IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.12823 of 2005
KARU DUSAD SON OF LATE KEWAL DUSAD
RESIDENT OF VILLAGE MATASO, P.S. FATEHPUR,
DISTRICT GAYA.
Versus
1. THE STATE OF BIHAR
2. THE DISTRICT MAGISTRATE, GAYA
3. THE SUB-DIVISIONAL OFFICER, GAYA.
4. THE DEPUTY COLLECTOR, SAMANYA SHAKHA,
GAYA.
5. ANCHAL ADHIKARI, FATEHPUR, DISTRICT GAYA.
6. THE OFFICER-IN-CHARGE OF FATEHPUR, P.S.
FATEHPUR, DISTRICT GAYA.
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For the Petitioner :- Mr. Birju Prasad
For the State :- Mr. A. N. Singh, S. C. VIII
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7 17/01/2011 This writ application has been filed by the
petitioner, who happened to be a Chowkidar for a
direction upon the respondents to treat the date of birth of
the petitioner as 01.06.1961 and to allow him to continue
in service till he reaches the age of superannuation. He
wants fixing of his date of birth on the basis of so called
opinion of the Medical Board given after his
regularization in service instead of 29.05.1950 which has
been entered in his service book, when the service book
was opened.
Averment of the petitioner in the writ application
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is that he is an illiterate person belonging to Scheduled
Caste category and was appointed on the post of
Chowkidar on 25.09.1987 under Circle No. 8/1, Fatehpur
police station in the district of Gaya. As per decision of
the State Government the post of Chowkidar became a
Class IV post under the State with effect from 1.1.1990
and the petitioner was also regularized as such.
Sometime in the year 1998 all the Chowkidars working
in the district, who were otherwise illiterate having no
clear evidence of date of birth, were ordered to appear
before the Civil Surgeon as per direction dated
1.12.1998. His age in terms of annexure-2 was
determined as 37 and a half years as on 31.1.1999.
It is the case of the petitioner that the Circle
Officer Fatehpur wrote a letter to respondent no. 4
seeking direction as to what has to be done with regard to
correction of date of birth of the petitioner in his service
book in light of the Medical Board’s opinion. A request
was also made by the petitioner before the Circle Officer
for correction of his date of birth in the service book but
no step was taken. In absence of correction made in the
service book, petitioner has been made to retire with
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effect from 31.05.2010 which would be evident from a
letter issued by the Circle Officer, Fatehpur where the
name of the petitioner figures at serial no. 4 and which
has been brought on record along with I.A. No. 7833 of
2010.
Submission of learned counsel for the petitioner
is that in light of the Medical Board’s opinion contained
in annexure-2 it was the duty of the respondent State to
correct the date of birth entered in the service book of the
petitioner and to allow him to continue on the post till he
reached the age of superannuation. Failure on the part of
the State to take a decision within the time frame in light
of the evidence contained in annexure-2 will not accrue
in favour of the State.
A counter affidavit has been filed on behalf of
the State wherein the State has taken a stand that the
retirement of the petitioner is based on his date of birth
entered in his service book. He was initially appointed
on the post of Chowkidar on 25.09.1987. Petitioner had
put his thumb impression on the service book as a proof
of entry made therein. The District Magistrate had
ordered for verification of the age of such persons
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wherein no date of birth had been entered in the service
book which was not the case of the petitioner. Petitioner
obtained the Medical Board’s opinion which was already
looked into and rejected by the Collector, Gaya of which
the petitioner had full knowledge. Thereafter he chose to
sleep over the matter and rake up the issue just before his
retirement, looking for a quick wind fall.
Petitioner appeared before the Court in person
and the Court after looking into the records as well as
physical presence of the petitioner had serious doubt
about the authenticity of the so called Medical Board’s
opinion contained in annexure-2 with regard to the age
recorded therein.
