Yogendra Kumar Sharma, son of late Ram Chandra Sharma, resident of Korawan, P.S. Naubatpur, District Patna v. The State Of Bihar

Patna High Court CWJC No.8897 of 2009 (4) dt.20-02-2013 2 certificate the same could not have been altered or changed to

1.1.1947 only on the basis of earlier declaration made by the uncle the petitioner the examination form. From aforementioned submission and the finding of the authorities reading as follows: ^^izLrqr ekeys esa funs’kd …ek/;fed f’k{kk‰ }kjk vkosnd Jh ’kekZ ds laca/k esa {ks=h; mi f’k{kk funs’kd] iVuk ds i= la[;k 146 fnukad 17-5-08 }kjk ;g izfrosnu izkIr gksus ij dh bUgksaus tUe frfFk 1-1-47 ds LFkku ij gsjkQsjh dj 1-1-1951 djk fy, gSa] izkIr f’kdk;r dh tkap gsrq ftyk f’k{kk inkf/kdkjh] iVuk lacaf/kr fo|ky; tgka ls bUgksaus mPprj ek/;fed ijh{kk ikl dh Fkh rFkk fcgkj fo|ky; ijh{kk lfefr ls tkap dj oLrq fLFkfr Li"V djus dks dgk x;kA izfrosnu izkIr gksus ds ckn ;g rF; mtkxj gqvk fd vkosnd us mPprj ek/;fed ijh{kk tks o"kZ 1967 esa ijh{kk QeZ esa 1-1-1947 tUe frfFk vafdr dh xbZ FkhA bl okf"kZd ijh{kk esa vuqrhZ.k gksus ij iwjd ijh{kk dk QeZ vkonsd }kjk Hkjk x;k ftles a 1-1-51 tUe frfFk vafdr dj fn;k x;kA ijh{kk lfefr us Hkh funs’kd …ek/;fed f’k{kk‰ dks Kkikad 33 fnukad 6-1-08 }kjk vfHkys[kksa ds vk/kkj ij 1-1-47 tUe frfFk gksus dh lqwpuk nh xbZA rn~ijkUr funs’kd …ek/;fed f’k{kk‰ ds }kjk vkjksiksa dks laiq"V gksus ij tUe frfFk 1-1-47 ds vk/kkj ij 31-12-06 ds izHkko ij lsok fuo‘fr ds vkns’k nsrs gq, mDr frfFk ds ckn izkIr dh xbZ jkf’k ds olwyh ,oa dkuwuh dkjZokbZ dk vkns’k fn;k x;kA funs’kd …ek/;fed f’k{kk‰ ds vkns’k ds fo:n~/k vkosnd ds }kjk ekuuh; mPp U;k;ky; ds le{k lh0MCyw0ts0lh0 ua0 2883@09 nk;j fd;k x;k Fkk ftls ekuuh; U;k;ky; }kjk 3-3-09 dks vkns’k ikfjr fd;k x;k rFkk vkosnd dks funs’kd fn;k x;k fd os vihy izkf/kdkj dks ;g larq"V djsa fd buds }kjk tUe frfFk esa fd;s x;s ifjorZu fu;eksa ds ekU; gSA vkosnd dh vksj ls muds fo}ku vf/koDrk }kjk ;g rF; izLrqr fd;k x;k fd muds vkjfEHkd i<+kbZ muds pkpk ds ns[k&js[k esa vkjEHk gqvk ftlesa mudh tUe frfFk 1-1-51 vafdr djkbZ xbZ Fkh] ckn Patna High Court CWJC No.8897 of 2009 (4) dt.20-02-2013 3 esa os nwljs fo|ky; esa ukekadu djk;s ogka Hkh ;gh tue frfFk FkhA vur rd mUgksaus ukekadu f=Hkqou loksZn; cgq|s’kh; fo|ky; ukScriqj esa ukekadu djk;k vkSj ;gha ls mPprj ek/;fed ijh{kk esa 1967 esa ijh{kk esa lfEefyr gq, vkSj mlesa vuqrhZ.k gks x;sA bl ijh{kk ds QkeZ esa tUe frfFk 1-1-47 Fkh vkosnd us ;g Li"V fd;k fd buds vuqrhZ.k gksus ds ckn loZizFke ckj muds firk ds }kjk muds i<+kbZ ij /;ku fn;k x;k vkSj muds xyr tUe frfFk ik;s tkus ij rRdkyhu iz/kkuk/;kid ds le>k vkosnu nsrs gq, iqjd ijh{kk QeZ esa tUe frfFk lgh djrs gq, 1-1-51 fd;k x;k vkSj blh ds vk/kkj ij ijh{kk ikl dh rFkk f’k{kd ds in ij fu;qDr gq,A fu;qfDr ds ckn lsok iqfLrdk esa tUe frfFk 1-1-51 vafdr gksus dh ckr crkbZ xbZA lquokbZ ds le; vkosnd ds }kjk fcgkj fo|ky; ijh{kk lfefr ds vf/kfu;e esa ,slk dksbZ izko/kku vkosnd dh vksj ls izLrqr ugha fd;k x;k ftles a okf"kZd ek/;fed ijh{kk ds fy, vafdr tUe frfFk dks iwjd ijh{kk esa ifjofrZr fd;k tk ldrk gS lkFk gh l{ke izkf/kdkj }kjk rF; le; tUe frfFk esa la’kks/ku dk dksbZ izek.k i= Hkh izLrqr ugha fd;k x;kA lquokbZ ds le; Jh nhukukFk flag lsok fuo‘r lgk;d f’k{kd dh vksj ls muds fo}ku vf/koDrk dh ckr Hkh lquk x;kA muds }kjk vkosnd }kjk xyr <ax ls tUe frfFk es gsjk&Qsjh djus dh ckr dgrs gq, foHkkx dk vkns’k dks mfpr crk;k x;kA lHkh i{kksa dh lquokbZ ds mijkUr ik;s x;s rF;ksa ,oa funs’kd …ek/;fed f’k{kk‰ }kjk izLrqr foHkkxh; vfHkys[kksa ls ;g Li"V gS fd vkosnd ds izkjfEHkd f’k{kk ls gh budh tUe frfFk 1-1-47 Fkh] ijUrq iwjd mPprj ek/;fed ijh{kk esa fcuk l{ke izkf/kdkj ds vkns’k izkIr fd;s tue frfFk esa QkeZ Hkjrs gq, gsjk&Qsjh dk tUe frfFk 1-1-51 dj fn;k x;kA fcgkj fo|ky; ijh{kk lfefr us bl rF; dh iqf"V djrs gq, vfHkys[kksa esa 1-1-47 fd;k x;kA vkosnd }kjk tUe frfFk esa la’kks/ku ds laca/k esa lfefr fu;e izLrqr dj vius i{k esa dksbZ rF; izLrqr ugha fd;k gSA mDr fLFkfr esa ;g izekf.kr gksus ij Hkh fd vkosnd dh tUe frfFk 1-1-47 gS] funs’kd …ek/;fed f’k{kk‰ ds vkns’k es gLr{ksi djus dk dksbZ fu;e laxr vkSfpR; ugha gkssus ds dkj.k vihy vH;kosnu Patna High Court CWJC No.8897 of 2009 (4) dt.20-02-2013 4 vLohd‘r fd;k tkrk gSA** it becomes very clear, namely, there is a document in form of Examination Form duly filled with the signature of the petitioner on the basis of which he had appeared in 1967 Annual Higher Secondary Examination conducted by the Bihar School Examination Board. In this document the date of birth of the petitioner has been shown as 1.1.1947. The plea that the petitioner’s signature on the document was in ignorance will also make no difference because the date of birth was disclosed by the petitioner and thus the same cannot be of any help to the petitioner especially when it is found that the petitioner was appearing in Higher Secondary Education (equivalent to Intermediate) and not in a Nursery Class so as to take advantage of his being naive or innocent. Therefore, if the petitioner subsequently having failed in the Higher Secondary Annual Examination of 1967 had got his date of birth changed to 1.1.1951, the best way for the petitioner was to declare these facts at the time of entry in service and making it clear with the earlier declaration made by the uncle. This information however in fact was never given by the petitioner to the employer that in the record of School Examination Board for 1967 Annual Examination his declaration of the date of birth was 1.1.1947. On being discovered of this forgery or fraud when the Patna High Court CWJC No.8897 of 2009 (4) dt.20-02-2013 5 issue was enquired into, this aspect became clear and therefore, the petitioner now cannot take a plea that his date of birth is actually 1.1.1951 and the other date of birth of 1.1.1947 is a mistake on the part of his uncle. Normally a dispute of this nature of date of birth is not capable of being gone into in writ jurisdiction because that necessarily involves question of fact which can be decided only with the evidence both oral and documentary to be adduced in course of a civil suit. The submission of Mr. Shivendra Kishore that Rule 96 of the Bihar Financial Rules prohibits any change of date of birth on the part of the employee after a period of ten years and therefore, a similar restriction has to be also led for the employer has to be only noted for its being rejected. The provision of Rule 96 of the Bihar Financial Rules talks of a change in a date of birth at the instance of the employees if he finds within a period of ten years that the same was wrongly recorded. That provision is not made for change in date of birth at the instance of the employer. Moreover if a fraud or a forgery in the date of birth is detected in recording the date of birth as in the case of the petitioner as

