IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5753 of 1997 RAJDEO RAM, son of late Ramashray Ram, resident of village Haibatpur, Police Station Arwal, District- Jehanabad. … Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary Labour, Employment and Training Department, New Secretariat, Vikash Bhawan, Patna. 2. The Commissioner, Labour, Employment and Training Department, New Secretariat, Vikash Bhawan, Patna. 3. The Manager, Bihar Secretariat Canteen, Old Secretariat Campus, Patna. ….. Respondents. ----------- 4. 13.05.2011 Heard learned counsel for the petitioner and learned counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That this writ application is for a direction against the office order dated 31st May, 1997 issued by the respondent- Commissioner, Labour, Employment and Training Department, by which the respondent has arbitrarily fixed one fictitious date 11.7.1994 as the date of retirement of the petitioner stating that the petitioner was to complete his 58 years of age on the said date and thereby the rest of the period on and after 31st July 1994, till 31st May, 1997 will be treated as superannuation from service as per the version of the petitioner and thereby he will be paid only daily wages rate for the said period and the pensionary benefits will be given on the basis of the fictitious date, i.e. 31.7.1994.” 2 Mr. R. N. Mukhopadhyay, learned counsel appearing on behalf of the petitioner would submit that when the respondents themselves had constituted a Medical Board to ascertain the date of birth of the petitioner and the Medical Board in its report dated 20.4.1996 had declared the petitioner aged about 55 to 56 year, any doubt of the authority as with regard to the date of birth of the petitioner of 13.5.1939, should have been reconsidered in the light of opinion of Medical Board. He has further submitted that there is infact no basis for the respondents for assuming the date of birth of the petitioner dated 13.7.1936 which would make him superannuate w.e.f. 31.7.1994. Learned Counsel for the State on the other hand had supported the impugned order in the light of averments made in the counter affidavit. This Court on perusal of materials on record including the averments made in the counter affidavit would find it difficult to hold that the petitioner’s date of birth as recorded in the service book of 13.5.1939 was incorrect. In fact, when the Medical Board constituted by the Respondents had found the 3 petitioner to be between the age group of 55 to 56 years as on 20.4.1996, that by itself would authenticate the date of birth of the petitioner of 13.5.1939. The reasoning of the authority that no one could enter in service prior to attaining the age 21 years also does not seem to be correct inasmuch as when the petitioner had entered in service on 11.7.1957, he was definitely major being 18 years two months approximately. There is no such rule nor even referred to in the counter affidavit prescribing the minimum age of 21 years for entering in service on the basis of which the authority could have assumed the minimum age of appointment 21 years and thus it becomes clear that the impugned order is based on mere surmises and conjectures and thus cannot be sustained either on facts or in law. This Court while admitting this writ petition had also passed an interim order directing the officials of the State to pay retrial dues to the petitioner within a period of four months on the basis of admitted length of service as per the impugned order. In the said interim order dated 5.5.1999 it was however made clear that such receipt of retirement benefit by the petitioner 4 will remain subject to the result of the writ petition. There is also no dispute that the petitioner was allowed to continue in service till 31.5.1997 when the impugned order was passed seeking to superannuate him with retrospective effect i.e. 1.8.1994 and making him entitled to receive salary for the period 1.8.1994 to 31.5.1997 of a skilled worker on daily wages. The respondents have explained in the counter affidavit that such payment was also made to the petitioner and therefore now when this writ application is being allowed by quashing the impugned order as contained in Annexure-1, the petitioner is held to be entitled for difference of salary, beyond whatever had already been paid to him for the period 1.8.1994 to 31.5.1997, in the pay-scale of the post of Mukhya Halawai on which he was working till his superannuation i.e. 31.5.1997. The retirement benefit of the petitioner would also be revised by adding the period of 1.8.94 to 31.5.97 towards qualifying service and balance amount of his retirement benefits such as pension, gratuity, leave encashment etc. would be redetermined on the 5 basis of his last pay on in the pay scale of Mukhya Halwai as on 31.5.1997 and paid to the petitioner within a period of six months from the date of receipt/production of a copy of this order. In the result, this writ application is allowed with aforesaid direction and the impugned order as contained in Annexure-1 is quashed. There would be however no order as to costs. kanchan ( Mihir Kumar Jha, J.)