Ab. Qayoom vs State of Jammu & Kashmir and Others

The Appellant was an employee of the State Government. On December 1, 1993, by a letter, he was told that as per his date of birth recorded

on his Service Hook, he would retire in the month of March, 1994, as on March 31, 1994. In the letter it was further stated that since the Service

Book of the Appellant is not authenticated even on its first page and all entries upto July 16, 1969, the Appellant should produce his birth

certificate so that his pension papers alongwith Service Book may be forwarded to the competent authority for further necessary action. On receipt

of this letter, the Appellant produced before his employer duplicate of a School Leaving Certificate issued on October 12, 1993 by the

Government M.I. Higher Secondary School, Kargil. This certificate, amongst others, held out that the date of birth of the Appellant as per School

Admission Register is 11 Bahdoon, 1997 Bikrami corresponding to August 23, 1940 in Christan era. The employer, thereupon, by a letter dated

February 9, 1994 requested the said school to confirm the date of birth of the Appellant. In reply thereto, by a letter dated February 22, 1994, the

Principal of the said school informed the employer of the Appellant that the date of birth of the Appellant is 11.05.1997 Bikrami era as per

admission records corresponding to August 23, 1940 in Christian era. Neither the said certificate nor the said letter of the Principal of the

concerned school could satisfy the employers to the date of birth of the Appellant. It accordingly proceeded to retire the Appellant on March 31,

1994.

Challenging such action, the Appellant filed a suit. In that, amongst others, he sought a declaration that he was born on 11 Bahdoon, 1997

Bikrami era corresponding to August 23, 1940 in Christian era. The suit was contested by the employer by filing a written statement. Upon

consideration of the pleadings of the parties, the trial court framed nine issues. The first and the foremost of such issue was:

Whether true and actual date of birth of Plaintiff as per Service Record and School Certificate is 23.08.1940?

On behalf of the Appellant three wit nesses were examined. On behalf of the Defendants one witness was examined. The Appellant was one of

the witnesses for his cause. His second witness was a neighbour. The third witness came on subpoena from the school. He produced the

counterfoil of the said certificate from the school. The Service Book, the duplicate School Leaving Certificate dated October 12, 1993, the

Counterfoil thereof as was produced by the school as well as the letter of the school dated February 22, 1994 were tendered as documentary

evidence.

Upon consideration of the evidence tendered by the parties at the trial. The trial court dismissed the suit. Aggrieved thereby, the Appellant

preferred an appeal and the appeal too was dismissed for similar reasons for which the suit was dismissed by the trial court. Aggrieved thereby, the

Appellant is before us in the present Letters Patent Appeal.

Before us, it was contended that it would be evident that as on the date of institution of the suit the date of birth of the Appellant in his Service

Book was recorded as 11.05.1997. It was submitted that after the suit was filed, on July 8, 1993, the Accounts Officer to the District

Development Commissioner, Leh wrote the date of birth of the Appellant in the Service Hook as March 25, 1936 as per seniority list circulated

under an order dated February 2, 1992. It was contended that such insertion made in the Service Book subsequent to the filing of the suit was of

no effect. It was further submitted that the said insertion was made as per seniority list circulated on February 3, 1992, but the fad remains that the

said seniority list was not produced as evidence at the trial of the suit. Accordingly, it was contended that such insertion was without any basis. The

Appellant further contended that the duplicate of the School Leaving Certificate issued on October 12, 1993 depicted that the date of birth of the

Appellant as per Admission Register is 11 Bahdoon 1997 corresponding to August 23. 1940. It was submitted that the letter of the Principal of the

school dated February 22, 1994 also made it absolutely clear that the date of birth of the Appellant as per Admission Register of the school is

11.05.1997 Bikrami era corresponding to August 23, 1940. It was further submitted that the counterfoil of the School Leaving Certificate

produced from the school also suggests that the date of birth of the Appellant as per Admission Register is 11 Bahdoon 1997 corresponding to

August 23, 1940. It was contended that in such circumstances the onus stood shifted to the Defendants in the suit, but the Defendants could not

shift the onus back to the Appellant by producing any evidence, oral or documentary. Accordingly, it was submitted that the aforementioned issue,

in the circumstances, could only be answered in favour of the Appellant.

The issue, as aforesaid, was, ""whether the true and actual date of birth of the Plaintiff as per service record and school record is 23.08.1940?

