IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2511 of 2009 Mukesh Kumar . Versus The State Of Bihar & Ors . ----------- 3/ 07/07/2011 Heard learned counsel for the petitioner and the State. Learned counsel for the State submits that the counter affidavit was affirmed before the Oath Commissioner on 17.4.2009 vide oath No.135/96. Copy has been served on the counsel for the petitioner which is acknowledged. It is submitted that the counter affidavit was not penned by the then State counsel and therefore there is difficulty in penning it today. Since the counter affidavit had been affirmed on oath and copy had been served to the counsel for the petitioner, learned counsel together submitted that the Court may take into consideration the averments made therein. Let the affidavit be kept on record. The petitioner was an applicant for the post of Constable under advertisement No.2/04. He is aggrieved by the order dated 7.1.2009 denying him appointment despite having competed in the selection process on two grounds:- (A) he had not signed the original application form, (B) there was a discrepancy in his date of birth as furnished by him in the application i.e. 7.9.1983 and that 2 mentioned by the Bihar Sanskrit Siksha Board when confirmation was sought as 6.9.1983. Learned counsel for the State from the counter affidavit very fairly acknowledges that no other illegality or ineligibility has been found with regard to the candidature of the petitioner who has otherwise successfully competed. If the application of the petitioner was unsigned, it should have been rejected at the initial stage itself. Once the respondents accepted it and treated it as a valid application, subjected the petitioner to a selection process where he has competed and has not been found ineligible under any head, it shall be highly and grossly inequitable to now go back to the illegality when that stage has been crossed by a positive act of waiver on the part of the respondents and relief be denied to the petitioner. If the petitioner was at fault in not signing the application, the respondents were equally at fault in not scrutinizing it properly. The Court finds force in the contention of the petitioner that in the printed Madhyama certificate issued by the Board, the date of birth of the petitioner is mentioned as 7.9.1983. It need be only noticed from the Xerox copy of the application form at Annexure-13 that the signature 3 was required at two places when the petitioner has signed only at one place. In the school leaving certificate the date of birth has been written in Hindi when the first numeric „6‟ (seven) in Hindi bears mark similarity to „6‟ (six) in English. In any event of the matter, the cross-verification entrees of the Board has been done in hand. Errors have crept in more than once on the part of the Board in making such entries, as evident from several writ appliations which the Court has come across seeking like relief of defective entries made by the Board personnel. Suffice it to notice that whether the date of birth is 6.9.1983 or 7.9.1983 is hardly relevant in the nature of the controversy. Applying common sense and logic it is too trivial to deny a relief as important as employment. No allegations of fraud, misrepresentation etc. have been made. It has been observed in (CST v. H.M. Esufali, H.M. Abdulali (1973) 2 SCC 137 at paragraph 7 as follows:- “7. Sometimes there may be innocent or trivial mistakes in the accounts maintained by the assessee. There may be even certain unintended or unimportant omissions in those accounts; but yet the accounts may be accepted as genuine and substantially correct…..” To obviate any further confusion in the matter the Court holds that it is the printed certificate issued by the Board that shall prevail during the service tenure of the petitioner recording 7.9.1983 as his date of birth 4 rather than any entries subsequently made in hand by a „Babu‟ of the Board. The application is allowed. KC ( Navin Sinha, J.)