Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 113 (JK)

Nazir Ahmad Ganaie v. Union Territory of J&K

2023-03-18

PUNEET GUPTA, SANJEEV KUMAR

body2023
JUDGMENT : 1. This petition filed under Article 226 of the Constitution of India is directed against the judgement and order dated 28th February, 2023, passed by Central Administrative Tribunal, Srinagar Bench ("Tribunal") in a TA No. 9063/2020, titled Nazir Ahmad Ganie v. State of J&K & Ors. 2. The Tribunal, by judgement aforementioned, impugned in this petition, has dismissed the petition preferred by the petitioner seeking a direction to the respondents to rectify and correct his date of birth recorded in his service book as 16th March, 1963, instead of 16th March, 1964. 3. The petitioner, as is discernible from perusal of the record on the file, was initially appointed as Orderly in the Directorate of State Motor Garages Department on 26th October, 1985. He joined his services on 28th October, 1985. He was subsequently promoted to the post of Junior Assistant and thereafter to the post of Senior Assistant in the year 1989 and 1997, respectively. At the time of his appointment and joining as Orderly in the Directorate of State Motor Garages, the petitioner had got his date of birth recorded as 16th March, 1963, on the edifice of the Matriculation Certificate issued by the State Board of School Education ("Board" for short). It appears that in the year 1992, as is claimed by the petitioner, an application was filed by him before the Board for correction of his date of birth from 16th March, 1963 to 16th March, 1964. 4. This application, according to petitioner, remained pending till the year 2003, when the Board acceded to his request and issued him a fresh Secondary School Examination Certificate on 7th June, 2003, indicating therein his date of birth as 16th March, 1964. In the same year, the petitioner approached Deputy Director, State Motor Garages, Srinagar, for effecting correction of date of birth in his service book. The correspondence between employer of petitioner and authorities of the Board ensued. The fresh certificate of date of birth issued by the Board in the year 2003, submitted by petitioner, was also got verified from the Board authorities and found genuine. The matter was, thus, referred by Director, State Motor Garages, to the Administrative Department of Transport for appropriate orders. 5. The fresh certificate of date of birth issued by the Board in the year 2003, submitted by petitioner, was also got verified from the Board authorities and found genuine. The matter was, thus, referred by Director, State Motor Garages, to the Administrative Department of Transport for appropriate orders. 5. The Administrative Department, after considering the matter, vide its Communication No. TR-34/SMG/2009, dated 22nd February, 2010, declined the request of petitioner for effecting any change as it being not covered under Article 35AA of J&K Civil Services Regulation ("Regulations" for brevity). 6. From the perusal of the documents placed on record by the petitioner it transpires that Director, State Motor Garages, once again submitted the case of petitioner to the Administrative Department for reconsideration. This is apparent from the communication of the Director, State Motor Garages, bearing No. EC-PF-38/5968, dated 14th September, 2011. This, however, did not yield the result that petitioner was expecting as the Administrative Department once again declined his request and iterated its earlier opinion communicated vide letter dated 22nd February, 2010, (supra). This brought the writ petitioner to this Court by way of a writ petition, which was later on transferred to the Tribunal and registered as TA No. 9063/2020. The petition was contested by respondents on multifarious grounds. The Tribunal considered the matter in light of the law laid down by the Supreme Court in several judgements and concluded that the petition was sans merit, in that the petitioner had approached the respondents for correction of his date of birth belatedly, i.e., after delay of 18 years, albeit he was required to apply for such correction/change of date of birth within six months from the date of issuance of SRO 310-F of 1995, dated 29th November, 1995. It is this judgement of the Tribunal, which is called in question by the petitioner before us in this petition. 7. Having heard learned counsel for the parties and perused the material on record, it is necessary to first set out Regulation 35AA of the Regulations infra: "35-AA. It is this judgement of the Tribunal, which is called in question by the petitioner before us in this petition. 7. Having heard learned counsel for the parties and perused the material on record, it is necessary to first set out Regulation 35AA of the Regulations infra: "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) 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 recognised 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) "Discharge Certificate" in case of ex-servicemen re-employed in State Service; (iv) In case of illiterate persons:- 1. Extracts from Birth Register duly signed by the concerned Executive Officer of the Municipality, Chairman concerned Notified Area Committee/Town Area Committee, as the case maybe; 2. In the case of those persons not falling within the Municipal/Notified Area Committee limits, the certificate should be signed by the concerned Tehsildar where the employee resides who will issue the certificate in the prescribed format as per annexure hereto; or 3. A certificate in the above mentioned format issued by a Medical Board of the respective district, where the employee is posted. A certificate in the above mentioned format issued by a Medical Board of the respective district, where the employee is posted. The Medical Board shall comprise of: (i) Chief Medical Officer of the respective district; (ii) Radiologist; (iii) Dental Surgeon. (b) Recording of Date