LETTERS PATENT APPEAL No.321 OF 2005 ******* Against the order dated 1.3.2005, passed by a learned Single Judge of this Court in C.W.J.C. No.10382 of 1999. ******** SIDHESHWAR PASWAN, Son of late Ram Lagan Paswan, resident of Village- Sripatpur, P.S.- Fatuah, District- Patna. …… Petitioner- Appellant. Versus 1. THE STATE OF BIHAR. 2. The Director General of Police, Bihar, Patna. 3. The Additional Director General of Police (M.P.), Bihar, Patna. 4. The Deputy Inspector General, Military Police, Central Zone, Patna. 5. The Assistant to Inspector General of Police (Administration), Office of Director General of Police, Bihar, Patna. 6. The Commandant, B.M.P.-XIV, Phulwari, P.O. - Bihar Veterinary College, Patna. ….Respondents- Respondents. ----------- For the Appellant: Mr. S.P. Mukherjee, Sr. Advocate with Mr. Shanti Pratap, Advocate. For the S t a t e: Mr. Gyan Prakash Ojha, Advocate A.C. to G.A.-7. ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******* S.K. Katriar, J. The petitioner of C.W.J.C. No.10382 of 1999 raises a grievance in this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, with respect to the order dated 1.3.2005, whereby his writ petition has been dismissed and 2 the order of the respondent authorities, restoring 11.5.1942 to be his date of birth, has been upheld. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The appellant had appeared at the matriculation examination conducted by the Bihar School Examination Board held in February 1963, the certificate was issued on 25.6.1963, and the same recorded 3.4.1948 to be his date of birth. The appellant joined the Bihar Military Police-V as a Constable on 14.5.1964. It appears that he had not furnished copy of his matriculation certificate at the time of entry into service, as a result of which the matter was referred to the concerned Civil Surgeon who determined 22 years of age at the time of entry into service and the authorities, therefore, allotted 11.5.1942 to be his date of birth which had accordingly been recorded in his service record at the time of entry into service. The appellant thereafter submitted his representation for correction of his date of birth so that it is put it in line with the entry made in his matriculation certificate. The same was allowed by the appropriate authorities by order dated 20.5.1967 (Annexure-3), whereby 11.5.1942 was substituted by 3.4.1948 as his date of birth. This was followed by the order dated 6.7.1967 (Annexure-4), whereby it was ordered that in view of the corrected date of birth, he was short by 694 days at the time of entry into service. It was, therefore, ordered that the 3 period of 694 days “…will be treated as disqualifying service…”. This was followed by the order dated 21.2.1991 (Annexure-5 herein), issued by the appropriate authority, wherein it was stated that 11.5.1942 had been recorded as the petitioner’s date of birth in the service record at the time of entry into service which is credible, because 3.4.1948 recorded as his date of birth in the matriculation certificate leads to the position that he had entered into service at the age of sixteen years which is unacceptable to the State Government. He, therefore, restored 11.5.1942 to be his date of birth, as a result of which he superannuated with effect from 1.6.2000, and impugned herein. Aggrieved by the order dated 21.2.1991 (Annexure-5 herein), the appellant submitted his representation which was rejected by the competent authority by order dated 27.9.1999, and the said order dated 21.2.1991 was upheld. Consequently, 11.5.1942 was treated to be his date of birth leading to the present writ petition which has been dismissed by the learned Single Judge. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the appellant’s matriculation certificate was issued by the Board on 25.6.1963, whereas he entered into service on 14.5.1964. It was, therefore, incumbent on him to produce the matriculation certification in proof of his date of birth as well as 4 educational qualifications. It appears that the same was not done. On account of non-production of the matriculation certificate, the authorities had referred the matter to the concerned Civil Surgeon for medical examination who determined 22 years to be his age at the time of entry into service. The authorities accepted the medical report, and allotted 11.5.1942 to be his date of birth which was recorded in the appellant’s service record. The subsequent developments have been indicated hereinabove. 4. Non-production of the matriculation certification at the time of entry into service does not appear to us to be an act of fraud, misrepresentation, suppression of material fact or the like on the part of the appellant. It further appears to us that determination of date of birth, namely, 11.5.1942, was not as per the appellant’s representation, but because of the medical examination and the inference of the respondent authorities. Secondly, the appellant had appeared at the matriculation examination in February, 1963, and the certificate was issued on 25.6.1963, about one year prior to entry into his service. Therefore, we do not envisage any manipulation on the part of the appellant in so far as the date of birth recorded in the matriculation certificate is concerned. Had he appeared in the matriculation examination and the certificate been issued after he had entered into service, there was possibility of manipulation on the part of the appellant. These two circumstances 5 strongly operate in favour of the appellant. We, therefore, uphold the order dated 20.5.1967 of the appropriate authority, whereby 3.4.1948 was substituted as his correct date of birth. We also uphold the order dated 6.7.1967, whereby the authorities ordered that 694 days at the inception of the petitioner’s service would be treated as disqualifying service. Consequently, we do not agree with the order dated 21.2.1991, whereby 11.5.1942 was restored as his date of birth, and is accordingly quashed. We also disagree with the order dated 27.9.1999 (Annexure-6 herein), rejecting the petitioner’s representation and is quashed. 5. This takes us on to the question of relief to be granted to the appellant. He superannuated with effect from 1.6.2000, treating 11.5.1942 to be his date of birth. In view of the foregoing discussion treating 3.4.1948 to be the appellant’s date of birth, he will be deemed to have superannuated accordingly. In view of the position that the matriculation certificate was issued prior to one year of entry into his service, it was incumbent on the part of the appellant to produce the same at the time of entry into service. In view of the position that he did not produce the same, we are of the view that he should not be allowed arrears of salary for the period 1.6.2000 till his retirement as per the date of birth determined by us. He shall, however, be entitled to determination 6 of his post-retirement benefits treating 3.4.1948 to be his date of birth. 6. In the result, we disagree with the order of the learned Single Jude. The appeal is allowed to the extent indicated hereinabove. In the circumstances of the case, there shall be no order as to costs. (S K Katriar, J.) Birendra Prasad Verma, J. I agree. (Birendra Prasad Verma, J.) Patna High Court, Patna Dated the 26th day of November, 2010. S.K.Pathak/(NAFR).