Holding

The employee must be superannuated on the basis of the date of birth shown in his matriculation certificate, but the State cannot recover the salary paid after that date as there was no fraud and the employee was permitted to work, so no deduction from retiral benefits is allowed.

Summary

The respondent, a government clerk, had two dates of birth entered in his service book—11‑02‑1944 (as per his matriculation certificate) and 11‑02‑1946. Based on the later date he retired on 29‑02‑2004, but the State argued he should have retired on 28‑02‑2002 and ordered recovery of the salary paid for the two intervening years. The respondent challenged the recovery; the High Court initially dismissed his writ, but the Division Bench set aside the recovery order and directed the State to refund the amount with interest. The Supreme Court held that the employee must be superannuated on the basis of the date of birth recorded in the matriculation certificate, but the State could not deduct the excess salary because the employee was allowed to continue working, there was no fraud, and no notice of retirement was given. Consequently, the employee's retiral benefits are to be fixed as of 28‑02‑2002, excluding the two years of salary paid thereafter, and the appeal was dismissed.

Issues considered

The correct date of birth to be used for determining the employee's superannuation date when two dates are recorded in the service book.
Whether the State can recover salary paid to the employee after the superannuation date in the absence of fraud or misrepresentation.
Whether deduction of the excess amount from the employee's retiral benefits is permissible.

Subjects

service lawretirementsuperannuationdate of birthsalary recoverymisrepresentationfraudservice bookretiral benefitsBihar Finance RulesRule 96

Judgment

-f

_,
• [2008] 17 S.C.R. 297
...(
'

.. '~~
STATE OF BIHAR & ORS.
v.
PANDEY JAGDISHWAR PRASAD
(Civil Appeal No. 7237 of 2008)
A

DECEMBER 11, 2008
B
[TARUN CHATTERJEE AND AFTAB ALAM, JJ.]

,..,,- Service Law- Retirement- Superannuation- Two dates
of birth (DOB) of employee recorded in his service book -
Employee superannuated on the basis of the later DOB - c
_j
Thereafter held by Court that the employee was to be
--::
superannuated on the basis of previous DOB as the same
was based on matriculation certificate - Order of employer
directing recovery of the amount paid as salary beyond his
due date of superannuation - Propriety of - Held : The D '
employee is Jo be superannuated on the basis of DOB as
~ ). mentioned in matriculation certificate - However, the
deduction of amount paid beyond the due date of
superannuation is not permissible as the employee was
allowed to work beyond the date of superannuation and there E
is no allegation of misrepresentation or fraud on the part of
the employee - Direction for fixing retiral benefits without
taking into account the period beyond due date of
superannuation.

...
. .,._ In the service book of the respondent-employee, two F
dates of birth were recorded viz. 11-2-1944 and 11.:2-1946.
Respondent retired' on reaching superannuation
according to the date of birth 11-2-1946, i.e. on 29.2.2004.
Pursuant to an order that the respondent should have
been retired on 28-2-2002 on the basis of his date of birth G
...
" +--
11-2-1944 which was based on his matriculation'
certificate, the appellant passed an order directing
recovery of the excess amount drawn by the respondent.
- Respondent filed a writ petition challenging the order
297 H
298 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
A directing deduction. The petitioh was dismissed by High
Court. The Division Bench of High Court allowed the
intra-court appeal and directed the appellant to return the
amount already recovered with interest. Hence the
present appeal.
r·-<
..
B .,
Dismissing the appeal, the Court

HELD: 1.1. It is true that the date of birth mentioned
in the Matriculation Certificate should be treated as the -r--....
date of birth of the respondent. But it would be open to
c the employee to place documents before the authorities
I
l.-
that the date of birth shown in ~he service book taken from
the matriculation certificate was incorrect. There has been
no such document placed on' record to corroborate the
same, except an affidavit sworn-by the respondent, which
D is on record. Therefore, the respondent ought to have ~

retired on 28th of February,, 2002, on the basis of his ),.