of Birth in the record of service: (i) On production of Date of Birth Certificate by the concerned Government employee in the manner prescribed in Clause (a) above, 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; (ii) The signature or thumb impressions (in case of illiterate persons) of the concerned Government servant(s) shall be obtained in token of its acceptance as to its correct recording on the first page of relevant service book/record of service by the concerned Head of Office/Drawing and Disbursing Officer at the time of authentication of the entries on the first page of service book/ record of service; (iii) An authenticated copy of the confirmatory documentary evidence substantiating the recording of date of birth shall be attached with the service book/record of service to form an inseparable part of the same. (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/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 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. (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.” It may be worthwhile to note that Regulation 35AA of the Regulations was inserted vide F.D. Notification SRO 310-F of 1995, dated 29th November, 1995. 8. To put it briefly or to sum up, the following points pop up from reading of Regulation 35AA: (i) Whether the date of birth once declared by government servant and accepted by appointing authority be varied or altered? (ii) What are the circumstances under which an employee aggrieved by erroneous recording of his date of birth in official records can approach for rectification? (iii) Whether there is any limitation for approaching the employer for seeking rectification of date of birth declared by the employee and accepted and recorded in the service records. Point (i) 9. (ii) What are the circumstances under which an employee aggrieved by erroneous recording of his date of birth in official records can approach for rectification? (iii) Whether there is any limitation for approaching the employer for seeking rectification of date of birth declared by the employee and accepted and recorded in the service records. Point (i) 9. Date of birth, once recorded on its declaration supported with confirmatory documentary proof by the employee and its acceptance by the appointing authority, is unalterable except in a case of vivid appearance of clerical error. In this context, reading of Clause (a) of Regulation 35AA becomes indispensable since it abundantly envisions the determination of the date of superannuation with reference to the date of birth recorded on the declaration by government servant based on confirmatory documentary evidence on his appointment and acceptance thereof by appointing authority. In case an employee is matriculate or above, the matriculation or equivalent certificate is to be treated as confirmatory documentary evidence for date of birth. Recording of date of birth on the edifice of the confirmatory documentary evidence is not to be taken as if it closes the chapter as it is to be followed by reflecting the date of birth in the service book or any other record with signature or thumb impressions (in case of illiterate persons) of the government servant thereon as a token of acceptance of date of birth recorded. This makes it an unalterable part of service book/record of service. It is so stipulated in Clause (b) of Regulation 35AA. Thus, it is to be looked into and analyzed in the context of rudiments embossed in Regulation 35AA. Viewed thus, the question of variation, change or alteration of the date of birth once recorded at the instance of government servant and so accepted by appointing authority, does not arise at all. Point (ii) 10. Clause (c) of Regulation 35AA, when perused, offers an exception but it only concerns the correction of clerical error in the service book/record by the Government that too at the request of government servant. However, such a request should come up within five years of the government servant's entry into service and the error/mistake should be established as genuine/bona fide. In a nutshell, the date of birth, once recorded and accepted by appointing authority is no more open for any variation or alteration. However, such a request should come up within five years of the government servant's entry into service and the error/mistake should be established as genuine/bona fide. In a nutshell, the date of birth, once recorded and accepted by appointing authority is no more open for any variation or alteration. Although exception is available there, yet only to the extent of correction of clerical error. At the same time, the matter does not end here. Such a clerical error cannot be set right if it is brought to the notice of the Government by the government servant beyond five years of his/her entry into government service. If date of birth is recorded in the service book/records on the basis of confirmatory documentary evidence, like Matriculation or equivalent Certificate, relied upon and produced by government servant when he enters the service, then there is no escape for him to turn around and exhort alteration of date of birth on the excuse of incorrect date of birth recorded in the confirmatory document. Such a request is not available. True it is, if there is a clerical error detected in the service book/records of government servant, which is contrary to the confirmatory documentary evidence relied upon and produced by government servant at the time of entering into government service, correction can be effected in service book/record, but subject to fulfilment of the triple prerequisites: that a request for correction of clerical error should be made by government servant to the Government; that such a request is to be/should be made by government servant within five years of entering his service and not beyond that period; and that such a clerical error/mistake should be in unequivocal terms established as genuine and bona