IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5213 of 2003 SIRAJUDDIN ANSARI, S/O LATE IBRAHIM ANSARI, R/O MOHALLA BANK COLONY, LOHARWA GHAT, P.S.-ALAMGANJ, DISTRICT-PATNA. …………………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. THE BIHAR SHOOL EXAMINATION BOARD THROUGH ITS CHAIRMAN. 3. THE SECRETARY, BIHAR SCHOOL EXAMINATION BOARD, PATNA. 4. THE ASSISTANT SECRETARY, BIHAR SCHOOL EXAMINATION BOARD (SARAN CERTIFICATE), PATNA. 5. THE SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS, OLD SECRETRIAT, PATNA. 6. THE JOINT SECRETARY, PERSONNEL AND ADMINISTRATIVE REFORMS, OLD SECRETARIAT, PATNA. 7. THE SECRETARY, LABOUR AND EMPLOYMENT DEPARTMENT, NEW SECRETARIAT, PATNA. ……………………RESPONDENTS. FOR THE PETITIONER : MR. NARESH KR. MALHOTRA, ADV. AND MR. BINOD KR. SINHA-2, ADV. FOR THE B.S.E.B. : MR. LALIT KISHORE, SR. ADV. AND MR. SATYABIR BHARTI, ADV. ----------- 4 16.07.2009 Heard learned counsel for the petitioner, leaned counsel for the State and learned counsel for the Bihar School Examination Board. The petitioner has filed this writ application challenging the order dated 20.01.2003, annexed as Annexure-9 to the writ application, issued under the signature of the Secretary, Bihar School Examination Board (for short the ‘Board’) by which the application of the petitioner for correction of his date of birth in his Matriculation certificate from 01.08.1949 to 18.01.1951 has been rejected. The contention of the petitioner is that he - 2 - appeared in the Matriculation examination some time in 1967 and passed the same. Accordingly, he was issued Matriculation certificate near about the end of 1967. In the Matriculation certificate the date of birth of the petitioner was mentioned as 1.8.1949. Petitioner was at that time under the guardianship of his uncle as his father had died during his childhood itself. His guardian, the uncle, found this mistake in the certificate and, therefore, he swore an affidavit before the Magistrate, Ist class, Chapra on 2.4.1968 testifying this fact on oath that the date of birth of the petitioner mentioned as 1.8.1949 in the Matriculation certificate was wrong and his actual date of birth was 18.1.1951. In due course of time, petitioner, after having acquired the requisite qualification, applied for appointment in Government service pursuant to an advertisement and after completion of the process he was selected for appointment in the service of the Government. At present the petitioner is Deputy Secretary, Labour and Employment under the Government of Bihar. Upon his appointment his service records were opened in the department and his date of birth was recorded in the records as - 3 - 1.8.1949 on the basis of the Matriculation certificate. For quite some time the petitioner did not take any step for correction of the same. However, as the petitioner advanced in age and neared his date of retirement, he woke up to his entitlements and noticed that there was already a contemporaneous affidavit of his uncle with regard to his date of birth which would show that his date of birth was 18.1.1951. He realized that as per the correct date of birth mentioned in the said affidavit of his uncle he could gain three years more in service. Therefore, he filed an application before the Secretary, Personnel and Administrative Reforms on 27.6.1999, enclosing a copy of the said affidavit of his uncle and made the request for correction of the date of birth in his service records. The said application of the petitioner was rejected and he was intimated by letter dated 12.8.1999 that unless and until necessary corrections are made in the Matriculation certificate the date mentioned in the service record cannot be altered. In the meanwhile a communiqué was published in the newspapers under the signature of Secretary of the Board inviting applications for - 4 - corrections in the Matriculation certificates of successful candidates of year 1997 or of prior years. The candidates were required to apply for correction of their name, their father’s name, the date of birth by depositing the necessary fee for the same along with copies of their registration receipts and admit cards. Petitioner accordingly applied before the Secretary of the Board for correction of his date of birth enclosing a copy of the said affidavit of his uncle. The said application of the petitioner has been ultimately rejected by the Secretary on the ground that on enquiry except for the sent-up register of the school in which also the date of birth of the petitioner was mentioned as 1.8.1949 no other documents was available in the school to indicate the date of birth of the petitioner either way. It was stated by the Secretary in the impugned order that the affidavit of his uncle could not be taken into account for correction of the date of birth in the Matriculation certificate in absence of required documents. Learned counsel for the petitioner submits that since the school had intimated to the Secretary that admission register of the school - 5 - and the school leaving certificate were not available in the school as they stood destroyed due to termite and rain water, it was appropriate for the Secretary to take into account affidavit of his uncle which was a contemporaneous document and genuine. He also produced the original affidavit during the course of hearing of the case for perusal by the Court. In reply, learned AAG No. 3 submits that the communiqué of the Board clearly mentioned that for any change in the Matriculation certificate the admit card and the registration receipts had to be produced. Therefore, the Board was obliged to consider the application of any candidate only in case some discrepancy could be found in the admit card and the registration receipt vis-a-vis the Matriculation certificate. Since the petitioner had not produced the two documents it was not open to the Secretary to take into account a purely private document. He submits that since the Board is only required to issue Matriculation certificate and enter his father’s name and date of birth as per the records of the school it is not required at all for the Board to make necessary correction in the certificate on the - 6 - basis of the affidavit which is a purely private document. He submits that in case the affidavit is genuine it is open to the employer of the petitioner to consider the same and get himself satisfied about the bonafide of the claim of the petitioner and then make necessary correction in the service records. He submits that the Board is not at all concerned with this exercise which the employer of the petitioner may undertake de-horse entries made in the Matriculation certificate. In view of the said statements of learned AAG No. 3, learned counsel for the petitioner submits that petitioner may be given an opportunity to file a fresh application before the respondent no. 5, the Secretary, Department of Personnel and Administrative Reforms for consideration of the said affidavit of his uncle for necessary changes in his service record with regard to his date of birth. He also submits that the petitioner shall appear personally before the respondent Secretary and produce the affidavit in original for his scrutiny. He submits that the Secretary may be directed to consider his application and examine the affidavit and if he is satisfied with regard to genuineness of the - 7 - affidavit and bonafide of the claim of the petitioner he may pass appropriate orders for necessary correction in the service records. To this prayer of the petitioner, learned AAG No. 3 as well as learned counsel for the State have no objection. Accordingly, in view of the original affidavit produced in this Court petitioner is given liberty to file a fresh application before respondent no. 5 for necessary correction of his date of birth in his service records and appear before him and produce the original affidavit for his scrutiny. The Secretary will be at liberty to satisfy himself with the genuineness of the said affidavit and bonafide of the claim of the petitioner and if he is so satisfied in all respects he shall pass orders for necessary correction in the service records of the petitioner. It is made clear that he shall not insist the petitioner for getting his Matriculation certificate corrected first for the purpose. Since the Secretary, on behalf of the Government is in the role of the employer, it is open to him to take final decision in the matter in accordance with law. - 8 - It is expected that the respondent- Secretary shall take a final decision in the matter and pass appropriate orders within two months from the date of appearance of the petitioner before him. With the above observations and directions, this writ application is disposed of. Arvind/ (J. N. Singh, J.)