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2011 DIGILAW 267 (JK)

Farooq Ahmad v. State of J&K & Ors.

2011-05-19

MUZAFFAR HUSSAIN ATTAR

body2011
1. Petitioner was appointed as Deputy Superintendent of Police, (DYSP) vide Government Order No. 2233-GAD of 1977 dated 15th December, 1977 in the J&K Police (Gazetted) Services. The date of birth of the petitioner was recorded in the service record by the State Government as 5th February, 1949, as same was reflected in the matriculation certificate. The petitioner was appointed by way of promotion to Indian Police Service vide MHA, GOI Notification No. 14011/17/Police Service (IPS) dated 4th September, 1995. In the said notification, date of birth of the petitioner was reflected as 5th February, 1949. As per the pleadings, petitioner had made an application in the year 1981 and as per submissions in 1995 as well for change of his date of birth. The State Government accepted the claim of the petitioner for change of his date of birth and vide Order No. Home-304 (P) of 1998 dated 13th August, 1998 ordered for change of date of birth of the petitioner from 5th February, 1949 to 25th November, 1951. Petitioner continued in service of the respondents until 18th February, 2011, when Government issued Government Order No. Home-143 (P) of 2011 dated 18th February, 2011, wherein and where-under the order dated 13th August, 1998 was rescinded ab-initio and the petitioner was ordered to be deemed to have been retired on superannuation w.e.f. 28th February, 2009 (A.M). It is this order which is called in question in this writ petition. The Court of coordinate jurisdiction on 23-02-2011 after considering the issues raised in this petition passed the following order: "Heard Mr. Shah, learned Senior counsel appearing for the petitioner and Mr. Magray, Sr, AAG appearing for respondent No. 1. Admit. Issue Notice. Mr. Magray, Sr. AAG accepts notice for respondent No. 1 and Mr. Makroo, ASGI, for respondent No. 2. Looking to the nature of the issues raised in the writ petition, it is considered appropriate to list the petition for final disposal at early date. List for final disposal immediately after six weeks. Respondents, may, in the meanwhile file their response to the writ petition with advance copies thereof to the petitioner, who shall enjoy liberty to file Rejoinder, if any, before case comes up for final hearing. CMP. No. 462/2011 List alongwith the writ petition. M/s Magray and Makroo may file objections to the CMP in the meanwhile." Respondents have filed reply affidavits. 2. CMP. No. 462/2011 List alongwith the writ petition. M/s Magray and Makroo may file objections to the CMP in the meanwhile." Respondents have filed reply affidavits. 2. The order impugned in this petition is reproduced as under:-"Government of Jammu and Kashmir Civil Secretariat: Home Department, Subject:- Retirement on superannuation of Shri Farooq Ahmad, IPS (SPS:JK:90). Reference:- Government of India, Ministry of Home Affairs, Order No. 1- 45013/18/2010-IPS.l dated 09-02-2011. Government Order No. Home-143(P) of 2011 Dated 18-02-2011 Whereas, Shri Farooq Ahmad, IPS (SPS:JK:90) was initially appointed as Deputy Superintendent of Police (DYSP) vide Government Order No. 2233-GAD of 1977 dated 15-12-1977 in the J&K Police (Gazetted) Service; and Whereas, the date of the birth of Shri Farooq Ahmad as recorded in the Matriculation Certificate issued by the J&K State Board of School Education in his favour is 05.02.1949 and the same has been recorded in the service book of the officer, when he joined the Government Service; and Whereas, the Jammu and Kashmir Civil Service Regulations, 1956, as amended from time to time, are applicable only to the State Government employees; and Whereas, the officer was inducted into the Indian Police Service (IPS) vide MHA, GOI Notification No. 14011/17/Police Service (IPS) dated 04.09.1995 on the basis of his recorded date of birth i.e. 05.02.1949; and Whereas, Shri Farooq Ahmad on having been inducted into Indian Police Service (IPS) w.e.f. 04.09.1995, ceased to be a member of the J&K Police (Gazetted) Service, and as such, his service conditions had to be regulated as per the rules governing the All India Services and not as per the provisions of J&K Civil Service Regulations, 1956, as amended from time to time; and Whereas, sub-rules (3) & (4) of rule 16-A of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 provide as under:- "3) In relation to a person to whom sub-rule (2) does not apply, the date of birth as recorded in the service book or other similar official document maintained by the concerned government shall be accepted by the Central Government, as the date of birth of such person. 