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2000 DIGILAW 119 (JK)

Jameed Ahmad v. State Of J. &K.

2000-06-02

SYED BASHIR-UD-DIN

body2000
1. The matter was taken up for final disposal on parties submissions thereto. The respondents have filed reply followed by rejoinder by petitioner. The pleadings are complete. Considered. Admit. 2. The counsel for the parties who advanced arguments on whole case, were heard and record examined. 3. Sr. Superintendent of Police Srinagar, Respondent no.4, solicited Director General of Police, Respondent No.2 to accord required sanction to retirement of petitioner w.e.f. 30-6-1999, so that his pension case could be initiated. This was done vide signal No. GB/99/1047-48 dated 3-4-1999 (Annexure-E). Jameed Ahmad filed this petition challenging the above communication (Annexure-E) and seeking continuance in his service till 30.6.2002, after his date of birth is reckoned as 13-6-1944, instead of 13-6-1941. Petitioner alleges that at the time of entry in the police service as ASI on 5-4-67, pursuant to his appointment order No. Police 76/1967 dated 31-3-1967, on relaxation of his age bar, he produced certificates before respondents and it was on the strength of these documents that his date of birth was entered in his Character roll as 13-6-1944. Petitioner™s this date of birth is supported by certificate issued by Head Master, Govt. High School Dewar, Gurez and Naib Tehsildar, Assistant Collector 1st Class, Gurez (Annexure A and B). After initial recruitment as Assistant Sub Inspector of police petitioner rose to the rank of Dy. S.P. and is presently posted as SDPO Shaheedgunj. The superannuating retirement of petitioner based on his alleged date of birth is 30-06-2002 (in so far as employee retiring during the month retires at the end of that month). By initiating the process of his superannuation from 30-06-99, his basic service and legal rights are infringed. The Superintendent of Police is not competent to initiate his superannuation case and the signal given by him to Director General of Police is illegal and improper. Once the age of petitioner is recorded as above in his service records, it cannot be changed or amended except if it is a clerical error and that too on enquiry in which the concerned employee is heard and provided an opportunity. The Matriculation certificate has been given to the employer and it is with the respondents. For this reason he is not able to produce the same and has not been able to obtain a duplicate thereof from the University as record of the University of relevant year (1959) is destroyed in fire. The Matriculation certificate has been given to the employer and it is with the respondents. For this reason he is not able to produce the same and has not been able to obtain a duplicate thereof from the University as record of the University of relevant year (1959) is destroyed in fire. However, relying on said Annexure-A and B and a shadow photostat copy of Character Roll, (Annexure-C), his date of birth as recorded in Character Roll and in service records is 13-06-1944. Recording of petitioner™s date of birth as 13-06-1941 in a seniority list by respondents cannot change the position. 4. In reply, respondents pleaded case is that the petitioner has retired on superannuation after attaining age of 58 years on the basis of his recorded date of birth at entry stage as 13-06-1941. At the fag and end of his service he cannot turn around to seek extension in service by suppression of facts and placing wrong facts before the court. The school certificate (Annexure-A) is fake and forged as communicated by the Principal Government Higher Secondary School Dewar Gurez, vide his communication dated 27-05-1999 (Annexure-RA) and the other certificate Annexure-B, relied in support of the petition by petitioner is no certificate in the eye of law. The petitioner who has put 32 years service in State Police cannot turn around to claim extension in service beyond superannuating age. The date of birth recorded in petitioner™s service records is fairly born out by the declaration of age certificate in service records of petitioner (Annexure-RE) and the appointment order of petitioner. It is not disputed by petitioner that at the time of his appointment on 31-03-1967, his age exceeded the maximum age required for his recruitment as ASI and the excess age by 9 to 10 months was relaxed by the appointing authority at the relevant time in March/April 1967. The maximum age for entry in police service as ASI at the relevant point of time was 25 years. When petitioner™s age is calculated after relaxing and giving margin for said nine to ten months, then at relevant time petitioner™s date of birth comes to June, 1941. The maximum age for entry in police service as ASI at the relevant point of time was 25 years. When petitioner™s age is calculated after relaxing and giving margin for said nine to ten months, then at relevant time petitioner™s date of birth comes to June, 1941. Neat admission by petitioner as to relaxation of his age, at entry point coupled with entries in character roll and final seniority list, as also the communications received from the Principal and Director Education Annexure RA to RD by respondents clearly show that