IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.13656 of 2005 Gopal Mishra son of Late Bhola Mishra, resident of village-Suja, Post Office-Suja, Police Station-Muffasil, Dist. Begusarai. ---Petitioner. Versus 1. The Bihar State Electricity Board through the Chairman, Patna. 2. The Secretary of Bihar State Electricity Board, Patna. 3. The General Manager-cum Chief Engineer,Saharsa 4. The Electrical Superintending Engineer, Saharsa. 5. Electrical Executive Engineer, Electric Supply Division, Khagaria. 6. The Section Officer, Koshi Area Electricity Board, Saharsa. --- Respondents. For the petitioner : Mr. Ganpati Trivedi, Advocate. For the respondents : Mr. Vinay Kirti Singh, Advocate. ----- 04 15.09.2011 Petitioner has approached this Court seeking appropriate order/direction to quash the order dated 02.06.2005 passed by the respondent Secretary of the Bihar State Electricity Board ( for short ‘Board’) which was communicated to him under covering letter bearing memo no. 1451 dated 02.06.2005 (Annexure-11). Background facts of the case, in brief, are as under:- Petitioner was appointed as class-IV employee under the orders of the respondent Board. Since he was not possessing any certificate showing his date of birth the petitioner produced certificate issued by the Assistant Civil Surgeon, Sadar Hospital, Saharsa (Annexure-1) certifying therein that his age, according to his own statement, was 19 years on the date of issuance of the certificate i.e. 28.05.1982. It is the case of the petitioner that in the light of the aforesaid medical fitness certificate as well as the certificate indicating his age on the date of his appointment he was offered the appointment pursuant thereto he joined the service as peon on 16.04.1983 in Koshi Area Electricity Board, 2 Saharsa. Approximately two years thereafter, according to the petitioner, his service book was opened in which the date of Birth of the petitioner was mentioned as 28.05.1963. While recording the year of his date of birth, the authority had committed an error, and as such, the same was rectified a year thereafter under authentication/seal of an officer of the respondent authority and the year which was shown as 1953 was modified as 1963. The petitioner thereafter continued in service. Sometimes in the year 1998 the respondents found that there was interpolation in the year of birth recorded in the service book/record of the petitioner. Accordingly, the matter was referred to the Bihar Police Forensic Science Laboratory, Patna ( for short ‘FSL’) for ascertainment of original/actual year of birth recorded therein. A report was submitted by the FSL (Annexure-3) wherein it was indicated that the digit 5 in 1953 was interpolated and made to appear as 6 making it 1963 in place of 1953. Based on the aforesaid report the authorities of the respondent Board passed an order contained in letter bearing no. 751 dated 11.05.2000 (Annexure-4) whereby it was informed to him that the authorities have ascertained his date of birth as 28.05.1953 in place of 28.05.1963. Aggrieved by the aforesaid stand taken in the letter dated 11.05.2000 (Annexure-4), the petitioner filed a writ proceeding in this Court vide CWJC No. 14070 of 2003 ( Gopal Mishra vs. The Bihar State Electricity Board & Ors. ). This Court, by a proceeding dated 18.03.2005 (Annexure-9), disposed of the application whereby the petitioner was permitted to file a representation before the respondent Secretary, who, in turn, was commanded to consider and dispose of the same by a reasoned order in accordance with law within a stipulated 3 period of time. The effect of the order contained in letter dated 11.05.2000 (Annexure-4), was kept in abeyance. In the light of the aforesaid liberty granted by this Court, the petitioner made a representation (Annexure-10) stating therein that there was no interpolation by the petitioner in the year of birth as recorded in the service book of the petitioner. It was a bonafide mistake on the part of the authorities which was corrected under authentication/seal of an officer of the respondent Board within a year of opening of the service book/record. Petitioner also stated therein that his elder brother was also serving the respondent board whose date of birth has been accepted by the Board as 13.06.1953. If the respondents by the impugned communication (Annexure-4) treats the year of birth of petitioner as 1953 then he would become elder brother of his elder brother. The petitioner also stated therein that in case of any dispute or doubt relating to his age, the matter is required to be referred to the Medical Board in terms of the decision of the respondent Board taken in the Personnel Department as contained in Annexure-8. Respondent Secretary, on a consideration of the matter, passed an order which was communicated to the petitioner vide letter bearing no. 1451 dated 02.06.2005 (Annexure-11) which has been impugned in the present writ petition. An interlocutory application bearing I.A. No. 5953 of 2011 has been filed by the petitioner seeking amendment in the relief to challenge the sustainability of the communication dated 11.05.2000 as contained in Annexure-4. No counter affidavit has been filed on behalf of the respondent Electricity Board. 