IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.11614 of 2007 Priscilla Bankey Lall, wife of Sri G.C.Sinha, residing in the house of Sri N.K.Sinha, Retired Judge, Patna High Court, Shivraj Niketan, Road No. 1D, Rajendranagar, P.S. Kadamkuan, Town and District Patna … Petitioner Versus 1. The State Of Bihar 2. The Commissioner cum Secretary, Health Department, Govt. of Bihar, New Secretariat, Patna 3. The Director-in-Chief, Health Services, Govt. of Bihar, New Secretariat, Patna 4. The Director, Health Services, Govt. of Bihar, New Secretariat, Patna 5. The Superintendent, Patna Medical College Hospital, Patna … Respondents ---------------------------------- 2. 3.11.2011 Heard counsel for the parties. The dispute in this case actually relates to the date of birth of the petitioner, whether it is 30.8.1939 as recorded in the admission register of G.N.M.School, P.M.C.H. or 30.8.1947 as claimed by her and said to be also recorded in the second service book opened in the year 1994 as also in her Matriculation certificate. It is true that the order of the Superintendent, P.M.C.H. dated 15.10.1998 superannuating the petitioner on the basis of her date of birth of 30.8.1939 was interfered by the Director-in-Chief of the Health Services in his order dated 23.8.1999 but when such order was also revised by the State Government on 1.2.2000 and a direction was also issued for institution of the F.I.R. against him and others on 13.5.2000, the petitioner‟s writ application, C.W.J.C.No. 6500/2001 for quashing the aforementioned two orders dated 1.2.2000 and 13.5.2000 was allowed by an order dated 18.5.2007 on a technical ground of violation of principles of natural justice, wherein learned Single 2 Judge had however given liberty to the State to initiate a proceeding against the petitioner. It, however, appears that soonafter the order of this Court dated 18.5.2007 in C.W.J.C.No. 6500 of 2001 the petitioner even otherwise had attained the age of superannuation, 60 years on the basis of her own claimed date of birth of 16.8.1947. Now therefore question is what would be the entitlement of the petitioner as with regard to payment of her salary for the period she was kept out of service on the strength of the order of the Superintendent, P.M.C.H. dated 15.10.1998? In the considered opinion of this Court the whole aspect as with regard to actual date of birth of the petitioner can still be gone into in a fresh proceeding by the authorities as was also observed by the learned Single Judge in the order dated 18.5.2007 while allowing her earlier writ application, C.W.J.C.No. 6500/2001, inasmuch as the operative portion of the said order reads as follows: “Having perused the pleadings of the parties and considering the rival submissions advanced on behalf of the parties, without going into the merits of the case, I find that the order, bearing memo no. 25(6) Health, Patna dated 1st of February, 2000, as contained in Annexure 5, as also the decision, bearing letter no. 144(6)/ Health dated 13th of May, 2000, as contained in Annexure 6, cannot be sustained in law for the simple reason that the aforesaid orders cause serious consequences and prejudice against the petitioner without giving any opportunity of hearing or without giving any prior notice of the proposed order. 3 In this view of the matter, the order, as contained in Annexures 5 and 6, are hereby quashed. However, the Department will be at liberty to proceed afresh in accordance with law.” This Court, therefore, would direct the Principal Secretary, Health, to hold an enquiry by looking into the documentary evidence including the admission register of G.N.M. School, P.M.C.H. and also by soliciting information from the Bihar School Examination Board as with regard to actual date of birth recorded in the Tabulation Register (T.R.) of the petitioner. The petitioner also will be at liberty to produce her original Matriculation certificate which was issued to her immediately after passing of the Matriculation Examination and/or any other evidence to show that her actual date of birth was 30.8.1947. It is made clear that if the original Matriculation certificate of the petitioner as produced by her being of a date prior to her entering in Government service has recorded her date of birth of 30.8.1947 and that the genuineness of such Matriculation certificate of the petitioner is confirmed from the relevant records of the Bihar School Examination Board, the said date of birth of 30.8.1947 shall be treated to be the conclusive proof of her date of birth in terms of Rule 96 of the Bihar Financial Rules. If, however, the petitioner fails to produce the original Matriculation certificate issued to her immediately after passing of the Matriculation examination and would base her claim only on a duplicate Matriculation certificate and/or the second service book opened in the year 1994 i.e. after 25 years of her entry in the Government service, the same shall be examined carefully with the help of 4 other documentary evidence including the admission register of G.N.M.School, P.M.C.H. and a final decision on the date of birth of the petitioner will be taken strictly in accordance with law. The issue of payment of salary, therefore, to the petitioner will depend on the determination of her date of birth in the aforementioned enquiry. Since the issue of date of birth will have a direct relevance not only to the claim of her payment of salary but also to the retirement benefit, this Court would direct the Principal Secretary of the Health Department to complete the said exercise preferably within a period of four months from the date the petitioner would personally appear before the Principal Secretary of the Health Department alongwith a copy of this order. It is also made clear that if the date of birth of the petitioner is established as 30.8.1947 there would be no question of denying payment of her salary on the principle of „no work no pay‟, inasmuch as this principle is not of universal application and in a given case if the employer himself does not allow the employee to work and restrains him/her from working, the payment of salary for the period in question cannot be withheld on the principle of „no work no pay‟. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/