IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10039 of 2005 RAM SAGAR SAH Versus THE STATE OF BIHAR & ORS ----------- 3. 29/07/2008 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner, a Pump Operator, working under Public Health Engineering Division at Muzaffarpur, has filed this writ application for a direction to the respondents to treat his date of birth as 31.7.2003 and pay him all consequential retirement benefits on that basis and also pay his salary for the months of April to July, 2003. Petitioner contends that he was appointed on 4.7.1968. At the time of his appointment, he produced medical certificate issued by Civil Assistant Surgeon, Muzaffarpur in which his age was shown as 23 years as on 4.7.1968. Respondents accepted the same and allowed petitioner to continue in service. When the date of retirement of the petitioner approached, service record of the petitioner was examined for the purpose of fixing his retirement benefits and payment thereof. At that time it was found by the Executive Engineer that - 2 - although medical certificate was available but the date was not mentioned in the service book, and hence he wrote a letter dated 22.2.2003, as contained in Annexure-1, to the Superintending Engineer for permission to enter the date of birth of the petitioner in his service book after calculating the same on the basis of the said medical certificate. It was mentioned in the said letter that as per calculation, petitioner was to retire on 31.7.2003. However, it appears that while the request of the Executive Engineer made to the Superintending Engineer was pending, the Executive Engineer obtained date of birth of the petitioner from the District Provident Fund office, Muzaffarpur which was shown as 16.12.1943 and on the basis of which he passed order for retirement of the petitioner with effect from 31.12.2001. Said order was communicated to the petitioner by letter dated 29.3.2003, as contained in Annexure-2. It appears that the petitioner represented against the same before the District Magistrate, Muzaffarpur with a copy to all the authorities, as contained in Annexure-3 to the - 3 - writ application. The representation of the petitioner was considered by the Chief Engineer and he by his order dated 18.8.2003, as contained in Annexure-4, directed the Executive Engineer that the date of birth of the petitioner as entered in the service book on the basis of medical certificate of Civil Assistant Surgeon was to be taken into account and not the date of birth of the petitioner mentioned in the records of some other Department. The Chief Engineer directed the Executive Engineer to treat the petitioner as retired with effect from 31.7.2003. The Executive Engineer replied to the Chief Engineer by his letter dated 5.9.2003, as contained in Annexure-5, in which he requested the Chief Engineer to reconsider the matter afresh. Petitioner again represented to the Chief Engineer in the matter, a copy whereof is contained in Annexure-6. The Chief Engineer finally considered the communications of the Executive Engineer and passed orders afresh, vide Annexure-7 dated 20.3.2004 directing him to accept the date of birth of the petitioner on the basis of certificate of the Civil Assistant Surgeon and treat his retirement with effect - 4 - from 31.7.2003. It is an admitted position that the retirement benefit of the petitioner was calculated by the authorities treating him to have retired with effect from 31.12.2001 and all dues were paid to him. But since the petitioner’s claim for treating him to have retired on 31.7.2003 was accepted by the Chief Engineer, petitioner submitted representation to the authorities including the Accountant General for refixation of his pension and calculation of other dues on the basis of his date of retirement as on 31.7.2003. Grievance of the petitioner is that inspite of clear order of the Chief Engineer, respondent Executive Engineer has not recalculated his dues treating him to have retired on 31.7.2003 and has not taken steps for re-fixation of his pension. A counter affidavit has been filed by the respondents in this case in which stand has been taken that since the date of birth of the petitioner was not mentioned in his service book, his date of birth was obtained from the office of the District Provident Fund Officer and on that basis his date of retirement was - 5 - calculated and fixed. Fact remains that against the order of the Executive Engineer petitioner had filed representation and by repeated orders the Chief Engineer had directed the Executive Engineer to treat the date of retirement of the petitioner as 31.7.2003 and fix his pension and other benefits on that account. There is no averment in the counter affidavit that the order of the Chief Engineer, as contained in Annexure-4 and reiterated by Annexure-7 was ever recalled by the Chief Engineer. There is nothing in the counter affidavit to show that his order was kept in abeyance or the matter was again referred to the Chief Engineer by the Executive Engineer or any other authority of the Department. In the circumstances, it is apparent that in view of orders of the Chief Engineer, as contained in Annexure-4, and reiterated by Annexure-7, the matter stood concluded and it was not open to the subordinate authorities of the Department to rake up the matter again or to withhold the benefits of the petitioner on account of his date of retirement being treated as 31.7.2003. - 6 - In the circumstances, this Court has no option but to allow this writ application and direct the respondent Executive Engineer to treat the order of the Chief Engineer, as contained in Annexure-7, as final and treat the petitioner to have retired on 31.7.2003. The Executive Engineer will accordingly calculate and revise all the retirement benefits of the petitioner on that basis and shall take steps for refixation of his pension. Petitioner contends that although petitioner actually continued in service up to 31.7.2003, but as a consequence of order of the Executive Engineer, as contained in Annexure-2, petitioner was not paid his salary for the months of April, May, June and July, 2003. In that view of the matter, it is directed that if the petitioner has actually worked for these four months, he will also be entitled to salary of these four months. Since the Executive Engineer has not taken any stand in the counter affidavit with regard to the order passed by the Chief Engineer, as contained in Annexure-7 and has not given any explanation as to why he has not - 7 - complied with the said order, it is directed that if the Executive Engineer does not recalculate and pay all the difference of amounts under different heads to the petitioner and does not take steps for re-fixation of his pension within three months from the date of receipt/production of a copy of this order, he shall be liable to pay interest at the rate of 12 per cent quarterly compoundable on all the amount which may become due to the petitioner on the basis of his date of retirement as 31.7.2003. The interest amount shall be paid to the petitioner from the pocket of the Executive Engineer. With the aforesaid observations and directions, this writ application stands allowed. Pradeep/ (J. N. Singh, J.)