioner was to retire with effect from 12 31.7.1994. This is also not in dispute that the petitioner filed a representation against the same and thereafter the matter was enquired into, the medical certificate furnished by the petitioner was got verified and final orders were passed by Annexure-8 and 9. By virtue of the said orders petitioner continued in service and finally superannuated on 31.8.1996. Thus it is clear that the petitioner continued in service after 1994 under the authority of law and in terms of valid orders of the higher authorities. Therefore, from any view of the matter it can not be said that he illegally overstayed in service and therefore, respondents were legally entitled to recover the amount of salary etc. paid to him during this period. Next question that arises for consideration is as to whether the date of his birth as mentioned in the service book in terms of orders of the authorities and in the light of the medical certificate was acceptable or not. He was asked to furnish the medical certificate with regard to the age in 1989 itself. He furnished the same. Thereafter, no further action was taken by the respondents. When in 1994 notice was issued to him he drew the attention of the authorities with 13 regard to age mentioned in the medical certificate on the basis of which his date of birth was mentioned in the service book as 1.8.1938. It was obvious that on his representation the matter was examined, the said medical certificate was got verified and thereafter, the respondents took a conscious decision by Annexure-8 and 9 to accept the said date of birth and thereby to allow him to continue in service. It can not be accepted that at that stage the respondents by mistake overlooked the date of birth of the petitioner mentioned in his application for G.P.F. or by mistake overlooked the alleged tampering of his service book. The question will be when, after examining all the materials adverse to the petitioner as claimed by them, they took a conscious decision by Annexure-8 and 9 to accept the date of his birth as mentioned in the medical certificate, was it open to them to reopen the matter after years of his retirement and bring it on record in the earlier case of the petitioner to refuse his claim for payment of post retiral dues on the basis of his retirement with effect from 31.8.1996. The stand of the respondents that the petitioner was aware of the date of birth 14 mentioned by him in his application for provident fund and as such he was expected to invite attention of the Additional Director towards it is ridiculous. The earlier notice issued to the petitioner itself makes it evident that the respondents were already in know of the fact that his date of birth mentioned on his application for provident fund was 24.7.1936. When they had full knowledge of the same there was no question of the petitioner bringing it again to their notice. From the signature of the petitioner on the affidavit and vakalatnama it is apparent that he is illiterate. As such it can not be accepted that he filled up the formal application for opening of G.P.F. account himself to bind himself with the date of birth mentioned therein. So far as tampering in the service book by changing its relevant pages and there being no signature on the same is concerned, it can not in any way be attributed to the petitioner as he was class four employee. Under the law, the service book of a subordinate employee has to be maintained and updated by head of the office concerned on regular basis. If there was any tampering or short fall in the service book, the 15 head of the office concerned was answerable at the first instance. There is nothing on record to show that any action was ever initiated against the concerned head of the office for such short fall or defects in the service book. Instead, the respondents have shirked from their responsibility in the matter by simply putting blame on the petitioner for the same. Petitioner has pleaded that his earlier service book which contained his correct date of birth was destroyed or lost due to which a new service book was required to be created by the authorities. For that purpose instruction was issued to him in 1989 for producing proof of his age. This pleading of the petitioner has not been denied or controverted by the respondents. Admittedly no notice was also issued to the petitioner in the matter before holding him responsible for the alleged tampering in the service book. The authorities referred by the learned counsel for the respondent is also of no help to them. It is clear that after enquiry the respondents had arrived at conscious decision with full eyes open to accept the medical report and accept the date of birth of the petitioner as 16 1.8.1938. It is also clear that in terms of the orders issued by the respondents the petitioner had continued in service on the basis of said date of birth and retired on 31.8.1996. Thus the continuance service of the petitioner was not illegal and the authorities had already taken up final decision on the basis of the medical report accepting the same. They were, therefore, not at liberty to reopen the same after retirement of the petitioner and that too after he applied for payment of his retiral dues. In the circumstance, stand of the respondents in the counter affidavit is not acceptable. As discussed above, petitioner had continued in service till 31.8.1996 on the valid orders of the authorities and therefore, no recovery on account of his said continuance can be made from his retiral benefits. Hence, Annexure-1 and 2 are fit to be quashed and the same are hereby quashed. The respondents are directed to refund the amount deducted or withheld in terms of Annexure-1 and 2 to the petitioner within a period of three months from the date of production of a copy of this order. The respondents are also directed to treat the petitioner to have retired 17 from service with effect from 31.8.1996 and calculate and pay all the retiral benefits accordingly within the same period. It is made clear that in case payments on either of the count are not released in full to the petitioner with statutory interest on the same as admissible within the time as mentioned above, the respondents shall be liable to pay interest at the rate of 18% per annum on all amount which may remain due or which may be held to be due in any subsequent proceeding or by any competent authority from next date after expiry of the said three months. In the result, this writ application is allowed, Annexure-1 and 2 are hereby quashed, with the above observations and directions. It may be clarified that dates mentioned herein in this judgment are as per mentioned in the pleadings and subject to final verification from the admitted records pertaining to the petitioner. Patna High Court Dated 22nd October, 2008 Arvind/ N.A.F.R. ( J. N. Singh , J. )