the petitioners age is correctly recorded as 13-06-1941 at entry point in his service records. Apparently shown age of petitioner in the alleged shadow service book œas 13-06-1944� instead of œ13-06-1941� is fake and manipulated either by the petitioner or at his instance by some one else, since he alone is the beneficiary of this manipulation. The entry is manipulated to get extension in service by hook or crook, with misplacement of facts. Petitioner having retired in June 99 on the basis of recorded age, therefore, the question of enquiry or alteration does not arise. Petitioner joined as ASI on a non gazetted post and is officiating as Dy. S.P. on stop gap basis in his own pay and grade as Police Inspector, a non gazetted post. His service record as per procedure and rules of business has to be with the concerned Sr. Superintendent of Police, who has to initiate the retirement process of petitioner. Therefore, there is nothing like alleged illegality in seeking sanction to petitioners superannuating retrial case and to initiate such process. The date of birth as 13-06-1941 recorded in petitioners service record as per Matriculation certificate is supported by School record, service record and the admission of the petitioner. The Matriculation certificate despite efforts by respondents could not be traced for the reason that the record of year 1959 AD of the University has been transferred to the J&K Board of examination, where it is not traceable, as the year of passing as also the Roll No. and other relevant particulars to trace it are not being furnished by the petitioner. Petitioner is deliberately suppressing this information in order to take advantage of his tempering and suppression of real facts. Petitioner is deliberately suppressing this information in order to take advantage of his tempering and suppression of real facts. The seniority list where petitioner™s date of birth like all other officers/officials of the department is recorded, is prepared in normal course on the basis of the available record. Petitioner has not objected to seniority and his date of birth recorded in the list. This entry is also required to be considered with other record. 5. Petitioner on his request pursuant to order 01-04-2000, on record of this court was permitted to file rejoinder, wherein the petitioner apart from reiterating what is alleged in the writ petition contends, that the certificate Anx-A with writ petition is not fake. The communication of the Principal Government Higher Secondary School Dewar (Gurez) thereto is of no consequence, since the certificates have been issued in 1981. It is under Police Rules that only qualification bar is relaxed and not age bar, but all the same the admission of his age having been relaxed under the appointment order as stated in para 3 of the writ petition is not denied. It is further stated that the entry of age in Character Roll of petitioner on prescribed form of declaration roll and age certificate (Annx-RB) does not bear his signature as the petitioner has submitted his application in Urdu for appointment. Respondents have tried to forge entries in his records to show that the petitioner™s date of birth is 13-06-1941 and not 13-06-1944. The entry in his service records are as per Matriculation certificate is 13-06-1944. The certificate (Annexure-A) with writ petition is not forged. The entry in the admittance register of petitioner in the school records as shown in Annexure RD and Anx-RC is not correct. It is further averred that the respondents have initiated enquiry to ascertain and verify the date of birth of the petitioner. For the purpose letters interse the respondents (Annexure R and R1) and with Director School Education and others (Annexure R2 and R3) are indicative of initiation of the enquiry which could not have been left in between. Petitioner™s date of birth as recorded in police records cannot be changed except in accordance with law and after affording petitioner an opportunity to meet the situation which adversely affects his service rights based on the date of birth entry in service record. Petitioner™s date of birth as recorded in police records cannot be changed except in accordance with law and after affording petitioner an opportunity to meet the situation which adversely affects his service rights based on the date of birth entry in service record. On his part he approached the Registrar University and Board of School Education Srinagar, but has not succeeded to get duplicate copy of his Matriculation certificate. 