4) The date of birth as accepted by the Central Government shall not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3)"; and Whereas, the officer had represented for a change of his date of birth from 05.02.1949 to 25.11.1951 and the Government vide its Order No. Home-304 (P) of 1998 dated 13.08.1998, changed the date of birth of the officer from 05.02.1949 to 25.11.1951 in pursuance of the provisions of Jammu and Kashmir Civil Service Regulations 1956 as amended vide SRO-310-F darted 29.11.1995 even though the officer had ceased to be a member of the J&K Police (Gazetted) Service: and Whereas, the competent authority viz. the Ministry of Home Affairs, Gov­ernment of India, on coming to know about the issuance of Government Order dated 13.08.1998 by which the date of birth of the officer had been altered from 05.02.1949 to 25.11.1951, asked the Government of J&K, vide its letter No. 14513/18/2010-IPS-l dated 14.12.2010, to intimate the circum­stances and rules under which the State Government had changed the date of birth of Shri Farooq Ahmad, IPS; and Whereas, the Government of Jammu and Kashmir, Home Department vide its letter No. Home/PB-1/10/2001, dated 18.01.2011, furnished a factual report to the Ministry of Home Affairs, Government of India indicating the circumstances and rules under which the 'date of birth of Shri Farooq Ahmad, IPS had been changed by the State Government from 05.02.1949 to 25.11.1951; and Whereas, the Ministry of Home Affairs, Government of India in response to the State Government's (Home Department) communication dated 18.01.2011, has issued the Order No. 1-45013/18/20JO-IPS.1 dated 09.02.2011 which is reproduced hereinafter:- The order No. 304 (P) of 1998 dated 13.08.1998 of Government of J&K, Home Department, changing/altering the date of birth of Shri Farooq Ahmad, IPS (SPS:JK:90)) as 25.11.1951 instead of 05.02.1949 was examined in this Ministry vis-'-vis the rule position on the subject. It has been decided that the above referred order of the State Government shall not have any bearing on the date of birth presently on record i.e. 05.02.1949 of Shri Farooq Ahmed, IPS (SPS:JK:90) in so far as Indian Police Service is concerned and that his date of birth will continue to be considered as 05.02.1949 only for all official purposes as the member of Indian Police Service." Whereas, in view of the fact that the officer had been inducted into the Indian Police Service (IPS) w.e.f. 04.09.1995 and his service conditions were governed by the All India Service Rules and the State Government had not authority under the said rules to alter the date of birth of the officer in any manner whatsoever. Now, therefore, in view of the above, factual and the rule position as also the aforementioned decision of the Government of India, the State Govern­ment decided to rescind aforesaid Government Order NO. Home-304 (P) of 1998 dated 13.08.1998 and the said Order is, accordingly, hereby re­scinded ab-initio and as a consequence thereof Sh. Farooq Ahmad IPS (SPS:JK:90) shall be, and shall always be deemed to have been, retired on superannuation w.e.f. 28.02.2009 (A.N.) as per his original date of birth viz. 05.02.1949. The treatment of the period, the officer has overstayed in service from 01.03.2009 to 18.02.2011 shall be decided separately. By order of the Government of Jammu and Kashmir." 3. Heard learned counsel for the parties. Considered the matter. 4. Mr. Shah, learned Sr. Advocate, appearing for petitioner raised the following legal issues; a. What would be the effect of Rule 16-A of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 (for short "Rules of 1958"), on the date of birth viz. 25th November, 1951, which has been provided in Order No. Home-304 (P) of 1998 dated 13th August, 1998. b. What would be the effect of Rule 2 (b) of the All India Services (Conditions of Service and Residuary Matters) Rules, 1960, (for short "Rules of 1960"). c. What would be the effect of quashment of selection and appointment of the petitioner to Indian Police Services by the Central Administrative Tribunal. 5. b. What would be the effect of Rule 2 (b) of the All India Services (Conditions of Service and Residuary Matters) Rules, 1960, (for short "Rules of 1960"). c. What would be the effect of quashment of selection and appointment of the petitioner to Indian Police Services by the Central Administrative Tribunal. 5. Learned counsel, while inviting the attention of the Court to the various provisions of Rules, submitted that in the event an employee even after his appoint­ment by promotion to Indian Police Services finds that his date of birth has been wrongly recorded in the service record, then in view of rule position he can fall back upon the State Government wherefrom he was considered for being appointed by way promotion to Indian Police Services for rectification of mistake. Learned counsel in this behalf referred to sub rules (3) and (4) of Rule 16-A of Rules of 1958 as also Rule 2 (b) of the Rules of 1960 and submitted that in the event an officer who though has ceased to be member of the State Service after having been appointed by way of promotion to Indian Police Services can seek