1.1.1947, there would be no question of putting to it by restriction of any time. It is well settled that a fraud vitiates everything and once this could find out from the enquiry that the petitioner earlier Patna High Court CWJC No.8897 of 2009 (4) dt.20-02-2013 6 had declared his date of birth as 1.1.1947 and later on date of birth as 1.1.1951 entered in the service book by suppressing the earlier declaration made before the Bihar School Examination Board, the petitioner was asked to retire on the basis of original date of birth of 1.1.1947. That being so, this Court does not find any merit in this writ application. After this part of the order was dictated learned counsel for the petitioner submitted that since the order was passed in the year 2009 for also making recovery for the amount which was already paid to the petitioner for the work done before detection of date of birth of the petitioner as 1.1.1947, the petitioner should not be at least saddled with that part of the recovery because he had never sought to misrepresent while continuing in service. Though the concept of misrepresentation in this case will not be applicable because the petitioner was aware of his earlier declaration made as

1.1.1947 but then if he was allowed to continue in service on the basis of his later changed date of birth 1.1.1951 as entered in the service book on the basis of his supplementary examination records, the petitioner should not be subjected to recovery of that amount which has been paid to him by way of salary for the actual work done by him. Ordinarily the petitioner would not be entitled for Patna High Court CWJC No.8897 of 2009 (4) dt.20-02-2013 7 payment of salary and pension both from the same date because the petitioner now will be treated to be a retired Government servant with effect from 31.12.2006 and therefore, any amount paid to him by way of salary 1.1.2007 to 6.2.2009 would be subject to adjustment on the basis of pension admissible to him. In other words, while the petitioner will get all his due retirement benefit on the basis of last salary drawn on 31.12.2006 no recovery shall be made from him for the amount of salary drawn by him from 1.1.2007 to 6.2.2009 when the impugned order was passed seeking to retire the petitioner retrospectively with effect from 31.12.2006. It is, however, made clear at the cost of repetition that actual emolument of the petitioner on the basis of which retirement benefit shall be paid, will be the last day which he was drawing on 31.12.2006 and not one which he had drawn on

6.2.2009. Subject the aforementioned observation and clarification this writ application is dismissed. surendra/- (Mihir Kumar Jha, J)