IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.728 of 2001 AWADESH SINGH Versus THE STATE OF BIHAR & ORS ----------- 5. 6.7.2009 Heard counsel for the petitioner and the counsel for the State. In this writ application the prayer now of the substituted petitioner, in place of his father, the original petitioner who is said to have died on 9.4.2006, during the pendency of this writ application, is for quashing of an order dated 25.10.2000 whereby and whereunder Nar Singh Narayan Singh, the original petitioner, was made to retire with effect from 1.2.2000 on the basis of date of birth being 11.1.1942 and also a direction for recovery of the amount of salary allegedly drawn by him for the period 1.2.2000 to 31.10.2000. Counsel for the petitioner would submit that the impugned order dated 25.10.2000 has been passed in complete violation of principle of natural justice, inasmuch as the father of the petitioner was never given any show cause notice pertaining to the aforementioned punishment of recovery of amount of salary. He would further submit 2 that in any event whatever misconduct allegedly was made by his father, could come to the notice of the authorities in the year 1973 and yet the respondents were satisfied either by lodging a criminal case or by placing him under suspension but not proceeding beyond that stage at least in the matter of subjecting him to a punishment of recovery of salary. Counsel for the State, on the other hand, would point out that it is a glaring case of manipulation in the service book, inasmuch as from the necked eye it would be apparent that the date of birth 11.1.1942 was sought to be changed by penning it over to 30.10.1944 to make it computable in terms of the entry of date of birth in the matriculation certificate of the petitioner. Counsel would, therefore, submit that it is clear effort on the part of the father of the petitioner to defraud the Government by making all effort to continue in service till October, 2002 whereas as per his original date of birth he had to retire in January, 2000. Counsel for the State seems to be 3 correct to that extent that an interpolation was definitely sought to be made and usually inference in such interpolation would be against the father of the petitioner, inasmuch as he alone was beneficiary of such change in the date of birth and that too in the light of the entry made in the matriculation certificate. This Court has also perused the service book and from its perusal it is clear that when the same was opened after entry in service of the father of the petitioner on 4.3.1964 recording his date of birth as 11.1.1942 and someone later on in a different ink had changed it to 30.10.1944. This also becomes manifest from the entry of a further column at page 1 in the service book where qualification not usually printed in the standard format of the service book has been sought to be introduced by hand. Since such entry of qualification in service book bears the date of 2.3.1983 it becomes clear that while the petitioner was posted in the office of D.I.G. Police Laboratory, Bihar at that point of time the authority after noticing such discrepancy in the 4 service book of making interpolated entry not only had rejected the recorded the changed date of birth but had also placed the father of the petitioner under suspension by an order dated 25.7.1983. Subsequently, the petitioner was also subjected to a criminal prosecution but later on the order of suspension of the petitioner was also revoked and he was taken back in service subject to the result of departmental proceeding. It also transpires that while the criminal case against the petitioner was found to be clueless on the ground that the service book was not produced before the trial court and he was acquitted by getting benefit of doubt of the court in the judgment dated 27.2.1989, the contemplated departmental proceeding was never initiated nor even a show cause notice was given to the petitioner before passing of the impugned order. From the narration of the aforementioned admitted events it would thus become clear that the authorities in fact had slept over the matter for next 11 years and suddenly came out with the impugned 5 order in the month of October, 2000 without following the mandate of law in the matter of recovery of salary as per Disciplinary Control and Appeal Rules. In view of the fact that the father of the petitioner is already dead and as noted above, has been substituted by his son no proceeding now can be held against him and therefore, all that this Court can do is to balance the equities for the purposes of disposal of this case. It is not in doubt that the father of the petitioner continued in service till October, 2000 and that was not on account of any misrepresentation made by him especially when the authorities were all along aware of the alleged interpolation of his date of birth in the service book and yet chose to continue him in service beyond January, 2000. In that view of the matter, this Court would quash that part of the impugned order dated 25.10.2000 whereby and whereunder recovery of salary was directed to be made for the period 1.2.2000 to 31.10.2000 and if any amount of recovery has already been made, the same must be refunded back to the 6 petitioner within a period of six months from the date of receipt/ production of a copy of this order. While this much has been done to balance the equity in favour of the petitioner, the State is also entitled for certain equities, inasmuch as it cannot be denied that when the father of the petitioner had entered in service in the year 1964 he had suppressed both of his qualification of having passed his matriculation examination in 1959 but also his date of birth as recorded in matriculation certificate being 31.10.1944 by disclosing his date of birth 11.1.1942 duly recorded not only in the service but in the statutory candidate register maintained under Bihar Police Manual solely with an aim to get employment by showing himself to be above 21 years inasmuch as his age otherwise as per his matriculation certificate was 19 years and 5 months only. Thus the father of the petitioner having taken advantage of his declared age and date of birth as 11.1.1942 could not be allowed to continue in service on the basis of age recorded in 7 matriculation certificate as has also been held by a division bench of this court in the case of Baidyanath Pd. Sinha vs. the State of Bihar & ors., reported in 1983 L.I.C. 162. That being so, the father of the petitioner, would thus be deemed to have superannuated on 31st of January, 2000 and for all purposes, including in calculation of retirement benefit his date of birth would be 11.1.1942 with his length of service from 18.1.1964 to 31st of January, 2000. It is on this length of service that the retirement benefit of the father petitioner would be finally computed and paid in accordance with law but as indicated above there would be no recovery of salary for the period of his continuation in service from 1.2.2000 to 25.10.2000. The impugned order, therefore, is interfered only to the aforementioned limited extent, and the writ application is allowed only in part. There would be however no order as to cost. (Mihir Kumar Jha,J.) Surendra/ 8