correction of his date of birth by approaching the concerned State Government which in the case of petitioner is State of J&K. Learned counsel also submitted that State Government in view of the power vested in it and in terms of amendments made in the J&K Civil Services Regulation, 1956 by issuance of SRO 310 dated 29.11.1995 has retained the power of changing recorded date of birth and has provided for procedure in effecting such change by adding Article 35-AA. Learned counsel submitted that in view of the power so retained by the State Government it is always open to an employee who is inducted into central service from State of J&K to seek change/correction of his date birth recorded in the service records. Learned counsel made an alternative submission viz.; that the petitioner was appointed by promotion to Indian Police Service vide notification dated 04.09.1995 w.e.f. the same date and the said selec­tion/appointment was quashed by the Central Administrative Tribunal vide its order dated 2nd July, 1998. Learned counsel made an alternative submission viz.; that the petitioner was appointed by promotion to Indian Police Service vide notification dated 04.09.1995 w.e.f. the same date and the said selec­tion/appointment was quashed by the Central Administrative Tribunal vide its order dated 2nd July, 1998. Learned counsel submitted that as the change in the date of birth of the petitioner was ordered vide order dated 13.08.1998 and the judgment of Central Administrative Tribunal was stayed by the Divisional Bench of this Court on 23.09.1998, so from 02.07.1998 to 23.09.1998, petitioner in law was not a member of the Indian Police Services, so power and authority of the State Government to change the date of birth of the petitioner was available and it cannot be called in question, more so, when the State of J&K has not joined any issue in respect of the passing of the Government order No. Home-304 (P) of 1998 dated 13.08.1998. Learned counsel, accordingly, submitted that in view of the Rule 16-A of the Rules of 1958, after the stay of the judgment of the Central Administrative Tribunal by the Division Bench of the Court on 23.09.1998 and quashment of the said judgment of the Central Administrative Tribunal by the Division Bench vide Judgement dated 08.08.2011, the only date of birth available with the Central Government in respect of the petitioner was 25.11.1951 and that is how the said date of birth has been reflected in the civil list issued by the Central Government and in the communication dated 13.01.2005 addressed by one J. B. Kaushish, to the Chief Secretary, Government of J&K, Srinagar in which date of birth of petitioner is reflected as 25.11.1951. Learned counsel submitted that Central Government in terms of sub rule (2) and (3) of Rule 16-A of Rules of 1958 was under statutory obligation to accept the date of birth of petitioner as it was the date of the birth resolved and recorded by the concerned Government viz. State of J&K in this case. Learned counsel submitted that in terms of sub rule (4) of Rule 16-A of the Rules of 1958, the Central Government has power only to correct the bona fide clerical mistake. This according to submission of learned counsel is the only view possible on the plain reading of the said provisions of the Statutory Rules of 1958. Learned counsel submitted that in terms of sub rule (4) of Rule 16-A of the Rules of 1958, the Central Government has power only to correct the bona fide clerical mistake. This according to submission of learned counsel is the only view possible on the plain reading of the said provisions of the Statutory Rules of 1958. Learned counsel also submitted that the communication dated 18.01.2011 bearing order No. 1-45013/18/2010-IPS.I dated 09.02.2011 was never communicated to the petitioner, so cannot have any impact in law on the service rights of the petitioner. Learned counsel also submitted that neither Central Government nor State Government before issuance of aforementioned communication/order issued any notice to the petitioner. Learned counsel submitted that these orders having been passed in breach of the principles of natural justice stand vitiated in the eyes of law. Learned counsel also submitted that the impugned order was passed on 18.02.2011, a holiday. This submission was made to show that impugned order was not issued after due application of mind, but was issued in haste to literally throw the petitioner out of the service. Learned counsel also referred to Indian Police Service Appointment by Promotion Regulations, 1955 and invited the attention of the Court to regulations 6,7 and 9 to canvass the point that the date of birth of the petitioner settled in terms of State Government order dated 13.08.1998 is the actual date of birth of the petitioner and this alone is to be reflected in the service record of the petitioner. Learned counsel also submitted that petitioner has meritorious and unblemished service career at his back which has been brought to abrupt end by passing the impugned order. Learned counsel accordingly prayed for quashment of the im­pugned order and for making declaration to the effect that the petitioner has right to continue in service till such time he attains 60 years of age which as per the submission of the learned counsel would be 30.11.2011. 