SHIVPAYARI DEVI Vs. STATE

JUDGEMENT

(1.) THIS writ application was filed by Ram Baran Singh (hereinafter referred to as the petitioner) and after his death it is being pursued by his legal heir for issuance of a writ in the nature of certiorari for quashing the order dated 20th of September, 1999 (Annexure -1).

(2.) SHORT facts giving rise to the present application are that the petitioner passed the Secondary School Examination conducted by the Bihar School Examination Board in the year 1954 and his date of birth recorded in the said certificate is 9th of June, 1935. According to the petitioner his date of birth is 9.6.1937 and an affidavit to that effect dated 4.8.1960 (Annexure -2) was sworn by his father. Petitioner was appointed as Assistant Teacher on 19.5.1964 and according to him the upper age limit for appointment at that time was 27 years. It is not disputed that in the Service Book of the petitioner both the dates i.e. 9.6.1935 and 9.6.1937 have been recorded against the column of the date of birth in accordance with the Matriculation Certificate and the affidavit respectively. It seems that by order dated 8.10.1977 of the District Superintendent of Education petitioner was transferred to middle school, Jagapakar from middle school, Mangalpur and the later by his letter dated 13.10.1977 (Annexure -3) informed that petitioners date of birth is 9.6.1937. Petitioner had also placed on record the application filed by him for admission to the provident fund which also shows his date of birth as 9.6.1937. The teachers register maintained by the Headmaster has also been placed on record to show that the date of birth of the petitioner is 9.6.1937. All went well with the petitioner till then.

(3.) MR . Rajendra Prasad Singh, Senior Advocate appearing on behalf of the petitioner submits that the date of birth mentioned in the affidavit i.e. 9.6.1937 was accepted by the authority which would be evident from the fact that not only the said date of birth has been mentioned in the service book but also on the ground that had the said date of birth not accepted, the petitioner should not have been appointed being over age on the date of appointment. This factor, according to Mr. Singh, clearly indicates that the date of birth of the writ petitioner as claimed in the affidavit was accepted. J.C. to S.C. Ill, however, contends that there is provision for condoning the upper age limit for appointment and as the petitioner has crossed the upper age limit, it shall be deemed that the same was condoned. He also draws my attention to Rule 96 of the Bihar Financial Rule which, inter alia provides that the date of birth as recorded in the matriculation certificate is the determining factor. He highlights that the petitioner had no where disputed that his date of birth, 9.6.1935 has not been recorded in the matriculation certificate and at no point of time he had got it corrected.