6. Based on allegations in petition and rejoinder, petitioner is questioning the right of respondents to superannuate him ending June, 1999. The counsel for petitioner in support of his case submits that the date of birth entry recorded as 13-06-1944 in petitioner™s Character Roll cannot be changed except to correct a clerical error or accidental slip. Though employer™s right to correct the date of birth entry is not denied, but for that matter the respondents have to take action in accordance with provisions of police rules, Rule 6.30 of Financial Code and Article 35-A of CSR. The respondents have initiated the enquiry as is evident from interse communication of respondents, but have not completed the enquiry and instead left it there. It is only on enquiry that date of entry could be changed. It is not the case here. Therefore, the petitioner cannot be superannuated by respondents. In support of his submissions the counsel cites AIR 1967 SC: 1269. SLJ 1986: 423 and AIR 1981 SC: 1481 Mr. Qadri, AAG, in reply submits that the date of birth entry recorded in petitioner™s service records, (as recorded at the initial entry point) is 13-06-1941 The age bar relaxation order and its entry in records as admitted by petitioner; entry in description roll and age certificate, form signed by the petitioner and counter-signed by the Head of the officer AIG of Police at petitioner™s initial entry in police service; entry in Part 1 of initial probation service record of petitioner as attested by the then Principal, Police Training College, Northern Zone Phillaur; the fake and forged certificates of School record produced by petitioner and the entry as to the age in the final seniority list of Inspectors/ASI would show that the entry of date of birth in petitioners case is 13-06-1941. The communication(s) of Director Education and Principal Higher Secondary School Dewar, Gurez referred above lead to the inference that petitioner™s date of birth is 13- 06 1941. The communication(s) of Director Education and Principal Higher Secondary School Dewar, Gurez referred above lead to the inference that petitioner™s date of birth is 13- 06 1941. The Matriculation certificate produced 32 years back cannot be expected to be with the respondents in so far as the normal practice is that after recording the date of birth in the relevant records of an employee at the entry point in the service (as required under rules by way of confirmatory documents of the date of birth entry), the same is returned to the incumbent. This is the normal rule and practice in every department. As the case dates back to over three decades, the respondents cannot be said to be in possession of the certificate. It is too much to level unfounded allegation that the certificate is being concealed and suppressed by the respondents. Despite efforts of the respondents to get duplicate certificate it has not succeeded as necessary particulars are not given by the petitioner, as in that case his real design would be exposed and the date of birth would come out to be 13-06.1941 as recorded in his service records. The petitioner is hiding the real facts. His assertion that he made efforts to get the duplicate matriculation certificate, but could not get one, is a ploy designed to serve him. The petitioner is only trying to fabricate and tailor out a case to serve him in getting extension and continuation in service by another three years. The petitioner rushed to the Court at the fag end of his service and that too when just less than two weeks were left in his service before superannuation ending June 1999, on attaining 58 years age. Whatever little supporting material petitioner has placed with the writ petition to further his case of sought extension in service by three years, is not genuine and conclusive to accept petitioner™s case. The alleged shadow service record is manipulated and fabricated qua entry as to the date of birth therein. The counsel further contends that as the entry of date of birth in petitioner™s Character Roll and Service records is clearly recorded as 13-06-1941, therefore, the question of making, an enquiry does not arise. The alleged shadow service record is manipulated and fabricated qua entry as to the date of birth therein. The counsel further contends that as the entry of date of birth in petitioner™s Character Roll and Service records is clearly recorded as 13-06-1941, therefore, the question of making, an enquiry does not arise. The interse communication referred by petitioner in rejoinder, is just normal routine correspondence in a department and cannot be any stretch of imagination regarded as initiation of any enquiry to alter the age of the petitioner. This is wholly erroneous and ingenious way of delaying the matter so as to allow the sought time period to lapse to petitioners advantage. He has referred to AIR 1995 SCC (2): 1499, AIR 1994 SCW: 3947 and 1999 SLJ. 7. The examination and perusal of record shows that against column No. 8, of Form Police No. 93, (requiring to show Date of birth and qualification) date of birth entry in Police Service of petitioner is, œ22 years 09 months and 22 days date of birth 13-06-1944 with Matriculate�. However, last figure of 44 does not appear free of overwriting and interpolation. It is seen from record that this entry (Annexure-C) does not show on what basis this entry is recorded, as the column itself shows that only entries of date of birth and qualification are to be recorded. But as an integral part of the service record is the description roll and age certificate on prescribed form, the date of birth therein is recorded as 13-06-1941, though in the figure ˜1™ there is over-writing. This declaration is signed by the incumbent and counter signed by the then A.I.G. This age is shown to have been recorded as per entry qua age in Matriculation certificate. Again on the prescribed form PL 6/50 with the service record in part one, entry 5 shows date of birth is 13-06-1941, though again figure 1 after figure ˜4™ is interpolated. Besides there is an entry on the service record that the Govt. vide order No. 76/67 of 31-03-1967 while appointing petitioner as ASI relaxed his age bar by nine to ten months. Petitioner in para 3 of the writ petition has unequivocally stated that after relaxation of age bar, he was appointed as ASI in Police department and the order referred is same as above. 