The principle of estoppel by conduct under Section 115 of the Indian Evidence Act was central to the court's decision, along with the legal implications of the petitioner's conduct at the time of appointment.

Mihir Kr.Jha, J.

1. In this writ application, the petitioner, working as an Accountant of Ram Dayalu Singh College, Muzaffarpur, a constituent college under B.R.A. Bihar University, Muzaffarpur (hereinafter to be referred to as the University), has assailed the order passed by the Registrar of the University dated 1st September, 2005 for superannuating him from service with effect from 18th of August, 2004 on the basis that he had already completed 44 years of service in the college.

2. Learned counsel for the petitioner, while assailing the impugned order, submits that the appointment of the petitioner was made on a Class-4 post in Ram Dayalu Singh College (hereinafter to be referred to as the College) on 18.8.1960 at the age of 16 years 5 months and 22 days, his date of birth being 10th February, 1944. Learned counsel for the petitioner had also explained that the petitioner had acquired the qualification of Intermediate in Commerce in the year 1966 and thereafter he was promoted by the College on the post of Clerk on 1.10.1966 and as such, when the College become a constituent unit of the University in the year 1976, his services were absorbed as a Class-Ill non-teaching employee against the post of Clerk. Learned counsel has further submitted that it was the University which had also promoted the petitioner on the post of Accountant on 14.2.1996 and as such, the University could not have superannuated the petitioner without completing 62 years of age in terms of Section 67 of the Bihar State Universities Act hereinafter referred to as the Act. He has, therefore, submitted that the petitioner was entitled to continue in service till February, 2006 and as such, the impugned order superannuating him with effect from 18th August, 2004 on the basis of completion of 44 years of service was in teeth of the provisions under Section 67 of the Act.

3. Learned counsel for the University on the other hand has contended that the University had found that the petitioner was initially engaged as a Peon on 2.2.1957 in the College against a leave vacancy of one Sri Nand Kishore Pandey and in fact, he had worked from 2.2.1957 to 3.3.1960 and thereafter when his service was terminated w.e.f. 4.3.1960 he came to be reappointed as a Peon only of the fourteen days, w.e.f. 18.8.1960. He would, therefore, submit that the very basis for the petitioner to claim that his date of birth was 10th February, 1944 and such date of birth was declared at the time of his initial appointment was itself shrouded in mystery. Counsel for the University had, therefore, submitted that if the date of birth of the petitioner is accepted to be 10th of February, 1944, he would be deemed to have been appointed in the College at the age of less than 13 years as his first appointment in the college is said to be made in the College on 2.2.1957. Counsel for the University in this context had submitted that as the petitioner had passed all his. examination including the Matriculation after his entry in service in the College on 2.2.1957, they could not be treated to be an authentic proof of his date of birth and in that view of the matter, the decision of the University in the light of the Government decision to allow a person to have a maximum tenure of 44 years treating his age on the date of appointment to be 18 years, cannot be said to be irrational. Counsel for the University in this context had referred to and relied on a Full Bench judgment of this Court in the case of Ragiawa Narayan Mishra vs. Chief Executive Officer, Bihar Rajya Khadi Gramoudyog Board & Ors. reported in 2006(1) PLJR 410 as also a Division Bench judgment of this Court in the case of Baidyanath Prasad Sinha vs. The State of Bihar & Ors. reported in 1983 Labour & Industrial Cases 162.

4. This Court would find that the very basis for the petitioner to claim that his date of birth was recorded in the service book as 10th February, 1944 which could have entitled him the protection of Section 6