matriculation certificate which shows his date of birth as
,A--'
11th of February, 1944 as recorded in his service book. >
[Para 9] [303-D-F] ~

~

E r
:;....
1.2. The Division Bench of High Court had mentioned .
that there was no allegation qf misrepresentation or fraud
purported to have been perpetrated by the appellant.
Such being the position and in the absence of any
allegation ofthe misrepresentation or fraud made by the
F appellant, the appellant cannot be permitted to raise-the
allegation of misrepresentation or fraud for the first time
in this Court. Moreover, even if it is considered that the
respondent had fraudulently'entered another date of birth
- ~
~

I '
in his service book, as had .been alleged, it should have \

G come to the notice of the authorities during his course
of service, and not after ~e had attained the age of J
superannuation after the expiry of the date mentioned in ...
·---+ ~

the service book which wasI based on the affidavit of the
respondent. [Paras 9 and 1O] [304-B-C-D]
H
STATE OF BIHAR & ORS. v. PANDEY JAGDISHWAR 299
PRASAD

1.3. The respondent cannot be held responsible to A
>-·...., work beyond his date of birth as mentioned in the
matriculation certificate when admittedly in the service
book after affidavit, some other date of birth was also
evident. [Para 1O] [304-F]
8
2.1. The appellant alleged that the respondent had
entered a second date of birth in his service book at a
later period of time. If .at all the respondent entered the
... ~- second date of birth at a subsequent period of time, the
authorities concerned should have detected it and there
should have been a detailed enquiry to determine
c
.. whether the respondent was responsible for the same .
Even if by mistake, higher pay scale was ·given to the
employee, without there being misrepresentation or
fraud, no recovery can be effected from the retiral dues
in the monetary benefit available to the employee. [Para D
1OJ [305-A-C]
l<. -,A
2.2. Since the respondent had worked during the
period after completion of two years from the actual date
of retirement, without raising any objection from the side E
of the appellant and the appellant had got works done by
the respondent, it was not proper at this stage to allow
deduction from his retiral benefits, the amount received
by him as salary, after his actual date of retirement. [Para
11] [306-C-D] F
-..!- 2.3 Since the respondent was allowed to work and
was paid salary for his work during the period of two
years after his actual date of retirement without raising
any objection whatsoever, no deduction could be made
for that period from the retiral dues of the respondent. G
[Para 11] [306-E-F]

Sahib Ram vs. State of Haryana and Ors., 1995 Supp.
(1) SCC 18; Kai/ash Singh vs. State of Bihar and Ors. 2005
(13) sec 5'16 and Hari Singh vs. State of Bihar and Ors. 2000 H
300 SUPREME COU~T REPORTS [2008) 17 S.C.R.

A (10) sec 284, Relied on.;

Radha Kishun vs. Union of India and Ors. (1997) 9 SCC )"'-" '
239, Distinguished '

3. Although the exce~s amount paid for two years to
B the respondent as sala..Y cannot be recovered from the
respondent, but for fixing the retiral benefits, the period
of two years in respect of which salary was received by
the respondent cannot b,e taken into consideration and
the respondent would b{e ·entitled to fixation of retiral
C benefits as on the date of his superannuation i.e. 28th
February, 2002. [Para 15)' (308-E-F] '
Case Law Reference:
1995 Suppl. (1) SCC 18 Relied on Para 10
D
2005 (13) sec s1s Relied on Para 12
2000 c1.o) sec 284 Relied on Para 12
1997 (9) sec 239 Distinguished. Para 14
E
. CIVIL APPELLATE JURISDICTION : Civil Appeal No.
- I

7237 of 2008.

From the final Judgment and Order dated 24.5.2007 of the
F High Courtof Judicature at Patna in LP.A. No. 648 of 2006.

Gopal Singh-and Manish Kr. for the Appellants.

Saket Singh and Niranjana Singh for the Respondent.

