IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1559 of 2007 RAMESHWAR SINGH SON OF LATE MUKHDEO SINGH, RESIDENT OF VILALGE + P.O. BARE, P.S. BHABHUA, DISTRICT KAIMUR BHABHUA. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. THE D.G. CUM I.G., BIHAR, PATNA. 3. THE D.I.G. OF POLICE, SARAN, RANGE, CHHAPRA. 4. THE S.P. SARAN(CHAPRA). 5. THE HEAD MASTER, SARDA BAJRAJ HIGH SCHOOL, MOHANIA, KAIMUR AT BHABHUA. 6. I.G. OF POLICE, PERSONNEL, BIHAR, PATNA. ----------- 02. 29.07.2011 Heard learned counsel for the petitioner and the State. 2. Petitioner at the relevant time served as Sub- Inspector of police. He has filed this writ petition challenging the order bearing Memo No.5979 dated 16.11.2006, Annexure-7 passed under orders of the D.G.P.-cum-I.G. of police, Bihar by Dy. I.G. (Personnel) whereunder request of the petitioner for correcting his year of birth as recorded in the service book has been refused on the ground that petitioner made such request belatedly just one year before his superannuation. While passing the impugned order reliance has been placed over the provisions contained in Rule-96 of the Bihar Financial Rules Vol.I (hereinafter referred to as the Rules), which inter alia provide that request for rectification of mistake in the date of birth as entered in the service record of a government servant shall be entertained if it is submitted within a period of 10 years from the date of appointment of the Government servant. Petitioner was appointed as Police Constable on 10.01.1969. At the time of appointment year of birth of the 2 petitioner was recorded in the service book as 1947. According to the impugned order petitioner should have requested for rectification of the date of birth within 10 years from 10.01.1969 but request for rectification was filed one year prior to the retirement, as such, the request has been refused holding the provisions under Rule 96 of the Rules to be mandatory. 3. Counsel for the petitioner has challenged the said order on the ground that the view taken by the authorities that provisions of Rule 96 is mandatory is contrary to the decision of the Division Bench of this Court in the case of Ram Shobhit Rai Versus The State of Bihar and Ors., reported in 1989 BBCJ 141, Murli Manohar Tiwary Versus The State of Bihar, reported in 1986 P.L.J.R. 1180, Siyaram Singh Versus The State of Bihar and Ors., reported in 1995(1) PLJR 691, paragraphs 2 to 4 whereunder this Court having considered the import of Rule 96 observed that period of time indicated in Rule 96 is not mandatory and if the person concerned has passed the matriculation examination prior to his entry in the service of Government he is entitled to have his date of birth corrected on the basis of the date mentioned in the matriculation certificate, even after passage of 10 years of entry in the service. Aforesaid view taken in the case of Ram Shobhit Rai, Murli Manohar Tiwary, Siyaram Singh(supra) has again been reiterated by another Divison Bench under orders 3 dated 3.9.1991 passed in C.W.J.C. No.1997 of 1991 annexed with the writ petition. 4. In view of the law laid down by this Court in the case of Ram Shobhit Rai, Murli Manohar Tiwary, Siyaram Singh(supra), I have examined the facts of the present case and noticed that the Higher Secondary Certificate granted by the Bihar School Examination Board, Annexure-2 on the basis of which petitioner is claiming lower date of birth i.e. 9.7.1951 has been obtained by the petitioner after he appeared in the Higher Secondary Examination conducted by the Board in the month of May, 1970 after petitioner had already entered the Government service as Police Constable on 10.01.1969, as such, the Higher Secondary Certificate, in my considered opinion, cannot be relied upon for granting the petitioner liberty to move the authorities for rectification of date of birth in the service records after passage of 10 years from the date of entry in service. Counsel for the petitioner then submitted that Higher Secondary Certificate, Annexure-2 was relied by the authorities themselves for granting the petitioner promotion as Literate Constable, A.S.I. and S.I., as would appear from the contents of Memo No.1281 dated 13.8.1982, Annexure-4 and as the entries made in the Higher Secondary Certificate was accepted for granting the petitioner promotion there shall be presumption of deemed correctness of the date of birth of the petitioner recorded