AWADH NARAIN SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) PETITIONER was enrolled as Home Guard on 2-11 -1961 in accordance with the provisions of Bihar Home Guard Rules, 1952. Later on, he was designated as permanent staff of Home Guard on the post of Havildar Instructor. PETITIONER had already passed the Secondary School Examination, conducted by Bihar School Examination Board prior to his enrolment as Home Guard on 2-11-1961, and in the certificate, his death of birth has been shown as 3-1-1945. This date of birth was recorded in the service book, when he became permanent staff of the Home Guard as Havildar Instructor. A show cause notice dated 15-3-1999 was issued to the petitioner alleging that he was enrolled as Home Guard on 2-11-1961 and for such enrolment, minimum age prescribed is 19 years and on that count, his date of birth should be not later than 2-11 -1942. However, he got his date of birth recorded as 3-1 -1945. PETITIONER filed his show cause and on consideration of the same, the competent authority by its order dated 16-7-1999, held that petitioner's date of birth is 2-11-1942 and consequently, he was retired from service on attaining age of superannuation calculated on that basis.

(2.) IN the present application, petitioner, has challenged the aforesaid order dated 16-7-1999, whereby his date of birth has been held to be 2-11 -1942. This application came up for consideration before a learned Single Judge of this Court, before whom reliance was placed on a Single Judge decision of this Court in C.W.J.C. No. 10906 of 1997 (Sachchidanand Singh v. State of Bihar and Ors.) and the judgment of the Supreme Court in the case of Hari Singh (Civil Appeal No. 6067 of 1999). The learned Single Judge distinguished the case of Hari Singh (supra) on facts. After noticing the ratio of the case of Sachchidanand Singh, (supra) that in the absence of any fraud by the employer and employee, he having been allowed to continue for pretty long time, could not be superannuated on the basis of another date, expressed, his disagreement and directed the matter to be referred to the Division Bench for an authoritative pronouncement. While doing so, the learned Judge observed as follows: If a candidate less than 19 years of age cannot be enrolled as a Home guard, in my opinion, it would amount to suppression of material fact if he secures enrolment at a lesser age. Admittedly, the petitioner had passed the matriculation examination earlier in the certificate whereof his date of birth was shown as 3-1-1945. Had the petitioner declared the said date of birth, it is doubtful if he would have been enrolled on 2-11 -1961. Therefore, it was a clear case of suppression of material facts and in that view I am in respectful disagreement with the learned Single Judge in the case of Sachchidanand Singh, (supra). This is how, this writ application has came up for consideration before us.

(3.) HAVING held so, the next question which falls for consideration is as to whether the employer can alter the death of birth on this basis at any time it likes. It is no doubt true that an employer can take action on detection of fraud. However, in the case in hand, it is not the case of the respondents that they were not aware of this fact earlier. The fact that the petitioner was below 19 years of age on the date' of enrolment, came to be known to the employer when in the year 1966, petitioner declared his date of birth to be 3-1-1945. The respondents accepted the same and for the first time on 15-3-1999, they decided to give show-cause notice to the petitioner. Thus, the misrepresentation made by the petitioner was allowed to continue for a period of more that three decades. I am of the opinion that the entry in regard to the date of birth is an important factor for the employee and the employer both. Change of the date of birth after passage of a long period at the fag end of service is generally not permitted either at the instance of the employee or the employer unless exceptional case is made out justifying interference to prevent miscarriage of justice. It is no doubt true that fraud is one of such instance where an employer can reconsider the matter. However, as stated earlier, the misrepresentation made by the petitioner was known to the employer and no action was taken for a period of more than three decades and in that view of the matter, I am of the opinion that in the fag end of the service, the employer cannot be allowed to change the date of birth of the employee on the ground that intitial entry of date of birth was made in breach of qualification regarding age, prescribed in the Rule.