Mohd.Sadiq Fani vs Deputy Commissioner, Doda & Ors.

During the pendency of this writ petition, the petitioner was reported to have died on 1411981, Two applications came to be filed by some

persons claiming to be his legal representatives for seeking permission to be substituted for the petitioner and to peruse the writ petition. CMP No.

187 of 1981 and CMP No. 63 of 1982 are on the file. In CMP No. 187/1981 no orders have been passed. However in CMP No 63/1982 this

court by its order dated 221986 allowed substitution subject to all just exceptions to be decided at the time of final disposal of the writ petition The

index was ordered lo be corrected. A similar order is therefore required to be passed in CMP No. 187/1981 because no objections to that

application were filed. That application, therefore, is allowed subject to just exceptions. As a result of the aforesaid discussion persons named in

CMP No. 187/81 and 63/1982 are brought on record as legal representatives of deceased and as to whether they can peruse the writ petition is

to be decided separately. However, grant of substitution applications shall not be construed to mean that this court is giving any finding on the

entitlement of the persons how in the two applications to inherit the property of the deceasedpetitioner. These persons are brought only to continue

the litigation, if the right of the deceased petitioner could be considered even after his death.

Petitioner had challenged the order dated 22ll1976 whereby he was relieved from duty on the ground tint his date of birth was 1041969 (Bk)

entered in his service book. Hs also had challenged the order dated 15111976 wherein it was conveyed to him that his date of birth was 1041969

(Bk) instead of 1791980 (Bk) and he was unauthorisedly in service since 2371967 (A D.) He was asked to show cause why he should not be

retired on 221176 (A. D,) Challenge is also thrown to order dated 2111977 whereby the action taken by the Deputy Commissioner as regard

correction of date of birth of the petitioner was confirmed. That order is annexure5 to the petition.

Petitioner's case was that the three orders are liable to be quashed as they are violative of his fundamental rights and passed without an enquiry

and are arbitrary and illegal. He claimed that he was entitled to be in service on the basis of his actual date of birth which according to him was

1791980 (bk) as was entered in his service book. The writ petition was filed by him on (3121976. During the pendency of that writ petition order

dated 2111977 was passed. Therefore he amended the writ petition and presented the amended writ petition on 1681977 On 1211978 the writ

petition had ripened for bearing.

As stated above petitioner had died on 1411981 and after his death when the writ petition came up for hearing, a preliminary objection was

raised by Mr. A. Kapoor learned Govt. Advocate appearing for the respondents. His contention was that the right claimed by the

deceasedpetitioner was personal to him, therefore with his death the right has also collapsed and the writ petition cannot be continued by the legal

representatives who have been brought on record. The contention is that even if petitioner's writ was allowed, only an enquiry can be ordered to

be held regarding his date of birth, which enquiry was to be held in presence of the deceasedpetitioner. Now that be is dead, no enquiry can be

held. Therefore the order of his retirement has become final and it cannot be disturbed after the death of the petitioner, nor can the legal

representatives claim any interest in the matter which was personal to the petitioner only. He has relied on U. Vridhachalam and other Vs. The

State of Madras reported in AIR 1966 Madras : 260. Therefore, the first question which needs. determination is about the right claimed in the writ

petition. Whether that right after the death of the petitioner would be available to the legal representatives or not ?

If the writ petition would succeed in the life time of the petitioner immediately when it was declared ripe for hearing, petitioner would get a

declaration in his favour about his date of birth being 1791980 Bk On the basis of that date of birth he could be retired after the completion of 55

years of age and if he had not completed that age in January, 1978 when the case was to come up for hearing, he could be taken back in service

and would be paid all emoluments and would be treated as if he was in service. But because of the delay caused in the disposal of the writ petition

from 1211978, the petitioner could not get any relief in his life time and he expired in 1981. Therefore, even if the writ petition would succeed,

prayer regarding his reemployment has become redundant because that right was personal to the, petitioner and survived only up to the completion

of age of 55 years by the petitioner. He could be retired in 1978 and till then he would have remained in service. But after the lapse of time that

right was lost to him and after his death that right is also dead. The other relief which the petitioner could get even after completion of 55 years of

