Taj Mohammad v. The State Of Bihar Through Principal Secretary Department Of Energy, Government

Patna High Court CWJC No.913 of 2013 (3) dt.22-02-2013 2 Surgeon, Patna and also to give the benefits of salary for the period for which the petitioner was not allowed to work and also to give all admissible benefits to the petitioner terms of pension, gratuity and other admissible monetary and consequential benefits.”

3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that when the petitioner was appointed on 27.11.1986 on compassionate ground his date of birth was recorded in the official record as 4.12.1956 on the basis of declaration given by the Civil Surgeon cum Chief Medical Officer on 4.12.1986 who after examining the petitioner had found him to be aged about 30 years. It has also been explained that subsequently when the petitioner working on the post of Correspondence Clerk was asked to produce his certificate relating to qualification he had produced his Matriculation certificate which went to show that the date of birth was 1.1.1948 and according to which he had completed 60 years of age on

31.12.2007. The grievance of the petitioner, therefore, is that he ought to have not been forced to retire on the basis of his Matriculation certificate but should have allowed to continue in service till 31.12.2016 as date of birth of the petitioner in the service book was recorded as 4.12.1956.

4. Learned counsel for the State, on the other hand, has Patna High Court CWJC No.913 of 2013 (3) dt.22-02-2013 3 submitted that when the petitioner does not dispute that his date of birth in the Matriculation certificate is 1.1.1948 he cannot claim continuation in service on the basis of his date of birth recorded in the service book on the basis of the certificate of the Civil Surgeon, inasmuch as such medical certificate of fitness cannot be also proof of the age of a qualified person. He has also explained that the petitioner after his retirement himself has not submitted the pension papers and as such, he cannot raise a grievance for payment of retirement benefit.

5. In the considered opinion of this Court the grievance of the petitioner as with regard to his being forcibly retired on

17.7.2010 with effect from 31.12.2007 has to be understood in the context of the provision made in Rule 96 of the Bihar Financial Rules which reads as follows: “96.Every person newly appointed to a service or post under Government should at the time of appointment declare the date of his birth by the Christian era with as far as possible confirmatory documentary evidence such as a matriculation certificate, municipal birth certificate and so on. If the exact date is not known, an approximate date may be given. The actual date or the assumed date determined under rule 97 should be recorded in the history of service, service book, or any other record that may be kept in respect of the Government servant’s service under Government and once recorded, it cannot be altered, Patna High Court CWJC No.913 of 2013 (3) dt.22-02-2013 4 except in the case of a clerical error without the orders of the State Government.”

6. In view of the provisions made in the Bihar Financial Rules where Matriculation certificate is the main basis for recording of date of birth, the advantage taken by the petitioner on the basis of fitness certificate given by the Civil Surgeon showing his age to be 30 years as on 4.12.1986 can be of no avail. The petitioner does not dispute that he has passed his Matriculation examination nor does he dispute that in such Matriculation certificate his date of birth is 1.1.1948. In fact he relies on the certificate of the Civil Surgeon dated 4.12.1986, the relevant portion whereof reads as follows: “His age is, according to his own statement 30 years and by appearance about 30 years.”

7. As would be apparent that the petitioner had made his own statement before the Civil Surgeon to be aged 30 years on

4.12.1986 is suppression of his own Matriculation certificate wherein his date of birth was already recorded as 1.1.1948 and according to which on 4.12.1986 he was aged about 39 years. Thus, if the petitioner himself had played a fraud in getting a medical certificate from the Civil Surgeon by making his false declaration he cannot be allowed to take advantage thereof.

8. The petitioner in fact came to be appointed on Patna High Court CWJC No.913 of 2013 (3) dt.22-02-2013 5 compassionate ground and as such, when he was initially offered a Class III post of Correspondence Clerk for which the minimum qualification was Matriculation, he cannot also claim that his appointment on compassionate ground could have been made without furnishing of Matriculation certificate. The Government policy of compassionate appointment dated 5.10.1981 itself lays that a person concerned must be having requisite qualification for the post. There is no doubt that initially the appointment of the petitioner on compassionate ground was made on Correspondence Clerk and later on he was sought to be reverted on a Class IV post on 8.12.1987 and his writ application, C.W.J.C.No. 3016/2003 against such order dated 8.12.1997 was dismissed and his appeal, L.P.A.No. 693/2003 was also dismissed on 8.8.2003.