fide. If any of such prerequisites remain unfulfilled, correction of date of birth in service book/records, as a matter of right, is not available to government servant. Point (iii) 11. When Regulation 35AA in terms of Notification/SRO 310-F of 1995, dated 29th November, 1995, came into being, first proviso to Clause (c) was also included and introduced as a one time exception for seeking alteration of date of birth, but, subject to a condition that a written request to this extent should come up from government servant within a period of six months from the date of SRO 310-F was issued. One should not forget that first Proviso to Clause (c) of Regulation 35AA has been incorporated in the backdrop of Clause (b) and not in the context of Clause (a) of Regulation 35AA. Clause (b) provides recording of date of birth in the record of service by concerned Head of Office/Drawing and Disbursing Officer under whose signatures the monthly pay bill of the establishment is paid from the treasury, and upon recording date of birth, the signature or thumb impressions of the government servant are to be obtained in token of acceptance of date of birth being correctly recorded on the first page of relevant service book/record of service by the concerned Head of Office/ Drawing and Disbursing Officer at the time of authentication of the entries on the first page of service book/record of service; and the authenticated copy of confirmatory documentary evidence, relied upon and produced by the government servant, substantiating recording of date of birth is to be attached with the service book/record of service to form an inseparable part of the same. So, the role of Clause (b) is restricted to recording of the date of birth in the record of service on the basis of confirmatory documentary evidence. It is in the background of Clause (b) that if any clerical error is found and/or projected by government servant in the service book/record of service, which is contrary to confirmatory documentary evidence, relied upon and produced by a government servant at the time of his entry into government service, request for correction of such clerical error can be considered by the Government, provided it is brought within six months. 12. Although above discourse, sets at rest all the above three points, yet it would be appropriate to say that Clause (d) of Regulation 35AA, makes an exception to Clause (c) and provides that notwithstanding anything contained in Clause (c), the Government reserves the right to make a correction in the recorded age of government servant at any time against the interests of the government employee if Government 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. 13. 13. From reading of Regulation 35AA, in its entirety, particularly its Clauses (b) and (c), it is evident that the date of birth declared by the government servant at the time of his appointment and accepted and recorded by the appropriate authority in the service book is to be treated as final and there is no provision made in the Regulations to seek its alteration or change at any stage subsequent thereto. The only exception to this prescription is that if any alteration is required to be made in the date of birth to correct a clerical error, the same can be done by the Administrative Department. This is further subject to the effect that the employee seeking correction of date of birth makes a formal application to the Government within a period of five years from his/her entry into government service. The Government, before making such correction, will also ensure that it is clearly established that a genuine and bona fide mistake has occurred. 14. As is evident from first Proviso to Clause (c) of Regulation 35AA, that notwithstanding anything contained in first paragraph of Clause (c) of the Regulation 35AA, an opportunity was given to the government servants in the service as on 25th February, 1995, to seek correction of clerical error in recording of their date of birth by making application within a period of six months from the date of issue of the notification/SRO 310-F of 1995. Clause (d), however, gives power to the Government to make a correction in the recorded age of the government servant if the same is incorrectly recorded with the object to unable the government employee to derive some unfair advantage. It is, thus, evident that there is no provision in J&K Civil Service Regulations providing for alteration of date of birth recorded in the service book on the basis of changed or fresh date of birth certificate issued by the Board or some other authority competent to issue such a certificate. It is only when there is a clerical error crept in recording the date of birth, the Government will rectify the error and alter the recorded date of birth. It is only when there is a clerical error crept in recording the date of birth, the Government will rectify the error and alter the recorded date of birth. This is also subject to the condition that the employee, seeking alteration in case of clerical error, applies to the Government within a period of five years from the date of his/her entry into government service and establishes that a genuine and bona fide mistake had occurred while recording his date of birth. On 29th November, 1995, an opportunity came to be given to government employee who earlier had not applied for recording their date of birth to apply within six months from the date of notification and seek correction of clerical error and consequently alteration in the recorded date of birth. 