age, was benefits and emoluments attached to his post from the date of the impugned order of retirement to the actual date of retirement, which

would have taken place on completion of 55 years of age. The benefits which were payable to him could be granted to him, had he succeeded in

the writ petition even after his retirement. So even after 1978 when he would have retired, he could get the benefits by way of salary and other

emoluments also pensionary benefits, had the writ petition been decided in his life time, that ?is till 14181 So the only right which could survive after

his retirement was right to claim benefits attached to his post for the period for which he is alleged to have been prematurely retired and if he would

have succeeded to seek a relief that his premature retirement was bad. But after retirement he could not claim reemployment because that right

was destroyed on completion of 55 years of age. So the right to get employment which was dependant on completion of retirement age was lost to

the petitioner in his life time because he is said to have survived even after 1978. The fright to get benefits could not be destroyed even if he had

retired during the pendency of the writ petition.

After the death of the petitioner, therefore, the right available to the petitioner for receiving in the emoluments and pensionary benefits would be'

available to his legal representatives if the impugned order is said to be bad because in that case deceased petitioner would be entitled to receive

the emoluments up to his actual date of retirement which according to the petitioner could have happened in 1978 A D on the basis of his date of

birth as recorded in his service book. The right to receive emoluments, monetary benefits and pensionary benefits was a right which could be

claimed by the petitioner himself till his death notwithstanding the fact that he had retired in 1981 AD, had he succeeded in the writ petition in his

life time. His right to get emoluments though personal to him would not get lost to his legal representatives because that was the property within the

meaning of Art. 19 of the constitution of India and could be inherited by his legal representatives if they had any entitlement to claim it.

The right to determine entitlement of the deceased petitioner for the period for which he was prematurely retired according to him relates to the

monetary benefits alone and that could have survived even after the retirement of the petitioner had the writ petition been decided in his life time.

The necessity of getting the legal representatives on record arose only after his death. This necessity could not be foreseen in 1978 when the

petition was declared ripe for hearing. The delay in the disposal of the writ petition is not to be attributed to the petitioner or to the legal

representatives of the petitioner who are now pursuing the writ petition. The delay is caused by the Court itself. After nine years from the date of

declaration that the writ had become ripe for hearing, the petition was listed before the court. During the intervening period, it was never listed

before the court. About five interim orders are recorded by the Registry without placing it before the Bench. This is all what has happened in nine

years when the case was declared ripe for hearing I do not take into consideration the time which has elapsed from the institution of the writ

petition because sometime was taken in serving the respondents. Thereafter the writ petition was amended. Again objections were to be filed by

the other side and in normal course one or two years time would be required for a case to get ripe for hearing. But after it is complete for hearing,

it has got to be heard and decided, by keeping it for nine years in cold storage, cannot be held to have lost his right to get the benefits if his writ

petition was allowed. As already indicated he has died in 1981. By his death writ petition is not to be shelved by presenting a faitaccompli to the

legal representatives. AIR 1966 Mad : 260 (Supra) is an authority which cautions not to issue futile writs. Dismissal order was challenged which

was held to be not according to natural justice because the petitioner was not heard. During the pendency of the writ petition petitioner had died.

Charge sheet against the petitioner was not wiped out because there was no challenge to the charge, proceedings postcharge sheet were

challenged. In view of the matter after the death of the petitioner, it was observed by the learned Single Judge (Srinivasan J.) of the Madras High

Court that even if dismissal order is wiped out, charge sheet against the petitioner remains in tact which cannot be enquired into after his death.

