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2004 DIGILAW 218 (JK)

Mohd. Rashid Shaheen v. State Of J. &K.

2004-07-27

Y.P.NARGOTRA

body2004
The petitioner retired from the post of Naib Tehsildar from the Revenue Department, after reaching the age of superannuation on 30-09-2003, as his date of birth, as per the matriculation certificate submitted by him at the time of entry into Govt. Service, was 6-9-1945. The petitioner, while was in service, in the year 1989 applied for correction of his date of birth, claiming the same to be 25-06-1949, on the basis of school Leaving Certificate issued by the Head Master Govt. High School, Shahdrah Sharief. No order was passed on the said application of the petitioner perhaps the same was considered by the respondents to be a time barred application. 2. In the year 1995, the Govt. issued SRO 310, whereby amendments were made in the Civil Service Regulations. After the amendment, Article 35-AA, which was introduced, provides as follows:-- "35-AA. Determination of Date of Birth-Notwithstanding anything contained in rules 6.4 and 6.5 of the Jammu and Kashmir Financial code Volume 1, the following provisions shall apply for determination of Date of Birth recording thereof in reference to the Government servants:- (a) Determination of age. The date on which a Government servant attains the age of superannuation shall be determined with reference to the date of birth declared by the Government employee at the time of appointments and accepted by the appointments and accepted by the appointing authority on production, as for as possible, of confirmatory documentary evidence in the following manner:-- (i) In case of Government employees, where prescribed qualification is matriculation or above, matriculation or equivalent certificate, issued by the Jammu and Kashmir Board of School Education or any recognized Board/ University wherefrom the employee has passed such examination: (ii) In case of Government employees, where prescribed qualification is below matriculation.. ................................. (iii) "Discharge Certificate" in case of ex-servicemen-re-employed in State Service; (iv) In case of illiterate persons ................................. ................................. (iii) "Discharge Certificate" in case of ex-servicemen-re-employed in State Service; (iv) In case of illiterate persons ................................. (b) Recording of Date of Birth in the record of service:-- (i) On production of Date of Birth certificate by the concerned Government employee in the manner prescribed in clause (a) above, the concerned Head of Office/Drawing and Disbursing Officer under whose signatures the monthly pay bill of the establishment is paid from the treasury, shall record his/her date of birth in the Service book or any other record that may be kept in respect of such Government servant with reference to relevant confirmatory documentary evidence; (ii) The signatures or thumb impressions (in case of illiterate persons) of the concerned Government servant(s) shall be obtained in token of its acceptance as to its correct recording on the first page of relevant service book/record of service by the concerned Head of Office/ Drawing and Disbursing Officer at the time of authentication of the entries on the first page of Service Book/ record of service; (iii) An authenticated copy of the confirmatory documentary evidence substantiating the recording of date of birth shall be attached with the service book/ record of service to form an inseparable part of the same. (c) Alteration of Date of Birth. The date of birth so declared by the Government Servant accepted and once recorded by the appropriate authority (as specified in clause (b) above) in the service book or any other record of service of the Government servant as the case may be, shall not be subjected 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 (Administrative Department) unless a request in this regard is made by the concerned Government servant within a period of five years of his/her entry into Government service and it is clearly established that a genuine/bonafide mistake has occurred. Provided that in case of Government servant in service on the date of issue of this Notification, a request for alteration of his/her date of birth may be considered by the Government. Provided that in case of Government servant in service on the date of issue of this Notification, a request for alteration of his/her date of birth may be considered by the Government. For reasons to be recorded in writing if an application to this effect is made within a period of six months from the date of issue of this Notification: Provided further that the date of birth so altered would not make him/her ineligible to appear in any school or University/Board or Public Service Commission Examination in which he had appeared or for entry into Government service, on the date on which he first appeared at such examination or on the date on which he entered Government service. (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 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 therefrom." 3. From a bare perusal of the above said rules, it is manifest that in case of an employee recruited after the coming into force of SRO, who is having the qualification of matriculation or above, such date of birth shall be recorded in the service book as is reflected in the Matriculation Certificate. The date of birth so recorded and accepted by the employee as well as the Government shall not be altered except where there is clerical error provided the said employee applies for correction of the date of birth within five years from the date of his entry into service and in case of Govt. Servants already in service, from the date of issuance of this SRO, if such employee applies within a period of six months. 