Letters Patent Appeal No. 23 of 2013 · Patna High Court · 2012
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Letters Patent Appeal No.23 of 2013 In Civil Writ Jurisdiction Case No. 13997 of 2011 ====================================================== Ashok Kumar @ Ashok Prasad S/o Late Lakshmi Sah, resident of Mohalla Babu Tola, Govind Mitra Road, P.S. Pirbahore, District Patna. .... .... Petitioner-Appellant Versus 1. Bihar State Road Transport Corporation, Patna through Administrator, Bihar State Road Transport Corporation, Patna. 2. Administration Head, Bihar State Road Transport Corporation, Patna. 3. Special Executive Officer, Bihar State Road Transport Corporation, Patna. 4. Divisional Manager, Bihar State Road Transport Corporation, Fulwarisharif Division, Patna. 5. Depot Superintendent, Bihar State Road Transport Corporation, Fulwarisharif Depot, Patna. ====================================================== .... .... Respondents-Respondents Appearance :
Legal Reasoning
For the Appellant : Mr. Banwari Sharma, Advocate Mr. Shiv Kumar, Advocate For the Respondents: Mr. S.R. Sharan, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 2. 17-6-2013 Feeling aggrieved by the judgment and order dated 2nd March 2012 passed by the learned single Judge in C.W.J.C.
Decision
No. 13997 of 2011, the writ petitioner has preferred this Appeal under Clause 10 of the Letters Patent. 2 Patna High Court LPA No.23 of 2013 (2) dt.17-06-2013 2 / 4 The appellant, a retired employee of the Bihar State Road Transport Corporation (hereinafter referred to as “the Corporation”), approached this Court under Article 226 of the Constitution in above C.W.J.C. No. 13997 of 2011 to assail the decision of the Corporation to superannuate the appellant from service on his attaining the age of 60 years in 2011. According to the appellant, he was born on 2nd January 1956 and had joined the service of the Corporation on 16th May 1973 before he attained the age of 18 years, the minimum age required for entering the service of the Corporation. Although, the appellant was required to be deemed to have attained the age of 18 years on the date of his employment and retired accordingly, in the case of the appellant the Corporation subjected the appellant to medical examination. On determination of his age by the medical board, his date of birth was entered as that of 23rd December 1951 instead of 2nd January 1956 and the appellant has been sought to be retired accordingly. The learned single Judge has dismissed the writ petition. Therefore, this Appeal. Learned advocate Mr. Banwari Sharma has appeared for the appellant. He has submitted that as early as in 1994, the Corporation took a policy decision that in cases of employment prior to completing 18 years of age, the employee be treated to have entered the service at the age of 18 years and his date of birth be determined accordingly. He has submitted that in view of the said decision dated 29th August 1994, the appellant ought to have been deemed to have attained the age of 18 years on the date of his employment i.e. 16th May 1973. The appellant, therefore, ought to have been continued in service until he reached the age of superannuation in 2016. Instead, the appellant 3 Patna High Court LPA No.23 of 2013 (2) dt.17-06-2013 3 / 4 has been superannuated prematurely on a wrong decision taken contrary to the aforesaid office order dated 29th August 1994. The writ petition was contested by the Corporation. The Corporation has denied that the date of birth of the appellant was entered as that of 2nd January 1956 or that the appellant had ever sought permission to take the S.S.C. examination in 1973, 1974 or 1975. The Corporation has denied that the appellant ever produced the mark sheet or the S.S.C. certificate before the Corporation. In absence of the proof of age it is apparent that the appellant had entered the service before he attained the age of 18 years. He was subjected to medical examination. As early as on 25th December 2000, his age was assessed between 48-50 years. Accordingly, his date of birth was determined as that of 23rd December 1951. The said order was in the knowledge of the appellant. Mr. Banwari Sharma has submitted that after his employment in the Corporation, the appellant took S.S.C. examination given by the Bihar Secondary Education Board in 1973 and 1974. Although, he could not pass the said examination until 1975, the S.S.C. mark sheet clearly postulates that the date of birth of the appellant is that of 2nd January 1956. The appellant, therefore, had a right to continue in service till 2016. In support of his submissions Mr. Banwari Sharma relied upon the judgment of the Hon’ble Supreme Court in the matter of State of Punjab and others v. S.C. Chadha, (2004) 3 SCC 394 and of this Court in the matter of Sidheshwar Paswan v. State of Bihar, 2011(3) PLJR 24. It is apparent that the appellant was aware of the affairs regarding his date of birth. The appellant did not object to being subjected to the medical examination nor the medical opinion was challenged by him. The challenge to the date of birth 4 Patna High Court LPA No.23 of 2013 (2) dt.17-06-2013 4 / 4 determined as that of 23rd December 1951 as early as in 2001 is clearly an afterthought. The appellant has challenged the said order only at the time of his superannuation from service. The judgment of the Hon’ble Supreme Court in the matter of S.C. Chadha (supra) does not support the claim of the appellant. The facts before the Hon’ble Supreme Court were to the contrary. The Hon’ble Court has deprecated the tendency of the employees to get the date of birth altered when they are on the verge of retirement. In the matter of Sidheshwar Paswan (supra), the case was that of alleged fraudulent matriculation certificate. The Bench of this Court did not believe that the matriculation certificate was manipulated by the employee. The said decision will not apply to the facts before us. As admitted by the appellant he had passed the matriculation examination after he entered the service but he never produced the said certificate before the Corporation. The appellant having not challenged the opinion of the medical board, it is now not open to the appellant to challenge the said opinion or to challenge the decision taken by the Corporation relying upon the opinion of the medical board. in limine. We see no merit in this Appeal. Appeal is dismissed (R.M. Doshit, CJ) Pawan/- (Ashwani Kumar Singh, J)