Therefore the death of the petitioner has put an end to the controversy. The view expressed by the Madras authority, with respects, does not seem

to be correct. This is too technical a view. Death in some cases may put an end to litigation and cause of action may also die with the death of the

writ petitioner, but it cannot be said to be true in each and every case. As to whether cause survives after the death or not depends on the facts of

each case. No hard and fast rule can be laid down in this regard. Death abates litigation cannot be universally applied. For instance a litigant

challenges selection list of employees wherein he was excluded and claims a right to get the job. Such a right would collapse with the death of the

petitioner because his legal representatives could not be selected and right of selection being the personal right would not survive. In the similar

manner right to challenge disqualification at an University examination will also collapse with the death of the petitioner. Same is true about the writ

petition seeking admission to educational institutions, where challenge is thrown that petitioner's exclusion from selection was bad. Petitioner's

death would ""put an end to such right because it cannot be inherited. These are only illustrative examples, and not exhaustive. Right as regard

monetary benefits would survive to the legal representatives if the monetary benefits are deprived illegally in violation of rules. Death of the claimant

would not be sufficient to put an end to such a claim because such a right is heritable, because monetary benefit as also the pensionary benefits will

be property in the hands of the petitioner, which will be heritable after his death.

For the reasons stated above, I express my inability to agree with the authority reported in AIR 1966 Mid: 260 (Supra). The preliminary

objection raised by Mr. Kapoor is therefore over ruled.

Coming to the merits of the case, it is revealed from the impugned orders that one Abdul Karim, pensioner of Doda had made an application to

the Dy. Commissioner 'concerned against the petitioner. The Dy. Commissioner seems to have conducted confidential enquiry for ascertaining the

petitioner's date of birth, and on the basis of that confidential enquiry, petitioner's date of birth was change in the service book and instead of

1791980 Bk, which was entered therein, 1041969 Bk was written After having determined his date of birth unilaterally, he was given notice of

retirement. This is reflected by Annexure2 dated 15111976. Thereafter the impugned order is issued in which it is expressly stated as.

Whereas on a confidential enquiry conducted by SDM, Bhaderwah, it has transpired that the allegation is corroborated by the records of the

school aforementioned ..

It is admitted that the petitioner's date of birth in the service book was recorded initially as 1791980 Bk, It is also admitted that some

confidential enquiry was conducted by the Deputy Commissioner at the back of the petitioner about the change of petitioner's date of birth It is

also admitted that on the basis of confidential enquiry petitioner's date of birth was changed from 1791930 Bk to 1041969 Bk and thereafter he

was given notice of retirement. It is, therefore, to be seen on the basis of the enquiry of this type, whether the petitioner's date of birth could be

changed at his back or not, and whether the Dy. Commissioner's action as confirmed by the State Govt. satisfies the requirements of law. The main

challenge in the writ petition is that the order whereby change is effected in the petitioner's date of birth is violative of principles of natural justice

because it was made on the basis of an confidential enquiry at the back of the petitioner. It is also stated that the date of birth recorded in the

service book cannot be changed subsequently.

In his reply, affidavit, the Dy. Commissioner Doda has stated that he had received a complaint from the Financial Commissioner and the

Divisional Commissioner with regard to the age of the petitioner and with regard to his over stay in the Govt. service he is said to have directed the

SDM Bhaderwah to enquire to him. Accordingly the SDM is said to have conducted enquiry and had obtained date of birth certificate S. A. High

School Bhaderwah relating to the petitioner and his school leaving certificate was used as a piece of evidence against the petitioner which was

corroborated by the evidence of some retired local teachers who had stated that the petitioner was a student of S. A. School, Bhaderwah and the

entry in the school records pertained to him. On the basis of that report the Dy Commissioner is said to have issued a show cause notice to the

petitioner as to why the petitioner should not be retired from service implying thereby that he has treated the enquiry report as correct and acting

on it has changed the petitioner's date of birth and thereafter issued notice of retirement.

The area of controversy in this case is very restricted. Respondents rely on the enquiry alleged to have been conducted by the SDM at the

back of the petitioner as authentic and petitioner challenging it as bad and violative of principles of natural justice.

13 The enquiry which is conducted by the SDM at the instance of the Dy. Commissioner cannot be said to be valid or legal because the same is

conducted at the back of the petitioner and petitioner at no stage was associated with that enquiry On the basis of the affidavit of the respondent it

is established that the SDM had obtained school leaving certificate which according him pertained to the petitioner and had recorded statements of

some witnesses who had corroborated the fact of the petitioner being a student of the school. This was done at the back of the petitioner and he

was not at all asked to rebut the material which was collected against him by the KDM at the instance of the Dy. Commissioner. The enquiry

therefore was conducted in flagrant violation of principles of natural justice and date of birth of the petitioner was changed to his detriment without

affording him an opportunity of being heard.

