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Judgment
ORDER (ORAL) JUSTICE RITU TAGORE, MEMBER [JUDL.]
The case of the applicant, as projected in the O.A., is that the applicant was initially engaged as a Daily Rated Worker in the respondent-department and, upon rendering satisfactory service, was regularized as a Helper vide Order No. CEG/PDC/Estt/23 of 1997 dated 25.06.1997 with effect from 01.04.1994. At the time of his initial engagement as well as regularization, the applicant possessed the qualification of 8th Class Pass from Government Middle School, Tangchatter, wherein his date of birth was recorded as 07.05.1970. The said qualification certificate was duly produced before the department as proof of his date of birth. However, without the applicant's knowledge or consent, his service book reflected his date of birth as 30.11.1966, purportedly on the basis of an Age and Health Certificate allegedly issued by the Chief Medical Officer, Srinagar, assessing his age as 29 years on 20.11.1995. The applicant never produced such a certificate, no such certificate exists on the departmental record, and, in any event, a medical opinion could not legally override the documentary proof of age furnished through his educational qualification.
The applicant came to know of the erroneous entry in the year 2001 and has since been continuously pursuing its correction before the competent authorities. When he approached the Headmaster, Government Middle School, Tangchatter, for issuance of a duplicate qualification certificate, the same could not be issued because the school records, including the admission register, had been stolen in the year 1990. This fact was officially confirmed by the Headmaster vide Communication No. BMS/T/474 dated 07.10.2013. The applicant thereafter obtained a duplicate State Subject Certificate and a Birth Certificate bearing Registration No. 50-15-A/PSK dated 26.08.2014, duly verified through the competent revenue authorities, both recording his date of birth as 07.05.1970, thereby independently corroborating his educational record.
In September 2019, the applicant requested the Executive Engineer, Division-III, Shireen Bagh, Srinagar, to correct his date of birth in the service records. He also sought production of the departmental record relating to his date of birth, whereupon the Executive Engineer, Electric Division, Ganderbal, informed that no date of birth certificate of the applicant was available in the departmental records. More significantly, vide Communication No. EDGN/7650 dated 03.01.2023, the Executive Engineer acknowledged that while updating the applicant's particulars on the JKHRM portal, it was noticed that the applicant's date of birth and other service particulars had been incorrectly recorded and requested production of the relevant certificates for updating the records. This communication constitutes a clear admission by the department that the applicant's service records had not been correctly maintained.
The applicant thereafter submitted a detailed representation dated 09.07.2021 before Respondent No. 3, specifically pointing out that his educational qualification and State Subject Certificates had been misplaced by the department and seeking correction of his date of birth on the basis of the available documentary evidence. As no action was taken, the applicant, through counsel, served a legal notice calling upon the respondents to redress his grievance. Despite receipt of the notice, the respondents neither corrected the applicant's date of birth nor decided his representation, compelling the applicant to seek the intervention of this Hon'ble Tribunal.
The respondents' continued failure to rectify the applicant's date of birth, despite documentary evidence and their own admission regarding incorrect service records, exposes the applicant to the imminent risk of premature superannuation, causing grave and irreparable prejudice. The cause of action is continuing in nature, arising from the respondents' inaction on the applicant's representation dated 09.07.2021, the departmental communication dated 03.01.2023 acknowledging errors in the service records, and the failure to act upon the legal notice. Hence this O.A.
Through the medium of the instant petition the petitioner seeks for the following reliefs-
a)Directing the respondents to correct the date of birth of the applicant in his service book and in all connected and consequential service records, including the JKHRM portal, from the erroneously and unauthorisedly recorded date of birth to the correct date of birth of 07.05.1970 instead of 30-11-1966 on the strength of the qualification certificate issued by the Government Middle School, Tangchatter, and the duplicate State Subject-cum-Birth Certificate.
b)Declare the Age and Health Certificate dated 20.11.1995 issued by the Chief Medical Officer, District Srinagar, and the entry of date of birth made on the strength thereof in the applicant's service book, to be void, illegal and without authority of law, the same having been issued/acted upon in violation of Article 35- AA of the Jammu & Kashmir Civil Services Regulations, Volume-I, 1956 and Rules 6.4 and 6.5 of the Jammu & Kashmir Financial Code, Volume-I and the said certificate being nonexistent;
c)Direct the respondents to decide the applicant's pending representation dated 09.07.2021 within a time frame to be fixed by this Hon'ble Tribunal, having due regard to the admissions contained in Communication No. EDG/V/7650 dated 03.01.2023.
d)Restrain the respondents from superannuating/retiring the applicant from service on the basis of the presently, incorrectly recorded date of birth on 30-11-2026 until such time as his correct date of birth is duly recorded in his service record as 7- 5-1970 and superannuate him as per the said correct date of birth record on 31-5-2030 in accordance with law:
e)Award costs of this Original Application in favour of the applicant and against the respondents; and
f)Pass such other order(s) or direction(s) as this Hon'ble Tribunal may deem just, proper and necessary in the facts and circumstances of the case, in the interest of justice.
Learned counsel for the applicant while bringing forth the facts of the case as set out in the application submitted that the respondents have withheld the applicant's salary from June 2026 onwards. It is accordingly, prayed that the respondents be directed to release the applicant's legitimate salary dues.
Arguing the matter at length, learned counsel for the applicant submitted that the applicant would be satisfied if the present O.A. is treated as a representation and the respondents are directed to consider and decide the same within a stipulated time frame, in light of the averments made therein, along with the documents annexed and the law applicable in the instant case.
Learned counsel for the respondents, Mr. Rais Ud Din Ganaie, DAG, submits that, without prejudice to their rights and contentions, the respondents have no objection if the present O.A. is treated as a representation and is disposed of in terms of the submissions advanced on behalf of the petitioner.
Heard learned counsel for the parties.
Learned counsel for the parties are ad idem that the present O.A. may be disposed of at this stage by treating the same as a representation.
Accordingly, without expressing any opinion on the merits of the case, the present O.A. is disposed of with a direction to respondents to treat this O.A. as representation and to accord due consideration to the assertions made therein, in light of the applicable rules and regulations and law holding the field. Further, if there is no impediment. Respondents shall also take into consideration the documents annexed with the O.A. while according such consideration.
The said exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order, by passing a comprehensive reasoned, speaking, and detailed order and a copy of the same shall be furnished to the applicant.
The respondents shall also consider the grievance of the applicant with regard to release of his legitimate salary dues from June 2026 onwards and, if he is found entitled thereto in accordance with law & rules, shall release the same expeditiously.
Accordingly, O.A. No. 825/2026 is disposed of along with the connected M.As., if any, parties are to bear their own costs.
Consign the file to the Record Room, after due compliance.