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2011 DIGILAW 276 (JK)

Raj Dulari v. State & Ors.

2011-05-25

SUNIL HALI

body2011
1. Dispute in this writ petition relates to the date of birth of the petitioner's deceased husband recorded at the time of entry into service. It is contended that date of birth of petitioner's husband as recorded in the service book was 15.07.1938 and he was due to retire from service 15.07.1996 but vide order dated 12.10.1992, he was superannuated on 31.08.1993. Against this order, petitioner filed a representa­tion before the respondents wherein it is pleaded that his date of birth as recorded in his service book and matriculation certificate is 15.07.1938 and he has wrongly been superannuated. After receipt of the representation by the respondents, hus­band of the petitioner was asked to furnish his original matriculation certificate and service book for verifying the date of birth, which were submitted to the respon­dents. 2. A complaint came to be filed by the respondents with the Police Station, Crime Branch, Srinagar against the petitioner's husband in which it was alleged that he has forged his date of birth i.e. matriculation certificate and has tampered the same in the service book and has shown it as 31.08.1938 instead of 15.07.1935. Report under Section 173 Cr.P.C. was filed before the Judicial Magistrate Judge Small Cases Court, Srinagar. The trial court after hearing the parties and perusing the record dismissed the case of the prosecution as no witness was produced by it to substantiate its case of alleged forgery of tampering of date of birth by the petitioner. The accused was acquitted of the charges vide judgment dated 29.11:2003. It is pertinent to mention herein that impugned order in the writ petition was questioned in this court in which interim direction was issued as a result of which, the petitioner continued to remain in service till 1996. The said writ petition is stated to have been dismissed vide order dated 06.04.2006. Against this order, LPA was preferred and Hon'ble Division Bench while allowing the writ petition set aside the order of learned Single Judge and directed that the writ petition shall stand revived to be considered and disposed of afresh by the writ court. It is also mentioned in the order that acquittal in criminal case of the petitioner's husband shall also be taken into consideration while deciding the writ petition. 3. In pursuance to the directions of the Division Bench, State Board of School Education was also impleaded as party-respondent no. 4. 4. It is also mentioned in the order that acquittal in criminal case of the petitioner's husband shall also be taken into consideration while deciding the writ petition. 3. In pursuance to the directions of the Division Bench, State Board of School Education was also impleaded as party-respondent no. 4. 4. It seems that after issuance of certificate showing date of birth as 30.08.1938 Superintendent Engineer, Electric Planning and Designing Circle, Srinagar sought verification of date of birth from the Deputy Secretary Verification, State Board of School Education. A communication is stated to have been issued by the Deputy Secretary Verification (KD) indicating the date of birth of the petitioner's husband as 15.07.1938 and the petitioner, also produced matriculation examination certifi­cate issued by the Kashmir University for the Sessions 1952 (First September) indicating the date of birth of the petitioner's husband as 15.07.1938. 5. The contention raised by the learned counsel for the petitioner is that at no point of time, the date of birth of the petitioner's husband was denied as 15.07.1938. It is stated that even at the time of entry into service, his date of birth recorded in the service book and matriculation certificate was 15.07.1938. Unilaterally changing date of birth from 15.07.1938 to 15.07.1935 is not based upon any record. Nothing has been disclosed by the respondents as to on what basis the petitioner's husband was retired in 31.08.1993 when admittedly his date of birth was recorded as 15.07.1938. He was to retire 15.07.1996. 6. The stand of respondents is that petitioner's matriculation certificate bears Roll No. 1117 and the said certificate has not been issued by the Board. On verification, it has been found that one Kamal Sahini had appeared in the said examination under Roll No.1117. It is further contended that on verification sought from the Board, it was informed that as per admission form of 1952 under Roll no.1117, the petitioner had appeared in the matriculation examination. It is also stated that under the same Roll number, one Kamal Sahini appeared in the said examination. This in nutshell is the stand of the respondents 1 to 3. 7. On the other hand, the stand of the Board-respondent no.4 is that commu­nication dated 11.12.2007 issued by the Deputy Secretary, Verification is either forged or has been issued in casual manner without checking the records. This in nutshell is the stand of the respondents 1 to 3. 