In State of Orissa V. Dr. (Miss) Binapani Dei and others (AIR 1967 S C. 1269). the Supreme Court has laid down that even administrative

orders which involve civil consequences, have to be passed consistently with the rules of natural justice. In that case the Director of Health

Services, Orissa had received anonymous letters about Dr Binapani Dei and some investigation was undertaken by the vigilance Deptt. On that

investigation and anonymous letter her date of birth was changed, which she challenged in the High Court. The High Court had allowed her writ

petition and Orissa Govt. filed an SLP before the Supreme Court which came to be dismissed. Among ethers, the Supreme Court made the

following observations :

An order by the State to the prejudice of a person in derogation of his vested rights may be made only in accordance with the basic rules of

justice and fairplay The deciding authority, it is true, is not in the position of a judge called upon to decide an action between contesting parties, and

strict compliance with the forms of judicial procedure may not be insisted upon. He is, however, under a duty to give the persons against whom an

enquiry is held an opportunity to set up his versions or defence and an opportunity to correct or to controvert any evidence in the possession of the

authority which is sought to be relied upon to his prejudice. For that purpose the person against whom an enquiry is held must be informed of the

case he is called upon ""to meet, and the evidence in support thereof. The rule that a party to whose prejudice an order is intended to bi passed is

entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil

consequences. It is one of the fundamental rules of our constitutional set up that every citizen is protected against exercise of arbitrary authority by

the state or its officers. Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed : it need not be

shown to be superadded. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of

such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is nullity. That is a basic concept of

the rule of law and importance thereof transcends the significance of a decision in any particular case"".

State undoubtedly has an authority to hold enquiry about the date of birth of an employee where there is any doubt about the same But the

enquiry should be held strictly in accordance with the principles of natural justice and not at the back of the person likely to be effected by such

enquiry.

In the present case petitioner was likely to be affected by the report of the SDM and by his sham enquiry. Therefore he was entitled to be

heard before his date of birth was changed The enquiry report as also the school leaving certificate and statements of witnesses should have been

supplied to him and then he should have been asked to rebut the same and to produce such evidence as may have been in his possession in

rebuttal. On the basis of anonymous complaint a sham enquiry was conducted at the back of the petitioner which had visited him with civil

consequences. At no stage petitioner was asked to rebut the allegations made against him. He was entitled to crossexamine the witnesses whose

statements were recorded. He was entitled to be heard in defence. Therefore the confidential enquiry cannot be said to be valid and will not have

the effect of infecting injury on the petitioner. He was sought to be retired on the basis of same date of birth ""which was determined at his back in

pursuance of a sham and invalid enquiry.

The second aspect of the matter is whether entries in the service book regarding date of birth could be changed if they were certified by some

competent authority. There is a set procedure for changing the date of birth in the service record.

For the reasons stated above the impugned order of retirement of the petitioner as also change of date of birth and subsequent order of the

Govt. are to be declared illegal, unconstitutional and invalid. Petitioner has retired during the pendency of the writ petition and has died also.

Therefore the following relief's only could be granted to the legal representatives subject to their entitlement :

(a) Petitioner will be deemed to have been in service up to the age of completion of 55 years on the basis of his date of birth as recorded in his

service book i. e. 1791980 Bk and from that date on completion of 55 years age, he was .to be retired;

(b) The enquiry as also the findings about the petitioner's date of birth being 1041969 Bk is nonest as it was illegal and invalid.

(c) Petitioner would be entitled to the emoluments, salary, allowances attached to his post up to the date of his actual date of retirement which is to

back place on the basis of his date of birth being 1791980 Bk and on the basis of that, he will get pensionery benefits also according to the rules

applicable in this regard.

The legal representatives shall be brought on record and are entitled to continue the writ petition. However the benefit which had accrued to the

deceasedpetitioner shall be paid to such @f the legal representatives who is/are entitled to get it and who get the declaration from the competent

court under the Succession Certificate Act.

The writ petition is accordingly allowed to the extent indicated above. There will be no order as to costs.