IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10298 of 2004 1. SUMITRA DEVI WIFE OF RAJENDRA PASWAN. 2. WIDO DAUGHTER IN LAW OF SOLE PETITIONER. 3. VIVEKA NAND PASWAN GRAND SON OF SOLE PETITIONER THREE MINOR GRAND DAUGHTER OF SOLE PETITIONER, RESIDENT OF VILLAGE- CHAKDHARI DARBESHPUR, POLICE STATION- DANIAWAN, DISTRICT-PATNA………..PETITIONERS. Versus 1. THE STATE OF BIHAR . 2. THE DISTRICT MAGISTRATE CUM COLLECTOR, PATNA. 3. THE SENIOR SUPERINTENDENT OF POLICE, PATNA. 4. THE DEPUTY COLLECTOR-IN-CHARGE(CHOWKIDARI), GENERAL BRANCH, PATNA. 5. THE CIRCLE OFFICER, FATUHA, PATNA. 6. THE OFFICER-IN-CHARGE, DANIAWAN POLICE STATION PATNA ……….RESPONDENTS. ----------- 7. 15.03.2011 Heard counsel for the petitioners and counsel for the State. Initially this writ application has been filed by one Rajendra Paswan who retired from the post of Chowkidar under the Daniawan police station on 30.11.1999. Prayers of original writ petitioner was for a direction to the respondent Superintendent of Police, Patna for correcting his date of birth, as entered in his service book and allow him to continue on the post of Chowkidar till he attains age of superannuation, as per the corrected date of birth. It was also prayed that he should be allowed his month to month current salary as well as arrear of salary from the date he has been 2 forced to retire. During the pendency of the writ application Rajendra Paswan died. Interlocutory Application No.9718 of 2010 was filed by his widow Sumitra Devi and his grand son Viveka Nand Paswan for substituting their names in place of original writ petitioner, so that they may prosecute the case. Interlocutory application was allowed and names of legal heirs were substituted in place of original petitioner. The facts of the case as revealed in the writ application is that Rajendra Paswan initially, used to work on temporary basis on the post of Chowkidar under the Daniawan police station. Subsequently, as per the government decision, with effect from 13.9.1980 he was recommended for his appointment on the post of Chowkidar by the Inspector of Police to the S.S.P. Patna. His appointment was approved. He continued to work on the post of Chowkidar. In the year 1991, his service book was opened and his date of birth was entered in the service book, as per his age assessed by the Medical Board. Petitioner’s case is that the entry was made on the basis of medical certificate 3 issued by In Charge Assistant Civil Surgeon, annexed as Annexure-3 petitioner’s case is that the Medical Board submitted its report on 1.11.1991 after his examination. According to the medical report, his age was ascertained as 39 years 5 months on 1.11.1991. As per this ascertainment, his date of birth should have been 1.11.1951 and he should have retired in April 2010. The respondent No. 5 committed an error in entering his date of birth in his service book and it was entitled as 1.11.1941. Due to this wrong entry of birth, his date of retirement was fixed on 1.11.1999. The Officer-In-charge of Fatuha Police Station, vide order contained in Memo No. 689 dated 9.11.1999 informed him that since his date of birth in the service book has been entered as 1.11.1941, as such, he will retire on 30.11.1999. The petitioner was made to retire on 30.11.1999. Petitioner’s case is that he comes to know about wrong entry of his date of birth in service book from Annexure-1 only. On proceeding, this intimation he comes to know that his date of birth has been entered in his service book as 1.11.1941 instead of 1.11.1951. Petitioner thereafter, filed his representation 4 in the year 2000 and continued to pursue this matter before the respondents till 2003. Finally, when no action was taken by the respondents, he filed writ application in the year 2004. In the counter affidavit filed on behalf of the respondent no. 2, there is complete denial of all allegation and statement made by the petitioner in the writ application. It has been stated that after the death of original petitioner Rajendra Paswan, the writ application filed by original petitioner at the behest of his widow Sumitra Devi and grand son Viveka Nand Paswan is not maintainable. By the impugned order as contained in Memo No. 683 dated 9.11.1999 husband of substituted writ petitioner No. 1 was made to retire on the basis of entries made in his service book. This does not give any cause of action to the present petitioner. It has also been stated that the husband of Sumitra Devi, after his retirement received all retrial benefits and continued to accept his pension since 30.11.1999, as such he was not entitled for arrears of salary for this period. It has also been stated that prior information given to Rajendra Paswan regarding his 5 date of superannuation vide Annexure -1, was never objected by filing representation. Even after his superannuation, he never made any correspondence with the authorities regarding connection in his date of birth, as entered in his service book. So far as the Medical certificate contained in Annexure-3 to the writ application is concerned, it is stated that Rajendra Paswan on his own got ascertained his age by In Charge Civil Surgeon as 39 years and 6 months, physical examination had not been done by a legally constituted Medical Board, by the Department. Disclosure made by Rajendera Paswan himself, was the basis for assessment of his age, which is apparent from Annexure-2 itself. In Charge Civil Assistant Surgeon is not authorized to issue any Medical Certificate for assessment of age, for the purposes of making entry in the service book. On this count also the claim of the petitioner that in the year 1991 his age was ascertained as 39 years 6 months, has no relevance. On perusal of the statement made in the writ application as well as in counter affidavit and the law relating to the correction of the date of birth in the 6 service book, I find that the writ petitioner, did not raise any objection regarding wrong entry of his date of birth in the service book, though it was opened in the year 1990, and he retired in 1999. During these periods he never raised any objection regarding his date of birth as entered in the service book. Even after his retirement for four years, he did not raise any objection. Suddenly in the year 2004, he has filed this writ application. The date of birth in case of an illiterate employee, can be ascertained by a duly constituted Medical Board. That is also not done in his case. What was the basis for entering his date of birth as 1.11.1941 in the service book, that has not been mentioned either in the writ application or in the counter affidavit. The writ petitioner, retired in the year 1999. He died in the year 2010. The relief prayed by the original applicant has become infructuous, as he died. Relief relating to correction in the date of birth in the service book, can be allowed when employee is dead and prior to his death, he has recovered full pension and pensionary benefits. There is no merit in this application. 7 This writ application is, accordingly, dismissed. Devendra/ ( Mridula Mishra, J.)