Jharkhand High Court
Kalanand Jha vs State Of Jharkhand And Ors. on 10 July, 2001
Author: S.J. Mukhopadhaya
Bench: S.J. Mukhopadhaya
ORDER S.J. Mukhopadhaya, J.
1. The petitioner has challenged the order No. 18, dated 31st May, 2001, communicated vide Memo No. 2938-41, dated 31st May, 2001, whereby and where-under, the petitioner has been intimated the date of superannuation as 31st May, 2001.
2. The grievance of the petitioner is that respondent Judicial Commissioner, Ranchi has issued the impugned order, superannuating the petitioner w.e.f. 31st March, 2001, without taking into consideration the actual date of birth as recorded in his service book and the matriculation certificate.
3. In terms with Court's order the original service book of the petitioner was produced on 21st June, 2001. The Court made the following observations ;--
"From the 2nd page of service book, prima facie, it appears that the date of birth of petitioner was recorded as 18th May. 1945 on the basis of matriculation certificate. Therein, it has also been recorded that the petitioner has passed matriculation examination.
The said page seems to have been interpolated and the digit '5' has been changed to digit '3' and thereby the date of birth, prima facie, seems to have been changed from 18th May, 1945 to 18th May, 1943. It cannot be presumed that the petitioner made such interpolation in the date of birth to his advantage.
The Matriculation Certificate issued in the year 1960, passing of which recorded in the service book shows the petitioner's date of birth as 18th May, 1945.
By the impugned order, dated 31st May, 2001, the learned Judicial Commissioner, Ranchi has not dealt the aforesaid matter, nor made it clear as to whether any minimum age for entry in the services of the State was prescribed by the State or not, when the petitioner was appointed.
Place the case for further hearing under the heading 'for admission' on 4th July, 2001. The respondents will file counter- affidavit in the meantime.
The service book produced, is returned with direction to the respondents to get the same ready for placing it before the Court on the next date.
Let a copy of this order be handed-over to Mr. B. Poddar, learned AAG for communication to Judicial Commissioner, Ranchi."
4. The respondents in their counter-affidavits have given details of service history of petitioner, as mentioned below.
5. The petitioner was initially appointed by the Civil Surgeon, Ranchi, vide memo No. 1579, dated 2nd March, 1962. The service book was opened and prepared in 1963 by Prasar Seva Khand Padadhikari, Ranchi while the petitioner was in the services of the State. The petitioner subsequently joined the civil Court, as Lower Division Clerk in 1965. Thereafter, no fresh service book was opened, the earlier service book having received from the Health Department of the State.
6. At para 6 to the counter-affidavit it has been accepted that the date of birth of petitioner has been written in such a way that it can be read both as 1943, as well as, 1945. However, plea has been taken that the petitioner having joined the services of the State on 3rd March, 1962, if his year of birth is treated as 1945 in that event he is to be treated a minor at the time of appointment. On the other hand, if the year of birth is treated as 1943, then only the petitioner can be treated to have attained majority of 18 years at the time of his appointment.
7. The other stand taken by the Judicial Commissioner, Ranchi is that a person cannot serve more than 40 years as the minimum age for appointment is 18 years and age of retirement is 58 years. However, the aforesaid stand taken on behalf of Judicial Commissioner, Ranchi cannot be accepted, but to be rejected for the reason as discussed hereunder.
8. Admittedly, the petitioner passed matriculation examination in March 1960 and the certificate was issued on 1st December, 1960, i.e., much prior to his appointment. The service book of petitioner was opened on 28th/30th December, 1963 wherein it was taken into consideration that he has already passed the matriculation examination. On perusal of the original service book it will be evident that the date of birth (by Christian era) was recorded as 18th May, 1945. Subsequently, it was interpolated and the digit '5' was changed to '3'. It cannot be accepted that the date of birth was changed by the petitioner to his advantage that too when the service book was not in his custody.
9. There is nothing on the record to suggest any minimum age prescribed in the year 1962, at the time the petitioner was appointed. The Rule 54 of Bihar Service Code, 1952 though prescribes maximum age limit for appointment in the services of the State, no minimum age prescribed therein.
10. Earlier no minimum age was prescribed for appointment in the services of the State which will be also evident from Rule 57 of Bihar Pension Rules, 1950, which reads as follows :--
"57. For a Government servant in inferior service, qualifying service, shall not begin until the Government servant concerned attained the age of 16 years."
11. Almost similar matter fell for consideration before a Division Bench of Patna High Court in 'Mokhtar Ahmad v. B.S.R.T.C.', reported in 1995 (1) PLJR 183. In the said case also a similar plea was taken that the person having completed 40 years of service is to superannuate from service. The Patna High Court taking into consideration the provisions of Rules 54 and 73 of the Bihar Service Code held that an employee stands superannuated only on attaining the age of superannuation, and cannot be retired on the ground of completion of 40 years in service.
12. Similar was the view of this Court in Mantu v. C.C.L.', reported in 2001 (1) JLJR 117 : 2001 (1) Jhr CR 181.
13. For the reasons aforesaid the impugned order, dated 31st May, 2001 cannot be held to be legal, accordingly, it is set- aside.
14. In the result, the petitioner stands reinstated. He will be also entitled for the full salary of the period he remained out of service, but because of impugned order.
15. The writ petition is allowed with the aforesaid observations.
16. Petition allowed.