8. vide order No. 76/67 of 31-03-1967 while appointing petitioner as ASI relaxed his age bar by nine to ten months. Petitioner in para 3 of the writ petition has unequivocally stated that after relaxation of age bar, he was appointed as ASI in Police department and the order referred is same as above. 8. In 1967, the appointment rules for the post of ASI provided maximum age as 25 years for initial entry on recruitment in the service. When nine to ten months of age bar is relaxed in case of petitioner then obviously petitioner™s date of birth falls in the year 1941 and not 1944. The Headmaster Government High School Dewar, Gurez under No. HSD/649 dated 01-06-1987 has found reliance entry in (Anx-A) fake and forged. Even the seal on Anx-A is stated not genuine in so far as the school had been upgraded as Higher Secondary in 1982, whereas, the certificate bears seal of Headmaster Government High School in the year 1987. The endorsement No. and date though found in School Dispatch Register, but this dispatch No. does not cover either Annexure-A of any other matter regarding date of birth of petitioner Jameed Ahmad, Ex. student of the School. Coupled with this, the communication from the office of Director School Education with Annexure RC and RD clearly shows that the petitioner Jameed Ahmad Lone has been student of the School and his date of birth is recorded in School records and Register as 13-06-1941. In rejoinder these entries are not displaced despite effort to make out a case to cover the deficiencies on this count qua date of birth of petitioner. 9. In terms of communication on record, Annexure RE, the Matriculation certificate of the petitioner could not be obtained for want of Roll No. and Session of the candidate. Though the respondents in terms of last lines of Annexure RC tried to locate the Roll No. and session from the school and Directorate of Education, but they have not succeeded as it has been mentioned in the said communication from Directorate of School Education that the Matric Roll No. and Session of appearance in the Matriculation examination is not forthcoming from the records of the school and the concerned register. The petitioner is silent as to why he has failed to furnish the Roll No. and Session in which he appeared in the Matric. The petitioner is silent as to why he has failed to furnish the Roll No. and Session in which he appeared in the Matric. If he really intended to obtain a duplicate Matric certificate, then he could have got one, after all he alone is expected to know required details thereto including his Roll No. and Session, under which he appeared in Matriculation examination. This is a normal practice that the Matric certificate(s) obtained in connection with age verification at the initial stage of entry in Government service is returned and even collected by the appointee(s) and having regard to the ordinary human conduct and course of events it cannot be believed that the petitioner left the certificate with the respondents for long 32 years so as to assert that the certificate is being concealed and suppressed from being brought before the court. This plea appears to have been tailored to suit petitioner™s claim or sought three years extension in service beyond the normal period of superannuation. 10. Another important circumstance which cannot be lost sight of is that when hardly two weeks were left in the normal course of service of the petitioner, can his claim that his date of birth be treated as 13-06-1944, instead of 13-06-1941 be entertained. All of a sudden he woke up and came forward and that too at the fag end of his service, with this writ petition to claim his date of birth in his service records as June 1944. Though he has not specifically prayed for correction of his date of birth but in the totality of facts and circumstances on record, he has awoken with less than two weeks left in his normal superannuation age to seek restraint on respondents, in superannuating him on 30-06-1999, worked out on date of birth entry in record. From record, it is seen that the petitioner was aware of record as also the entry of age in his records. Yet how could he be said to genuinely wait for so long to seek redressal of his grievance in this petition when clearly few days were left in his service. Notwithstanding form and style of petition, the ground reality is that the petitioner is seeking correction of his date of birth in service records with the sole object of being benefited by continuances in service for three years beyond his normal period of superannuation. 11. Notwithstanding form and style of petition, the ground reality is that the petitioner is seeking correction of his date of birth in service records with the sole object of being benefited by continuances in service for three years beyond his normal period of superannuation. 