6. Mr. Magray, learned Sr. AAG appearing on behalf of respondent No. 1 submitted that respondent-State has passed the impugned order in view of the respondent No. 2's communication dated 18.01.2011. Learned counsel also referred to power of the State Government to affect the change in the date of birth of an ; employee. 6. Mr. Magray, learned Sr. AAG appearing on behalf of respondent No. 1 submitted that respondent-State has passed the impugned order in view of the respondent No. 2's communication dated 18.01.2011. Learned counsel also referred to power of the State Government to affect the change in the date of birth of an ; employee. Learned counsel, however, submitted that as the communication dated 18.01.2011 has not been called in question, which has become basis for issuance of order impugned in this petition, this petition is not maintainable. Learned counsel also submitted that the date of birth of the petitioner recorded in the civil list issued by the Ministry of Home Affairs is 25.11.1951, but it cannot be said that by notifying date of birth in such list would mean that this is the accepted date of birth of the petitioner. 7. A specific question was asked to Mr. Magray, learned Sr. AAG as to whether change in date of birth was effected either by manipulation or by adopting fraud­ulent means which would even include pressing into service forged documents by the petitioner. Mr. Magray, learned Sr. AAG in his fairness submitted that change in date of birth of the petitioner as effected in terms of order dated 13.08.1998 was effected neither by manipulation nor by fraud and also not by pressing into service any forged document. Learned counsel submitted that appropriate authority in the State Government in exercise of its statutory power conferred upon it in terms of Rules notified vide SRO 310 of 1995, after considering the request of the petitioner, supporting material and after being satisfied about the same ordered for change of date of birth of the petitioner from 05-02-1949 to 25-11-1951. 8. Mr. S.A. Makroo, learned Assistant Solicitor General of India, appearing for respondent No. 2 submitted that the writ petition is not maintainable in absence of challenge to communication dated 18-01-2011 issued by the Ministry of Home Affairs, Government of India. Learned counsel also submitted that date of birth as recorded in the notification dated 01-09-1995 in respect of petitioner being 05-02-1949, same was accepted and no change has been affected in the recorded date of birth of the petitioner. Learned counsel also submitted that date of birth as recorded in the notification dated 01-09-1995 in respect of petitioner being 05-02-1949, same was accepted and no change has been affected in the recorded date of birth of the petitioner. Learned counsel also submitted that that order of the Central Administrative Tribunal dated 02-07-1998 having been stayed by the Division Bench of this Court in a writ petition filed against the said order, petitioner thus continued to be member of Indian Police Service and in view of the mandate contained in Rule 16-A of the Rules of 1958, the State Government had neither power nor authority to effect change in the recorded date of birth of the petitioner. Learned counsel accordingly submitted that this petition merits dismissal. 9. For proper adjudication of the controversy, Rule 16-A of the Rules of 1958, Rule 2 of the Rules of 1960 and Article 35-AA notified vide SRO 310 of 1995 are reproduced as under: "16-A. Acceptance of date of Birth.- For the purpose of determination of the date of superannuation of a member of the service, such date shall be calculated with reference to the date of his birth as accepted by the Central Government under this rule. (2) In relation of a person appointed, after the commencement of the All India Services (Death-cum-Retirement Benefits) Amendment Rules, 1971; (a) The India Administrative Service under clause (a) or clause (aa) of sub-rule (1) or Rule 4 of the Indian Administrative Service (Recruitment) Rules,1954; or (b) The India Police Service under clause (a) or clause (aa) of sub-rule (1) of Rule 4 of the Indian Police Service (Recruitment) Rules, 1954 or; (c) The Indian Forest Service under clause (a) or clause (aa) of sub-rule (2) of the Rule 6 of the Indian Forest Service (Recruitment) Rules, 1966, the date of birth as declared by such person in the application for recruitment to the service shall be accepted by the Central Government as date of birth of such person. (3) In relation to a person to whom sub-rule (2) does not apply, the date of birth as recorded in the service book or other similar official document maintained by the concerned Government shall be accepted by the Central Government, as the date of such person. (3) In relation to a person to whom sub-rule (2) does not apply, the date of birth as recorded in the service book or other similar official document maintained by the concerned Government shall be accepted by the Central Government, as the date of such person. (4) The date of birth as accepted by the Central Government shall not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3)." 