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2018 DIGILAW 612 (JK)

Dewan Chand v. State of J&K

2018-08-06

DHIRAJ SINGH THAKUR, SANJAY KUMAR GUPTA

body2018
JUDGMENT : D.S. Thakur, J. 1. The present Letters Patent Appeal has been preferred against the judgment and order dated 02.02.2018, whereby the writ petition filed by the petitioner/appellant herein stands dismissed. 2. Briefly stated, the material facts are as under:- 3. The petitioner/appellant herein on attaining the age of 60 years came to be retired as a Peon on 31.05.1996 from the School Education Department. His pension case, however, could not be finalized, inasmuch as, his service-book contained his particulars as regards date of birth, which varied in words as against the date of birth recorded in figures. In words, the date of birth of the appellant was recorded as 3rd Jeth Nineteen Hundred Ninety Two, whereas in figures, it was written as 03.02.1993. 4. In the earlier round of litigation SWP bearing No. 719/2009 was filed by the appellant, which came to be disposed of vide judgment and order dated 20.07.2001, with a direction to the Director School Education, Jammu to determine the date of birth of the petitioner/appellant herein. 5. Pursuant to the aforementioned directions passed by the Court, the Director School Education, Jammu vide order dated 23.04.2002, which is impugned in the instant writ petition determined the date of birth of the petitioner as 3rd of Jeth Nineteen Hundred and Ninety Two (03.02.1992), It was this order, which came to be challenged in the writ petition bearing SWP No.2989/2002. The Writ Court, however, dismissed the writ petition after going through the service-book of the petitioner/appellant herein and noticing that the date of birth recorded in the service-book of the petitioner/at the time of his entry into service was recorded as 3rd of Jeth Nineteen Hundred and Ninety Two. 6. It was also noticed that after more than twenty years of his having rendered service, date of birth came to be changed to 3rd of Jeth Nineteen Hundred and Ninety Three (Bikrami) by the District Education Officer, Udhampur. This was purportedly done on the basis of a certificate issued by the Headmaster, Government Central School Thanoa (Udhampur), which also appears to have have been countersigned by the Tehsil Education Officer. 7. The Writ Court also noticed tampering in the date of birth from 03.02.1992 to 03.02.1993, while the date of birth recorded in the words continued to remain 3rd of Jeth Nineteen Hundred and Ninety Two. 7. The Writ Court also noticed tampering in the date of birth from 03.02.1992 to 03.02.1993, while the date of birth recorded in the words continued to remain 3rd of Jeth Nineteen Hundred and Ninety Two. It was in those circumstances that the Writ Court upheld the view of the Director School Education, Jammu and dismissed the petition. 8. Mr. Chauhan, learned counsel for the appellant submitted that the Writ court could not have independently returned a finding as regards tampering, when no such finding was recorded by the Director School Education, Jammu, it was urged that the Director had not given any reasons and proceeded to record conclusions only and thus the order impugned ought to have been set aside on that ground only being a non-speaking order. 9. Learned counsel for the respondents, on the other hand, reiterated the view taken by the Court below by the learned Single Judge. 10. Heard learned counsel for the parties. 11. Admittedly, the date of birth recorded in the service-book of the petitioner/appellant herein at the time of his entry into service was 3rd of Jeth Nineteen Hundred and Ninety Two. This came to be changed by the District Education Officer after a gap of twenty years. The issue that arises for consideration is whether the District Education Officer, could have formally directed a change in the service-book of the petitioner as regards the date of birth. 12. The provisions with regard to the determination of the date of birth and its alteration is contained in Rule 35-AA of the J&K Civil Services Regulations. Rule 35-AA(C) envisages that the date of birth so declared by the Government servant and accepted by the appropriate authority in the service-book, shall not be subject to any alteration, except in the case of a clerical error without the orders of the Government. It further envisages that no alteration of date of birth of a Government servant shall be made by the Government, unless a request in that 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/bona fide mistake has occurred. 13. It further envisages that no alteration of date of birth of a Government servant shall be made by the Government, unless a request in that 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/bona fide mistake has occurred. 13. The action of the District Education Officer in changing the date of birth, which was originally recorded in the service records of the petitioner/appellant herein was thus in gross violation of Rule 35-AA(C) and the procedure prescribed therein. 14. The appellant also appears to have continued to remain in service for a period of one year even beyond the period when he was actually supposed to retire on the basis of the date of birth originally recorded. However, in terms of judgment and order dated 20.07.2001, the said person is to be treated as re-employed. 15. Having considered the matter in its entirety, we feel that the appellant has no case on merits. The view taken by the Director School Education, Jammu and upheld by the Writ Court do not deserve any interference. 16. For the reasons mentioned aforementioned, the instant appeal is found to be without any merit and is, accordingly, dismissed, along with connected IA. 17. The official respondents shall proceed to finalize the pension of the appellant on the basis of the date of birth as finalized by the Director School Education, Jammu vide his order dated 23.04.2002.