For after all there cannot be such wide variance
in the age with regard to the date of birth recorded in the
service book and the opinion expressed by the Civil
Surgeon on 31.1.1999. The Court further had serious
doubt on the opinion of the Civil Surgeon because he
gave a précise age of the petitioner to be 37 and half
years which no Medical jurisprudence supports. Any
medical opinion with regard to age of a person cannot be
given in such exactitude and, therefore, to test the
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validity of the medical opinion and the authenticity of the
claim of the petitioner, the Court directed the petitioner
to appear before the Medical Board constituted at Patna
Medical College Hospital to be headed by the Head of
Department of Medicines, P.M.C.H. The background in
which such a direction came to be issued is evident from
the order of this Court dated 15.09.2010. Petitioner was
subjected to test and a report thereof was submitted to
this Court in a sealed cover. The Medical Board’s
opinion was also handed over to the learned counsel for
the petitioner to respond in view of the findings rendered
therein.
The Medical Board’s report is on record. The
Board consisting of the four members have given their
opinion about the age of the petitioner to be between 58-
60 years. If this opinion of the experts is correct, then on
the face of the same obviously annexure-2 was an
obtained type of document with the object of prolonging
the service of the petitioner under the State for the
obvious reason since from 1.1.1990 post of Chowkidar
became a government post, which entailed many a
benefits. Petitioner, therefore, wanted to hang on to the
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post as long as he could.
After the opinion of the Medical Board of
P.M.C.H., learned counsel for the petitioner abandoned
his claim with regard to his assertion that his date of birth
should be treated as 1.6.1961 instead of 29.5.1950. His
contention is that in light of some decisions rendered by
this Court in similar circumstance, petitioner should
beget the benefit of lower age determined by the Medical
Board since in the opinion of the Medical Board age of
the petitioner has been shown to be between 58-60 years.
His age should be treated to be 58 years and he should
be allowed to continue in service till he reaches the age
of 60 years. Some of the decisions in this regard are the
cases of Bihar Electricity Board Vs. Bihar Power
Workers Union and others reported in 2000(3) PLJR,
65, Ram Chela Vs. Bihar State Electricity Board
reported in 2006(1) PLJR, 65 and Rajendra Mishra
Vs. Bihar State Electricity Board and others reported
in 2001(1) PLJR, 457.
The question, therefore, arises now whether any
kind of interference is warranted in this case or whether
the principles decided in some of the cases relied upon
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by the petitioner, referred to above, will have application
to the case of the present petitioner as well.
The Court is of the opinion that the principles
laid down by the decisions, referred to above, cannot be
applied to the case of the present petitioner because
petitioner was subjected to Medical Board on the orders
of this Court to verify the authenticity of the claim of the
petitioner or the genuineness of the assertions made in
the writ application. It is the stand of the petitioner in
the writ application that according to him, he is 1961
born based on the opinion of Civil Surgeon, contained in
annexure-2 and that he had a right to continue on the post
of Chowkidar till he reaches the age of 60 years. Copy
of the service book annexed by the petitioner himself as
annexure-1 has stated his date of birth as 29.05.1950.
Even if it is accepted that the petitioner did not know
what had been recorded in the service book but the
present Medical Board’s assessment as to the age of the
petitioner more or less coincides with the date of birth
recorded in the service book of the petitioner. His age
has been determined between 58-60 years and if the
petitioner is treated to be born in 1950, then he does
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reach the age of 60 years in the year 2010 and it cannot
be his case now that he is of 49 years of age. In that
view of the matter, no direction surely can be given upon
the respondents to correct the date of birth of the
petitioner in the service book on the basis of the earlier
opinion of the Civil Surgeon, Gaya contained in
annexure-2 which was a begotten document to sub-serve
the interest of the petitioner.
In so far as extending the benefit of the ratio of
the decisions to the petitioner are concerned, the same
cannot be extended to him for the simple reason that if
the authenticity of the claim of the petitioner fails and the
assertions made in the writ application by the petitioner
with regard to his age has otherwise been found to be
false and misleading, as has been corroborated by the
new opinion of the Medical Board, then this Court is not
willing to extend the helping hand to the petitioner
because every person is expected to approach the Court
with clean hands and the petitioner has not approached
the Court with a clean hand by stating the true facts. In
fact, it is a kind of gamble which the petitioner was
trying to play to beget benefit of extended age of
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superannuation on the face of what had already been
recorded in the service book on the basis of the Medical
Board’s opinion which did not indicate true state of
affair and when the facts are established otherwise.
This is a case, in the above stated circumstance,
which does not warrant any interference by this Court.
This writ application has no merit and, therefore, it must
fail.
This writ application is dismissed.
AMIN/ (Ajay Kumar Tripathi, J.)