G The Judgment of the Co,urt was delivered by

TARUN CHATTERJEE, J. 1. Leave granted.
'

2. This appeal is directed against an order passed by _a
Division Bench of the High Court of Judicature at Patna, by
! , •

H which the respondent had questioned the legality and validity
STATE OF BIHAR & ORS. v. PANDEY JAGDISHWAR 301
PRASAD [TARUN CHATTERJEE, J.]

of an order dated 22nd of August, 2006 passed by a learned A
*'-~ Judge of that Court, whereby the learned Judge had· rejected
the Writ Petition filed by the respondent.
3. The Writ Petition was filed by the respondent raising
grievances against the order of the appellant dated 4th of
December, 2004 directing recovery of the amount of salary for B
two years paid to the respondent on account of a dispute with
regard to his date of birth despite the fact that the respondent
,.-"!:
had worked during that period. The appellant, by the order
dated 4th of December, 2004, as noted herein earlier, directed
recovery of the salary on the basis of that order, which was c
affirmed by a learned Judge of the High Court. Therefore, the
only question that was raised before the Division Bench was
whether the order passed by the State Authority dated 4th of
December, 2004 and affirmed by the learned Judge was
justified or not. The Division Bench, by the impugned order, had D
allowed the appeal and set aside the order of the learned
~ J Judge and quashed the order of the authority effecting recovery
from the retiral dues and also directed the appellant to return
and repay the amount recovered till the date of payment. It is
this order, which is now under challenge before us by way of a E
Special Leave, which on grant of leave, was heard in presence
of the learned counsel for the parties.
4. Before we consider the questions raised before us in
support of the appeal, let us narrate the relevant facts leading

- to the filing of this appeal.
5. The respondent, at the relevant point of time, was
F

working as a Correspondence Clerk (class Ill) in the office of
the Executive· Engineer, Rural Engineering Organisation: Works
Division, Sasaram in the State of Bihar. On 14th of August,
G
1973, the service book of the respondent was opened and two
'
dates of birth of the respondent viz. 11th of February, 1944, and
"1
11th of February, 1946, were recorded simultaneously_ in his
service book. It may be mentioned here that inspite of two dates
of birth having been entered into service of the respondent, the
H
302 SUPREME COURT R~PORTS [2008] 17 S.C.R.

A State Authorities did not correct or delete any of the dates
mentioned above for the entire· period the respondent was in
.. employment with the State Authorities. According to the first
mentioned date of birth, the respondent ought to have retired
on 28th of February, 2002. But he retired on 29th of February,
B 2004 according to the other mentioned date of birth in his
service book. As noted herein earlier, on 4th of December,
2004, a reasoned order was passed vide. memo no. 340, in
the context of an order dated 11th of October, 2004, passed in
C.W.J.C. No. 12886 of 2004, in which the respondent claimed
c for payment of retirement benefit such as pensi_on, gratuity, leave
encashment, etc.

6. By this order, the respondent was ordered to be retired
on 28th of February, 2002, on the basis of his date of birth
mentioned in his service book ,'i.e. 11th of February, 1944, which
D was based on his matriculation certificate. As noted herein
earlier, by the order dated 4th of December, 2004, the appellant
passed an order directing recovery of the excess amount drawn > •
by the respondent.

E 7. Thereafter, on 12th of February, 2005, by the memo Nos.
30 and 31 of the Executive Engineer, Work Division, Sasaram
sanctioned the amount of gratuity and also ordered for
deduction of excess amount from group insurance of the
respondent in twenty equal installments. The Executive Engineer
R.E.O. Works Division, Sa.saram through the memo no. 05
F dated 4th of March, 2005, made a refixation of the amount paid
to the respondent under, Bihar Government Employees
Essential Group Insurance ,Scheme. Aggrieved thereafter, the
respondent filed a Writ Petition before the High Court of
Judicature at Patna and the High Court, by an order dated 2nd
G of August, 2006, dismisse~ the writ petition of the respondent,
in which it was observed that he was not entitled to refund 1as
he had worked .beyond the ;date of his superannuation fo~ which +
he alone was responsible.

