IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.15782 of 2009 Mostt.Sudha Devi Versus The State Of Bihar & Ors 13/ 08/08/2011 Heard learned counsel for the petitioner and the State. The petitioner is the widow of the deceased, aggrieved by the order dated 25.1.2008 directing fixation of death-cum-retirement benefits of her husband deeming that he superannuated on 31.1.2001. The deceased expired on 29.6.2007. As per his date of birth recorded in the service book he would have superannuated from service in 2012 had he been alive. Learned counsel for the petitioner submits that the deceased was appointed as a Forest Guard. The petitioner sought death-cum-retirement benefits as also appointment on compassionate grounds on 5.7.2007. She submitted the necessary documents in response to queries on 16.8.2007. An enquiry was commenced for his date of birth after the death of the deceased opining that his date of retirement should be 31.1.2001. The deceased could not be associated with such enquiry and neither was the petitioner. If the date of birth of the deceased as contended is reckoned as 2.1.1943, he entered service in 1979 at the prohibited age of 36 years. The service book bears his date of birth as 2 2.4.1952. It has never been questioned. The counter affidavit also does not dispute the same. It is not known on what basis and materials the impugned order has been passed and what was the nature of enquiry held. Learned counsel for the respondents from the counter affidavit submits that the enquiry into the date of birth of the deceased had commenced during his service tenure and notices were issued to him including reminders up to 1998. The deceased did not submit the necessary documents. The impugned order is not arbitrary. It is based on an enquiry made and the service records of the deceased. The retiral dues like gratuity, G.P.F., group insurance have been paid. The deceased was admitted in Class-8 on 6.7.1956 in the Maloypur Bazar High School where his date of birth was also recorded as 2.1.1943. The date of birth of a person is primarily a question of fact. The best evidence with regard to the same can come from the person concerned. It is he who can best explain the facts and documents. If the person is a minor, his/her parents may be the best source of information. According to the respondents they started an enquiry in 1997/98 into the date of birth of the deceased. The counter affidavit is silent why the enquiry was not taken to its logical conclusion. If the deceased 3 was not submitting documents, as suggested in the counter affidavit, nothing precluded the respondents from concluding the enquiry based on their findings and the alleged non-cooperation of the deceased. As contended on behalf of the petitioner, a person cannot enter government service at the prohibited age of 36 years. Paragraph-11 of the counter affidavit expressly acknowledges his date of birth mentioned in the service book as 2.4.1952. The counter affidavit does not question the entries in the service book. The supplementary counter affidavit again acknowledges that the entries in the service book were made by the Divisional Forest Officer. It may have been a duplicate service book, but that shall not ipso facto deride its legality and validity. A Xerox copy of the service book is on record. It is dated 2.11.1999. It bears no corrections. Quite obviously, these entries were made after the enquiry alleged by the respondents in 1998. The date of birth of a person has relevance while the person is alive in context of various issues. After his death there can be no posthumous determination of his date of birth in an enquiry in which he has no opportunity to participate determining facts and documents in a subjective manner. The deceased having expired on 29.6.2007 any 4 order passed with regard to him determining his date of birth is an order against a dead person, a nullity in the law as laid down in (1998) 5 SCC 567 (ASHOK TRANSPORT AGENCY Versus AWADHESH KUMAR AND ANOTHER) in the relevant extract at paragraph-9 as follows:- “9………..In our opinion, the executing court has rightly taken the view that the suit having been filed against the dead person, the decree was a nullity and could not be executed…” The order dated 25.1.2008 is accordingly set aside. The petitioner is held entitled to all consequential benefits. The writ application is allowed. KC ( Navin Sinha, J.)