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J&K High Court · body

2010 DIGILAW 212 (JK)

Syed Nisar Hussain v. State

2010-04-22

MOHAMMAD YAQOOB MIR

body2010
1. Petitioner has been temporarily regularized as Junior Craft Instructor in terms of Govt. order No.157-Ind of 1991 dated 21.0.1991. At the relevant time he was required to declare his date of birth which according to learned counsel was declared as 6.9.1955, in support thereof school leaving certificate indicating the date of birth of the petitioner as 6.9.1955 issued by the Government School, Rainawari Srinagar, had been produced, hut same has not been accepted; as a result thereof petitioner obtained medical certificate issued by the Medical Superintendent, District Hospital Baramulla, where-under age of the petitioner has been determined as 38 years as on 28.9,1991. This age too has not been accepted by the respondents. Then an order bearing No.456-HDT of 1993 dated 13.5.1993 has been issued which reads as under:- "Government of Jammu and Kashmir Directorate of Handicrafts. ORDER NO-.456-HDT of 1993 DATED: 13-5-1993 As per interviews on 4-5-1993 Director Handicrafts assessed by personal appearance the age of the Shri Syed Nisar Hussain S/o Lt. Agha Syed Abdullah R/O Hasnahad Rainawari Sgr as 43 years (Forty three) as on 4-5-1993 which may he recorded in his service records. This is in continuation to this office order No.690-HDT of 1992 dated 2-9-92. (M.D. Kamili) Joint Director Handicrafts, Trainings NO:HD/DDT/8792-98 Dated 13.5.1993" What appears there from is that on the physical appearance, age of the petitioner has been assessed as 43 years as on 4.5.1993 based on which, on reaching age of superannuation, he has retired. 2. The contention of the learned counsel for the petitioner is that the age of the petitioner pursuant to order No.456 dated 13.5.1993 has been determined whimsically. Such manner of determination of age is not recognized by the service rules. 3. Article 35-AA of CSR prescribes mode and method of determining the age of the government employee. The modes prescribed therein have not been adopted at all. The response as has been tiled by the respondents is indicative of the fact that the school leaving certificate was not produced at all. 3. Article 35-AA of CSR prescribes mode and method of determining the age of the government employee. The modes prescribed therein have not been adopted at all. The response as has been tiled by the respondents is indicative of the fact that the school leaving certificate was not produced at all. If at all taken to be correct, still the certificate is not free from suspicion as the date of birth of the petitioner in the said certificate is recorded as 6.9.1955 and the petitioner is shown to have read up to 5th primary on 1964, so within three years of his admission he could not reach to 5th primary, based on tins position the certificate has been ignored. Then medical certificate has been ignored by staling that the Medical Superintendent ought to have subjected the petitioner to Radiological and Dental examination which has not been done. 4. When the age of the petitioner on physical appearance in terms of order dated 13.5.1993 was determined as 43, same was recorded in the service book and allegedly petitioner has accepted the same, in support thereof his signature has been taken. 5. The determination of age as 43 years on physical appearance, is totally arbitrary and void in its operation because it does not conform to any standard nor is it in consonance with the applicable rules, more particularly Rule 35-AA of the CSR. 6. Learned counsel for the respondents stated that after a gap of 14 years writ petition has been filed, therefore, petition is hit by latches. In addition the petitioner had an opportunity of making representation within six months from the date of issuance of SRO 310 dated 29.11.1995, which he has not done, therefore, at this stage petition being not maintainable may be dismissed. 7. It is true that the petition has been filed after a gap of 13 years but it is also equally true that the petitioner is illiterate, had no access to the service book. That apart, SRO 310 in the peculiar features and circumstances has no application when the date of birth is based on surmises and is totally arbitrary. When an action is absolute void, the question of latches shall not stand as obstacle in doing the substantial justice. 8. What emerges from the afore-stated position of the case is that the date of birth of the petitioner has not been correctly recorded. When an action is absolute void, the question of latches shall not stand as obstacle in doing the substantial justice. 8. What emerges from the afore-stated position of the case is that the date of birth of the petitioner has not been correctly recorded. Least the authorities concerned were expected to do for determining the age, was lo refer the petitioner to the Medical Board of experts who would give the actual picture about the age of the petitioner. Article 35-AA would provide the method and mode for determining the age of an employee. So far as the position of the petitioner is concerned, it shall be relevant lo quote Article 35-AA(a)(iv): "(iv) In case of illiterate persons- 1. Extracts from Birth Register duly signed by the concerned Executive Officer of the Municipality, chairman concerned Notified Area Committee/Town Area Committee, as the case may he: 2. In the case of those persons not falling within the Municipal/Notified Area Committee limits, the certificate should be signed by the concerned Tehsildar where the employee resides who will issue the certificate, in the prescribed format as per annexure hereto; or 3. A certificate in the above mentioned format issued by a Medical Board of the respective district, where the employee is posted. The Medical Board shall comprise of : - (i) Chief Medical Officer of the respective district; (ii) Radiologist; (iii) Dental Surgeon, 9. Though at the relevant time Article 35-AA was not available, the matter was to be dealt with under Article 35-A, where-under in case of an illiterate person a certificate was required to be produced from a competent Medical Officer. That was done because the medical certificate was produced but that certificate was rightly rejected as the petitioner was not subjected to requisite tests. The circumstances and position of the case is such where-under no final decision can be taken vis-a-vis actual date of birth of the petitioner. The only course available is to have recourse to Article 35-AA(a)(iv)of CSR. 10. While accepting this petition, the date of birth of the petitioner recorded pursuant to order dated 4.5.1993 to be 43 years shall be ignored. The only course available is to have recourse to Article 35-AA(a)(iv)of CSR. 10. While accepting this petition, the date of birth of the petitioner recorded pursuant to order dated 4.5.1993 to be 43 years shall be ignored. The respondents shall refer the petitioner to the Medical Board in accordance with Article 35-AA as referred to hereinabove and the Medical Board alter examination of the petitioner shall certify the actual age of the petitioner based on which the date of birth of the petitioner shall be reflected in the service records and thereafter on that basis ago of superannuation shall be determined. The exercise of referring the petitioner to Medical Board and for determining the age shall be completed within six weeks from the date of receipt of the order and all consequential service benefits as shall be admissible shall be determined and made available to the petitioner thereafter within a period of four weeks. Petition accordingly succeeds so is disposed of as above.