15. In the facts and circumstances of the present case, the petitioner was appointed in government service on 26th October, 1985. The date of birth recorded in his service book was exactly as per the date of birth recorded in the Matriculation Certificate issued in his favour by the Board and submitted by him to the appropriate authority. The Matriculation Certificate indicating the date of birth of petitioner as 16th March, 1963, was accepted as a confirmatory documentary evidence and, accordingly, his date of birth was recorded in the service book. It is not the case of petitioner that his date of birth was erroneously recorded due to any typographical or clerical error. It is only in the year 2003, i.e., after 18 years' entering into the service, the petitioner approached with a fresh Matriculation Certificate indicating his date of birth as 16th March, 1964. This was rightly not accepted by respondents. It is true that respondents have declined request of petitioner on the ground that his case was not covered by SRO 310-F of 1995, dated 29th November, 1995, i.e., Regulation 35AA, as neither there was any clerical error in recording his date of birth nor was any application made by petitioner within five years of entering into service or within a period of six months from the date of issue of SRO 310-F of 1995. The Tribunal has appreciated the matter slightly in different context, but we also cannot lose sight of the fact that the petitioner approached the respondents for correction of his date of birth on the basis of a fresh Matriculation Certificate after 18 years, of entering into service. Maybe, he was pursuing his case before the Board but the same cannot be a reason or ground to seek correction of date of birth after a period of 18 years, when the statute, i.e., Regulation 35AA, itself provides limitation for filing such an application. As observed above and reiterated here that it was not the case of mere correction of clerical error but was a case of seeking alteration of date of birth that was declared by petitioner, accepted and recorded in the service book by the appropriate authority at the time of his appointment. 16. We may not agree with the Tribunal that the petitioner has come to the Court to seek correction of his date of birth belatedly and at the fag end of his career, but we uphold the judgement of the Tribunal on the ground that not only the petitioner was late in approaching the respondents for correction of his date of birth but also on the ground that there is no provision under the Regulations more particularly when Regulation 35AA, which deals with determination of date of birth of government employees, interalia, provides that alteration of date of birth declared by the government servant and accepted and recorded in the service book by the competent authority at the time of appointment cannot be altered except where it is the case of a mere correction of clerical error for which also the period of limitation is prescribed. 17. 17. We respectfully disagree with the view taken by the Single Bench of this Court in the judgement cited before us, i.e., SWP No. 1696/2013, titled as Ghulam Fatima v. State of J&K & Ors., 2014 Supreme (J&K) 511, wherein the Single Bench of this Court, after observing that alteration in date of birth within five years of entering into service or within six months from the date of issuance of notification can be sought only where there is a clerical error committed while recording date of birth of the concerned employee in the service records, proceeded to hold that the date of birth recorded on the basis of confirmatory documentary evidence can be altered in a situation where such a confirmatory documentary evidence is withdrawn by the authority issuing it and replacing the same with fresh documentary evidence. The view of the Single Bench is that the documentary evidence in confirmation of the date of birth entry in the service record is rendered non est, in effect and law, when the same is withdrawn and substituted by new evidence. Learned Single Judge with due respect has not considered and appreciated the true import of Regulation 35AA, in particular Clause (c), which clearly lays embargo on the power of Government to alter the date of birth declared by the government servant and accepted and recorded by the competent authority in the service book on the basis of confirmatory documentary evidence. Subsequent change or alteration in the confirmatory documentary evidence is of no avail. If such an interpretation is countenanced and accepted by the Court, it would lead to anomalous results and may create administrative chaos. A government employee may come before his employer after his superannuation with a fresh confirmatory documentary evidence of date of birth and claim alteration of his date of birth. In such situation, he may be even required to be brought back in the service for the extended period of his service on the basis of new documentary evidence of his date of birth. This is likely to create administrative confusion. That apart, when the language of the Statute is clear and unambiguous, there is hardly any need to enter into interpretative process and supply something in the statutory rule which otherwise does not exist in such rule. This is likely to create administrative confusion. That apart, when the language of the Statute is clear and unambiguous, there is hardly any need to enter into interpretative process and supply something in the statutory rule which otherwise does not exist in such rule. Such course of action would be tantamount to rewriting of statutory rule, which otherwise is very clear and unequivocal. Regulation 35AA, as explained above, is clear, categoric and unambiguous and does not provide for alteration of date of birth in the service book once the same is recorded in terms of Regulation 35AA at a subsequent stage on the ground that new confirmatory documentary evidence of date of birth of an employee has emerged. The process of recording of date of birth cannot be kept an open ended process and must attain finality once at the time of appointment, the date of birth as declared by the government servant is accepted by the competent authority and recorded in his service record. 18. Viewed from any angle, we find no merit in this petition and the same is, accordingly, dismissed.