IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3424 of 2011 ============================================= Asma (No.1), widow of Late Md. Khalil, r/o- mohalla Wajidpur, Ward No. 3, P.O.- and Police Station-Barh, District- Patna. .... .... Petitioner/s Versus 1. Nagar Parisad,Barh, P.O./P.S.- Barh, District Patna through its Executive Officer. 2. The Executive Officer, Nagar Parishad, Barh, P.O./P.S.- Barh, District- Patna. 3. The State of Bihar through the Secretary, Urban Development Department, Government of Bihar, Patna. .... .... Respondent/s ============================================= Appearance : For the Petitioner/s : Mr. Sidhendra Narayan Singh For the Respondent/s : Mr. Partha Sarthy Mr. Syed Hussain Majeed, A.C. to AAG 7 ============================================= 8 18-10-2011 Heard learned counsels for the petitioner, respondent Nagar Parishad and for the State. Petitioner was serving as Sweeper with the Nagar Parishad, Barh (for short “the Parishad” ). By order contained in Memo No. 470 dated 19.10.2010 (Annexure-1), she has been informed that as per her date of birth recorded in the Service Book, she would superannuate w.e.f. 30.11.2010. Petitioner raises a grievance thereagainst. According to her, she was appointed as Safai karmachari in the respondent Nagar Parishad whereafter she worked satisfactorily until the impugned order was passed. It is submitted that she made a representation (Annexure-2) which remained pending and ultimately, she was propelled to file the present writ petition. 2 Learned counsel in support of the application submits that the actual date of birth of the petitioner is 13.11.1965. In support of the aforesaid stand/claim, she has relied on documents contained in Annexure-3, 3/a and 3/b. These are the prescriptions issued by the Doctor to whom the petitioner went for consultation in connection with her ailments. It is contended that in similar fashion, another employee namely Saryug Ram was made to superannuate by an order dated 31.12.2005 (Annexure-4). He filed a writ petition. During the pendency of the application, the respondent Parishad came out with order dated 2.2.2008 wherein the aforesaid order was cancelled/withdrawn. Learned counsel, with reference to averments made in the writ petition, submits that she is ready and willing to be medically examined for the assessment of her age and the authorities of the Parishad be directed to subject her for medical assessment. Two sets of counter affidavits have been field on behalf of the respondent Nagar Parishad. Learned counsel for the respondent Parishad, relying on the averments made therein, supported the impugned action of the respondents. It is submitted that petitioner was appointed/retained as Sweeper on temporary basis in the year 1977. She was made permanent on 7.9.1977. Since, there was no document indicating her age, the authorities 3 subjected her for medical assessment of her age by the Civil Assistant Surgeon. On being examined by the Civil Assistant Surgeon on 13.1.1985, she was assessed 35 years of age. Learned counsel, in this regard, referred to Annexure-A to the supplementary counter affidavit in order to show that the assessment of age was made by the Civil Assistant Surgeon which bear all the details of the petitioner as well as her L.T.I. It is contended that based on the aforesaid medical assessment of her age, a Service Book was thereafter opened in 1985 wherein her age was recorded as 13.11.1950. Reliance in this regard has been placed on Annexure-C to the counter affidavit. It is contended that in the matter of consideration of such claim, the Court has to be circumspective as observed/held by the Hon’ble Supreme Court in the case of Secretary and Commissioner, Home Department and Ors versus R. Kirubakaran since reported in 1994 Suppl (1) SCC 155 and Burn Standard Col Ltd. and Ors versus Binabandhu Majumdar and Anr. Since reported in (1995) 4 SCC 172. Learned counsel for the respondent further highlighted that if the petitioner has come out with a case that her date of birth has wrongly been entered then onus heavily lies on the petitioner to demonstrate that his date of birth is not one as is incorporated in the service record. Learned counsel for the respondent also submitted that such claim 4 having been raised after retirement (at least 25 years of the construction of the service record) cannot be entertained in view of the provisions contained in Rule 96 of the Bihar Financial Rules. I have heard the submissions advanced on behalf of the parties and perused the materials. Petitioner has not disclosed the date of her initial entry in the service of the Nagar Parishad in the writ petition. The respondents have come out with a case that she was initially engaged in 1977 as Sweeper on temporary basis whereafter on 7.9.1977, she was made permanent and while opening the Service Book in respect of the petitioner, she was subjected to medical examination for assessment of her age which was done on 13.1.1985 (Annexure-A to the supplementary counter affidavit) whereafter the Doctor found her 35 years of age on the date of examination and issuance of certificate. It has been highlighted that if the claim of the petitioner that her date of birth is 13.11.1965 is accepted then at the time when she was made permanent, the petitioner would be only 12 years of age. The Apex Court, while dealing with the matter relating to date of birth of an employee, observed in the case of Secretary and Commissioner, Home Department and Ors versus R. Kirubakaran (supra) in paragraph 7 as under: “An application for correction of the date of birth should not be dealt with by the tribunal or the High 5 Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as because of the correction of the date of birth, the officer concerned continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this 6 Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.” On perusal of the aforesaid judgment, it appears that in such matter, the Court has to keep in focus not only the interest of the petitioner but also of public at large. Secondly, the onus in such matter heavily lies on the person who comes up with a case that the date of birth recorded in the Service Book is not the correct date of birth. In Burn Standard Col Ltd. (supra), while dealing with this issue, the Hon’ble Apex Court in paragraph 12 observed as under: “… The first thing to consider is whether on the date of entry into service would the employee have been eligible for entry into service on the revised date of birth……” Assessment of age by medical examination is not alien to service jurisprudence. Rules 96 and 97 of the Bihar Finance Rules permit the employer to ascertain and/or get a certified age of the employee and record the same. The aforesaid provisions also contain a rider that if any employee has any grievance relating to 7 ascertainment of his/her age then the same is required to be raised within a reasonable period of time. It is evident from the materials on record that after superannuation, the petitioner is raising a grievance with regard to the date of birth entered in the Service records respecting the petitioner. I have already noted that such claim is based on Annexure-3 series which are nothing but prescriptions of the doctors to whom petitioner consulted in connection with her ailment. It thus appears that no document worth reliance much less irrefutable documents have been placed before this Court to come to a conclusion that her date of birth has wrongly been recorded as 13.11.1950 instead of 13.11.1965. For the reasons aforenoted, this Court finds no merit in the application. The application is dismissed. There shall be no order as to costs. PANKAJ KUMAR/- (Kishore K. Mandal, J)