in 4 the Higher Secondary Certificate of the petitioner as petitioner cannot have two year of birth, one indicated in the service book i.e. 1947 and another recorded in the Higher Secondary Certificate i.e. 1951. For the proposition of deemed correctness of the service record learned counsel for the petitioner relied on paragraphs-6 and 7 of the judgment rendered by another Single Judge of this Court in the case of Mohan Sharma Versus the State of Bihar, reported in 2010(4) PLJR 332. Perusal of the said judgment indicates that this Court proceeded on the basis that authorities having accepted the Matriculation Certificate of the employee for the purpose of granting promotion to the employee are also bound by the date of birth entry recorded in the said certificate and any contrary entry made in service book of the employee stood corrected by the respondent employer themselves when they proceeded to act on the basis of the Higher Secondary Certificate for granting promotion. In this connection, observations made by the learned Judge in paragraph 7 of the order rendered in the case of Mohan Sharma(supra) is quoted hereinbelow :- “If by a fiction of law, the respondents corrected the petitioner’s date of birth, the law envisages that if an imaginary state of affairs is supplanted as the real state of affairs, the fiction must be carried to its logical end. The mind must not boggle in between. The legal effect of a fiction has been discussed by the Supreme Court in AIR 1994 SC 88(Union of India Vs. M/s Jalyan Udyog & Anr.) at paragraph 18 5 in the relevant extract as follows :- “18…….By virtue of the fiction created by the proviso in the notification, the vessel is deemed to have been imported for breaking-up on the date it is broken-up. It is well settled that where a fiction is created by a provision of law, the court must give full effect to the fiction, and as is often said, it should not allow its imagination to be boggled by any other considerations. Fiction must be given its due play; there is to be no half-way stop. According to this notification, therefore, the date relevant for determining the value and rate of the customs duty chargeable in the case of two ships concerned in Jalyan Udyog is the date on which they wee broken-up.” 5. No provision of law has been brought to my notice creating fiction that if the Matriculation certificate is accepted by the authorities for granting promotion then the other entries including date of birth entry made in the said certificate shall by deeming fiction lead to correction of the date of birth entry in the service record of the Government servant. In the circumstances, it is difficult for me to place reliance over the judgment rendered in the case of Mohan Sharma(supra) for holding that the year of birth of the petitioner as recorded in his Higher Secondary Certificate shall be deemed to have corrected his year of birth recorded in the service book on the ground that the Higher Secondary Certificate was accepted for granting him promotion. The impugned order, however, proceeds on the basis that period of ten years fixed under Rule 96 for applying for correction of date of birth is mandatory, which 6 is not the correct position in law as interpreted by this Court in the case of Ram Shobhit Rai, Murli Manohar Tiwary, Siyaram Singh(supra). Accordingly, while upholding the impugned order, I grant liberty to the petitioner to seek review of the impugned order dated 16.11.2006, Annexure- 7 from the authorities of the Police Department if petitioner is able to obtain and produce any certificate from Bihar School Examination Board or any other Board recognized by the State Government that petitioner had made declaration about his lower date of birth i.e. 9.7.1951 before that Board prior to entering the service. If such certificate is produced by the petitioner the respondent authorities shall reconsider the matter in the light of the judgment of the Division Bench in the case of Ram Shobhit Rai, Murli Manohar Tiwary, Siyaram Singh(supra) and the order dated 3.9.1991 passed in the case of Parmeshwar Singh. If such certificate is produced then appropriate order shall be passed by the competent authority as early as possible, in any case within three months from the date of production of the certificate from the Board along with a copy of this order. 6. The writ application is, accordingly, disposed of. AFR Rajesh/ ( V.N. Sinha, J.)