There cannot be any dispute that the service record as well as the School Leaving Certificate depicted that the date of birth of the Appellant is

August 23, 1940. But the issue was not whether the service record and the school, certificate reflect the date of birth of the Appellant as August

23, 1940. The issue was whether the date of birth of the Appellant recorded in the service records and the school certificate as August 23, 1940

was in fact the true and actual date of birth of the Appellant? Therefore, the burden to prove that the actual dale of birth of the Appellant was

August 23, 1940, as reflected in his service records and in the school certificate, was that of the Appellant.

In order to discharge such burden, the Appellant produced himself as one of the witnesses. He could not be regarded as a reliable witness to

prove his own date of birth. In addition to that, the Plaintiff produced Shri Mohammad Hussain Khan, a neighbour of the Appellant, as witness.

This witness deposed that the Appellant was born in the year 1940. In cross examination, this witness could not furnish any information pertaining

to the Appellant. He could not even say when the Appellant went to school or was employed. No reliance was placed by the trial court as well as

by the appellate court on this witness. Concurrent findings recorded by the twocourts cannot be interfered with unless it is shown that the courts,

while appreciating the evidence of the said witnesses, made a gross error. No attempt was made before us to demonstrate the same.

The third witness who came to depose on behalf of the Appellant was Shri Gulzar Ahmad who was summoned to produce documents from the

school. This witness produced the counterfoil of the aforementioned School Leaving Certificate. The counterfoil of the aforementioned School

Leaving Certificate depicts that the same too was written on October 12, 1993 when the said School Leaving Certificate was issued. The

counterfoil did not state that the same or the said School Leaving Certificate is the duplicate of the original School Leaving Certificate issued

earlier. However, as the said School Leaving Certificate depicted that the date of birth of the Appellant as per School Admission Register is

11.05.1997 Bikrami corresponding to August 23, 1940 in Christian era, so the counterfoil produced by the said witness depicted the same. In

other words, the said School Leaving Certificate as well as the counterfoil thereof represented that the date of birth of the Appellant is 11 Bahdoon

1997 as per School Admission Register. The said witness too, in course of his deposition, asserted the same. The School Admission Register,

however, was not produced as an evidence and, at the same time, the original School Leaving Certificate too was not produced. The trial court as

well as the appellate court did not accept, on the basis of the said School Leaving Certificate, the counterfoil thereof and the letter of the Principal

of the school dated February 22, 1994 that the true and correct date of birth of the Appellant is 11.05.1997 Bikrami corresponding to August 23,

1940 in Christian era. A concurrent finding to that effect can only be interfered with when it can be shown that in doing so the trial court and the

appellate court erred.

It was submitted before us that the documents referred to above clearly indicated that the date of birth of the Appellant is August 23, 1940 and

there was no just reason not to accept the date of birth of the Appellant as such. In each of these documents the date of birth of the Appellant was

shown as August 23, 1940 as per School Admission Register. In the absence of the School Admission Register the assertions made in the said

documents can only be treated as hearsay and if no reliance has been placed upon such hearsay by the trial court and the appellate court, it cannot

be said that they committed any error.

It was submitted that no suggestion was given at the trial that there is no Admission Register and if there is such an Admission Register the

same would not reflect that the date of birth of the appellate is August 23, 1940. It was contended that, on the other hand, the documents in

question were tendered in evidence without any objection. It was also submitted that the witness coming from the school was not asked to

produce the Admission Register. It was submitted that in such circumstances it would not be fair to the Appellant to totally ignore those

documents.

As aforesaid, the burden to prove the issue was that of the Appellant. He had the initial onus to discharge such burden. He sought to discharge

such burden on the basis of those documents which contained an assertion as regards the date of birth of the Appellant as per School Admission

Register. The documents, therefore, only reflected that a per the School Admission Register the date of birth of the Appellant is August 23, 1940.

The documents themselves did not prove that the date of birth of the Appellant is August 23, 1940. The Appellant, therefore, failed to discharge

his initial onus of proving the issue. In order to discharge his initial onus of proving the issue, the Appellant could place reliance upon the School

Admission Register, provided the same could be treated as an ancient document, but could not rely upon the assertions made subsequently by

people that the School Admission Register contains an entry upon which the Appellant seeks to rely. In the circumstances, the conclusion would be

that the Appellant having failed to discharge his initial onus to prove the issue, the onus did not shift and as such the Defendants had no obligation to

shift the onus back to the Appellant by tendering any evidence and, accordingly, failure on the part of the Defendants in the suit to bring on record

either the seniority list dated February 23, 1992 or any other document or evidence was of no effect in the instant case, The case was simplicitor a

case of not proved.

In the circumstances, there is no scope of interference. The appeal fails and the same is dismissed.