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2013 DIGILAW 625 (JK)

Hardutt Sharma v. State

2013-10-25

DHIRAJ SINGH THAKUR

body2013
1. The petitioner seeks a writ of mandamus against the respondents to correct his date of birth in the official records as 13.10.1956 instead of 13.10.1955. The petitioner further seeks a writ of prohibition, restraining the respondents from superannuating him in October 2013, on the basis of the date of birth i.e. 13.10.1955, which is already recorded in the official records. 2. The case set up by the petitioner in the petition is that his earlier date of birth was recorded in the official records according to the matriculation diploma, which reflected the same as 13.10.1955. Subsequently, it transpired that the said date of birth was inadvertently recorded by the J&K State Board and the said mistake was later on corrected by the Board. Accordingly, a fresh matriculation diploma was issued in favour of the petitioner reflecting his date of birth as 13.10.1956. 3. Mr. S.K. Anand, learned counsel appearing for the petitioner submitted that after receipt of fresh matriculation diploma by the petitioner reflecting his date of birth as 13.10.1956, the same was submitted by the petitioner before the respondents with a prayer for making necessary correction in the official records including the service book of the petitioner. 4. It was submitted by the counsel for the petitioner that thereafter the matter was considered by the respondents with regard to the correction of date of birth of the petitioner in the official records. Reference in this regard is made to intra-departmental correspondence and in particular to a letter dt. 24.5.1999, addressed by the Accounts Officer, District Fund Office, Kathua, to the Director J&K Fund Organization, Jammu, wherein a request was made for correction of the service record of the petitioner. Reference was also made to a letter dt. 5.4.1994, issued by the Deputy Director, (Central), Funds Organization, Jammu, whereby comments were sought from the Deputy Director, Funds Organization, Jammu, before taking any action in the matter regarding correction of date of birth of the petitioner in the said communication, the fact that in the seniority list of Compilors, the date of birth of the petitioner was shown as 13.10.1955, was also highlighted. 5. Reference was also made to a letter dt. 17.3. 5. Reference was also made to a letter dt. 17.3. 1994, issued by the Chief Accounts Officer, District Fund Office, Kathua, addressed to the Director, J&K Fund Organization, Jammu; in regard to the seniority list of J&K Subordinate Compilors (Accounts-cum-Debt Services Class III and Class III-B, Assistant Compilors Class II Sr. Compilors) to show that matter was being considered by the respondents at their own level regarding correction of date of birth of the petitioner in the official records. Reference was also made to a letter dt. 9.3.2012, issued by the Joint Director, Funds Organisation, Jammu, to the Secretary, State Board of School Education, Jammu, for the purposes of verifying the actual date of birth of the petitioner. It is in response to the above letter that the Joint Secretary (Certificate), BOSE Verification Section, J&K State Board of School Education, vide his letter dt. 22.6.2012, verified that the actual date of birth of the petitioner was 13.10.1956. 6. Subsequently, a report was also submitted by the Joint Director, Funds Organisation, Jammu, vide its letter dt. 22.6.2012, seeking instructions from the Director, J&K Funds Organisation, Srinagar, with regard to the change of date of birth of the petitioner in the official records. A legal notice also came to be served upon the respondents dt. 23.5.2013, for making correction in the official records as also the seniority list of the examiners by taking the date of birth of the petitioner as 13.10.1956. 7. The learned counsel for the petitioner submitted that despite the fact that the petitioner submitted his fresh matriculation diploma showing his actual date of birth as 13.10.1956, to the respondents in the year 1985 itself and the matter being considered by the said respondents which is apparent from the intra-departmental correspondence, yet the necessary correction was not made in the official records regarding the date of birth of the petitioner. It was stated that the petitioner will be made to retire by the end of October, 2013, on the basis of date of birth of the petitioner which stands wrongly recorded as 13.10.1955. It was stated that the petitioner has a right to continue in service till 31st of October, 2014, on the basis of his actual date of birth i.e. 13.10.1956. 8. Mr. It was stated that the petitioner has a right to continue in service till 31st of October, 2014, on the basis of his actual date of birth i.e. 13.10.1956. 8. Mr. M.A. Bhat, learned counsel for the respondents, however, submitted that the issue with regard to the correction in the date of birth etc., is covered by J&K Civil Service Regulations. An amendment was incorporated in the said Regulations in terms of SRO 310 of 1995 dt. 29.11.1995 [Refer JKS Soft JKS/1557], by virtue of which Article 35-AA was incorporated to the J&K Civil Service Regulations, which prescribed a mechanism for correction of such a date of birth. It was stated that in terms of the provisions of amended Article, the application for correction of date of birth for an in service candidate has to be made within six months from the date of issuance of the notification. Having not made any such application within the prescribed period, no relief can be granted to the petitioner. 