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J&K High Court · body

2019 DIGILAW 507 (JK)

Abdul Rashid Mir v. State of J&K

2019-12-20

DHIRAJ SINGH THAKUR

body2019
Judgment 1. The dispute raised in the present writ petition is with regard to the petitioner’s actual date of birth and consequently, the date of his superannuation. It is stated that after the floods of 2014, the service record of the petitioner had been destroyed and that the official respondents were arbitrarily fixing the date of birth of the petitioner as 31.12.1958 instead of 01.01.1966. 2. A lot of emphasis was laid on a school leaving certificate which forms an annexure B to the writ petition issued purportedly on 03.09.1981 which reflects the date of birth of the petitioner as 01.01.1966. According to this certificate, the petitioner was admitted in the higher secondary School in 01.12.1976 and was withdrawn on 03.09.1981. 3. Learned counsel for the petitioner stated that the case of the petitioner is that at the time when the service record of the petitioner was framed, his date of birth had been recorded as 01.01.1966 which was now sought to be arbitrarily changed to 31.12.1958. In those circumstances, it is urged that a direction be issued to the respondents to re-construct the service record of the petitioner in accordance with Regulation 35-AA of the J&K Civil Services Regulations and the J&K Financial Code. For the purpose of reference, Regulation 35-AA is reproduced hereunder: “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 examinations; (ii) In case of Government employees, where prescribed qualification is below matriculation, the school leaving certificate, duly signed by the concerned Head of Govt. School and countersigned by the concerned Gazetted Officer of the Education Department in immediate administrative control of the said institution (in case the Head of Institution/School is not a Gazetted Officer). Likewise, such certificate(s) issued by the Head of a Government recognized Private Institute/School shall be countersigned by the concerned Gazetted Education Officer, who is in immediate administrative control of Government Institutions in the area, such as Zonal Education Officer. (iii) ........ (iv) ........ (b) ........ (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 order 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/bona fide 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 of issue of his Notification: Provided further that the date of birth so altered would not make him/her ineligible to appear in any school or University/Board or Public Service Commission Examination in which he had appeared or for entry into government service, on the date on which he first appeared at such examination or on the date or which he entered Government service. (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 incorrectly recorded with the object that the said Government employee may derive some unfair advantage therefrom.” 4. A detailed response has been filed in which it is stated that the entire premise of the petitioner that his date of birth was recorded as 01.01.1966 in the service book was erroneous. It was stated that the service records were framed on the basis of a medical certificate produced by the petitioner at the time of his joining his service and his date of birth was mentioned as 21.12.1959 and that the said date of birth was also reflected in the documents in the nature of State Insurance Policy. Not only this, it is stated that due to devastating floods of 2014, the medical certificate on the basis of which the particulars regarding the date of birth of the petitioner were incorporated is not forthcoming. However, it is stated that what has been recorded in the service book is 21.12.1959. It is also stated that in all the seniority lists issued from time to time for the past several years, the date of birth of the petitioner has been reflected as 21.12.1959. 5. Mr. B. A. Dar, learned Sr. AAG appearing for the respondent-State took pains to explain that the entire premise of the petitioner’s case was false, inasmuch as, if the petitioner’s date of birth was January, 1966, then he could not have even entered service initially as a daily wager as he would only be 15 years old. 6. Heard learned counsel for the parties. 7. Petitioner appears to be taking advantage of the floods which had occurred in the year 2014. In the belief that the original records including service book of the petitioner was destroyed, the petitioner has filed this writ petition with a view to somehow ensure extension in service based upon the certificate issued in his favour which reflects his date of birth as 01.01.1966. 8. In the belief that the original records including service book of the petitioner was destroyed, the petitioner has filed this writ petition with a view to somehow ensure extension in service based upon the certificate issued in his favour which reflects his date of birth as 01.01.1966. 8. I do not deem it absolutely necessary at this stage to go into the question of the genuineness or veracity of the certificate being relied upon by the petitioner, in light of the fact that the original service book of the petitioner has been produced by the learned counsel for the respondents which shows the date of the birth of the petitioner as 21.12.1959. The particulars recorded in the service book appear to be damaged, yet with some effort even with a naked eye the date of birth can be read as 21.12.1959. Coupled with this is an insurance document issued by the Accounts Officer, State Life Insurance, Division Kashmir which reflects the date of birth of the petitioner as 21.12.1959. 9. According to the provisions of Regulation 35AA, as inserted vide F. D. Notification No SRO 310-F of 1995 dated 29.11.1995, the employees did have a right to seek correction in the recorded particulars within six months from the date of issuance of the said notification. The petitioner cannot now at the fag end of his tenure when he is scheduled to retire on 31.12.2019, be permitted to continue in service on flimsy pretext or grounds as have been taken in the writ petition. 10. Be that as it may, the petition is found to be without any merit and is, accordingly, dismissed along with connected CM(s). The interim direction dated 26.04.2017 shall stand vacated. The service book of the petitioner be returned to learned Counsel for the respondent-State.