2. Power of Central Government to provide for residuary matters- The Central Government may, after consultation with Government of the States concerned, make regulations to regulate any matters relating to conditions of service of persons appointed to an All India Service, for which there is no provision in the rules made or deemed to have been made under the All India Services Act, 1951 (61 of 1951); and until such regulations are made, such matters shall be regulated:- (a) In the case persons serving in connection with the affairs of the Union, by the Rules, regulations and orders applicable to officers to the Central Services, Class I; (b) In the case of persons serving in connection with the affairs of the State by the rules, regulations and orders applicable to officers of the State Civil Services, Class I, subject to such exceptions and modifications as the Central Government may, after consultation with the State Government concerned, by order in writing, make:" SRO 310 dated 29-11-1995 inserted Article 35-AA, which provides as under:- "Notwithstanding any thing contained in rules 6.4 and 6.5. of the Jammu and Kashmir Financial Code Volume-I, the following provisions shall apply for determination of Date of Birth, recording thereof in reference to the Government servants;- 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 Govt. employee at the time of appointment and accepted by the appointing authority on production, as far as possible of confirmatory documentary evidence in the following manner:- "In case of Govt. employee at the time of appointment and accepted by the appointing authority on production, as far as possible of confirmatory documentary evidence in the following manner:- "In case of Govt. employee, 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." Sub clause (c) of the above article provides for alteration of date of birth which is reproduced as under: Alteration of Date of Birth: The date of birth so declared by the Government servant and 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 subject 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, for reasons to be recorded in writing, if an application to this effect is made within a period of six months from the date issue of this Notification." 10. Certain facts which have manifested in the pleadings and in the material available on record require to be considered in the first instance. The claim of the petitioner in the writ petition that he has meritorious, unblemished and impeccable service record at his back has remained uncontroverted. It has also come on record on the basis of pleadings and the fair submission made by Mr. Magray, learned Sr. AAG that the petitioner's date of birth was not changed by adopting any fraudulent means or by manipulation or by pressing into service any forged documents. Mr. It has also come on record on the basis of pleadings and the fair submission made by Mr. Magray, learned Sr. AAG that the petitioner's date of birth was not changed by adopting any fraudulent means or by manipulation or by pressing into service any forged documents. Mr. Magray, also admitted that the competent authority in the State Government in exercise of its statutory power after entering into satisfaction about the claim projected by the petitioner about his date of birth ordered for change of same from 05-02-1949 to 25.11.1951. Proceeding on the foundation so laid it is declared that change of date of birth is not based on any fraud or forged documents nor the process has been manipulated and it is further declared that order for change of date of birth has been passed by the competent authority in exercise of its statutory power after entering into satisfaction about the genuineness of claim. 