IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.550 of 2011 In Civil Writ Jurisdiction Case No. 11604 of 1998 Surya Narayan Chaudhary, son of late Manog Chaudhary, resident of village + PO Pataily, PS Ujiyarpur, District Samastipur .... .... Appellant Versus 1. The State Of Bihar through the Secretary-cum-Commissioner, Building Construction and Housing Department, Secretariat, Patna 2. Superintending Engineer, Building Construction and Housing Department, Construction Circle, Darbhanga 3. Executive Engineer, Building Construction and Housing Department, Construction Division, Samastipur 4. Surendra Prasad, Establishment Clerk in the office of Executive Engineer, Building Construction and Housing Department, Construction Division, Samastipur 5. Accountant General, Patna 6. District Provident Fund Officer, Samastipur .... .... Respondents Appearance: For the Appellant : Mr. Mukesh Kumar Thakur, advocate For the Respondents : Mr. Sanjeev Kr. Singh AC to GP15 -------------- 4 27-07-2011 Heard learned counsel for the appellant and learned counsel for the State. 2. This appeal is directed against the judgement and order dated 26-8-2010 whereby writ petition preferred by the appellant bearing CWJC no. 11604 of 1998 has been dismissed. 3. From the discussions made by the writ court, it is evident that date of birth of the appellant in the Government records including the service book was 29-8-1935 but subsequently, at a much later stage, by obvious manipulation it was changed to 29-8-1939. The plethora of official records and Patna High Court LPA No.550 of 2011 (4) dt.27-07-2011 2 age of appellant mentioned in the Provident Fund accounts left no manner of doubt and, hence, the authorities did not permit the appellant to continue in service on the basis of manipulated date of birth and his salary was stopped midway. Subsequently, an order was passed against the appellant for refund of the salary received by him after his period of actual retirement date, i.e., 31-8-1993. 4. The writ court has noticed the defence of the appellant that some Assistant in the department had committed such manipulation and malafide with a view to harm the appellant. Such defence was half hearted and vague. It was never raised during the period September, 1993 to May, 1997 when the appellant was actually enjoying the benefit of such fraud. Even subsequently he has not named any Assistant and has made no complaints against any person. 5. In the facts of the case, we do not find any good ground to interfere with order of the writ court whereby no interference has been made even with the order directing for recovery of the amount paid to him beyond the actual date of superannuation. 6. Learned counsel for the appellant has placed reliance upon a judgement of the Apex Court in the case of State of Bihar vs. Narasimha Sundram reported in 1994 (1) PLJR SC Patna High Court LPA No.550 of 2011 (4) dt.27-07-2011 3 101. In that case three Judges Bench did not interfere with the order of the High Court directing for payment of arrears of salary for the period he had worked beyond the alleged date of superannuation on the ground that the alleged fraud made by the respondent on the department was never enquired into. Thus, in that case the Supreme Court declined to interfere with the order of the High Court on the peculiar facts of that case. 7. In a case like the present one where fraud stands proved by the materials appearing on the face of the record, the matter, in our opinion, would be governed by the law laid down by the Apex Court in the case of Radha Kishan vs. Union of India & Others reported in 1997 (2) PLJR SC 129. In that case a Bench consisting of two Judges held that where a Government servant had actually worked for a considerable period, being aware that he could not continue to be in service as per law, the Government servant does not possess right to claim salary etc. unless it was a case of re-employment in public interest. The Apex Court rejected the contention that a person should not be denied legitimate salary for the period he had actually remained in service because such plea “will encourage manipulation with impunity”. This view has been followed subsequently also and it has been reiterated by the Apex Court and by this Court that payment of Patna High Court LPA No.550 of 2011 (4) dt.27-07-2011 4 salary etc., in such circumstances, would amount to putting premium on dishonesty. 8. In the facts of the case, we are not persuaded to accept the plea of the appellant that no recovery should be made from him. The appeal is, accordingly, dismissed. Bimalanshu Kumar Singh/- (Shiva Kirti Singh, J) (Shivaji Pandey, J)