IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.845 of 2007 1. BIHAR STATE OF ELECTRICITY BOARD through its Chairman, Vidyut Bhawan, Bailey Road, Patna. 2. The Secretary, Bihar State Electricity Board Vidyut Bhawan, BaileyRoad, Patna. 3. The Joint Secretary, Bihar State Electricity Board Vidyut Bhawan, Bailey Road, Patna. 4. The General Manager-Cum-Chief Engneer, Bihar State Electricity Board, Mithila Area Electricity Board, Darbhanga. 5. The Electrical Superintending Engineer, Bihar State Electricity Board, Electric Supply Circle, (Kasipur), Samastipur. 6. The Electrical Executive Engineer, Bihar State Electricity Board, Electric Supply Division (Jitwarpur), Samastipur. 7. The Assistant Executive Engineer, Bihar State Electricity Board, Electric Supply Sub-Division, (Rural) Samastipur. ………………..Respondents/ Appellants. Versus KAPILDEV JHA S/o Mangal Jha, resident of Village- Ghatho P.O. Ghatho via Dalsinghsarai, District Samastipur, Pin code- 848114. ………………Petitioner/respondent. ----------- 5 11.05.2011 The present L.P.A. has been filed against the order dated 8.8.2007 passed by this Court in C.W.J.C. No.9007 of 2006, wherein the petitioner-respondent herein have chosen to question the notice of retirement issued to him on 20.2.2006 asking him to retire on 7.8.2006 on completion of 60 years of age as per the date of birth i.e. 2.8.1946 as the Medical Board gave its opinion that the age of the petitioner is between 48 years to 50 years. It has been contended by learned counsel for the petitioner- respondent herein before the learned Single Judge that as per decision of the Apex Court it was proper that the lower age determined by the Medical Board has to be given to an employee working under the Electricity Board and as such the petitioner- respondent herein cannot be subjected to retire on 7.8.2006 on calculation of higher age of the petitioner. 2 On the other hand, learned counsel appearing on behalf of the respondents- appellants herein submitted before the learned Single Judge that as the petitioner-respondent herein had accepted the opinion of the Medical Board taken in the year 1996 to the effect that age of the petitioner is between 48 years to 50 years and has chosen to question the same in the year 2006, i.e. after ten years of the cause of action, the belated claim of the petitioner should not be allowed. Having considered the rival contentions raised by both the parties, the learned Single Judge has observed that at the time when letter dated 20.2.2006 was issued asking the petitioner to retire on 7.8.2006, i.e. on completion of 60 years of age as per determination of age of the petitioner by the Medical Board, the decision rendered by the Supreme Court to the effect that the lower age determined by the Medical Board should be made the basis of retirement, was in existence and as such in view of ratio of the decision of the Apex Court the petitioner is entitled to the benefit of law as declared on the date when the petitioner was in service. Reference in this connection may be made to the latest judgment of the Apex Court in the case of ‘Punjab & Haryana High Court at Chandigarh Vs. Megh Raj Garg & Another’ reported in 2010 (4) Supreme 464. In the said judgment it has been held that the claim made by the employees long after entering into service cannot be entertained. 3 The relevant paragraph 12 of the aforesaid judgment is quoted herein below: “This Court has time and again cautioned civil courts and the High Courts against entertaining and accepting the claim made by the employees long after entering into service for correction of the recorded date of birth. In Union of India v. Harnam singh (supra), this Court considered the question whether the employer was justified in declining the respondent’s request for correction of date of birth made after thirty five years of his induction into the service and whether the Central Administrative Tribunal was justified in allowing the original application filed by him. While reversing the order of the Tribunal, this Court observed: “A Government servant, after entry into service, acquires the right to continue in service till the age of retirement, as fixed by the State in exercise of its powers regulating conditions of service, unless the services are dispensed with on other grounds contained in the relevant service rules after following the procedure prescribed therein. The date of birth entered in the service records of a civil servant is, thus of utmost importance for the reason that the right to continue in service stands decided by its entry in the service record. A Government servant who has declared his age at the initial stage of the employment is, of course, not precluded from making a request later on for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or stale claims, is generally applied by the courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, cannot claim as a matter of right, 4 the correction of his date of birth even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The law of limitation may operate harshly but it has to be applied with all its rigour and the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age. Indeed, as held by this Court in State of Assam v. Daksha Prasad Deka a public servant my dispute the date of birth as entered in the service record and apply for its correction but till the record is corrected he cannot claim to continue in service on the basis of the date of birth claimed by him. This Court said: (SCC pp. 625 26, Para 4) “… The date of compulsory retirement under F.R. 56(a) must in our judgment be determined on the basis of the service record, and not on what the respondent claimed to be his date of birth, unless the service record is first corrected consistently with the appropriate procedure. A public servant may dispute the date of birth as entered in the service record and may apply for correction of the record. But until the record is corrected, he cannot claim that he has been deprived of the guarantee under Article 311 (2) of the Constitution by being compulsorily retired on attaining the age of superannuation on the footing of the date of birth entered in the service record.” (emphasis supplied) Under the above circumstances, we are of the opinion that as the date of birth of the petitioner determined by the Medical Board has become final in the year 1996 itself and the employee have chosen to challenge same in the year 2006, i.e. after ten years of cause of action by filing a writ petition, his belated claim is liable to be dismissed on the ground of delay and laches itself in view of law laid down by the Apex Court in the aforesaid latest judgment (Supra) according to which there cannot be any 5 correction in the date of birth in the year 2006 which has become final in the year 1996 itself. With the above observation, order of the learned Single Judge is set aside and this L.P.A. is allowed. Abhay Kumar ( T. Meena Kumari, J.) (Akhilesh Chandra, J.)