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J&K High Court · body

2018 DIGILAW 772 (JK)

Karam Chand v. State

2018-10-03

SANJEEV KUMAR

body2018
JUDGMENT : 1. The petitioners claim and which claim is not refuted by the respondents, that the petitioners had been working in the Department of the Irrigation and Flood Control as Mechanics, Filters, Moulders and Chargeman etc. At the time of their recruitment in the Government Service, their dates of birth as per the requisite documents then submitted by the petitioners was recorded in their respective Service Books. The petitioners remained in the service of respondents for more than two decades. 2. It appears that during the year 2009, the respondent No.1 noticed that the dates of birth of large number of employees serving in the PHE and I&FC, particularly, Helpers, Linemen etc had been recorded at the time of their recruitment either on the basis of verbal statements or documents which were not authentic or supported by any verification by the competent medical authorities. Accordingly, a decision was taken to provide an opportunity to such employees, who were apparently overstaying in service having crossed the age of superannuation to seek voluntarily retirement from service. Accordingly, the respondent No.1 vide communication No.PW/Hyd/G/148/09-circular dated 07.08.2009 promulgated a Notice calling upon such employees to apply for voluntary retirement within a period of three months; providing further that in case they do so they would be entitled to full pensionary benefits but if they do not chose to retire voluntarily, they would be put to under medical test to be conducted with latest medical techniques to determine their age. Notice also envisaged that if upon medical examination it was proved that they had crossed the age of superannuation, the Department would not only retire them compulsorily but also initiate recovery proceedings against them for a period they might have overstayed in the Government service. 3. Pursuant to this Notice, the petitioners were served by an Order dated 18.12.2009 indicating them that they would retire from service w.e.f. 31.12.2009 AN. Aggrieved, the petitioners challenged the aforesaid Notice/Order dated 18.12.2009 in SWP No.1832 of 2010. The writ petition was allowed by a Bench of this Court vide its order dated 27.08.2013. The impugned order was quashed leaving it open to the respondents to initiate necessary inquiry into the dates of birth of the petitioners and pass appropriate orders permissible under law. 4. The writ petition was allowed by a Bench of this Court vide its order dated 27.08.2013. The impugned order was quashed leaving it open to the respondents to initiate necessary inquiry into the dates of birth of the petitioners and pass appropriate orders permissible under law. 4. Before the respondents could proceed to act in terms of the Order dated 27.08.2013 (supra), the petitioners filed the instant writ petition claiming inter alia a direction to the respondents to treat them in service and provide them all consequential benefits. They also sought direction to the respondents that the dates of birth as indicated by the respondents in the Order No. 73/E of 1992 dated 08.08.1992 be declared as genuine and authentic and accordingly retire the petitioners on attaining the age of superannuation of 60 years. 5. The respondents have filed the objections. The stand taken is that in compliance to the judgment dated 27.08.2013, passed in SWP No.1832 of 2010, the respondents have put the petitioner to notice and have called upon them to show cause as to why the dates of birth recorded in the service books be not corrected. The respondents have placed on record the Show Cause Notices issued to the petitioners in this regard. It is also stated by the respondents that the petitioners instead of replying the Show Cause Notice and producing the dates of birth certificates issued by the competent Medical Board rushed to the Court by way of the instant petition and have, therefore, stalled further process of taking an appropriate decision in the matter in terms of the judgment passed by the Court. 6. Having heard learned counsel for the parties and perused the record, it would be appropriate to take note of relevant provisions in the Jammu and Kashmir Civil Service Regulations (CSR for short) pertaining to determination of date of birth. Article 35-AA makes an elaborate provision as to how the date of birth of an employee recruited to the service of the Government is to be determined. So far as the illiterate persons entering the Government service are concerned, the same is required to be recorded as per the extracts from the Birth Register duly signed by the concerned Executive Officer of the Municipality, Chairman concerned Notified Area Committee/Town Area Committee, as the case may be. So far as the illiterate persons entering the Government service are concerned, the same is required to be recorded