11. In view of the submissions made at the Bar by learned counsel for the parties, now it would require to be ascertained as to whether the impugned order can sustain in the eyes of law. The issue of fundamental importance raised by Mr. Shah, learned Senior counsel appearing for the petitioner that even after appoint­ment by promotion into Indian Police Service, the power of the concerned Government to consider the claim of an employee, if projected, for change of date of birth does not come to an end, may not require to be answered in this petition, as this writ petition would be allowed on two other grounds and this issue raised is accordingly left open. 12. Petitioner was appointed by way of promotion into Indian Police Sendee in terms of order dated 04-09-1995 w.e.f. same date. Induction notification shows the date of birth of the petitioner as 05-02-1949. In terms of the pleadings in the writ petition, petitioner had made application way back in the year 1981 and had sought change in his aforementioned recorded date of birth for the reason mentioned therein. The State Government by issuance of SRO 310 of 1995 dated 29.11.1995 provided not only for procedure for changing date of birth, but also retained the power for ordering for change of date of birth. The petitioner's representation/ap­plication for change of date of birth was considered by the appropriate authority in the State Government. The State Government by issuance of SRO 310 of 1995 dated 29.11.1995 provided not only for procedure for changing date of birth, but also retained the power for ordering for change of date of birth. The petitioner's representation/ap­plication for change of date of birth was considered by the appropriate authority in the State Government. The appropriate authority after satisfying itself about the genuineness of the claim of the petitioner on the basis of the representation made and "material produced the with ordered for change of date of birth of the peti­tioner from 05.02.1949 to 25.11.1951. This was done by issuance of Government order No. Home-304 (P) of 1998 dated 13.08.1998. The expression as is used hereinabove that the authority was satisfied about the genuineness of the claim of the petitioner for change of date of birth has been used because nothing in opposi­tion thereto is said or canvassed, but same is admitted by other side. 13. When a member of the State Police is appointed by way of promotion to Indian Police Service, then in terms of Rule 16-A of Rules 1958, for the purpose of determination of the superannuation of the member of the service, date has to be calculated with reference to his date of the birth as accepted by the Central Govern­ment under the Rules. Sub Rule 3 of Rule 16-A of the Rules of 1958 provides that the date of Birth as recorded in the Service book or other similar official documents maintained by the Concerned Government shall be accepted by the Central Gov­ernment as date of birth of such person. The concerned Government in this case is the State of J&K. The State of J&K has recorded the date of birth of the petitioner in terms of order dated 13.08.1998 as 25.11.1951. The State Government until issuance of communication dated 09.02.2011 of the Ministry of Home Affairs did not revoke or rescind the order dated 13.08.1998. By issuance of Order No. Home-304 (P) of 1998 dated 13.08.1998, the State Government had declared the correct date of birth of the petitioner as 25.11.1951 and by the operation of the Rule 16-A the Central Government was under obligation to accept said date of birth. By issuance of Order No. Home-304 (P) of 1998 dated 13.08.1998, the State Government had declared the correct date of birth of the petitioner as 25.11.1951 and by the operation of the Rule 16-A the Central Government was under obligation to accept said date of birth. The Central Government in faithful compliance of the sub rule (3) of Rule 16-A reflected the date of the birth of the petitioner as 25.11.1951 in the Indian Police Service List, 1999 which date of birth of the petitioner was declared by issuance of order No. Home-304 (P) of 1998. Even in a subsequent communication issued by One Sh. J. B. Kaushish, Desk Officer and addressed to the Chief Secretary, Govt. of the J&K dated 13.01.2005 the date of the birth of the petitioner is reflected as 25.11.1951. The respondent No. 2 1 has thus complied with the Statutory requirements of sub rule (3) of Rule 16-A of 1958. The Indian Police Service List which is annexed with this writ petition states as under: "The contents of this list should not be deemed to convey any sanction or authority in the matter of seniority, pay and allowance." The only logical and legal deduction thereof would be that the date of birth which is reflected in the civil list is accepted to be correct and is the authorized reflection of correct date of birth of petitioner. 