H 8. Feeling aggrieved by this order of the learned Judge of
STATE OF BIHAR &. ORS. v. PANDEY JAGDISHWAR 303
PRASAD [TARUN CHATTERJEE, J.]

the High Court, the respondent filed an appeal before the A
."' Division Bench of the High Court which quashed the recovery
order issued by the appellant, as "Vell as the orders of the
learned Judge. The Division Bench, as noted herein earlier,
directed n~fund of the amount already recovered from the
respondent with interest at the rate of 6 percent per annum from B
the date of recovery till the date of payment. Being thus
aggrieved, the appellant has filed this appeal before this Court.
..... 9. We have heard the learned counsel appearing on behalf
of the parties and perused the materials on record as well as
the impugned judgment. It appears that the department raised c
a controversy in regard to the date of birth after about 31 years
-· of service of the respondent. It is an admitted position now that
the amount directed to be recovered, has already been
recovered from the retiral dues of the respondent which has
been ordered by the Division Bench to be refunded to the D
respondent with interest @6%. It is true th~t the date of birth
) _J
mentioned in the Matriculation Certificate should be treated as
the date of birth of the respondent. But it would be open to the
employee to place documents before the authorities that the
date of birth shown in the service book taken from the E
matriculation certificate was incorrect. There has been no such
document placed on record to corroborate the same except an
affidavit sworn by the respondent, which is on record. Therefore,

. 't-
the respondent ought to have retired on 28th of February, 2002,
on the basis of his matriculation certificate which shows his
date of birth as 11th of February, 1944 as recorded in his
service book. The learned counsel appearing on behalf of the
appellant argued that since the service book of the respondent
F

was in custody in which one of the date was mentioned as 11th
of February, 1944, he ought to have retired on 28th of February,
G
2002, and therefore, he had fraudulently continued to serve the
appellant till 29th of February, 2004 thereby receiving undue
~
/
1
payment of salary and other allowances. We find no merit in
this argument. It is to be noted that there was no question of
fraud committed by the respondent before the learned Single
H
304 -
SUPREME COURT REPORTS [2008) 17 S.C.R.
e
~

A Judge or even before the Divisi~n Bench of the High Court. The
Division Bench, ir1 the impugned judgment, had on this aecount >--- ...
subsequently mentioned-this, which is quoted as under:-

c"ln the present case, there was no dispute about the fact
that there is no a/legation of misrepresentation or fraud
B
purported to have been perpetrated by the appellant-
original writ petitioner. "
10. Such being the position and in the absence of any '¥-,.
allegation of the misrepreser:itation or fraud made by the
c appellant, the appellant cannot be permitted to raise the
allegation of misrepresentation or fraud for the first time in this
1

Court .. Moreover, for the sake of argument, even if we consider 1~

that the respondent had fraud~lently entered another date of
birth in his service book, as had been alleged, it should have
D come to the notice of the au,thorities during his course of
service, and not after he had attained the age of superannuation
after the expiry of the date mentioned in the service book which
...._ ...
was based on the affidavit of the respondent. To the contrary,
none of the officials responsible had noticed this during h.is
service period, even during his time of promotions when the
E
service book was required toi be inspected by the officials.
Therefore, it clearly points out to the gross negligence and
lapses on the part of the authorities concerned and in our view,
the respondent cannot be held, responsible to work beyond his
date of birth as mentioned in the matriculation certificate when
F admittedly in the service book,after affidavit, some other date
of birth was also evident. In view of the aforesaid
circumstances, the appellant ought to have deleted the date of
--i" -
birth entered in the service book of the respondent on the basis
of his affidavit as the appellant had already accepted the date
G of birth of the respondent on the basis of his matriculation
certificate which was also produced by the respondent. The
appellant alleged that the respondent had entered a second -jo-
date of birth in his service book at a later period of time. The
respondent vehemently negated this.contention stating that two
H dates of birth were entered simultaneously in his service book
STATE OF BIHAR & ORS. v. PANDEY JAGDISHWAR 305
I PRASAD [TARUN CHATTERJEE, J.]