as per the extracts from the Birth Register duly signed by the concerned Executive Officer of the Municipality, Chairman concerned Notified Area Committee/Town Area Committee, as the case may be. And in the case of those persons who are not falling within the aforesaid areas, the certificate should be signed by the concerned Tehsildar where the employee resides or on the basis of a certificate issued by the Medical Board of the respective district where the employee is posted. Article further provides that the date of birth so declared by the Government servant and accepted and once recorded by the appropriate authority in the service book, shall not be subject to any alteration except in case of clerical error without the orders of the Government. It further lays down that no alteration of date of birth of a Government servant shall be made by the 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 the genuine/bonafide mistake has occurred. The important Proviso in this regard is contained in Clause(d) of Article 35-AA, which for facility of reference is reproduced here as under:- “35-AA (d): Notwithstanding the provisions contained in clause (c) above regarding alteration of date of birth, Government, however, reserves the right to make a correction in the recorded age of Government servant at any time, against the interests of the Government employee, when it is satisfied that the age recorded in his/her service book or in the history of services of the concerned Government servant is incorrect and has been in correctly recorded with the object that the said Government employee may derive some unfair advantage therefrom.” 7. In view of the categoric elaborate provision made in Article 35-AA of CSR, there could be no doubt that the Government has a power to make the correction in the recorded age of Government servant at any time, which is against the interest of Government employee but such power can only be exercised, if it is satisfied that the age recorded in the service book of the concerned employee is incorrect and has been so recorded with the object that the said Government employee may derive some unfair advantage therefrom. Sine-qua-non for the exercise of this power by the Government to correct the recorded age of the Government servant is the satisfaction of the Government to be derived by it objectively that the age recorded in the service book of the concerned employee is incorrect and same has been so recorded with the object of conferring unfair advantage on the Government employee. 8. From the sequence of events given above, it is abundantly clear that no satisfaction as required under clause (d) of Article 35-AA was ever derived by the Government on some objective criteria. The communication of respondent No.1 dated 07.08.2009 (supra) generally notices that the dates of birth of large number of employees serving in the PHE Department had not been recorded at the time of their recruitment in accordance with the provisions of the CSR but the fact remains that the dates of birth of the petitioners and many such other employees were recorded in their service record 2 to 3 decades ago and were duly accepted by the Government. There is nothing on record to show that the respondents got hold of some new material to doubt the recording of the dates of birth of the petitioners. Admittedly, the petitioners at the time of their recruitment were illiterate and their dates of birth were recorded by the competent Officer, who was supposed to follow the procedure. If there was failure on the part of the competent authority to follow the procedure in recording the dates of birth, the petitioners cannot be blamed for such lapse. 9. Admittedly, the petitioners at the time of their recruitment were illiterate and their dates of birth were recorded by the competent Officer, who was supposed to follow the procedure. If there was failure on the part of the competent authority to follow the procedure in recording the dates of birth, the petitioners cannot be blamed for such lapse. 9. Be that as it may, the Court while disposing of the writ petition SWP No.1832/2010 dated 27.08.2013 had given an opportunity to the Government to initiate inquiry into the matter and pass appropriate orders, if on such inquiry, it was found that the dates of birth recorded in the service record of the petitioners was incorrect. 