IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1447 of 2008 Sabiha Naseem, W/O Late Naseem Akhtar, resident of Mohalla- Sultanganj Naugharwa, P.S. Sultanganj, District- Patna….Petitioner. Versus 1. The State of Bihar. 2. The Director, Secondary Education, Govt. of Bihar, Patna. 3. The Regional Deputy Director of Education, Patna Division, Bihar, Patna. 4. The District Education Officer, Patna, District-Patna. 5. The Treasury Officer, Patna, District- Patna. 6. The Accountant General, Bihar, Patna…………………Respondents. ----------- For the petitioner : M/S. Ashoka Jang Bahadur, Md. Avis Akhtar, Md. Rashid Alam and Mr. Arif Siddquie, Advocates. For the State : Mr. Deepak Kumar, A.C. to G.P. 16. For the Accountant General : Mr. L. P. K. Rajgrihar, Additional Standing Counsel. ---------- 12. 07.12.2010. Heard learned counsels for the petitioner, State and the Accountant General. The present writ application has been filed for quashing the letter no. 714 dated 05.10.2007 passed by the Director, Secondary Education, Bihar, Patna, whereby the petitioner’s date of birth has been shifted back from 17.10.1946 to 17.10.1944 and thereby the petitioner was directed to retire with retrospective effect from 31.10.2004 and the order of recovery from 31.10.2004 onwards was also made. It is also prayed for payment of arrears of salary as well as all the consequential benefits including retiral dues 2 which has wrongly been withheld by not treating the petitioner’s date of birth as 17.10.1946 which would have allowed the petitioner to retire on 31.10.2006. The petitioner was initially appointed on 28.10.1967 as Headmistress in a private school, in the name and style S. S. Girls High School, Daudnagar in the district of Aurangabad. The petitioner passed the Matriculation examination in the year 1958. The Matriculation certificate as contained in Annexure-4 to the supplementary affidavit does not reflect the date of birth of the petitioner as previously the date of birth of a female was not used to be mentioned in the Matriculation certificate. Hence, at the time of appointment the affidavit was filed before the Management of School as contained in Annexure-5 to the supplementary affidavit, indicating date of birth of the petitioner as 17.10.1946. Clause 5 of the service book of the petitioner as contained in Annexure-6 reflects the date of birth as 17.10.1946. The Secretary of the School signed the service book on 07.08.1975 whereas the then District Education Officer, Aurangabad, signed the service book on 08.04.1982. 3 The District Education Officer, Patna, vide Memo No. 2254 dated 04.10.2006, directed the petitioner to retire from the service with effect from 31.10.2004 as contained in Annexure-1A to the writ petition since the date of birth has been found to be as 17.10.1944 instead of 17.10.1946 as mentioned in service book which was treated to be an interpolated one. The said order was subsequently modified vide Memo no. 3373 dated 31.10.2006 as contained in Annexure-1/B, whereby the earlier order dated 04.10.2006 was modified to the effect that the petitioner was directed to retire with effect from 30.04.2004 instead of 31.10.2004. The aforesaid two orders as contained in Annexures-1/A and 1/B to the writ petition came to be challenged in C.W.J.C. No. 12720 of 2006, which was disposed off on 01.05.2007 with a direction to the respondent no.2, the Director, Secondary Education, Bihar, Patna, to pass a fresh order in accordance with law after giving opportunity of hearing to the petitioner. Consequently, the impugned order was passed as contained in Annexure-3, issued vide Memo No. 714 dated 05.10.2007 under the 4 signature of the Director, Secondary Education, Bihar, Patna, whereby the petitioner’s date of retirement was fixed as 31.10.2004 and all the payments after 31.10.2004 made to the petitioner were directed to be recovered and in case of non- recovery in normal course, the recovery was directed to be made by resorting to certificate proceeding. The said order is under challenge in the present proceeding. The impugned order has been passed after shifting the date of birth of the petitioner from 17.10.1946 to 17.10.1944 on the ground that in the year 1968 in the pay fixation document, the date of birth of the petitioner has been mentioned as 17.10.1944. Moreover, the petitioner passed the Matriculation examination in the year 1958 meaning thereby that she passed matriculation examination at the age of eleven and half. In the service book countersignature of the Secretary of the School was made in 1975 but signature of District Education Officer, Aurangabad, has been done on 08.09.1982. Hence, it appears that service book was opened in 1980 to interpolate the date of birth of the petitioner. 