Mahesh Rai vs Bihar State Electricity Board and Others

Rakesh Kumar, J.—Heard Sri Ram Sandesh Roy, learned counsel for the petitioner and Sri Subhash Kishore Verma, learned counsel appearing on behalf of respondents/Bihar State Electricity Board. The petitioner, who was unskilled Class-IV employee of the Bihar State Electricity Board, had approached this Court on 26.9.2007 itself for quashing of letter No. 78 dated 11.1.2007, issued by the Electrical Executive Engineer, Electric Supply Division, Hajipur. In the said letter, it was indicated that in view of date of birth recorded in the service book as 6.9.1947, he will be completing 60 years on 30.9.2007 and he will be retiring w.e.f. 30.9.2007.

Learned counsel for the petitioner, while referring to Annexure ''1'' to the writ petition, submits that Annexure ''3'' was contrary to the endorsement made in the service book. He has brought on record photocopy of the service book to show that date of birth was recorded as 23rd June, 1949. He submits that prima facie Annexure ''3'' is contrary to service book and as such, it is fit to be set aside. He further submits that in the seniority list, which was published vide Memo No. 1996 dated 26.11.1995, petitioner''s date of birth was correctly treated as 23.6.1949, which is evident from Annexure ''2'' to the writ petition and petitioner''s name finds place at item No. 36. He submits that without any cogent reason and contrary to record, Annexure ''3'' was issued and as such, it is fit to be set aside. Learned counsel for the petitioner has also relied on an order passed by a Single Bench of this Court on 17.9.2007 in C.W.J.C. No. 4171 of 2007. He has produced certified copy of order. It was submitted that in the said case, although there was an allegation of cutting in the service book in respect of date of birth, this Court had allowed the writ petition and directed to retire the concerned petitioner on the basis of date of birth recorded in the service book.

Sri Subhash Kishore Verma, learned counsel appearing on behalf of respondents/Bihar State Electricity Board has vehemently opposed the prayer of the petitioner. He submits that though it is true that in service book, date of birth of petitioner was recorded as 23rd June, 1949, no document in support of his date of birth was produced. He, while referring to paragraph No. 7 to the counter affidavit, submits that it should have been recorded as 10.1.1947 as per medical certificate submitted at the time of his first joining. He further submits that date of birth of the petitioner was subsequently determined by the Medical Board, which was conducted on the instruction of the Secretary of the Bihar State Electricity Board, Patna, vide letter No. 1065 dated 7.9.2000. According to the Medical Board, the age of the petitioner was determined in between 53 to 55 on 6.9.2001 and as such, date of birth has rightly been treated as 6.9.1947. He has referred to paragraph No. 5 of the counter affidavit.

Of course counter affidavit on behalf of respondents/Board has been filed, but same has been filed without any supporting document. Even on record, the certificate granted by the Medical Board on which heavy reliance has been placed has not been brought on record.

Fact remains that the date of birth, which was recorded in the service book, has been accepted by the respondents/Board, but without any cogent reason, it has been disputed. It has further been evident from Annexure ''2'' that even in 1995, while preparing seniority list, same date of birth was considered by the authority concerned, which was recorded in the service book. There is no allegation of any interpolation in respect of date of birth in the service book nor it is a case where there was any cutting. In case of Rameshwar Singh''s case in C.W.J.C. No. 4171 of 2007, though there was an allegation of cutting in the service book regarding date of birth, this Court had directed to treat the date of birth as recorded in the service book. The case of the petitioner is on better footing than the case of Rameshwar Singh in C.W.J.C. No. 4171 of 2007.

Considering the facts'' and circumstances of the case, the Court is satisfied that the order impugned i.e. Annexure ''3'' was contrary to record and is liable to be set aside.

In view of the fact that Annexure ''3'' has been set aside, the retirement of the petitioner shall be deemed on the basis of date of birth recorded in the service book as 23.6.1949 and the petitioner will be entitled to get all consequential benefits. The writ petition stands allowed.