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Judgment
M.S. Latif Member (J)
The instant Writ Petition having initially filed before the Hon’ble High Court of J&K which was numbered as SWP No. 944/2013 was transferred to this Court vide order dated 07.09.2020. Shorn of necessary details, the petitioner has been working in the Medical Department as a Nursing Orderly who was retired from service on 13.01.2010 as per order bearing No. 25/2010 dated 23.01.2010.
The case of the petitioner further as projected in the Writ Petition is that the respondents illegally mutilated the date of birth of the petitioner from 10.04.1954 to 03.01.1952 and as such the respondents took away two years and three months from the service of the petitioner. It is also pleaded in the Writ Petition that there is an overwriting on the first page of the Service Book of the petitioner which has been changed to 03.01.1952 when actually the date of birth of the petitioner is 10.04.1954. As such, the petitioner has sought for a Writ of certiorari for quashing the order No. 25/2010 dated 23.01.2010 by virtue of which the petitioner was prematurely superannuated and has further sought for a writ of mandamus commanding the respondents to treat the petitioner in service for two years and three months as per the date of birth of the petitioner i.e. 10.04.1954.
The instant Writ Petition was admitted to hearing on 04.05.2017. The respondents (Accountant General and other respondents) have filed their reply. Perusal of the reply filed by the Accountant General reveals that the respondents have completed the assigned job of authorizing the pensionary benefits in favour of the petitioner under PPO No. 221336096 dated 30.04.2013 on the basis of the clarification received from the concerned department of the petitioner with regard to his date of birth as according to the Drawing and Disbursing Officer of the petitioner the date of birth of the petitioner as recorded is 03.01.1952 and have further averred that the Office of the Accountant General is only pension authorizing agency and not the pension sanctioning authority, as such have prayed that the Accountant General is unnecessarily arrayed as a party respondent in the case.
The respondent, Chief Medical Officer in his reply has submitted that the instant Writ Petition is not maintainable as none of the Constitutional or Fundamental Rights of the petitioner have been violated and the petitioner has misrepresented the facts as has not approached the Court with clean hands. They have also averred that the petitioner in the writ petition submitted that the answering respondents have mutilated his date of birth on the first page of the Service Book in order to get undue benefits. They have averred that the petitioner was working as a Nursing Orderly in the respondent’s department and the date of birth as recorded on his service book was recorded as 25.02.1952 and somehow managed to mutilate the actual date of birth from 25.02.1952 to 10.04.1954 and it is as per the actual date of birth the petitioner was retired from service on 28.02.2010 and accordingly the pension case of the petitioner was forwarded to the Accountant General which was returned by the Accountant General with the instructions to submit proof of date of birth of the petitioner and the case of the petitioner was resubmitted to the Accountant General along with Date of Birth Certificate issued by the Head Master of Government Middle School Sankoo, Kargil.
It is also averred that the case of the petitioner in order to clear the confusion was forwarded to the Deputy Commissioner/CEO LAHDC, Kargil for necessary instructions. The Deputy Commissioner, Kargil after going through the whole situation constituted a committee in order to verify the authentic date of birth of the petitioner and the committee constituted was based on three members that is Chief Education Officer, Kargil, District Education Officer, Kargil and the Chief Controller of Finance, LAHDC, Kargil and the committee constituted after thorough scrutinizing of records submitted the report to the respondent No.5 which reveals that the petitioner has tried to manipulate the school admission record and it was on the basis of the report submitted by the standing committee, the Block Medical Officer, Panikher forwarded the case of the petitioner to the Accountant General, Srinagar for pensionary benefits which were duly sanctioned in favour of the petitioner vide order No. GPO No. 241336096 dated 10.04.2013, CPO No. PNR-4/261336066 dated 10.04.2013 and family pension vide NO. P/1320143964 PNR 4/S-1/201304141 file No. 2071361940.
The main grounds seeking quashment of the order of superannuation of the petitioner i.e. order No. 25/2010 dated 31.01.2010 though same not appended with the Writ Petition is that it is the respondents who have mutilated the date of birth on the first page of the service book of the petitioner when actual date of birth of the petitioner is 10.04.1954.