5 It is submitted by the learned counsel for the petitioner that the service book was prepared in the year 1975 when the school was private and after taking over of the School by the Government, the District Education Officer, Aurangabad, after due verification signed the service book in the year 1982. The service book contains the actual date of birth as 17.10.1946 which was entered on the basis of affidavit filed by the petitioner as contained in Annexure-5 to the supplementary affidavit since at that point of time the female’s date of birth was not depicted in the certificate nor there was any minimum age prescribed for appearance at the Matriculation examination as the said restriction came into force vide Memo No. 172/89 dated 23.08.1989 which prescribed that before passing of the matriculation examination candidate’s age must be 14 years. The relevant extract of the Notification is quoted herein: “”vf/kdka’k fon~;ky;ksa esa vk;q izfoIV djus ds laca/k esa fcgkj f’k{kk lafgrk ds fu;eksa dk ikyu ugha fd;k tkrk gS ftlls tUe frfFk esa la’kks/ku dh ekax izfroÔZ gtkjksa dh la[;k esa vkrh gS vkSj mudk fu"iknu ijh{kk lfefr ds fy, ,d leL;k ewyd iz’u gks tkrk gSA vr% ijh{kk lfefr us iw.kZ fopkjksijkUr ;g fu.kZ; fy;k gS fd ijh{kksRrh.kZ ds igyh ekpZ dks ijh{kkFkhZ dh vk;q 14 oÔZ ls de ugha gksuh pkfg,A 6 vr,o vki ijh{kk vkosnu i= vxzlkfjr djrs le; ;g lqfuf’pr gks ysa fd ijh{kkfFkZ;ksa dh vk;q ijh{kk oÔZ ds igyh ekpZ dks 14 oÔZ ls de u gksA mnkgj.kkFkZ 1990 dh okfÔZd ek/;fed ijh{kk ds fy, fdlh dks tUe&frfFk 1-3-1976 ds ckn dh ugha gksuh pkfg,A tks ijh{kkFkhZ bl fu.kZ; ls izHkkfor gksrs gSa mUgsa funsf’kr fd;k tk;s fd l{ke inkf/kdkjh ls viuh vk; la’kksf/kr djk ysa vFkok visf{kr vk;q gksus rd izfr{kk djsaA” By way of supplementary affidavit, the earlier writ application filed by the petitioner being C.W.J.C. No. 12720 of 2006 has been brought on record. Annexure-7 to the said writ application reflects that the pay fixation document with regard to the first and second time bound promotion which was prepared in the year 1989 and that also reflects the date of birth of the petitioner as 17.10.1946 and the said fixation document has been counter-signed by the District Education Officer, Aurangabad, the Regional Deputy Director of Education, Gaya Division, Gaya, as well as the Director (Secondary Education)- cum-Deputy Director of Education, Human Resources Development Department, Bihar, Patna. It is further contended that the respondents can not shift back the date of birth of the petitioner at the fag end of the service and as per the date of birth entered into service book as 17.10.1946, the 7 petitioner should have retired on 31.10.2006 but the impugned order was served to the petitioner on 04.10.2006 hence she worked till 04.10.2006 and from 04.10.2006 to 31.10.2006 she was ready to render the service but she was precluded by malicious action of the respondent authority. Hence, recovery can not be made in view of the principle laid down in the case of Mostt. Kanti Devi & Ors. Vs. The State of Bihar) reported in 2003(1) P.L.J.R. Page 247 where it has been held that the period for which the employee was allowed to work, he will be entitled to the emoluments. Even if the employee was given work as a result of any collusion with the officials, it is upon State Government to take action against the official concerned who permitted the employee to continue. The impugned order has also been assailed on the ground that Clause 2(1)(K)1997 Circular of the State Government prescribed the necessary approval of the State Government before passing any order with regard to suspension and other major punishment affecting the Headmaster and Headmistress but the present impugned order has been passed by the Director, Secondary Education, Bihar, 8 Patna, without approval of the State Government. There is no allegation that the petitioner ever claimed for change of her date of birth and the date of birth has sought to be changed on the basis of pay fixation document of 1968 by resorting to the powers under Rule 43(b) of the Bihar Pension Rules which is not permissible as no proceeding can be initiated for any action four years prior to retirement and in the petitioner’s case the purported action is of 1967, the service book was prepared in the year 1975 on which the Secretary of the School made counter signature in 1975 and the then District Education Officer, Aurangabad, after due verification signed the service book in the year 1982 hence, now in the year 2006, the respondent authorities cannot resort to the proceeding under Rule 43B of the Bihar Pension Rules by takings shelter to the 1968 pay fixation document. Moreover this power under Rule 43B of the Bihar Pension Rules can be resorted to in case of grave misconduct or in case of having caused pecuniary loss to the government by misconduct or negligence. It is also submitted that in the proceeding no witness was examined, nor any 9 evidence was led, nor the enquiry report was given to the petitioner and the impugned order has also been passed in derogation to procedural safe guard