Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 593 (JK)

Union Territory of J&K v. Gopal Krishan

2022-10-29

PUNEET GUPTA, RAJNESH OSWAL

body2022
JUDGMENT Oswal, J. - The order dated 01.09.2020 passed by the Central Administrative Tribunal allowing the OA No. 061/0196/2020 titled, Gopal Krishan vs. Union Territory of J&K and others, whereby the petitioners were directed to treat the date of birth of the respondent as 15.09.1968 instead of 15.09.1960 and carry out necessary correction with regard to the date of birth as 15.09.1968 in all relevant documents and service book of the respondent, has been impugned by the petitioners on the ground inter alia that the order impugned has been passed in complete negation of Rules 192 and 193 of the Police Rules, as also in utter disregard of the Article 35-AA(c) of the Jammu and Kashmir Civil Service Regulations, 1956, that prescribes a period of five years for seeking the correction of the date of birth after entering into the service. It is also stated that the respondent all along was having the knowledge of the entries made in his character roll in light of the abovementioned Police Rules and now after a gap of 25 years cannot seek the correction of date of his birth. 2. Objections stand filed by the respondent in which it has been stated that in the Recruit Register maintained in terms of Rule 180 of Police Rules, in Medical Record and certificate issued by the Medical Officer in terms of Rule 183 of Police Rules and in Long Roll prepared in terms of Rule 205 of Police Rules, the date of birth of the respondent has been mentioned as 15.09.1968. It is also stated that there has been absolute non compliance of Rule 193 at the time of preparation of character roll and it is also stated that in all the seniority lists issued from time to time, the date of birth of the respondent has been correctly mentioned as 15.09.1968. The respondent has denied that there is any delay and laches on his part, as in all the records pertaining to the service of the respondent other than the character roll, the date of birth of the respondent has been correctly mentioned. The tentative seniority list of the Head Constables dated 18.08.2020 has also been placed on record, wherein also the date of birth of the respondent has been mentioned as 15.09.1968. 3. Mr. The tentative seniority list of the Head Constables dated 18.08.2020 has also been placed on record, wherein also the date of birth of the respondent has been mentioned as 15.09.1968. 3. Mr. Raman Sharma, learned AAG appearing for the petitioners vehemently submitted that the application filed by the respondent before the learned Tribunal was required to be rejected only on the ground of delay and laches as the said application was filed after 25 years of entering into the service and no plausible reason has been demonstrated by the respondent for filing the same after the inordinate delay. He further argued that as per Rule 193 of the Police Rules, character roll of the respondent presumably was prepared in presence of the respondent, who had every opportunity to controvert the same at the time of the preparation of the same and further that the rectification cannot be made in the service record in view of the bar contained in Article 35-AA(c) of the Jammu and Kashmir Civil Service Regulations, 1956. 4. On the contrary, Mr. Rahul Pant, learned senior counsel representing respondent has vehemently argued that in recruit register, in medical record of the recruit and the certificate issued by the Medical Officer before enrolment as also in the Long Roll, the date of birth of the respondent has been mentioned as 15.09.1968 and it is only in the character roll that the date of birth of the respondent has been incorrectly mentioned as 15.09.1960. He further argued that even in the seniority lists issued from time to time, the date of appointment of the respondent has been shown as 01.03.1990 and date of retirement as 30.09.2028 and it continues to be so even in the tentative seniority list issued by the petitioners in the year 2020. Mr. Pant laid stress that it was only in the year 2015 that the controversy was raised with regard to the date of birth of the respondent, as the same was wrongly recorded as 15.09.1960 and in this regard, the respondent made a representation before the concerned authority and the enquiry was conducted. The Enquiry Officer came to the conclusion that the date of birth of the respondent was 15.09.1968 and not 15.09.1960. The Enquiry Officer came to the conclusion that the date of birth of the respondent was 15.09.1968 and not 15.09.1960. The said recommendation of the Enquiry Officer was accepted by the Police Head Quarter (PHQ) but the Home Department rejected the claim of the respondent with regard to the correction of the date of birth arbitrarily. He further argued that the mistake was on the part of the petitioners only, as only in the character roll, the date of birth was wrongly recorded whereas in all other documents prepared at the time of appointment of the respondent, the date of birth of the respondent has been correctly mentioned as 15.09.1968. Mr. Pant further submitted that if the date of birth of the respondent is to be taken as 15.09.1960, then he could not have been appointed on 01.03.1990 being over age. 5. Heard and perused the record. 