Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.18497 of 2010 ====================================================== Om Prakash Pandit, Son of Late Narayan Pandit, Resident of Gopalpur, Pollice Station- Naubatpur, district- Patna. .... .... Petitioner 1. The State of Bihar. Versus 2. The Director General – cum- Mahasamadesta, Bihar Home Guard Mukhyalaya, Bihar, Patna. . 3. The Up- Mahasamadesta, Bihar Home Guard Mukhyalaya, Bihar, Patna. 4. The Divisional Samadesta, Bihar Home Guard, Saran Division, Saran. 5. The District Samadesta, Bihar Home Guard, Saran. .... .... Respondents ====================================================== For the Petitioner : Mr. Mrityunjay Kr.Tiwary, Advocate. For the Respondents : Mr. Rajesh Kumar Verma (SC-27) ====================================================== PRESENT: HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 4 04-01-2013 Heard learned counsel for the petitioner and
Legal Reasoning
learned counsel for the respondent -State of Bihar. 2. This writ petition has been filed by the petitioner for the following reliefs:- (i) For a direction to to quash the Respondents Authority the order dated 28.5.2010 issued under the signature of Up- Maha- Samadesta, Mukhyalaya, Bihar Home Guard, Patna in Letter No. 1410/E.L.1-96 whereby and whereunder the date of birth of the petitioner has been changed as 5.11.1952 in place of 28.1.1955 mentioned in the service Book after more than twenty eight years of satisfactorily service of the petitioner by the Respondents Authority. (ii) For a direction the Respondents to Authority to any other relief/reliefs for which the petitioner is entitled in the facts and circumstances of the case. Patna High Court CWJC No.18497 of 2010 (4) dt.04-01-2013 - 2 - 3. Learned counsel for the petitioner submits that he had passed Matriculation in the year 1971 and his certificate granted by the Bihar School Examination Board (Annexure-2) shows his date of birth to be 28.01.1955 and the same age is shown in the school leaving certificate of 1971 granted by the principal of the school. 4. Learned counsel for the petitioner submits that he applied for the post of constable in the Bihar Military Police and was appointed as constable on 15.2.1975 and in his service book his date of birth was duly recorded as 28.01.1955 as per matriculation certificate. 5. Learned counsel for the petitioner averred that subsequently after about two decades, i.e. on 02.02.1998 his date of birth was changed on 05.11.1952 as per the order of the District Commandant dated 31.12.1997. The grievance of the petitioner is that this was done without any certificate of the Examination Board or of the school or of the Medical Board showing any different date of birth of the petitioner. 6. Learned counsel for the petitioner claims Patna High Court CWJC No.18497 of 2010 (4) dt.04-01-2013 - 3 - that the entire action and steps taken by the authorities and the impugned orders passed by them were completely illegal arbitrary and perverse and are fit to be rejected and the date of birth of the petitioner has to be accepted as 28.01.1955. 7. On the other hand learned counsel for the respondents vehemently opposes the contentions of learned counsel for the petitioner and submits that the form of appointment certificate was signed on 26.11.1971 and hence the appointment of the petitioner would be deemed to be 5.11.1971 and the petitioner had obtained training and the training certificate was granted in the year 1971. 8. Learned counsel for the respondents submits that such certificate cannot be granted to any candidate unless he attains 19 years of age and hence on that ground an inquiry was made and explanation was sought from the petitioner and thereafter District Commandant Bihar Home Guard passed his order dated 17.01.1998 on the basis of inquiry report holding that when the petitioner obtained training and certificate to that effect which was given to him in 1971 his age should Patna High Court CWJC No.18497 of 2010 (4) dt.04-01-2013 - 4 - be considered to be 19 years in the year 1971 and accordingly his date of birth was calculated as 1952 and the order was affirmed by the Director General Bihar Home Guard in appeal on 28.5.2010. 9. Learned counsel for the respondents claims that in the said circumstances, the impugned orders of the authorities are legal and justified and the petitioner cannot be granted any benefit for his own fault or intentional wrong steps. 10. Considering the averments made by learned counsel for the parties and the materials on record it is no doubt clear that the training certificate was granted to the petitioner in the year 1971 but it is also evident that for appointment on the post of constable some certificate of the school either 8th or Matriculation is required. The respondent has failed to produce or make any statement or any other certificate showing his age to be 19 years in 1971. As such only the Matriculation certificate of the petitioner was on record at the relevant time but in spite of that the authorities had trained the petitioner without calculating that his age was only about 17 years at the relevant time. In the said circumstances the fault does not Patna High Court CWJC No.18497 of 2010 (4) dt.04-01-2013 - 5 - lie with the petitioner who might have been ignorant about the said requirements rather the fault lies with the authorities who were well aware of the specific provisions of appointment and requirement of age. 11. However in any view of the matter it is not disputed that the petitioner was appointed as constable on 15.2.1975 and he is getting salary only thereafter. In the said circumstances even according to the certificates he was 20 years old at that time. These aspects of the matter have not at all been considered by the two authorities, whose orders are under challenged in this writ petition, nor does it appear that the inquiry officer also appreciated the said fact. 12. The Matriculation Certificate issued by the Board is an authentic proof of age which has to be relied unless it is proved to the contrary. This is not the case here and hence the matriculation certificate was the only document on the basis of which the petitioner’s age of retirement has to be considered. No doubt had the petitioner received any monetary benefit of service before attaining majority the matter would have been different but in the instant case the petitioner received no such Patna High Court CWJC No.18497 of 2010 (4) dt.04-01-2013 - 6 - monetary benefit before 1975. 13. In the aforesaid facts and circumstances it is quite apparent that there was no occasion before the authority concerned to change the date of birth of the petitioner in his service book from 28.01.1955 to 05..11.1952. 14. Hence the impugned order of the authority dated 28.5.2010 (Annexurer-8) is hereby quashed and this writ petition is allowed with a direction to the respondents to enter the date of birth of the petitioner in his service book as 28.01.1955 and calculate the date of retirement accordingly. Thus on that basis the petitioner will be entitled to all the monetary and other benefits treating his service to be continuous without any hindrance in the service, due to the impugned orders. (S.N. Hussain, J) Namita/-