14. The issue has been raised that after petitioner having been appointed by promotion to the Indian Police Service, the State Government could not order for change of date of birth on 13.08.1998. This issue, so raised, needs to be considered in view of the developments, which have taken place in the service career of the petitioner, inasmuch as, besides, others the appointment by promotion of the petitioner to Indian Police Service was called in question before the Central Admin­istrative Tribunal (CAT), Chandigarh Bench in O. A. NO. 112-JK-95. The CAT vide its order dated 02.07.1998 quashed the recommendations of the selection committee as also appointment by promotion made as a consequence of such selection. The relevant paragraphs of the order are reproduced as under: "(9.) As a result, the recommendations of the Selection Committee in its meeting held on 28.03.95 contained in file No. 7/7/95-AIS dated 28.03.95 are quashed. Appointments by promotion made as a consequence of this selection are also quashed. The relevant paragraphs of the order are reproduced as under: "(9.) As a result, the recommendations of the Selection Committee in its meeting held on 28.03.95 contained in file No. 7/7/95-AIS dated 28.03.95 are quashed. Appointments by promotion made as a consequence of this selection are also quashed. Directions are issued to the respondents to reconvene a meeting of the Selection Committee and to prepare a fresh list keeping in view the law on bunching of vacancies as laid down by the Supreme Court in Union of India and others v. Vipinchandra Hiralal Shah-JT 1996 (9) S.C. 686. These directions will be complied with within three months of date of receipt of this order. (10.) Before parting with this case, we make it clear that as this is a case of review of the selection made, it will not be necessary for the State Govern­ment-Respondent No. 2 to disturb the pay and allowances and postings of officers, who were appointed by promotion to the Indian Police Service which has been quashed by this order. They may reconsider this after compliance of directions contained in paragraph 9 above. No order as to cost" 15. The said order of the CAT was questioned before the Division Bench of this Court in a writ petition and the Division Bench vide order dated 23.09.1998 stayed the operation of order of the CAT. The Division Bench vide judgment dated 08.08.2001 quashed the order of the CAT. As already stated, vide order dated 13.08.1998 the date of birth of the petitioner was ordered to be changed from 05.02.1949 to 25.11.1951, at a point of time when the selection and appointment of the petitioner to Indian Police Service was quashed. What would be the effect of the quashment of the selection and appointment of the petitioner requires to be seen. When in properly constituted judicial proceedings, after hearing the parties finding is recorded by the Court/Tribunal that order suffers from any illegality and incon­sequence thereof it is quashed the order gets effaced and ceases to exist the moment it is quashed by the judgment of the Court. The legal consequences, thus, are that no further administrative order is required to be passed to give effect to the order of the quashment. The legal consequences, thus, are that no further administrative order is required to be passed to give effect to the order of the quashment. The petitioner on 13.08.1998 was not thus de-jury member of the Indian Police Service, though his pay allowance and posting was protected by the order of the CAT. The Petitioner status could not remain in limbo, he was not member of service of Central Government from 2nd of July 1998 to 23.09.1998 the date when the order of the Tribunal was stayed. The order dated 13.08.1998 was thus passed by the competent authority in the State Government and is held to be legal and valid and having the force of giving the benefit of change of date of birth to the petitioner. It is how thereafter in the Indian Police Service List of 1999, the petitioner's date of birth was reflected as 25.11.1951. True it is that setting aside of the order of the CAT washed away its effect and petitioner continued to be member of Indian Police Service without any break that had occurred because of the order dated 2nd July, 1998. The decisions, however, taken by the State Government in the interim period of 02.07.1998 to 23.09.1998 would, however, remain unaffected. It is accordingly held that the petitioner's date of birth as ascertained by the concerned Government is 25.11.1951 and it is this date of birth on the basis of which petitioner is to be retired on superannuation from service. 16. In terms of State Rules and Rule 16-A of Rules of 1958 recording of actual and factually correct date of birth in the service records of an employee is not only a legal obligation of concerned Government but is its moral duty also. The rules provide for retirement on superannuation of employee from service. The length of service to be rendered is thus determined. A valuable legal right to continue in service is vested in an employee. During ones service career, an employee attains many service benefits. The recording of correct date of birth in service records/of­ficial records concerning an employee becomes of fundamental importance and concerned Government has to determine the same. When dispute is raised and issue joined about the correctness of recorded date of birth, then it becomes legal duty of concerned Government to take steps for ascertaining the correct and actual date of birth of an employee. When dispute is raised and issue joined about the correctness of recorded date of birth, then it becomes legal duty of concerned Government to take steps for ascertaining the correct and actual date of birth of an employee. This duty can not be denied to appropriate Government. The Rule (2) of Rules of 1960 do cover such contingency. If concerned Government/appointing authority declines to consider claim of an employee for change of date of birth projected on well founded grounds, then wrong date of birth recorded in service records will remain in place, which would be unfair and unjust. The Statutory Rules would require recording of correct date of birth and this duty to maintain correct record of an official is inherent in every Government. 