6. This is the admitted fact that the respondent was recruited as Follower Guard Man Temporarily against the post of Barber on 01.03.1990 and in the appointment register placed on record by the petitioners, the date of birth of the respondent has been mentioned as 15.09.1968. Likewise, in the Medical Form also, the date of birth of the respondent has been mentioned as 15.09.1968. Even in the Long Roll of the Police Force placed on record by the petitioners also, the date of birth of the respondent has been mentioned as 15.09.1968. It is only in the character roll that the date of birth of the respondent has been mentioned as 15.09.1960. 7. From the record, it further transpires that vide communication dated 16.09.2015, the Commandant SDRF 2nd Bn. Jammu sought the necessary orders for the correction of the date of birth of the respondent as 15.09.1968. The enquiry was also conducted with regard to the date of birth of the respondent and the Enquiry Officer vide enquiry report dated 12.02.2016 came to the conclusion that actually the date of birth of the respondent is 15.09.1968 and the same has been recorded in the Medical Form as well as Long Roll of the Battalion at the time of his initial appointment and further recommended for the rectification of the same in the character roll. Pursuant to the said report, the Additional Director General of Police, Home Guards/CD & SDRF, Jammu vide his communication dated 05.03.2016 requested the Director General of Police, Jammu for rectification of the date of birth of the respondent as 15.09.1968. The Director General of Police vide his communication dated 30.05.2018 forwarded the original character Roll along with the copies of the allied documents of the respondent to the Administrative Department, stating therein that due to clerical error during preparation of character Roll of the official, his date of birth came to be recorded in figures as 15.09.1968 instead of 15.09.1960 and recommended that the date of birth of the official be rectified as 15.09.1968 instead of 15.09.1960. The Administrative Department vide its order dated 25.09.2020, rejected the claim of the respondent for rectification of his date of birth in the character roll. From the documentary evidence placed on record, there is no doubt that the date of birth of the respondent is 15.09.1968. 8. The contention of the petitioners is that after the gap of 25 years, the respondent could not have sought the rectification of his date of birth. The argument, though appears to be attractive, but is taken note of only for rejection because of the simple reason that the petitioners in all of their records other than character roll have themselves mentioned the date of birth of the respondent as 15.09.1968 and also in all the final seniority lists prepared/issued from time to time and the latest being of the year, 2015, date of birth of the respondent has been mentioned as 15.09.1968. In fact, in the Identity Card issued pursuant to the communication dated 29.09.2017, the date of birth of the respondent has been mentioned as 15.09.1968. Thus, from all the records, it is evident that the petitioners themselves have considered and acknowledged the date of birth of the respondent as 15.09.1968 and not 15.09.1960. The respondent is right in making submission that there was no occasion for him to seek rectification of the date of birth particularly when his date of birth all along was considered as 15.09.1968 and it was only in the year, 2015 the dispute arose with regard to the character roll of the respondent. 9. The respondent is right in making submission that there was no occasion for him to seek rectification of the date of birth particularly when his date of birth all along was considered as 15.09.1968 and it was only in the year, 2015 the dispute arose with regard to the character roll of the respondent. 9. The second contention raised by the petitioners is that the order impugned has been passed in utter disregard of the Rules 192 and 193 of the Police Rules. The said contention cannot come to the rescue of the petitioners. Rules 192 and 193 are reproduced as under: '192. Character rolls A character roll in Form 29 shall be prepared and maintained for each enrolled police officer. Each roll shall be paged and extra pages or papers added shall be given a page number and attached in the chronological order. 193. Attestation of recruits and preparation of character rolls. When the formalities required by rule 185 have been completed, and the recruit has served for one month and received the instruction prescribed in rule 794 his character roll shall be prepared in his presence. When the roll is otherwise complete the recruit shall be taken before a gazetted officer and required to sign the agreement printed as Item 4 in the roll and the rolled impressions of the thumb and fingers of his left hand shall be taken in the space provided for he purpose. The gazetted officer before signing the roll shall satisfy himself that the recruit understands the purpose of his agreement and shall explain to him the purport of rule 117 and give him the opportunity of claiming alteration in his recorded age on production of documents in support of his contention.' 