BHUPENDRA NARAYAN MANDAL UNIVERSITY, LALOO NAGAR v. MADHEPURA THROUGH THE VICE CHANCELLOR
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.473 of 2011 ====================================================== GOPAL CHANDRA DAS SON OF LATE LADLI MOHAN DAS, RESIDENT OF MOHALLA LALIYAHI, WARD NO. 10, POLICE STATION AND DISTRICT KATIHAR. …. …. PETITIONER/S 1. BHUPENDRA NARAYAN MANDAL UNIVERSITY, LALOO NAGAR, VERSUS MADHEPURA THROUGH THE VICE CHANCELLOR. 2. THE REGISTRAR, BNM UNIVERSITY, LALOO NAGAR, MADHEPURA 3. THE PRINCIPAL, MJM MAHILA COLLEGE, KATIHAR. .... .... RESPONDENT/S ====================================================== Appearance : For the Petitioner : Mr. Bhola Prasad For the University : Mr. B.K.Jha, Sr.Advocate & Abhya Kuamr. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 5 14-03-2013 The petitioner is aggrieved by Memo no. 355 dated 20.5.2009, issued by the Registrar, Bhupendra Narayan Mandal University, (in short the University), whereby his service has been terminated with effect from 7.8.2007 treating his date of birth as 7.8.1945. The order of termination was passed on the basis of decision of the Disciplinary committee held on 15.5.2009. The petitioner was appointed as an accountant in M.J.M.Mahila College, Katihar (in short the College) in 1974 by the then Governing body of the college. The petitioner was promoted to the post of head clerk vide decision dated 20.11.1975, whereas the college became a constituent college in
Legal Reasoning
Patna High Court CWJC No.473 of 2011 (5) dt.14-03-2013 Page 2 of 6 1977. In the year 1995, petitioner’s service was deputed to the University. In 2001 he was again transferred to his parent college, namely, M.J.M. Mahila College, Katihar. The date of birth of the petitioner as recorded in Matriculation certificate as well as in the Service book is 7.8.1949. Some complaints were reported with regard to his date of birth stating that the same is not 7.8.1949 but it is 7.8.1945. The complaint was verified and it transpired from the School Leaving Certificate as well as the Admit card issued by the Bihar School Examination Board, Patna (in short the Board) that the date of birth of the petitioner is 7.8.1945. A show cause was issued to the petitioner vide letter dated 5.12.2008 of Registrar of the University asking him to explain as to under what circumstances he is continuing in the College though he has crossed the age of superannuation i.e. 62 years. The show cause reply of the petitioner is contained in Annexure 2. He replied that his date of birth as recorded in Matriculation certificate as well as in the Service book is 7.8.1949. The respondents not being satisfied with the explanation retired him with effect from 7.8.2007 vide Memo no. 355 dated 20.5.2009 treating his date of birth as 7.8.1945. By the impugned order the excess salary drawn by the petitioner from 7.8.2007 up to 20.5.2009 was also directed to be recovered. Patna High Court CWJC No.473 of 2011 (5) dt.14-03-2013 Page 3 of 6 The case of the petitioner is that for last 30 years his date of birth in his service book is recorded as 7.8.1949 and as such he would retire on 7.8.2011 on completion of 62 years as per section 67 of the Bihar State university Act. The petitioner submits that it is not the case of the respondents that he produced a false matric certificate or the same suffers from interpolation. He submits that he produced the same certificate that he got from the Board. A Counter affidavit has been filed by the University. Respondents state that all other documents prior to issuance of Matric certificate would show petitioner’s date of birth as 7.8.1945. He submits that the School Leaving Certificate bearing No. 130 dated 18.5.1963 issued by Katihar High school, Katihar to the petitioner would show that the date of birth has been entered as 7.8.1945. He submits that the Admit card issued by the Bihar School Examination Board would also show the entry as 7.8.1945. Furthermore, the testimonial dated 5.2.2008 issued under signature of the Head Master of the said school supports the aforesaid version. Even the Tabulation Register of the Board mentions his date of birth as 7.8.1945. Besides this, the petitioner himself has mentioned his date of birth as 7.8.1945 in the admission form submitted in the Patna High Court CWJC No.473 of 2011 (5) dt.14-03-2013 Page 4 of 6 D.S.College, Katihar. The main thrust of petitioner’s argument is that he has made no misrepresentation and entry of date of birth on his Service book has been made on basis of the Matric certificate No. 15475. The petitioner submits that as his death of birth in the Service book has remained operative unchanged for 30 years, as such the same should not be allowed to change at this stage, even if there is incorrect recording in the Matric certificate. The petitioner submits that there is no material on record which shows that he committed any misrepresentation, fraud or interpolation with regard to his date of birth. In support of the submission, the petitioner has relied upon a decision in case of Dr Sahib Barnwal reported in 2011(1) PLJR 592 as well as a Division bench order in case of Awadhesh Narain Singh, reported in 2002(1) PLJR 56. In case of Dr. Sahib Barnwal, the petitioner was made to retire treating his date of birth as 6.7.1946 in place of 6.7.1947 on basis of entry made in the Tabulation register as 6.7.1946. This Court observed that such action cannot be taken unilaterally without notice much less at the fag end of service after 35 years and as such the date of birth of petitioner recorded in service book would be valid. In case of Awadh Narain Singh, the learned Judge held that even Patna High Court CWJC No.473 of 2011 (5) dt.14-03-2013 Page 5 of 6 if the initial entry of date of birth was wrong, if that had continued for over 30 years, now at the end of the career, the
Legal Reasoning
same be not changed. Learned counsel submits that present case is similar. I have heard the parties. It is evident from the submission of the parties that if the date of birth of the petitioner is taken to be 7.8.1949, he would retire in July, 2011. In case the same is taken as 7.8.1945, he would have retired in August, 2007. It is not in dispute that the petitioner continued in service till 29.5.2009 which would appear from the termination letter dated 20.5.2009 and letter of the Principal of the College dated 29.5.2009. The Matric certificate shows the date of birth of the petitioner as 7.8.1949. It would appear from the counter affidavit that all other documents like the School Leaving Certificate, Tabulation Register and Admit card issued by the Board would show that his date of birth is 7.8.1945, in the form filled up by the petitioner himself at the time of taking admission in the College. It is not the case of the respondents that certificate issued by the Board is forged or suffers from any interpolation. The date of birth mentioned in the Matric certificate as 7.8.1949 may be a bonadife mistake. The Division bench itself states that Patna High Court CWJC No.473 of 2011 (5) dt.14-03-2013 Page 6 of 6 in the exceptional circumstances the date of birth as entered in the service book could be corrected providing there is unimpeachable document to the contrary. The instant case would fall in the latter category, as there are several documents including the admission form filled up by petitioner himself entering his date of birth as 7.8.1949. In this view of the matter, I do not find any infirmity in the impugned order dated 20.5.2009, issued by the Registrar of the University so far it relates to retiring the petitioner. However, at the same time I find that there has been no misrepresentation on part of the petitioner. It is not the case of the respondents that the petitioner submitted forged/interpolated matriculation certificate in respect of his date of birth. In this view of the matter, the subsequent order directing return of excess money paid is hereby quashed. Any recovery made from petitioner’s salary is to be returned forthwith. The petitioner admittedly worked in the office till 20.5.2009. The University is directed to calculate the post retirement benefits accordingly treating 20.5.2009 as date of retirement. The respondents would make payment of his retrial dues within three months from the date of receipt. Shashi. (Samarendra Pratap Singh, J)