IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5026 of 2005 1. PHULMATI DEVI, WIFE OF LATE SARYUG RAM. 2. VISHWANATH RAM, SON OF LATE SARYUG RAM. 3. BAIDYANATH RAM, SON OF LATE SARYUG RAM. 4. SHAMBHU RAM, SON OF LATE SARYUG RAM. ALL RESIDENT OF VILLAGE – GAJPURA, P.S. MOTIHARI MUFASSIL, IN THE DISTRICT OF EAST CHAMPARAN, MOTIHARI. ………….. PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE SECRETARY, DEPARTMENT OF RURAL DEVELOPMENT, GOVT. OF BIHAR, PATNA. 3. THE DIRECTOR, PANCHAYATI RAJ, BIHAR, PATNA. 4. THE DISTRICT MAGISTRATE, EAST CHAMPARAN, MOTIHARI. For the petitioner : - Mr. Manish Kumar, Advocate For the State : - Mr. Pushkar Narain Shahi, AAG-14 Mr. Mritunjay Kumar, AC to AAG-14. ----------- 05/ 29.04.2011 Heard counsel for the petitioner and counsel appearing for the State. The writ application had initially been filed by one Saryug Ram challenging the order contained in Memo No. 22 dated 12.3.2005, whereby he had been dismissed from the post of Panchayat Sewak. Further prayer of the petitioner was for directing the respondents to allow him to join on the post and discharge his duties as Panchayat Sewak, with all consequential benefits. During the pendency of the writ application original petitioner Saryug Ram died on 24.2.2007. I.A. No. 4460 of 2009 was filed by the legal heirs of 2 Saryug Ram for their substitution in place of the petitioner. This was not allowed and the writ application was dismissed as infructuous. Petitioners preferred L.P.A. No. 1219 of 2009, which was allowed. The legal heirs of original petitioner were allowed to be substituted and the matter has been remitted for deciding the writ application on its merit. Saryug Ram was initially appointed as Dalpati on 26th January, 1979. At the time of his appointment he had produced his birth certificate showing the date of birth as 9th July, 1949. Qualification of Saryug Ram at the time of his appointment was Class VIII. Subsequently he passed Madhyama examination from Hindi Vidyapith, Deoghar in the year, 1989, which is equivalent to Matriculation. On account of enhancement of his qualification petitioner became qualified for promotion to the post of Panchayat Sewak, as the minimum requisite qualification for the post of Panchayat Sewak is Matriculation. Saryug Ram was thus promoted to the post of Panchayat Sewak vide Memo No. 28 dated 14th February, 1992. Subeqeuntly 3 the respondent-authorities noticed that date of birth of Saryug Ram furnished at the time of his initial appointment and at the time of his promotion to the post of Panchayat Sewak are different. In the first certificate of Class VIII, produced at the time of initial appointment his date of birth was furnished as 9.7.1949, but in the Madhyama certificate date of birth is mentioned as 9.7.1953. Noticing this difference in the date of birth, a show cause notice was issued by the respondent-authorities to the petitioner for initiation of departmental proceeding. In the department proceeding charges framed against Saryug Ram was found to be proved, second show cause notice was issued to him and finally by impugned order contained in Memo No. 22 dated 12.3.2005 he was terminated from the service. It transpires that Saryug Ram in his show cause filed during the departmental proceeding had admitted the discrepancy in his two dates of birth, but his stand was that it was not intentional rather due to ignorance and confusion, the year of his birth was changed, although date and month remained same. 4 The finding recorded in the departmental proceeding was that since the date and month were not changed and only year was changed, it shows that four years were reduced intentionally for continuing in service for a longer period. Counsel for the State, while making submissions has also raised preliminary objection regarding maintainability of the writ application as the petitioner has not exhausted alternative remedy available to him by way of an appeal. In the counter affidavit filed by the respondents, objection has been raised regarding promotion of Saryug Ram to the post of Panchayat Sewak, on the ground that he id not possess requisite qualification for the post of Panchayat Sewak but that has got no substance, considering the fact that in the year 1992, when Saryug Ram was promoted to the post of Panchayat Sewak, he had passed Madhyama examination, which is equivalent to matriculation, and was duly qualified for the post. So far change in the date of birth is concerned, even if it is presumed to be intentinal, on account of this change in the date 5 of birth, original writ petitioner did not gain anything neither the State has suffered any loss. Saryug Ram was still in service when this discrepancy was detected and has not reached the age of superannuation. Only in case, he would have continued in service beyond the date of superannuation, any monetary loss could have been caused to the State Govt., on account of change in the date of birth, neither the petitioner gained anything nor the State and its authorities had suffered any loss.. Considering these facts the punishment imposed in the disciplinary proceeding, seems to be disproportionate to the charge framed against Saryug Ram. In this view the impugned order contained in Memo No. 22 dated 12.3.2005 is quashed. Original petitioner is not alive, as such no direction can be issued for his reinstatement. However, on account of quashing of the impugned order he would have been allowed to reinstate on his post and also would have received monetary benefits. Petitioner has died in the year, 2007, impugned order was passed on 12.3.2005, as such for these two years he would have received 6 his salary for the post. Arrears of salary payable to the original writ petitioner will be paid to the widow and the substituted legal heirs. The widow and sons will be entitled for family pension and all other pensionary benefits, payable to the original petitioner. They will also be entitled for benefits like compassionate appointment, since the original petitioner will be deemed to have died in harness. This writ application is, accordingly, allowed. DKS/ (Mridula Mishra, J.)