10. The tone and tenor of the averments made in the writ petition demonstrates that the petitioners themselves are not aware as to whether the character roll of the respondent was prepared in his presence or not. As per Rule 193, after certain formalities as envisaged by Rule 185 are completed and the recruit has served for one month and received instructions in terms of Rule 794, his character roll is required to be prepared in his presence. Further when the roll is complete, he is required to be taken before gazetted officer and sign printed agreement in format of item No. 4 in the Roll. Further when the roll is complete, he is required to be taken before gazetted officer and sign printed agreement in format of item No. 4 in the Roll. Before signing the said agreement, gazetted officer has to satisfy himself that recruit understands the purport of rule 117 and give him opportunity of claiming alteration in his recorded age on production of documents in support of his contention. Nothing has been brought on record to demonstrate that such exercise has been undertaken by the petitioners. A perusal of the certificate (last page of character roll) reveals that the respondent has simply affirmed that all existing rules contained in J&K Home-guards Manual or instructions, standing orders issued from time to time shall be applicable to him and further that he has gone through the existing rules and has understood the purpose and meaning of the same. The purpose of the certificate is only to ensure that the recruit would comply with the rules and regulations applicable from time to time. In the Appointment Register, the Medical Form and the Long Roll prepared in terms of Rule 205, the date of birth of the respondent has been shown as 15.09.1968 and we do not find that there is any bar under Police Rules that prevent the petitioners from rectification of the character roll and that too when the mistake is on the part of the petitioners and not on the part of the respondent, so there is no force in this contention too, as such, the same is rejected. 11. The third contention raised by the petitioner is that in terms of Article 35-AA, the date of birth of the respondent even in case of clerical error cannot be altered, as for that purpose the request is to be made by the concerned government servant within a period of five years of his/her entering government service. Article 35-AA(c) is reproduced as under: 'Article 35-AA (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 alternation, 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/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 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 of this 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 on which he entered Government service.' 12. For the applicability of article 35-AA (c) of CSR, there must be declaration with regard to his/her date of birth by the Government Servant and the consequent acceptance of the same by Government. For invoking the Article 35AA(c) of the CSR, the date of birth must be declared by the Government servant and further the same must be accepted and recorded by the appropriate authority in terms of Clause-b of Article 35AA. Article 35AA(b) provides that on the production of the date of birth certificate by the concerned Government employee, the concerned Head of Office/Drawing and Disbursing Officer under whose signatures the monthly pay bill of the establishment is paid from the Treasury, shall record his/her date of birth in the service book or any other record that may be kept in respect of such Government servant with reference to relevant confirmatory documentary evidence. So far as instant case is concerned, no document had been produced by the respondent before the concerned authority, as mentioned above demonstrating his date of birth as 15.09.1960. So far as instant case is concerned, no document had been produced by the respondent before the concerned authority, as mentioned above demonstrating his date of birth as 15.09.1960. It is not that the respondent at any point of time had declared his date of birth as 15.09.1960, rather in all the records as mentioned above, other than the character roll, the date of birth of the respondent has been mentioned as 15.09.1968 as is evident also from the enquiry report dated 12.02.2016. The petitioners have in fact accepted the date of birth of the respondent as 15.09.1968 and not 15.09.1960, as is evident from the identity card, seniority lists prepared/issued from time to time and even in the tentative seniority list issued for the year 2020. Further, in the communication dated 05.03.2016 it is mentioned that there is no mala fide intention and it was due to clerical error, the date of birth was wrongly mentioned. The petitioners would have been right in placing reliance upon the Article 35-AA, had the respondent declared his date of birth as 15.09.1960 and its subsequent acceptance by the Government. We have no hesitation to hold that the rule was not at all applicable in the case of respondent, as in their reply before the Tribunal, the petitioners have themselves admitted that had the date of birth of the respondent been 15.09.1960, he would not have been recruited on 01.03.1990, as having crossed the eligible age limit and more particularly in all of their records other than character roll, the petitioners have considered and accepted the date of birth of the respondent as 15.09.1968 and not 15.09.1960. 13. We have gone through the order impugned and we find that the order passed by the learned Tribunal is well reasoned and based upon the documents relied upon by both the parties, as such, we do not find any illegality in the same and further any reason to interfere with the same. 14. For all what has been discussed above, the petition was required to be dismissed with costs but taking lenient view and further that the respondent is in service, we dismiss the petition without costs.