IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8233 of 2003 TALAT BANO daughter of Late Syed Abdur Rahman and wife of Late Zulfiquar Ali Mirza, resident of Laksheshwar Bhawan, Patheri Ghat, P.S. Alamganj, District- Patna. …. Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary, Secondary Education Department, Bihar, Patna. 2. The Director, Secondary Education Department, Bihar, Patna. 3. The Inspectress of Schools-cum-Deputy Director, Bihar, Patna. 4. Incharge Principal, Rajkiya Kanya uchaya Vidayalaya, Patna City, Patna. …..Respondents. with CWJC No.2752 of 2004 TALAT BANO daughter of Late Syed Abdur Rahman and wife of Late Zulfiquar Ali Mirza, resident of Laksheshwar Bhawan, Patheri Ghat, P.S. Alamganj, District- Patna. …. Petitioner. Versus 5. THE STATE OF BIHAR 6. The Secretary, Secondary Education Department, Bihar, Patna. 7. The Director, Secondary Education Department, Bihar, Patna. 8. The Inspectress of Schools-cum-Deputy Director, Bihar, Patna. 9. Incharge Principal, Rajkiya Kanya uchaya Vidayalaya, Patna City, Patna. …..Respondents. ----------- For the Petitioner : Mr. Obaidur Rahman, Advocate Mr. M.A. Shehabuddin, Advocate Mr. S.A. Nasir Wasi, Advocate Mr. Raj Nandan Prasad, Advocate For the State : G.P.-8 --------------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (30.08.2010) Mihir Kumar Jha, J. Heard counsel for the parties. These two writ applications with two different cause of action were filed at two different point of time but then in both of them the 2 basic question which have been raised is that the date of birth of the petitioner is 06.06.1946 and therefore, she has a right to continue in service till 30.06.2004 i.e. till the completion of 58 years of her age whereas the respondents have forcibly made the petitioner to superannuate from service by an order passed on 16.07.2003 with retrospective effect i.e. 30.06.2001 on the basis of her date of birth being 06.06.1943. In fact in C.W.J.C No. 8233 of 2003 the petitioner has assailed the decision taken by the Principal of the Rajkiya Kanya Uchaya Vidyalaya, Patna City, Patna superannuating the petitioner with retrospective effect whereas in C.W.J.C No. 2752 of 2004 the petitioner has assailed the order of the Director of Secondary Education dated 17.01.2004, containing a direction to the Principal of the School of the petitioner, for both, instituting a certain proceeding for recovery of the excess amount of salary drawn by her for the period from 01.07.2001 to 16.07.2003 as also instituting a First Information Report for the forgery committed by her in changing her recorded date of birth in the Service Book. Learned counsel for the petitioner has submitted that there are number of documents to show that the date of birth of the petitioner was 06.06.1946 and in fact that was also acted upon by 3 the respondents. In this regard, he has referred to the date of birth mentioned in the Provident Fund account of the petitioner and other communications made by the Principal of the School to the higher Authorities as with regard to the petitioner. Counsel for the State on the other hand has submitted that the date of birth of the petitioner was recorded as 06.06.1943 and the same was sought to be tampered by making it as 06.06.1946 and since, the beneficiary of the tampering was none else but the petitioner herself, the presumption of such tampering would automatically go against the petitioner. The date of birth of the petitioner being a Government servant and bound by the provisions of Rule 96 of Bihar Financial Rules reading as follows:- "Every person newly appointed to a service or post under Government should at the time of the appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certificate, municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. The actual date or the assumed date determined under rule 97 should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government Servant's Service under Government and once recorded, it cannot be altered, except in the case of a clerical error without the orders of the State Government." could be easily decided with the help of the 4 Matriculation Certificate or School Leaving Certificate of the petitioner. The petitioner’s Matriculation Certificate, however, issued in the year 1960 by the Bihar School Examination Board on 01.12.1960, would go to show that the column of her date of birth was left blank. This according to the learned counsel for the petitioner was prevalent practice at that point of time when the date of birth of a girl candidate was not recorded in the Matriculation Certificate. The most important document as with regard to proof of date of birth of the petitioner being not there and she having also not produced the School Leaving Certificate, the alternative document as referred to in Rule 96 of the Bihar Financial Rules, this Court would find it difficult to hold that the date of birth of the petitioner was 06.06.1946. The respondents in the impugned order and other communications have categorically gone to hold that the date of birth of the petitioner as originally recorded in the Service Book, when she had entered in the service on 03.04.1974 was 06.06.1943 and in fact the same was also written both in figures and words and even the interpolated date of birth of 06.06.1943 to 06.06.1946 in figure could be easily deciphered because of the entry of the date of birth in words. 5 This Court in its order dated 24.11.2004 had directed the counsel for the State to produce the Service Book in which the tampering in the date of birth had been alleged to have been made. Counsel for the State, however, has not produced the Service Book of the petitioner nor any counter affidavit has been filed in either of these two writ petitions. From the records, however, it is clear that when the petitioner was asked to file her show cause reply she did not deny the fact that the tampering was made in the Service Book of the petitioner but according to her this was done by her enemies in order to make her retire from service from an early date. This Court finds it difficult to accept such defence of the petitioner, inasmuch as, if the date of birth of the petitioner of 06.06.1946 is accepted she would be deemed to have been appeared in the matriculation examination even before completing 14 years of her age, because such examination as per the matriculation certificate was said to have been conducted in the month of March-1960. It would be really difficult for this Court to believe that the petitioner being a regular student of B.N.R Training College, Gulzar Bagh had studied up to class-X as a regular student and could complete her School education in December 1959 even before