11. In Burn Standard Co. Ltd. and others, appellants Vs. Dinabandhu Majumdar and another 1995 SCC (2) 1499 their Lordships observed at page 1504:- œ.... The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his service record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ applications, for no employee, who has grievance and Leave Records� could have genuinely waited till the fag end of his service career to get it corrected by availing of the extra ordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his ˜Service and Leave Record™ or service Register with the avoved object of continuing in service beyond the normal period of his retirement...� Also see 1996 (1) SLR 797, AIR 1995 SC: 1500, AIR 1995 SC: 850 and AIR 1997 SC: 1986. 12. The entry of date of birth in records, made at initial entry in service, on appointment with confirmatory documentary evidence, cannot be corrected except in case of clerical error or some mistake and that too in terms of police rules and Rule 35(A) of J&K CSR r.w. Rule 6-4 of J&K Financial Code Vol. 12. The entry of date of birth in records, made at initial entry in service, on appointment with confirmatory documentary evidence, cannot be corrected except in case of clerical error or some mistake and that too in terms of police rules and Rule 35(A) of J&K CSR r.w. Rule 6-4 of J&K Financial Code Vol. I. Further that in case the entry so made is altered to the disadvantage of Government employee, without enquiry and (Sic) granting opportunity to the concerned employee, as lucidly pointed out in Smt. Pushpa Devi Vs. State of J&K and ors (SLJ 1986 p 423) can be hardly sustained. But the fact remains that once the date of birth is recorded in the service records of the Government servant at the time of his initial service on substantive basis, can such employee (like petitioner) turn around to question the very entry and to say that the entry is forged and manipulated by the State and its officials down below. The date of birth entry found in petitioners relevant official record made in the normal course of official business and having regard to common course of events and normal human conduct, is to be presumed correct and the regularity of the entry and performance of the duty connected thereto too has to be presumed as correct. There is a presumption of genuiness and correctness of entries, as made with regard to the date of birth, in the petitioners Character Roll and service records. In such circumstances, petitioner cannot drive the respondents to hold an enquiry so that the petitioner gains time and takes advantage of the supposed enquiry to get benefit of three years. Inter departmental correspondence is also a normal feature and there is nothing on record to conclude or infer that any enquiry with regard to the petitioner™s date of birth was contemplated or even initiated by the respondents. The contention of the counsel that the enquiry by respondents with regard to date of birth on which petitioner is sought to be retired vide impugned communication is to be noted to be rejected in so far as this contention does not arise in the facts and circumstances of this case. The question of petitioner being associated and given an opportunity is equally foreign to the real issue involved in this petition. The question of petitioner being associated and given an opportunity is equally foreign to the real issue involved in this petition. The law laid down in AIR 1967 SC 1269, interalia providing that in case the enquiry is required to be held then an opportunity is to be given to the affected person whose vested rights are to be adversely affected by the enquiry, does not in terms apply to this case. The principle of law laid down thereto has no application to this case. 13. AIR 1981 SC: 1481 which provides that where date of birth of an employee is altered after its acceptance by the employer, the employee has to be given right of hearing and in absence, in view of breach of principles of natural justice the order of alteration cannot be sustained, is again not applicable to this case. As already pointed that it is not a case of alteration of date of birth of the writ petitioner. Instead the superannuation of petitioner on his recorded date of birth in the Character Roll and service records is sought to be altered by the petitioner by seeking writ of the court to restrain the respondents from retiring him on completion of his normal service span in terms of rules. The claimed date of birth (13-06-1944) has no foundation and basis in petitioner™s service records. The Supreme Court in State of Tamil Nadu Vs. TV Venogopalan, (1994) 6 SCC 302 (1994-AIR SCW 3947) held :- œ..... It is well known that the service record would be opened after the Government servant enters the service and normally the entry in service record would be countersigned by the government servant. The date of birth is entered in the school record is the source of material for making entry in the service record.� In result, for the aforesaid reasons, the writ petition is dismissed. The interim direction extend from time to time, of not to retire the petitioner, shall go with the main petition. Record produced by Mr. M.I. Qadri, AGG, is returned to him in open court.