Subodh Paswan vs The State Of Bihar And Ors
2025 Latest Caselaw 1820 Patna

Patna High Court

Subodh Paswan vs The State Of Bihar And Ors on 17 February, 2025

Author: Harish Kumar

Bench: Harish Kumar

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.2326 of 2019
     ======================================================
     Subodh Paswan, S/o Late Kapileshwar Paswan, Resident of Village and P.O.-
     and P.S. Pandaul, District-Madhubani.


                                                                 ... ... Petitioner/s
                                        Versus

1.   The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2.   The Director General-cum-Commandant General Bihar, Home Guard
     Battalion, Bihar, Patna.
3.   Dy. Commandant General, Bihar Home Guard Battalion, Patna.
4.   The District Commandant, Bihar Home Guard, Madhubani.

                                                                ... ... Respondents

     ======================================================
     Appearance :
     For the Petitioner/s   :      Mr. Ram Hriday Prasad, Advocate
     For the Respondent/s   :      Mr. Sheo Shankar Prasad, SC-8
     ======================================================
     CORAM: HONOURABLE MR. JUSTICE HARISH KUMAR
     ORAL JUDGMENT
      Date : 17-02-2025

                      Heard the parties.

                  2. The petitioner is aggrieved with the order dated

      25.12.2018

(Annexure-11) issued by the District Commandant,

Bihar Home Guard Battalion, Madhubani, whereby the

petitioner has been made to retire w.e.f. 31.12.2018 after

completion of 60 years of age as per the record/documents

available in the Home Guard Office. The petitioner further

prayed for issuance of a writ in the nature of mandamus seeking

a direction upon the respondents to consider the date of birth of

the petitioner as 15.02.1970 recorded in the Admit Card, School Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

Leaving Certificate, submitted at the time of appointment and

allow him to discharge duty as Home Guard Constable till

28.02.2030 and grant all the consequential benefits.

3. Briefly stated, the case of the petitioner is that the

petitioner was duly appointed as a Home Guard on 06.11.1989

by the District Commandant, Bihar Home Guard, Madhubani.

At the time of selection of the petitioner, he had submitted his

Admit Card and the School Leaving Certificate, wherein his

date of birth was duly mentioned as 15.02.1970. In support of

the aforesaid contention, the copies of the Admit Card and the

School Leaving Certificate have been placed on record. It is

further contended by the learned counsel for the petitioner that

after expiry of every four years, a bond paper was required to be

filled up by him, wherein at all the relevant time he noted his

actual date of birth as 15.02.1970. There are other documents in

support of the aforesaid contention suggesting the date of birth

of the petitioner as 15.02.1970, such as driving licence. To the

utter dismay, for the first time, the petitioner came to know on

28.08.2018 that notwithstanding his date of birth as 15.02.1970,

in the nomination roll, an incorrect and an imaginary date of

birth has been inserted showing his age to be of 30 years.

4. Aggrieved with the aforesaid action, the petitioner Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

immediately submitted representation for making necessary

correction, based upon the Admit Card, School Leaving

Certificate and other relevant documents. On receipt of the

application, the matter was forwarded to the District

Commandant, Madhubani to do the needful and finally the

matter was placed before the D.G. of Police-cum-Commandant

General, Bihar Home Guard. In the aforesaid premise, the

Deputy Commandant General, Bihar, Home Guard, Battalion,

directed the District Commandant Bihar, Home Guard,

Madhubani to make an enquiry in the matter of date of birth of

the petitioner and submitted a report in this regard. The

petitioner was asked to appear before the concerned respondent.

Pursuant thereto, the petitioner appeared and submitted all the

relevant necessary documents to support his claim. Despite the

aforesaid fact, no correction in the date of birth of the petitioner

was effected. The grievance has been raised before all the

authorities concerned but it was rather unfortunate, the

impugned order came to be passed allowing the petitioner to

superannuate on 31.12.2018 by treating an imaginary date of

birth of the petitioner, compelling him to approach this Court.