.._, by the department officials. It is _not needed for this Court to
verify the veracity of the statements made by the parties. If at
A

all the .respondent entered the second date of birth at a
subsequent period of time, the authorities concerned should
have detected it and there should have been a detailed enquiry
to determine whether the respondent was responsible for the B
same. It has been held in a catena of judicial pronouncements
that even if by mistake, higher pay scale was given to the
"'~ employee, without there being misrepresentation or fraud, no
recovery can be effected from the retiral dues in the monetary
benefit available to the employee. This Court in the case of
Kai/ash Singh vs. The State of Bihar and Ors., [2004 ( 1) PLJR
c
289 (SC)], held that recovery sought to be made from the salary
of the employees on the ground of alleged over stay in service
on the basis of age assessed or considered, despite the fact
that the employee has worked during the period of alleged over
stay could not be made. In Sahib Ram vs. State of Haryana & D
Ors., [1995 Supp. (1) SCC 18], this Court has held that even if
-1
by mistake, higher pay scale was given to the employee,
without there being misrepresentation or fraud, no recovery can
be effected from the retiral dues in the monetary benefit
available to the employee. E

11. As noted hereinearlier, in the service book of the
respondent, two dates of birth have been mentioned, which is
not permissible. It cannot be conceived of that the authorities
could not exai:t'line the possibility of two dates of birth to be F
,.._ entered in the service book of the respondent. They ought to
have deleted the initial date of birth based on the matriculation
certificate if the appellants were of the view that the affidavit
sworn by the respondent was correct and the date of birth
appearing in the matriculation certificate must be found to be
G
incorrect, it is needless to say that the affidavit sworn by the
respondent must be on the basis of documents produced by
"t
the respondent to show that the date of birth entered in the
service book initially was incorrect. Instead, the appellant had
not issued any notice of retirement of the respondent on 28th
H
306 SUPREME COURT REPORTS [2008] 17 S.C.R.
e
•
A of February, 2002, which was the date for retirement of the
respondent on his attaining superannuation, i.e. on the basis r
of the date of birth shown in the matriculation certificate. On the
other hand, the appellant allow~d the respondent to work and
got works from him and paid salary.I
Only for the first time, the
·B appellant took note of two dates of birth after he had completed
two years from the.date of hi_s actual date of retirement. Without
going into the question whether the appellant was justified after
completion of two years from the actual date of retirement to 't'...._
deduct two years' salary ar:id other emoluments paid to the
c respondent, we may say that since the respondent had worked
during that period without raising any objection from the side
of the appellant and the appellant had got works done by the
respondent, we do not think that it was proper at this stage to
allow deduction from his retira,I benefits, the amount reqeived
by him as salary, after his actual date of retirement.
D
Considering the fact ttiat there was no allegation of
1

misrepresentation or fraud, which could be attributed to the
respondent and considering the fact that the appellant had !--- ·----
allowed the respondent to work and got works done by him and
paid salary, it would be unfair, at this stage to deduct the said
E amount of salary paid to him. J.Xccordingly, we are in agreement
with the Division Bench decision that since the respondent was
allowed to work and was paid salary for his work during the
period of two years after his ~ctual date of retirement without
raising any objection whatsoever, no deduction could be made
F for that period from the retiral' dues of the respondent.
I
...-1' ""'
12. In Kai/ash Singh vs. State of Bihar & Ors. (2005 (13)
SCC 576], this Court observe d that the employer-State would
1

not be entitled to recover the salary paid in excess after the due
G dat~ of superannuation. In ounview, !his decision was practically ·
based on the concession made by the State before this Court
I

