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2002 DIGILAW 312 (JK)

Gh. Nabi Bhat v. State

2002-10-09

R.C.GANDHI

body2002
Petitioner seeks writ of Certiorari to quash Govt. Order No. 827-GAD of 1998 dated 02-07-1998, tentative seniority list issued vide communication No. GAD/SER/8/96-Gen. Pvt. Dated 09-10-1998, final seniority list issued vide Govt. Order No. 1577-GAD of 1998 dated 08-12-1998, notification bearing No. GAD(Ser)5/96-Genl/PS/HOD dated 24-04-2000 and also communication bearing No. GAD (Ser)8-95/GS dated 25-07-2000. he also seeks a writ of Mandamus to treat the birth of the petitioner as 13-04-1948 as shown in the University certificate and pursuant thereto recorded in the Service Book and the seniority list prepared by the respondents. He further seeks direction to respondents not to superannuate the petitioner taking into account his date of birth as 13-4-1943 and not to act on the notification No. GAD(SER)5/96-Genl/PS/HOD dated 24-04-2000, whereby the petitioner has been retired with effect from 30-04-2001/ 2. Petitioner is an employee of the respondents -- State. It is averred in the petition that while working as Private Secretary on 16-07-1983 in the office of Principal Chief Conservator of Forests Jammu, he had an occasion to go through his Service Book and not iced that one Mr.G.,M.Bhat who was holding the post of Joint Director, Horticulture Department, has allegedly altered the recorded date of birth in the Service book from 13-04-1948 to 13-04-1943 on the basis of some medical examination. Initially the date of birth was recorded on the basis of the Higher Secondary School Certificate issued by the University of Srinagar. The petitioners claim is that it has been altered at his back without hearing him. Petitioner made a representation to the respondents which has been decided vide Govt. Order No. 827-GAD of 1998 dated 12-07-1998 confirming the date of birth of the petitioner as 13-04-1943. Petitioner, thereafter, made many representations. The respondents vide communication dated 25-07-2000, Annexure S, annexed with the petition have informed the petitioner that after consideration of representation his date of birth remain unchanged. 3. Respondents have filed the counter Affidavit-reply stating therein that the date of birth of the petitioner is incorrect and the correct date of birth of the petitioner is 13-04-1943, which has been assessed subjecting the petitioner to the Medical Board for ascertaining his date of birth. This date of birth has been recorded in the Service Book of the petitioner and the petitioner has also authenticated it by affixing his signatures. This date of birth has been recorded in the Service Book of the petitioner and the petitioner has also authenticated it by affixing his signatures. It has been recorded by the competent officer under whom the petitioner was working at the relevant time. It is also submitted in the reply that the petitioner has the cause of action from 02-07-1998 when his date of birth as 13-04-1943 was confirmed. He should have challenged it within one year as the cause is available to be challenged only within one year under Article 14 Schedule I of the Limitation Act. It is also stated that the petitioner has been retired on attaining the age of superannuation. 4. Heard learned counsel for the parties and perused the record. The learned counsel for the petitioner has submitted that the date of birth recorded in the Service Book has been taken from the Higher Secondary School Certificate issued by the University. The respondents altered the date of birth unilaterally at the back of the petitioner which has prejudiced his right to continue in service till he attains the age of superannuation according to his date of birth recorded in the service record. In support of this plea, he has relied upon the judgments of the Supreme Court 1967 SC 1269, 1981 SC, 1481 and 1980 JKLR 557 with a view to impress upon the court that the respondents have changed the date of birth of the petitioner at his back. The perusal of annexure D annexed with the petition, which is the first page of the service Book, where both the entries viz original and altered date of birth have been recorded, reveals that the petitioner has authenticated the entries by affixing his signatures on each entry. Therefore, the plea of the learned counsel for the petitioner that the altered date of birth has been recorded at his back is misplaced and unfounded on facts. 5. If the date of birth as pleaded by the petitioner is taken as true, it emerges that the petitioner at the time of his initial appointment in the year 1961 was of the age of 13 years. The petitioner could not have been appointed as a public servant being of such minor age. 5. If the date of birth as pleaded by the petitioner is taken as true, it emerges that the petitioner at the time of his initial appointment in the year 1961 was of the age of 13 years. The petitioner could not have been appointed as a public servant being of such minor age. Dealing with such proposition of facts and law, this court in case Z.M. Samnani v. State of J&K, 2001 J&K L.R. 428 has observed as under: "...The dispute of date of birth raised by the petitioner can also be looked by another angle and appears to be not workable. If the date of the birth of petitioner as projected by him at the far end of his service, is accepted, the petitioner in that event would have been of 14 years of age when he joined the police service in 1960. It is not shown by the petitioner that a boy of 14 years could be recruited in the police Department under any service rules whereas it cannot be denied that in the police Department even in the year 1960, no person could be recruited unless he has attained the age of 18 years. Petitioner in the year 1960 was of the age of 18 years according to the date of birth recorded in his service, record. On this score also the dispute raised appears to be mis placed. The Supreme Court dealing with similar proposition while dismissing the cause of correction of date of birth has observed in G.M. Bharat Cocking Coal Ltd. W.B. v. Shib Kumar Dushad, AIR 2001 SC 72 that: " The High Court in writ jurisdiction is not the appropriate forum for undertaking such enquiry into disputed question of fact. At this stage it is relevant to state that if the respondents date of birth is taken to be 09-02-1946 then he would have been 14 years of age when he joined service in 1960. No material is available on record that the Industrial undertaking where the respondent joined service was legally permitted to employ a minor." 6. The case of the petitioner also is required to be examined as pointed out by the learned counsel for the respondents as pleaded in their reply that the cause of action has accrued to the petitioner to assail the dispute of date of birth on 2nd July 1998 when the Govt. The case of the petitioner also is required to be examined as pointed out by the learned counsel for the respondents as pleaded in their reply that the cause of action has accrued to the petitioner to assail the dispute of date of birth on 2nd July 1998 when the Govt. vide its Order No. 827-GAD of 1998 decided the case of the petitioner maintaining his date of birth as 13-04-1943 instead of 13-04-1948. The petitioner has opted not to challenge it within one year. The cause of the petitioner thus is time barred in terms of Article 14 Schedule I of Jammu and Kashmir Limitation Act. In support of his plea he has relied upon the judgment delivered in case Ab. Hamid Bhat v. State, SLJ 1999 page 511, wherein the court has observed as under: "13. The impugned order was issued in the year 1993. the petitioners had the cause of action against the order from the very date the order came into existence. This order could have been set aside even through the suit which could be instituted within the period of one year from the date of its issuance. Under Article 14 Schedule I of the J&K Limitation Act, the petitioners had one years time from the date of the impugned order to sue for getting it setaside. The relief to the cause was barred by limitation Act. Even the suit was thus hopelessly barred by limitation in the year 1995 when the writ petition was filed. State claims, related to service matters, cannot be entertained more-so when subsequent developments have taken place and the circumstances have changed. The writ petition is thus liable to fail on the ground of laches (Reliance AIR 1973 SC 1160)." 7. No other point has been urged by the learned counsel for the parties. For the aforesaid reasons, the petitioner is not found entitled to the relief prayed for. The writ petition is, accordingly, dismissed.