IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15143 of 2011 Mukhdeo Singh S/O Late Chandra Dip Singh R/O Mohalla- Barkisinghai, P.S.- Ara Town, District- Bhojpur …………… Petitioner Versus 1. The State Of Bihar Through Secretary, Department Of Housing Urban Development, Government Of Bihar, Patna 2. The Nagar Ayukt, Ara Nagar Nigam, Ara …………… Respondents ---------------------------------- For the Petitioner: Mr. Laxmi Narayan Das, Advocate For the State: Mr. Radhika Raman, G.P.-23 For Ara Municipal Corporation: Mr. Santosh Kumar, Advocate ******************* 06. 08.12.2011 What should be the age of the petitioner and when he should superannuate from service under Ara Nagar Nigam has become the bone of contention in the present Writ Application. Vide decision communicated to the petitioner, contained in Annexure – 5, petitioner by the said order, dated 08.07.2011, has been made to superannuate from June, 2009 on the ground that he has completed 60 years of age, as according to them his date of birth is 14.06.1949. Petitioner is supposed to be a Tractor Driver appointed by the Respondent-Corporation on the said post sometime in March, 1983. According to the petitioner, his date of birth is 05.03.1955 and there are certain supporting documents with regard to the said date. But the respondent-authorities have not accepted that date of birth, which led to the petitioner being subjected for assessment of age before a Medical Board. Petitioner did agree to undergo medical test to assess his age and the Medical Board constituted at the request of the Respondent-Nagar Nigam has opined that the age of 2 petitioner as per the report dated 18.04.2011 is between 54 to 56 years. After this report has been forwarded to the respondent- Nagar Nigam, they have refused to accept the same and passed the impugned order, contained in Annexure – 5 on 08.07.2011. In the counter affidavit, which has been filed on behalf of Nagar Nigam a stand has been taken that petitioner has produced a begotten kind of document as School-Leaving- Certificate to show his date of birth to 05.03.1955. In the Service- Book, which was opened, his date of birth has been shown to be the year 1949 and that was treated to be the basis for issuance of Annexure- 5. No Service-Book has been produced before this Court in support of the statement made in the counter affidavit. Though, during the course of hearing, zerox copy of the Service- Book was tendered to the Court. But, Court has certain reservation in accepting that Service-Book, specially when there is no clear date mentioned under the signature of the Signing Authority, who had opened the Service-Book nor does it contain the signature of the employee as approval or acceptance of the entries made in the said Service-Book. In the normal course of things, every Service-Book does carry a counter signature of the employee as an acceptance of the authenticity of such entries. Any unilateral entry, if made, may not bind the employee, specially when a dispute is raised with regard to the age of the employee. In absence of maintenance of proper records and in absence of any unimpeachable evidence produced by the respondents with regard to the date of birth of the petitioner, the 3 respondents will be bound by the Medical Board’s opinion, which they themselves had obtained in the background to the controversy raised about the age and the date of superannuation thereto. Once the petitioner subjected himself to the Medical Board, which was constituted at the behest of the respondent, then there has to be cogent valid reason not to accept the opinion of the Medical Board. Such an opinion can either be controverted with similar kind of opinion obtained at a particular level or else the employer will have to abide by the said opinion, for after all the opinion was not obtained by the petitioner, but was an outcome of an exercise at the behest of the respondent. In view of the same, the Court keeping in view the various decisions, which have been rendered by this Court from time to time with regard to the fixation of age based on Medical Board’s opinion, directs the respondent-authorities after quashing Annexure-5 to revert the petitioner back on his post on the basis of the Medical Board’s opinion, contained in Annexure – 4 and permit him to continue in service till he attains the age of superannuation. So far as the benefits accruing from quashing of Annexure- 5 is concerned the Court directs that it shall accrue to the petitioner, as if the petitioner was never removed from the post w.e.f. 08.07.2011 in terms of Annexure- 5. Writ is allowed. SKM (Ajay Kumar Tripathi, J.)