17. Another aspect of the case, admittedly, is that order dated 09.02.2011 issued by respondent No. 2 was never communicated to or served on the petitioner. Petitioner, who on the basis of his determined date of birth as 25.11.1951 has right in law to be continue in service till he attains age of retirement on superannuation viz. 30.11.2011. Petitioner, however, could be removed from service but in accor­dance with mandate contained in law. Petitioner has protections to his status as a member of Indian Police Service available to him in terms of Article 311 of the Constitution of India and statutory Rules. By issuing the communication dated 09.02.2011, which was never communicated or served upon the petitioner he literally has been removed from the service thus violating his constitutional rights available to him. The communication otherwise is non-est in the eyes of law and would not affect the service rights of the petitioner, inasmuch as, besides, not having been served upon him, no notice has been issued to him to explain his position. The communication is penal in nature and has affected the constitutional and civil rights of the petitioner. Not only no procedure has been followed, but even the minimum requirements of principle of natural justice have not been complied with. Affording hearing before passing of order which adversely affects the Constitutional and Civil rights of an employee is basic human right which is recognized by the provision of Constitution. Not only no procedure has been followed, but even the minimum requirements of principle of natural justice have not been complied with. Affording hearing before passing of order which adversely affects the Constitutional and Civil rights of an employee is basic human right which is recognized by the provision of Constitution. Any action taken in violation thereof would be void ab-initio and non-est in the eyes of law and it is simply to be declared so even in co-lateral proceedings and even in absence of direct challenge thereto. The communica­tion/order No. 1-45013/18/2010-IPS.l dated 09.02.2011 is declared to be non-est and void ab-initio in the eyes of law not effecting the service rights of the petitioner. 18. The State Government has simply carried out the mandate of aforemen­tioned order of Central Government and has not applied its mind, and even notice is not issued to the petitioner before passing of impugned order. The said order suffers from same malady and cannot be sustained in the eyes of law. 19. The respondent No. 2 in view of material available on record had accepted the date of birth of petitioner as 25.11.1951, that is why no issue was joined on it. The issuance of impugned order and communication of respondent No. 2, preced­ing the said order, in view of the pleadings of respondents in their affidavits was triggered because of claim of the one State Police officer for change of his date of birth. The communication and impugned order is thus a reaction by authorises and is not a decision arrived at after due application of mind. No reason is recorded for effecting change in the recorded and ascertained date of birth of the petitioner while passing the impugned order. 20. The order impugned in this petition is held to be illegal, void ab-initio and non-est in the eyes of law not effecting the service rights of the petitioner. 21. For the above stated reasons, this petition is allowed. By issuance of writ of Certiorari, Government Order No. Home-143 (P) of 2011 dated 18.02.2011 is quashed. It is declared that petitioner will be deemed to have continued in service and is held entitled to all service benefits including pay etc., notwithstanding, passing of the impugned order. Petitioner is held entitled to continue in service till he attains age of superannuation in accordance with law and rules. It is declared that petitioner will be deemed to have continued in service and is held entitled to all service benefits including pay etc., notwithstanding, passing of the impugned order. Petitioner is held entitled to continue in service till he attains age of superannuation in accordance with law and rules. Respondents are directed to give appropriate posting to the petitioner which is commensurate to his rank and status within a period of one week.