5. Adverting to the aforesaid facts, learned counsel for

the petitioner further contended that in the nomination record, Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

an imaginary date of birth has been inserted without the consent

of the petitioner and it has only been mentioned 30 years at the

time of selection as a Home Guard. Had the petitioner been

knowing this fact, he would have definitely approached the

authority concerned and rather before this Court but on all the

occasion, at the time of submitting bond paper, though he

inserted his date of birth as 15.02.1970 but at no point of time

any objection has been raised. Reliance has also been placed on

a decision of this Court passed in the case of Ram Shobhit Rai

v. The State of Bihar and Others [1989 0 BBCJ 141].

Referring to the aforesaid report, learned counsel for the

petitioner, thus contended that since the petitioner came to know

at the fag end of his service that the entry of his date of birth in

the record had wrongly and incorrectly been mentioned,

therefore, the delay and laches would not arise; in fact, the

laches, if any, that is on the part of the respondent authorities

who have not entered the date of birth of the petitioner on the

basis of the Admit Card and the School Leaving Certificate,

which were furnished at the time of selection.

6. Learned counsel for the State, dispelling the

aforesaid contention has submitted that for the purposes of

selection of Home Guard, at the relevant time, the required Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

qualification was only 5th standard passed with the minimum

age of 19 years as required under Rule 4(a) of the Bihar Home

Guard Rules, 1953 (for short 'the Rules, 1953'). The date on

which the selection took place; had the date of birth of the

petitioner been taken into consideration, he would have been

ineligible for even consideration for selection as on the date of

selection, the petitioner was only 18 years 10 months and 17

days. In the light of the aforesaid facts, the case of the petitioner

was duly considered and came to be rejected. It is also the

contention of the learned counsel for the State that law is well

settled, correction of date of birth at the fag end of service is not

permissible unless in exceptional circumstances.

7. At this stage, learned counsel for the petitioner has

placed an order of the Hon'ble Supreme Court rendered in the

case of Hari Singh v. The State of Bihar & Others [Civil

Appeal No. 6067 of 1999/(2000) 10 SCC 284] and contended

that in the said case the authorities have found that the date of

birth entered in the service record if taken into consideration,

the appellant found to be minor; nonetheless, when the matter

came up for consideration before the Hon'ble Supreme Court,

the Court held that the impugned order of Government cannot

be sustained as the Government never put the employee on Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

notice to indicate that the date of birth as entered in the Service

Book is incorrect, though it could have done so and accordingly,

the Hon'ble Court set aside the order of the High Court,

affirming the order of the authorities.

8. This Court has heard the learned counsel for the

respective parties and also perused the materials available on

record.

9. The matter was taken up on 25.11.2024, in order to

put quietus to the litigation, this Court directed the concerned

respondent(s) to produce the original service record in relation

to the petitioner on 09.12.2024. In pursuance to the order of this

Court, the record is placed; after going through the records, this

Court finds that in the nomination register, the age of the

petitioner was only mentioned as 30 years, likewise the other

candidates with different respective ages. The record does not

contain the actual date of birth as has been submitted by the

petitioner. True, it is that at no point of time, when the bond was

submitted by the petitioner with his date of birth as 15.02.1970,

there had never been any confrontation by the authorities

concerned nor the petitioner has been put to notice, but this fact

alone cannot wash out the nomination record which was duly

prepared at the time of selection of the petitioner where his age Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

was entered as 30 years: Suffice to observe here, there was no

interpolation and overwriting. Had the petitioner been aggrieved

that his date of birth was not mentioned as per the

certificate/documents referred by him rather, the age has been

mentioned as 30 years, the petitioner should immediately

approach before the authorities concerned at the earliest.

10. This Court also finds substance that in pursuant to

Rule 4(a) of the Rules, 1953, the minimum age for selection of

Home Guard was prescribed up to 19 years and had the

contention of the petitioner is accepted, he would become

ineligible for selection to the post of Home Guard.

11. With due regard to the order of the Hon'ble

Supreme Court in the case of Hari Singh (supra), the order was

passed in the premise where in the service book the date of birth

was correctly mentioned as per the concerned Home Guard, but

he was forced to prematurely retired on the ground that if such

date of birth is accepted the petitioner had not even completed

19 years of age. Hence, the matter in hand is juxtapposite to the

referred decision. Further in the case of Ram Shobhit Rai

(supra), while the petitioner was working as a Sub Inspector of

Police, the Home Department through its notice dated

26.02.1976, invited application from those police officials, Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

where date of birth was wrongly recorded contrary to the

Matriculation certificates, within one year from the said circular.