10. From the perusal of the objections filed and the annexures appended thereto it transpires beyond any doubt that no such prior inquiry was conducted by the respondents instead Show Cause Notices were issued to the petitioners to prove by producing the authentic material that the dates of birth reflected in service record was correct. In the same Show Cause Notices, the petitioners were clearly informed that in case they do not produce any authentic material to substantiate their correct dates of birth, the dates of birth recorded in the service book would be presumed to be correct for their retirement. The Show Cause Notices are contradictory and mutually destructive. The plea of the learned counsel for the petitioners that in terms of the Show Cause Notices, the respondents have to presume that the dates of birth recorded in their service record is correct and therefore, the petitioners should be superannuated accordingly cannot be said to be without any substance. It appears that later contradiction was sought to be resolved by issuing corrigendum but it is still not clear whether this corrigendum was served upon each of the petitioners or not. Be that as it may, for the view I propose to take, issuance of corrigendum is not likely to make the case of respondent anyway better. 11. Learned counsel for the petitioners has also raised another plea that the petitioners being members of inferior service are also entitled to retire on completing the age of 60 years. Reliance in this record has been placed on the provisions of Article 226 of the CSR. 11. Learned counsel for the petitioners has also raised another plea that the petitioners being members of inferior service are also entitled to retire on completing the age of 60 years. Reliance in this record has been placed on the provisions of Article 226 of the CSR. It is true that in terms of the proviso to Article 226 (1) of CSR, the Government servants, who were in service on 10.10.1966 and were treated inferior as per Schedule-II would retire on attaining the of 60 years, but in the instant case I do not find any averment in the writ petition to indicate that the petitioners were in service on 10.10.1966 and that they were treated inferior as per schedule-II appended to CSR. That being so, the plea of petitioners that they are entitled to retire on attaining the age of 60 years is without any basis and foundation and, therefore, cannot be accepted. 12. To sum up, it may be stated that in terms of the judgment dated 27.08.2013 passed in SWP No.1832 of 2010, the petitioners were entitled to remain in service till they attain the age of superannuation as per the dates of birth recorded in their service books. They, however, could have been retired prematurely by holding an inquiry by the respondents that the dates of birth recorded in their service record at the time of their recruitment was incorrect and was so recorded with the aim of conferring wrong benefit upon them. The Show Cause Notices issued by the respondents which are appended with the objections contained factual averments which were not only contradictory but mutually destructive. The aforesaid Show Cause Notices, therefore, could not have been pursued. Moreso, when it does not meet the requirements of clause (d) of Article 35-AA 13. Be that as it may, the fact remains that the respondents have not passed any order in terms of the judgment passed by this Court on 27.08.2013 by following the provisions of Clause (d) of the Article 35-AA of CSR and therefore, the petitioners were entitled to continue in service till attaining the age of superannuation of 58 years to be determined with reference to the dates of birth recorded in their service record. 14. For the aforesaid reasons, the writ petition is allowed. 14. For the aforesaid reasons, the writ petition is allowed. The petitioners are held entitled to remain in service till they attained the age of superannuation of 58 years to be reckoned in reference to their dates of birth recorded in their service books. They are also held entitled to all the consequential benefits including the salary for the period they have remained out of service because of the orders passed by the respondents. 15. Disposed of as above along with connected MP(s). SWP No. 20/2014. 1. This petition is by the legal heirs of late Sh. Banarsi Dass, who was serving in the respondent department and was sought to be voluntarily retired along with petitioners of SWP No. 2900/2013 vide order dated 18.12.2009. He, however, did not join. He has filed the instant writ petition in which he has inter alia challenged the communication dated 07.08.2009 and also the Notice issued to him on 18.12.2009 retiring him voluntarily from the services of the respondents w.e.f. 31.12.2009. The case of deceased Banarsi Dass is, thus, similarly situated with the writ petition as of SWP No.2900/2013 except that this petition has been filed by his legal heirs. 2. On the analogy of aforesaid writ petition, this writ petition is also allowed and the employee Shri Banarsi Dass father of petitioner No.1 and husband of petitioner No.2 is held entitled to continue in service of respondent department till he attained the age of superannuation to be reckoned in reference to the date of birth recorded in his service book/service record. The petitioners are held entitled to all the consequential benefits including the salary for the period the deceased Banarsi Dass has remained out of service because of the orders passed by the respondents. 3. Disposed of as above along with connected MP(s).