provided under Rule 43(B) of the Bihar Pension Rules. Learned counsel for the State submits that the District Education Officer, Aurangabad, signed the service book on 08.04.1982 which makes it apparent that the service book was not prepared in 1975 as claimed by the petitioner. Moreover, passing the Matriculation examination by the petitioner at the age of eleven also compelled the authority to infer that the date of birth has been interpolated subsequently. Hence, the petitioner was directed to retire with effect from 31.10.2004 and the payment made after 31.10.2004 was directed to be recovered. Considering the rival contention of the parties, it is admitted fact that the petitioner entered into the service on 28.10.1967 and the service book which was in possession of the respondent authorities reflects the date of birth as 17.10.1946. The said service book bears the signature of the Secretary of the School made in the year 1975 which is not disputed by the Secretary of the 10 School nor has the Secretary of the School been examined by the respondent authority during the enquiry. Moreover, the respondent authority did not dispute the signature of the District Education Officer, Aurangabad, in 1982 who after due verification of the service book of the petitioner made the signature. Clause 5 of the pay fixation document reflects the date of birth of the petitioner as 17.10.1946. Hence, now at the fag end of the service the State being the model employer can not shift back the date of birth of the petitioner on mere inference and assumption. The service book does not reflect any interpolation nor it is alleged by the respondent authority. So far as the question of initiating proceeding under Rule 43B of the Bihar Pension Rules in 2006 for a purported action of about three decades prior to retirement or after 1982 is concerned, since the action was initiated when the petitioner was in service and the present order has been passed in pursuance to direction of this Hon’ble Court in the earlier round of litigation this court finds not much substance in the submission of the learned counsel for the petitioner. 11 So far as the petitioner passing the matriculation examination at the age of 11 ½ is concerned, it appears from the Notification dated 23.08.1989 of the Bihar School Examination Board that prior to 1989, no minimum age was prescribed for appearing at Matriculation examination and the date of birth was entered into service book on the basis of affidavit as contained in Annexure-5 to the supplementary affidavit submitted by the petitioner and the genuinity of that affidavit has not been challenged by the respondent authority, then in this case the interpolation of date of birth of the petitioner can not be presumed, particularly in view of the fact that the documents on record suggest that the petitioner never represented for shifting the date of birth nor any subsequent fraud or misrepresentation or overwriting or cutting in service book have been alleged by the respondent authority. In the present case there is nothing on record to suggest that petitioner misrepresented or committed fraud. Once the respondent accepted the date of birth of the petitioner as 17.10.1946 since 1982 and acted on the same for two decades then in that case 12 the respondents are precluded to raise dispute or shift back the date of birth of the petitioner at the fag end of the service. Moreover, the petitioner is entitled for her salary for the period she has worked and no recovery can be made since no misrepresentation has been done by the petitioner. As per service book, the date of birth of the petitioner is 17.10.1946 so the petitioner should have retired on 31.10.2006 but the impugned order was served on 04.10.2006 as a result of which she has worked till 04.10.2006, hence, she is entitled for salary for the period she worked because the respondent authority allowed her to work till 04.10.2006 and in this situation the respondent authorities are not justified in making the recovery. Admittedly, the petitioner has not worked from 05.10.2006 to 31.10.2006 though she could not work due to the intervention made by the respondent authority by passing the impugned order. Let the authority adjust the said period from 05.10.2006 to 31.10.2006 against the leave of the petitioner and make the payment of all the financial benefits i.e., 13 including arrears of salary, retiral dues etc., treating the petitioner’s date of birth as 17.10.1946 instead of 17.10.1944 and treating the date of superannuation of the petitioner as 31.10.2006. In view of the aforesaid facts, the impugned order No. 714 dated 05.10.2007 as contained in Annexure-3 to the writ application is hereby quashed. Let the authority pass appropriate orders with regard to the payment of the petitioner within a period of six weeks from the date of receipt/production of the copy of the order. U.K. (Dinesh Kumar Singh)