4. The petitioner in the present case was admittedly in Govt. Service at the time when this SRO came into force. His date of birth in the service record has been recorded as 6-9-1945, which is in accordance with the date of birth recorded in his matriculation certificate. He had admittedly obtained employment on the basis of the date of birth recorded in the matriculation certificate submitted by him. Service at the time when this SRO came into force. His date of birth in the service record has been recorded as 6-9-1945, which is in accordance with the date of birth recorded in his matriculation certificate. He had admittedly obtained employment on the basis of the date of birth recorded in the matriculation certificate submitted by him. There is no error in recording the date of birth in his service record, which has been recorded correctly as per the matriculation certificate. The petitioner after making application for alteration of his date of birth, filed SWP NO: 2350/2002 in this court which was disposed of by order dated 9-9-2002, in the following terms:-- "(i) That the respondents would treat the writ petition as representation. (ii) That the claims of the petitioners be considered in terms of various standing orders and Policy Decisions. (iii) Let appropriate steps be taken as early as possible preferably within a period of three months. The period of three months would begin from the date copy of this order alongwith copy of the writ petition and its annexures are made available to the concerned authorities. If for any practical reasons, it is not possible to take decision within the aforesaid period, the concerned authorities-respondents would be at liberty to seek extension of time, but in that event respondents would have to explain each and every days delay." 5. Despite the aforesaid directions, the date of birth of the petitioner was not altered. As per his claim, he filed Contempt Petition being COA (S) NO: 4/2003, which was disposed of vide order dated 13.10.2003 and it was held that no case for correction of the date of birth of the petitioner was made out, for the reason that the Board of School Education had informed the respondent that it was not in a position to alter the date of birth recorded in certificate. 6. After the dismissal of the contempt petition, Financial Commissioner, Revenue J&K, issued Order No: FCA/56A/2002 dated 19-12-2002 whereby the sanction was accorded to the retirement of superannuation of 27 Incharge Naib Tehsildars/Tehsildars including the petitioner and thereafter the Financial Commissioner, issued FCR/Writ/229/2002 dated 10-1-2003, whereby the request of the petitioner for alteration of the date of birth was rejected. The petitioner was being retired on the basis of his date of-birth recorded in the official record i.e. 6-9-1945. 7. The petitioner was being retired on the basis of his date of-birth recorded in the official record i.e. 6-9-1945. 7. The petitioner has filed this writ petition for challenging the said order of superannuation and order of rejection of his representation on the ground that he has not reached the age of superannuation, so he should not be retired on the basis of the recorded date of birth and instead he should be allowed to continue in service till lie reaches the date of retirement on the basis of his actual date of birth claimed by him, to be 25-06-1949. 8. The stand of the respondents is that the case of the petitioner for alteration of his date of birth was processed in the light of order passed in SWP NO: 2/2002 but the Board of Secondary School Education had intimated that it can not alter the date of birth of the petitioner as recorded in his matriculation certificate. It has been submitted that in the face of the date of birth recorded in the matriculation certificate issued by the J&K State Board of School Education, certificate issued by the Head Master Govt. High School Shahdrah Sharief in favour of the petitioner has no relevance and this apart the petitioner was called upon to participate in the inquiry but he failed to participate, therefore, the matter was closed and the order for retirement of the petitioner was issued by taking into consideration the recorded date of birth of the petitioner. 9. I have heard learned counsel for the parties and perused the pleadings. Mr. Sethi, learned counsel for the petitioner has argued that the representation of the petitioner has not been decided by appreciating the relevant record. Nothing has been said about the correctness or otherwise of the certificate issued by the Head Master Govt. High School Shahdrah Sharief in which school the petitioner had studied and without any reasons the respondents have accepted the date of birth as recorded in his matriculation certificate to be the correct date of birth. He submits that actual date of birth of the petitioner, as per the School record was, 25-06-1949 but due to clerical error it had come to be recorded as 6-9-1945 in the matriculation certificate and such error was required to be corrected. 10. Mr. He submits that actual date of birth of the petitioner, as per the School record was, 25-06-1949 but due to clerical error it had come to be recorded as 6-9-1945 in the matriculation certificate and such error was required to be corrected. 10. Mr. Qazi, learned AAG submits that after having obtained the job on the basis of the date of birth recorded in the matriculation certificate, the petitioner was not entitled to urge that the date of birth recorded in the matriculation certificate is not his actual date of birth and that office record be corrected. According to him, as per Article 35-AA of the Civil Service Regulations of the aforesaid amended SRO, the date of birth recorded in the service record of the petitioner, could be altered only if it was not the same date of birth which stood recorded in the matriculation certificate. Mr. Qazi, argues that admittedly in the present case, the date of birth recorded in the service record of the petitioner is the same as recorded in the matriculation certificate, therefore, no alteration of the same is permissible. The date of birth recorded in the matriculation certificate even if wrongly recorded could not be and cannot be corrected by the Government. 11. I am in agreement with Mr. Qazi. No case for correction of the date of birth of the petitioner is made out, in view of the fact that his date of birth recorded in the service record is the same as recorded in the matriculation certificate. As per the respondents, the Board has declined to alter the date of birth of the petitioner in the matriculation certificate and thus the court cannot, go to the question, as to what is the actual date of birth of the petitioner. There being no error in reflecting the date of birth of the petitioner in the service record as the same is the same which stands entered in his matriculation certificate, the correction thereof is not permissible in terms of SRO 310. As the petitioner has retired on the basis of the date of birth recorded in his official record, which is as per the date of birth recorded in his matriculation certificate. No direction is required to be issued. 12. In the circumstances of the case, the writ petition of the petitioner merits dismissal, the same is, therefore, dismissed.