SHYAM BABU Vs. STATE OF BIHAR

JUDGEMENT

(1.) IN this writ petition, the petitioner has assailed the validity of the order dated 25.6.1999, contained in Annexure-2, passed by the Deputy Administrator of the Patna Municipal Corporation. By the said order, 31.8.99 has been determined as the date of superannuation of the petitioner on the ground that he shall be completing 40 years of service in the Corporation on 9.8.1999.

(2.) IN short, the relevant facts are that the petitioner entered in the service of the Corporation on 10.8.1959 and has been working as Driver-cum-Cinema Operator in the Head Office of the Corporation. It is claimed that his actual date of birth is 15.7.1943 which can be verified from the transfer certificate issued by the Headmaster of Rajkiya Madhya Vidyalaya Kewra Patna. It is also stated that in the service book his date of birth is recorded as 15.7.1943. A copy of the School Transfer Certificate has been annexed as Annexure-1, which was issued on 5.1.1982, i.e., much after the entry of the petitioner in service.

(3.) LEARNED Counsel appearing for the respondent-Corporation has submitted that the petitioner has produced two evidence in support of his claim that his date of birth is 15.7.1943; (i) transfer certificate issued by the Headmaster of the School (Annexure-1) and (ii) a photo copy of the service book. Both these documents would show that they were issued/prepared much after the petitioner entered in the service. It has been submitted that in case the entry of the date of birth made in the aforementioned two documents are correct, then at the time of initial appointment, the petitioner's age would be less than 18 years. Under Rule 4(b) of the rules a person attaining the age of 18 years alone was competent to be appointed. It was, thus, submitted that from the said facts the only conclusion would be that the petitioner got his appointment by playing fraud on the Corporation. It is well settled that fraud renders any order nullity. In this view of the matter, the petitioner is not entitled to get a relief which has been claimed in the present writ petition. LEARNED Counsel for the Corporation has also submitted that as the things were prevailing in various Government departments, Board and Corporation the State Government issued instructions in the year 1990 keeping in view the minimum age prescribed for entry in service. As such, the Corporation also adopted the same and has been following the same in all cases. It is submitted that the validity of the action of the Corporation pursuant to the said Government instructions was challenged in this Court in C.W. J.C. No. 8067 of 1992 and the Division Bench, vide order dated 17.11.1992, declined to exercise discretionary jurisdiction and dismissed the writ petition relating to similar claim raised on behalf of the petitioner in the said case.