9. Thus, it is not in dispute that the initial entry of the petitioner was made on a Class III post on Correspondence Clerk and on which he continued from 27.11.1986 to 8.12.1997. In that view of the matter, this Court does not find any error in the two impugned orders holding the petitioner liable for being retired with effect from 31.12.2007. As a matter of fact when the petitioner on 3.8.2010 in his representation against the impugned order had himself stated that: Patna High Court CWJC No.913 of 2013 (3) dt.22-02-2013 6 ^^esjh rks ;g le> Fkh fd flfoy ltZu ds }kjk mez larqf’V i= Hkstk x;k] ml vk/kkj ij gh esjh lsokfuo‘fRr gksxhA ijUrq “kS{kf.kd ;ksX;rk esa esjh tks mez vafdr gS] ml vk/kkj ij lsokfuo‘fRr djk;h xbZ gSA blds ckotwn Hkh gesa dksbZ f”kdok f”kdk;r ugha gSA** this writ application after 2½ years of passing of the impugned order dated 17.7.2010 must be held to be wholly misconceived. When the petitioner himself had stated that he has got no grievance of his being retired on the basis of his age recorded in the Matriculation certificate, he ought to have not filed this writ application for allowing him to continue in service on the basis of entry of date of birth made in the service book.

10. The next grievance of the petitioner against the order dated 9.10.2010 is also misconceived because the order dated

9.10.2010, as contained in Annexure 8, is merely a show cause notice. Such show cause notice is not amenable to writ jurisdiction as has been held in the case of Union of India Vs. Kunisetty Satyanarayan reported in (2006)12 SCC 28.

11. Thus if the petitioner can still demonstrate by filing his show cause reply within a period of one month from the date of receipt of this order that he did not suppress Matriculation certificate and was not party to opening of the service book on the basis of medical certificate of the Civil Surgeon he may will be saved from rigours to recovery of the salary drawn by him for the period 1.1.2008 to 17.7.2010 when he was made to retire with Patna High Court CWJC No.913 of 2013 (3) dt.22-02-2013 7 effect from 31.12.2007 on the basis of his Matriculation certificate.

12. Be that it may, Annexure 8, the letter of the Executive Engineer dated 9.10.2010 is only a show cause notice and when the petitioner has not stated in the writ petition as to whether he had filed its reply, his grievance against Annexure 8 must be held to be also wholly misconceived. This Court therefore finds no merit in the challenge of the petitioner to the impugned show cause notice dated 9.10.2010.

13. There is however considerable force submission of the learned counsel for the petitioners as with regard to nonpayment of retirement benefit to the petitioner. The petitioner was made to retire from service on 17.7.2010 and thus by this period his claim of retirement benefit ought to have been settled. In any event the respondents on the basis of petitioner’s services rendered for the period 27.11.1986 to 31.12.2007 even now must decide his all retirement benefits, especially when from the letter of the Electrical Executive Engineer, Electric Works Division, Patna dated 23.6.2012 it would appear that the steps for sending the pension papers to the office of the Accountant General has already been taken.

14. In view of above, this writ application is disposed of Patna High Court CWJC No.913 of 2013 (3) dt.22-02-2013 8 with a direction to the respondents to ensure that whatever retirement benefit is admissible and payable to the petitioner on the basis of his service rendered between 27.11.1986

31.12.2007 must be calculated and paid to him within six months from the date of receipt of this order. The decision with regard to recovery from the petitioner of the excess salary drawn for the period 1.1.2008 to 17.7.2010 should be also taken in the same period on the basis of existing reports and the explanation filed by the petitioner to the show cause notice dated 9.10.2010, if any and this exercise also must be completed within the same period of six months.

15. With the aforementioned observation and direction, this writ application is disposed of. (Mihir Kumar Jha, J) surendra/-