9. The said amendment by way of Article 35-AA, in so far as relevant, reads as under:- 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 I, 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 appointment and accepted by the appointing authority on production, as far as possible, or confirmatory documentary evidence in the following manner:- (i) In case of Government 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; (ii) ....... (c) 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 alternation 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 this Notification. ........................... ..........................." 10. The counsel for the respondents further submitted that the petition is barred by delay and laches. He stated that the petitioner did not seek any relief for about more than 30 years of his entry into service and approached the court at the fag end when he is to retire on 31st of October, 2013. It was submitted that the date of birth of the petitioner was entered in the service record on the basis of the documents furnished by the petitioner at the time of his entry into service. The petitioner, according to the learned counsel for the respondents, entered into Governments service in the year 1980 and approached the respondents for correction of his date of birth in the year 1985. It was, accordingly, submitted by the learned counsel that the petitioner cannot be granted any relief at the fag end of his tenure when he is to retire on 31st of October, 2013. It was further urged that till date, no request had been made to the Government for correction of his date of birth and that a request for correction to the Head of the Department would not constitute a request for correction to the Government in terms of Article 35-AA supra. 11. In rebuttal, Mr. Anand, learned counsel for the petitioner submitted that the request for correction of date of birth was made as early as in the year 1985 i.e., much before the aforestated amendment in the J&K Civil Service Regulations. 11. In rebuttal, Mr. Anand, learned counsel for the petitioner submitted that the request for correction of date of birth was made as early as in the year 1985 i.e., much before the aforestated amendment in the J&K Civil Service Regulations. He submitted that the petitioner had been agitating the matter with the respondents who had assured him that the necessary relief would be granted to him by way of making the appropriate correction in the service records. It was further submitted that the rule of delay of laches would not be attracted in the present case in as much as no third party interest had accrued and that the petitioner had a right to continue in service as such till 31.10.2014. 12. Heard learned counsel for the parties. 13. In State of Madhya Pradesh and Anr. v. Bhailal Bhai, AIR 1964 SC 1006 , a five judge Constitution Bench of the Apex Court held that delay in seeking a remedy under Article 226, more than the prescribed period of limitation would be considered unreasonable. What was observed in this regard be noticed as under:- "Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however, that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. This court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable." 14. Placing reliance on the aforementioned judgment of the Apex court, a Division Bench of this court in Custodian General and anr. v. Abdul Aziz Dhobi and anr, LPA No. 108/10, decided vide judgment and order dt. 29.8.2013, accepting the appeal rejected the claim of some of the respondents in the aforementioned case who had approached the court after about five years from the date, cause of action accrued in their favour. 15. v. Abdul Aziz Dhobi and anr, LPA No. 108/10, decided vide judgment and order dt. 29.8.2013, accepting the appeal rejected the claim of some of the respondents in the aforementioned case who had approached the court after about five years from the date, cause of action accrued in their favour. 15. From the facts as reflected in the petition in the present case, it will be seen that the petitioner had obtained a fresh matriculation diploma from the J&K State Board of School Education somewhere in the year 1985 and thereafter submitted the same before the respondents for making necessary correction in the official records. The cause of action, in fact, accrued to the petitioner in the year 1985 itself, when no action was taken by the respondents regarding redressal of his grievance. The period prescribed under the law of limitation for filing suit for declaration on the ground of mistake as per Article 67 of the Jammu and Kashmir Limitation Act, is three years from the date of knowledge of the mistake. 16. In the present case, the J&K State Board had rectified its mistake and issued a fresh matriculation diploma in favour of the petitioner in the year 1985. Assuming that a suit for declaration had to be filed by the petitioner for declaring his actual date of birth as 13.10.1956, the period limitation, in that eventuality, would start running from the date, the diploma was issued by the Board to the petitioner in the year 1985, which as indicated above, in terms of Article 67 of the Act aforementioned, is three years from the date of knowledge of mistake. Assuming the date of issuance of fresh matriculation diploma is the date of knowledge of the mistake, yet the civil suit would be barred after three years from 1985. 17. Testing the aforementioned facts on the touchstone of the judgment of the Apex Court in the case of Bhailal Bhai (supra), followed by a Division Bench of this court in Custodian General's case, referred to above, it can safely be held that delay in filing of the writ petition in the year 2013, in the present case, is unreasonable in as much as this court would not entertain the petition beyond which period the relief by a civil court in a civil suit would be barred. 18. 18. For the reasons mentioned above, this petition is found to be barred by delay and laches and is, accordingly, dismissed along with connected CMAs.