7. On the other hand, the stand of the Board-respondent no.4 is that commu­nication dated 11.12.2007 issued by the Deputy Secretary, Verification is either forged or has been issued in casual manner without checking the records. It is also contended that as per the records under Roll no.1117, one Kamal Sahini appeared in 1952 Examination and one Jawar Lal Koul also appeared in the said Examination under Roll no. 1177. It is admitted by the Board that form of the petitioner was not available. 8. I have heard learned counsel for the parties and perused the record. 9. The stand of the respondents is that matriculation certificate issued in his favour under Roll no.1117 does not pertain to him but it pertains to one Kamal Sahini. This certificate is stated to have been issued by the Board. The certificate issued by the University of Kashmir reflects the date of birth of the petitioner as 15.07.1938 under Roll no. 1177. It is important to note that the petitioner's husband, is stated to have appeared in the Session 1952 (First September) whereas Annual Examination held in the month of March. It appears from the certificate itself that the petitioner's husband has appeared in the examination in the month of Septem­ber 1952, which appears to be Bi-annual examination. It is for this reasons that form of the petitioner's husband has not been made available by the respondents. The board after verification found that the petitioner's husband had appeared under two Roll nos. 1177 and 1117 which relate to some other persons and not to the petitioner's husband. It is not being denied by the respondents that the petitioner's husband has appeared in the matriculation examination. However, form submitted by him has not been traced. 10. What emerges from the aforementioned facts is that the petitioner's hus­band might have appeared in the Bi-annual Examination of 1952 under Roll no.1177 and not in the month of March, 1952. No verification has been done by the respondents to look into this aspect of the matter. I say so because once the respondents have traced the forms of other two candidates who were appeared under Roll no. No verification has been done by the respondents to look into this aspect of the matter. I say so because once the respondents have traced the forms of other two candidates who were appeared under Roll no. 1177 and 1117, but the form of the petitioner's husband could not be traced as he might have not appeared in the said Examination held in the month of March 1952. The petitioner's husband was appeared in the month of September, 1952. 11. Be that as it may, the fact remains that these were the issues which were required to be Inquired by the respondents before altering his date of birth and an opportunity was required to be given to the petitioner's husband which has not been done in the present case. 12. The other aspect of the matter is that the respondents have not disclosed to this court as to what was the basis of retiring the petitioner in the year 1993 and on what basis the respondents have come to the conclusion that date of birth of the petitioner was 15.07.1935. This fact has also not been disclosed by the respondents in their reply. 13. It may also be mentioned that committee constituted by the Board has certified that the date of birth of the petitioner's husband is 15.07.1938. 14. From all what has been stated, it clearly transpires that date of birth of the petitioner' husband has been altered without notice to him. It also emerges that basis for recording date of birth as 15.07.1935 was not disclosed by the respondents. 15. I am fortified my view with the judgment of Apex Court reported in AIR 1981 SC 1481 entitled Sarjoo Prasadi v. The General Manager and another wherein it has held as under :- "Constitution of India Art. 226- Date of birth of employee altered by the employer after accepting it-Employee not given opportunity of hearing-Order correcting birth date and retiring employee on that basis is liable to be set aside in view of the principles of natural justice." 16. Viewed thus, I allow this writ petition and set aside Govt. Order no.188-PDD of 1992 dated 12.10.1992. The respondents are directed to treat the petitioner's husband into service with effect from the date he has been retired with all conse­quential/service benefits and superannuate him by taking his date of birth as 15.07.1938. Viewed thus, I allow this writ petition and set aside Govt. Order no.188-PDD of 1992 dated 12.10.1992. The respondents are directed to treat the petitioner's husband into service with effect from the date he has been retired with all conse­quential/service benefits and superannuate him by taking his date of birth as 15.07.1938. The respondents are further directed to pay all post retrial benefits to which petitioner's husband was entitled under rules including full pension, arrears, gratuity, leave salary etc. after treating date of birth as 15.07.1938, within a period of two months. 17. Disposed of along with connected CMP(s)