attaining the complete age of 14 years. On the other hand, the 6 date of birth as 06.06.1943 would be fitting with her Matriculation examination of the year 1960, inasmuch as, namely by at an age of 16 years a person would normally complete the education upto class-X as a regular student before appearing in the Matriculation examination. This Court, however, would not like to speculate on the issue and would leave the petitioner to seek appropriate declaration from the competent Civil Court as with regard to her actual date of birth being 06.06.1946 and not 06.06.1943. In such Civil Suit not only the petitioner but the respondent State and its officials will also get opportunity to lead evidence as with regard to tampering of her date of birth in the Service Book. Having held so that the dispute of the date of birth cannot be effectively decided in these two writ petitions , this Court must hold that the petitioner cannot be subjected to recovery of the excess amount of salary allegedly drawn by her from 01.07.2001 to 16.07.2003 because no proceeding for this purpose was ever drawn and the petitioner was shown the door only on the basis of a show cause notice without even giving her an opportunity to lead evidence in support of her claim of date of birth being 06.06.1946. Payment of salary to a person is only by way of remuneration for the work 7 done and thus if the petitioner was allowed to work in the School till 16.07.2003, she would be definitely entitled to receive payment of salary for the aforesaid period. The allegation of forgery is in the Service Book by the petitioner in the date of birth is yet to be proved. As noted above the respondents had never initiated any proceeding either by way of departmental proceeding in terms of relevant discipline Rules during the active service or even after her retirement in terms of Rule-43-B of the Bihar Pension Rules for making recovery of the salary. In that view of the matter, this Court would disapprove the part of the impugned order passed by the Director of Secondary Education seeking to also recover the alleged excess salary drawn by the petitioner from 01.07.2001 to 16.07.2003 when the impugned order was passed on 17.1.2004 forcibly superannuating the petitioner with retrospective effect i.e. 30.06.2001, on the basis of her date of birth being 06.06.1943. This aspect of the matter also stands settled by the judgment of the Apex Court in the case of The State of Bihar Vs Narasimha Sundaram reported in AIR 1994 SC 599 wherein it was held as follows:- “So far the question of payment of arrears of salary is concerned, we do not find any merit in the contention of learned counsel for the appellant that the respondent can be refused his emoluments for the period in 8 question as no proceedings were ever initiated for inquiry as to the alleged fraud played by the respondent on the department. It is not denied that the respondent worked till 30th September, 1989 and in that view we confirm that part of the impugned judgment which refers to the the salary. The respondent should be paid his arrears of salary, if not already paid, within two months from today.” In that view of the matter, the impugned order passed by the Director of Secondary Education dated 17.01.2004 to the extent to making recovery of the excess salary drawn by the petitioner must be and is hereby quashed. The respondents, however, would be at liberty initiate a proceeding in terms of Rule-43-B of Bihar Pension Rules and if the charge of fraud/forgery against the petitioner of tampering of her date of birth is proved, such recovery can also be made from the petitioner in accordance with law. It is however made clear that as these proceedings were pending before this Court for the last six to seven years, the rider of four years in terms of proviso to Rule-43-B will not be applicable to the facts of this case. As with regard to rest of the impugned order instituting a certificate proceeding for recovery of the excess amount of salary drawn by the petitioner, the same is also stayed till the charge against the petitioner in the proceedings under Rule-43-B is proved. An amount by way of recovery of public revenue in terms of Bihar Public Demand Recovery Act 9 can be made only in respect of an admitted amount. At this stage when it is clear that the petitioner has worked for the period from 01.07.2001 to 16.07.2003, the said amount of salary paid to the petitioner cannot be recovered unless the allegation of fraud/forgery is proved conclusively in the proceedings under Rule 43-B of Bihar Pension Rules. The certificate proceedings therefore, must be kept at hold and would be governed in terms of the order passed in the proceedings under Rule-43-B of Bihar Pension Rules. This Court is not aware as to whether the criminal case in terms of the impugned order of Director of Secondary Education has already been instituted, inasmuch as, neither counsel for the petitioner nor counsel for the State have any clear idea about it. In any event, the proceedings under Section 154 of the Code of Criminal Procedure cannot be thwarted at the threshold, inasmuch as, institution of First Information Report of a cognizable offence and its investigation by the police is a statutory provision in which the High Court in exercise of its power under Article 226 of the Constitution of India can only sparingly interfere. Referenece in this connection may be made to the judgment of the Apex Court in the case of State of Bihar and Anrs Vs. J.A.C Saldanha & Ors 10 reported in AIR 1980 SC 326. This Court, therefore, will not interfere with the direction as with regard to initiation of criminal proceeding against the petitioner. Before parting with, this court must clarify that the petitioner would be entitled for payment of her salary and retirement benefits by treating her date of birth as 06.06.1943 and computing her service up to 30.06.2001. If the respondents would draw a proceeding under Rule 43-B of Bihar Pension Rules, the petitioner will be entitled only for the provisional pension but in case no such proceeding is drawn under Rule 43-B of the Bihar Pension Rules, the petitioner’s entire retrial benefits must be paid on the basis of her date of birth as 06.06.1943. Such retirement benefit would, however, be subject to the result of the Civil Suit and in case the petitioner succeeds in the Civil Court in getting a declaration of her date of birth being 06.06.1946, her retirement benefits will be paid by computing her length of service upto 30.06.2004. With the aforementioned observations and direction, these two writ applications are disposed of. ( Mihir Kumar Jha, J.) Patna High Court Dated the 30th August 2010 A.F.R./kanchan