But the petitioner could avail the remedy belatedly, however, the

claim of the petitioner came to be rejected finally by Inspector

General of Police that there was no provision for making a

correction in the service book on the basis of matriculation

obtained after entering the service. The Court placing reliance

upon a decision in the case of Murli Manohar Tiwary v. The

State of Bihar [1986 PLJR 1180/ 1986 SCC Online Pat 223]

has finally observed that the circular would be available for

both, who passed the matriculation examination before entering

the service and one who had not passed the matriculation

examination, if the officer concerned is able to show his case is

genuine. The learned Court finally set aside the order of the

concerned authority and observed that the petitioner's

representation was not considered in accordance with law and,

thus, directed as follows:-

"16. Having considered the case and the contentions raised before me, I have no hesitation in holding the petitioner's representation was not considered in accordance with law by the respondents, the order contained in annexure'10' is not sustainable in law and it is, accordingly, quashed.

Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

"17. It, however, is not a case in which this Court can issue mandamus to correct the date of birth of the petitioner in the service book. As such correction will require satisfaction as to the correctness of the statement of the petitioner about the correctness of the date of birth in the admit card of the Patna University, the respondents can legitimately verify its correctness from the Patna University and satisfy themselves about the same."

The facts of the, afore-noted, case is also not

identical to the present, where the claim has been made at the

fag end.

12. The law with regard to the correction of date of

birth at the fag end of service has been duly considered by the

Hon'ble Apex Court on various occasions. In the State of T.N.

v. T.V. Venugopalan [(1994) 6 SCC 302], the Hon'ble Court

has observed that the government servant should not be

permitted to correct the date of birth at the fag end of his service

career. It would be worth benefiting to encapsulate the relevant

observation.

"7. ... The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it. When rejected, on grounds of technicalities, question them and remain in office till the period claimed for, gets expired. This case is one such stark instance. Accordingly, in our view, the Tribunal has grossly erred in showing overindulgence in granting the reliefs even trenching beyond its powers of allowing him to remain in office for two years after his date of superannuation even as per his own case and given all conceivable directions beneficial to the employee. It is, therefore, a case of the grossest error of law committed by the Tribunal which cannot be countenanced and cannot be sustained on any ground."

13. In Secretary and Commissioner, Home

Department and Others v. R. Kirubakaran [1994 Supp (1)

SCC 155], the Hon'ble Supreme Court while reiterating the

legal position that the Courts have to be extremely careful when

application for alteration of the date of birth is filed on the eve Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

of superannuation or near about that time, has succinctly

observed that whenever an application for alteration of the date

of birth is made on the eve of superannuation or near about that

time, the court or the tribunal concerned should be more

cautious because of the growing tendency amongst a section of

public servants, to raise such a dispute, without explaining as to

why this question was not raised earlier.

14. In State of Uttaranchal and Others v. Pitamber

Dutt Semwal [(2005) 11 SCC 477], the Hon'ble Supreme Court

has denied the relief to the government employee on the ground

that he sought correction in the service record after nearly 30

years of service with an observation that the High Court ought

not to have interfered with the decision after such a long period.

15. Recently, the Hon'ble Supreme Court in the case of

Karnataka Rural Infrastructure Development Limited v. T.P.

Nataraja and Others with other analogous cases [(2021) 12 SCC

27], after reiterating the various decisions, covering the issue on this

point, has summarized the law on the issue of correction of date of

birth in para-11 of the decision, which is quoted hereunder.

"11. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarised as under:

Patna High Court CWJC No.2326 of 2019 dt.17-02-2025

(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) application can be rejected on the ground of delay and laches also more particularly when it is made at the fag-end of service and/or when the employee is about to retire on attaining the age of superannuation."

16. In view of the aforesaid facts and the position

obtained in law, especially the fact that in the nomination

register, there is no whisper with regard to the date of birth of

the petitioner as claimed by him in the writ petition as also the

delay and laches in approaching the authority and the Court at

the fag end of service, this Court does not find any merit in the

writ petition. Accordingly, the writ petition stands dismissed.

(Harish Kumar, J) rohit/-

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Uploading Date          28-02-2025
Transmission Date