The first and the foremost issue is that whether the petitioner could have filed the instant writ petition after his superannuation that too after 3 years when the petitioner superannuated in the year 2010. Disputing his date of birth, the petitioner never approached the respondents within the stipulated period complaining about the mutilation or wrong entry in his service record and admittedly the petitioner has approached the court through the medium of this writ petition after 39 years as the petitioner has averred in the petition that he has been working in the Department for the last 36 years. Regulation 35-AA of the J&K CSR pertains to the determination of the date of birth. Clause ‘C’ and ‘D’ of regulation 35-AA are relevant to be quoted:-
(c) Alteration of Date of Birth. The date of birth so declared by the Government servant and accepted and once recorded by the appropriate authority (as specified in clause(b) above) in the service book or nay other record of service of the Government servant, as the case may be, shall not be subject to any alteration, except in the case of a clerical error without the orders of the Government. No alteration of date of birth of a Government servant shall be made by the Government (Administration Department) unless a request in this regard is made the concerned Government servant within a period of 5 years of his/her entry into Government service and it is clearly established that a genuine/bonafide mistake has occurred.
(d) Notwithstanding the provisions contained in clause(C) above regarding alteration of date of birth, Government, however, reserves the right to make a correction in the recorded age of Government servant at any time, against the interests of the Government employee when it is satisfied that the age recorded in his/her service book or in the history of services of the concerned Government servant is incorrect and has been incorrectly recorded with the object that the said Government employee may derive some unfair advantage there from;
Law on the subject relating to correction in date of birth of a Government servant is well settled by Hon’ble Supreme Court in its various Judgements, Judicial pronouncements. In one of the cases titled as Director, Directorate of School Education versus Ranganathan reported as 2019 SCC Online Supreme Court 2135, the Hon’ble Apex Court held that “ In view of the above provision, request for correction in date of birth had to be made within a period of five years of the entry in the service. The request for change in the date of birth in the service records was virtually made at the end of career of the respondents.” Their lordships held that there was no cause or justification for delay and there was enough reasons to reject the petition. Therefore, the Tribunal was correct in coming to the conclusion that the OA be dismissed on the ground of delay. Then again in the case titled as Bharat Cooking Coal Limited and others versus Shyam Kishore Singh wherein their Lordships held that it is only after 30 years from the date of joining the service, the petitioner has assailed or disputed his date of birth and the same view was taken by the Hon’ble Apex Court in case reported as 2005(6) SCC Page 49, 2011(5) SCC Page 664. Looking at the present case in the perspective of the above law laid down by the Hon’ble Apex Court, the petitioner herein has admittedly put his signatures on the service record wherein his date of birth is 03.01.1952 which is also clear from the writings on the service book in words apart from in numerical and the petitioner has admittedly put his signatures on the first page of the service record which has been annexed with the petition as annexure P2. The dispute as raised by the petitioner in the petition as regards his entry in the service book regarding his date of birth and the allegations of mutilations in itself is a disputed question of fact and clearly cannot be gone into by this Tribunal in exercise of its powers. It appears that the petitioner after his retirement has woken up from deep slumber and has filed the instant writ petition in the year 2013. The Hon’ble Apex Court has time again held that disputes with regard to change of date of birth at the fag end of the service cannot be entertained. Reference is laid on the Judgement titled as General Manager South Eastern Coal Fields Limited versus Avinash Kumar Tiwari reported as 2023 Live Law Supreme Court 124 and also celebrated Judgement of Union of India versus Harnan Singh 1993(2) SCC 162.
Learned counsel for the petitioner submits that the actual and correct date of birth of the petitioner is 10.04.1954 and not 03.01.1952 and further submits that the date of birth of the petitioner has been mutilated by the respondents.
Per contra, Ms. Shagufta Maqbool vice Tahir Majid Shamshi, learned DSGI submits that the School Leaving Certificate and the admission record submitted by the petitioner was fictitious and the petitioner could not submit any evidence of unimpeachable nature to prove that the date of birth of the petitioner was 10.04.1954. It is also the rule of law that once the date of birth entry has been authenticated by the petitioner, such entry cannot be disputed by him as the petitioner has afixed his signatures. We are fortified in this regard by the Judgement of the Hon’ble High Court titled Ghulam Nabi Bhat versus State of Jammu and Kashmir 2003(2) JK Judgement 507. We are also fortified by the Judgement of Hon’ble High Court of J&K reported as Baksh Singh versus State of Jammu and Kashmir through Chief Secretary and others reported as 1997 Legal Eagle JK 209. Reliance is also laid on the Division Bench Judgement of Jharkhand High Court reported in Prasadi Ravidas versus Bharat Cooking Coal Limited and others reported as 2024 Legal Eagle (JHAR) 132. We are also fortified by a latest Judgement of Division of Hon’ble High Court of J&K titled as Abdul Kabir Yatoo versus Union of India and others reported as 2023 Legal Eagle JK 579.
Heard the learned counsel for the parties and perused the material available on record.
For the aforesaid reasons and in view of the case law sighted above, the petitioner is not entitled to the reliefs as prayed for by the petitioner through this writ petition/TA.
TA is accordingly dismissed. No order as to costs.