Again in Harl Singh vs. State of Bihar & Ors. [2000 (10) SCC
284], this Court held that since the Gove~nment had never put
_.,.
"
the employee on notice to indicate that the date of birth as
entered in the service book was incorrect though it could have
H
STATE OF BIHAR & ORS. v. PANDEY JAGDISHWAR 307
PRASAD [TARUN CHATTERJEE, J.]

done so and since no notice had been given to the employee A

.. concerned for accepting a date of birth other than the one
,._~

- entered in the service book, the order of retirement could not
be sustained. From the aforesaid_ decision, it is evident that it
was the duty of the State to put the employee on notice about
his date of retirement and not having done so, the appellant was B
not entitled to recover the excess amount paid to the
respondent.
~ -t-
13. A further argument was advanced by the learned
counsel for the parties before the High Court as well as before
us on the applicability of Rule 96 of the Bihar Finance Rules c
for settlement of dispute regarding.the date of birth. In view of
our discussions made herein above and in view of the fact that
we have accepted the observations of the Division Bench of
the High Court that since the appellant had allowed the
respondent to work beyond his due date of superannuation D
without raising any objection and in the absence of
> ..; misrepresentation and fraud to ·be attributed to the respondent,
it is not necessary for us in the peculiar facts and circumstances
of the case to go into the question of interpretation of Rule 96
of the Bihar Finar)ce Rules which is kept open for decision in E
. an appropriate case.

14. Before parting with this order, we may refer to a
decision of this Court strongly relied on by the learned counsel
for the appellant, namely, Radha Kishun vs. Union of India and
Ors., ((1997) 9 SCC 239]. Learned counsel for the appellant F
'I'- relying on this decision sought to argue that even if the
respondent had worked after his due date of superannuation
without having any objection from the appellant, the appellant
was entitled to deduct the amount already received by the
respondent from his retiral benefits. This case, in our view, is G
clearly distinguishable from the present case. In the above-
i mentioned case, there was no dispute as to the date of

.... retirement of the appellant in that appeal, as there was no
controversy in the date of birth of that appellant. There was only
one date of birth mentioned, and he had not retired on the basis H

-"'
308 SUPREME COURT REPORTS [2008) 17 S.C.R.
e
A of his date of birth so entered.· 1"herefore, he had wrongly
;---.
extended his service beyond the date of his superannuation.
But in the present case, there \Rere two dates of birth recorded
in the service book of the respondent. Therefore, there was a
clear confusion in the mind of the respondent as to whether the
B appellant had accepted his corre:Cted date of birth as entered
in his service book when admittedly authorities concerned did
not serve any notice of retirement on the basis of the initial entry
of date of birth in his service book. It should also be kept in "t"'.....
mind that the respondent might have expected that second date
c of birth shown in the service book was accepted by the
authorities for that reason he was allowed to continue in his
service and was paid salary. In the absence of any proof that
the respondent had manipulated. his date of birth by entering a
second date at a later stage, a:nd that he had any malafide
intentions to continue his service, beyond his date of his
D
retirement, w.e are of the view that the decision in the case of
Radha Kishun vs. Union of /ndif1 and Ors. (Supra), would not ...
!-- ..
b.e- applicable in the facts of the present case.
15. There is another aspect in this matter. Although we
E have directed that the excess a~ount paid for two years to the
respondent as salary cannot be recovered from the respondent, .
but we make it clear that for fixi"g the retiral benefits, the period
of two years in respect of which salary was received by the ~

respondent cannot be taken into consideration and the
F respondent. would be entitled t~ fixation of retiral benefits as on
the d9te of his superannuation i.e. 28th of February, 2002. ._.,

16. Accordingly, we do not find it necessary to interfere
with the order of the Division Bench of the High Court in the
peculiar facts and circumstances of the case in the exercise
G o(our power under Article 136 bf the Constitution accepting the
directions made in paragraph ,15 of this judgment.
..,.
17. For the reasons afo~es~id, the appeal is dismissed
subjectto above directions. There will be no order as to costs. ...
H K.K.T. Appeal dismissed.