4 Heard Mr. Ganpati Trivedi, learned counsel for the petitioner and Mr. Vinay Kirti Singh, learned counsel for the respondent Board. While assailing the order, learned counsel for the petitioner submits that it is a case where the date of birth of the petitioner was required to be ascertained and recorded as per the provision contained in Rule 97 of the Bihar Financial Rules ( for short ‘Rules’). Learned counsel for the petitioner submits that the petitioner in order to claim his age as 19 years on the date of appointment and/or joining the post produced a certificate duly issued by the Civil Assistant Surgeon (Annexure-1). It is contended that there is no controversy in the present case so far as production of Annexure-1 by the petitioner at the time of joining the service in support of his age. According to the petitioner, Rule 97 of the Rules admits of such situation. It is highlighted that ‘note’ appended thereto declares that case in which the date of birth as deduced and/or assumed from the certificate attested/issued by the Civil Assistant Surgeon or by any other method, need not be re- opened. Learned counsel submits that the interpolation, if any, in the year of his date of birth is apparent and does not require to be scientifically evaluated or tested by the FSL. According to him, there was a mistake on the part of the respondent in entering his year of date of birth as 1953 in place of 1963 which was duly corrected within a year under authentication/seal of the authority of the respondent Board. Learned counsel highlights that in case of any doubt or controversy raised in the matter relating to his date of birth the authority could have taken steps as per the decision of the Board as contained in Annexure-8. 5 Learned counsel for the respondent, on the other hand, supported the impugned order. It is contended that the authority after having detected interpolation in the year of his date of birth referred the matter to the FSL for submitting its report whereafter it was found that there was interpolation in the year of birth of the petitioner inasmuch as digit 5 was made to appear as 6. I have heard the parties and perused the materials on record. Rule 97 of the Rules States as under:- “97. (I) If a Government servant is unable to state his exact date of birth but can state the year, or year and month of birth, the 1st July or the 16 of the month respectively may be treated as the date of his birth. (2) If he is only able to state his approximate age, his date of birth may be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment. (3) When a person who first entered Military employ is subsequently employed in a civil department, under the State Government, the date of birth for the purpose of the civil employment should be the date stated by him at the time of attestation or if at the time of attestation he stated only his age, the date of birth should be deduced with reference to that age according to the method indicated in sub-paragraph (2) above. Note.- Cases in which the date of birth has been deduced from the age at appointment or attestation by any other method, need not be re- opened.” There is nothing on record to show that the initial appointment of the petitioner required any particular educational qualifications. Petitioner was obviously not possessed of any of such certificate issued by any institution. In the aforesaid circumstances he obtained a certificate duly issued by the Civil Assistant Surgeon (Annexure-1) which declares him 19 years of age on the date of issue of said 6 certificate. On a perusal of the provision contained in Rule 97, it appears the Rule admits such production of certificate and based thereon assume date of birth of an employee. Although the copy of the service book is not on record, Mr. Trivedi, learned counsel, produced photo copy thereof for perusal of the Court. On bare perusal of the copy of the service book/record, it appears that a correction has been carried in the year of date of birth and year 1953 has been made to appear as 1963. This contains initial as well as signature and seal of the Section Officer, Koshi Area Electricity Board, Saharsa. It appears that such correction was carried out in March 1986. This Court is unable to comprehend as to how in face of the obvious correction carried out in the year of date of birth under authentication the matter is treated as a case of interpolation and referred to F.S.L. for examination and report. The stand of the petitioner is that his date of birth 28.05.1963 is in line with the medical certificate produced by him (Annexure-1) about which there is no controversy. Rule 97 of the Rules provides for such assumed date of birth of an employee. It appears from the contents of the representation filed by the petitioner (Annexure-10) that the elder brother of the petitioner is also serving the respondent Board whose date of birth has been accepted by the Board as 13.06.1953. If the case of the respondent is to be accepted then the petitioner would become younger to his elder brother. Learned counsel for the petitioner seems to be right in his submission that if there is any controversy with regard to his date of birth then the respondent could have subjected him to Board of doctors duly constituted by the respondent Board for ascertainment of his age. The authorities have not come out with any 7 reason, whatsoever, to indicate as to what prevented them from taking action in the present case in line with the resolution/instruction contained in letter dated 14.07.1994 (Annexure-8). This Court, therefore, is inclined to interfere in the matter and grant relief to the petitioner in the following terms:- The order contained in Annexures 4 and 11 are quashed and set aside. The respondents, if so decide are at liberty to subject the petitioner to the Board of doctors for assessment of his age as per the instruction of the Board contained in Annexure-8, and take appropriate decision thereafter relating to his age. In case the respondents decide to hold Medical Board for assessment of age of the petitioner then the exercise in this regard should be completed within 02 months from the date of receipt/production of a copy of this order. Sym ( Kishore K. Mandal, J.)