Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 415 (JK)

Abdul Kabir Yatoo v. Union of India

2023-08-18

M.A.CHOWDHARY, N.KOTISWAR SINGH

body2023
JUDGMENT : Chowdhary, J 1. Petitioner - Abdul Kabir Yatoo, through the medium of this Writ Petition, has challenged the order dated 10.05.2021, passed by the Central Administrative Tribunal Jammu Bench, (the Tribunal) in TA No. 8557/2020(SWP No. 987/2018) titled Abdul Kabir Yatoo Vs. Union of India & Ors., whereby the plea of the petitioner to direct the respondents to take his date of birth as 01.09.1964 instead of 24.04.1959, as was recorded by them in his Service Book, was rejected. 2. The impugned order dated 10.05.2021 has been challenged by the petitioner on the ground that the same is absolutely perverse and based on self imagined facts as the learned Tribunal has in the very first Para of the judgment noted down that the petitioner came before this Court with the writ petition only after retirement notice dated 28.01.2019 was served upon him, which was factually correct as the petitioner had approached the court in the year 2018 only when his grievance was not redressed for five years and the retirement notice was served upon him in the year 2019; that there was gross non-application of mind as the matter has been dealt with absolute callousness; that the grounds agitated in the writ petition have neither been dealt with nor considered by the learned Tribunal which has concluded that both the documents are signed by the petitioner and entries are made on his own accord, whereas, fact of the matter is that the petitioner had applied to the department seeking correctness of his date of birth and admittedly the department after finding merit in his application referred the matter to the constituted Medical Board for determining his age in accordance with the norms in vogue; that the medical board comprising of several doctors examined the petitioner in all respects and determined that his date of birth is 01.09.1964; that the respondents have deprived the petitioner of his lawful service by tampering the records, due to vengeance and ill motives; that the respondents have arbitrarily refused to correct the date of birth of the petitioner based on the medical board report, having been referred by them. Finally it was prayed that the impugned judgment dated 10.05.2021 passed by the learned Tribunal be set aside and the relief prayed for in the petition, decided vide above judgment, may be granted in favour of the petitioner in the interest of justice. 3. Finally it was prayed that the impugned judgment dated 10.05.2021 passed by the learned Tribunal be set aside and the relief prayed for in the petition, decided vide above judgment, may be granted in favour of the petitioner in the interest of justice. 3. Mr. Hamza Prince, learned counsel for the petitioner, argued that the petitioner came to be engaged as Craft Instructor in the respondent department on 28.02.1986 on ‘daily wage basis’ and in view of the judgment dated 27.10.2009 passed in OWP No. 650/2008, after prolonged legal battle, the services of the petitioner were regularized by the Government vide order dated 02.03.2012. He further argued that after implementing the court judgment and regularizing the services of the petitioner, the respondents referred the petitioner to the medical board for determination of his age which had to be reflected in his Service Book. Further argument of learned counsel is that the medical board certified the age of the petitioner as 48 years as on 28.04.2012 as per the certificate issued by Chief Medical Officer Pulwama. It has been further pleaded that the department thereafter prepared the Service Book of the petitioner and the date of birth of the petitioner was mistakenly shown as 24.04.1959, however, at page 3 of the Service Book, date of birth of the petitioner recorded as 01.09.1964 is correct, based on the medical examination report. The petitioner had made a number of requests to the respondents to correct the mistake which had crept in recording his date of birth in the Service Book, however, needful was not done and the petitioner filed the writ petition SWP No. 987/2018 before this Court and the respondents instead of rectifying their mistake served retirement notice upon the petitioner, treating his date of birth to be 24.04.1959. It was further argued that this Court in IA No. 05/2019 directed continuation of services of the petitioner vide order dated 26.04.2019. He further argued that on creation of Central Administrative Tribunal at Jammu, the writ petition filed by the petitioner was transferred to the Tribunal where it was registered as T.A. No. 8557/2020and the learned Tribunal vide impugned judgment, decided the petition filed by the petitioner, rejecting his claim. 4. He further argued that on creation of Central Administrative Tribunal at Jammu, the writ petition filed by the petitioner was transferred to the Tribunal where it was registered as T.A. No. 8557/2020and the learned Tribunal vide impugned judgment, decided the petition filed by the petitioner, rejecting his claim. 4. Learned counsel for the petitioner reiterating the grounds agitated in the memorandum of petition argued that the learned Tribunal had rejected the petition filed by the petitioner on flimsy grounds and instead of directing the respondents to correct the date of birth of the petitioner, which had been determined by the medical board, on reference having been made by the respondents to determine the age of the petitioner, had rejected the petitioner’s plea when the respondents were bound to make correction in the date of birth of the petitioner on the basis of the certificate issued by the medical board on the reference made by the respondents with regard to the age of the petitioner. It was finally prayed that the petition be allowed and the impugned judgment passed by the Tribunal be set aside directing the respondents to make correction in the date of birth of the petitioner and the age determined by the medical board instead of what is recorded by the respondents in the Service Book of the petitioner. He further argued that the petitioner despite the orders of this court for continuation of the petitioner in service and despite his working had not been paid the dues to which he was entitled to in terms of the court order. 5. Mr. Shamsi, learned DSGI, while supporting the judgment passed by the learned Tribunal has argued that the Service Book of the petitioner was prepared on the basis of the particulars furnished by him with regard to all the details including his date of birth, wherein he had shown his date of birth as 24.04.1959. He has also disputed the medical certificate allegedly issued by the medical board asserting that as per the certificate dated 28.04.2012, the petitioner was stated to have been examined by the Dental Surgeon of District Hospital Pulwama and not by any Board of Doctors as claimed by the petitioner. He has also disputed the medical certificate allegedly issued by the medical board asserting that as per the certificate dated 28.04.2012, the petitioner was stated to have been examined by the Dental Surgeon of District Hospital Pulwama and not by any Board of Doctors as claimed by the petitioner. The certificate dated 28.04.2012 had been issued by the Dental Surgeon of District Hospital Pulwama which has been counter signed by Chief Medical Officer Pulwama, whereby it was certified that as per the clinical examination the approximate date of birth of the petitioner was 01.09.1964, as such, he was of the age of 48 years at the time of examination. He further argued that the petitioner after giving his date of birth at the time of preparation of his Service Book, cannot turn around and claim different date of birth, presumably on the basis of medical certificate issued by Dental Surgeon, and that the learned Tribunal had rightly decided the petition of the petitioner rejecting his petition. He has finally prayed that the impinged order be upheld and the writ petition be dismissed. 6. Heard, perused and considered. 7. As noticed above the petitioner had been engaged as Craft Instructor on daily wage basis in the year 1986 and his services were regularized by the respondent-department in the year 2012. After his regularization the Service Book was prepared and at the time of preparation of Service book, the particulars of the petitioner were recorded and his date of birth was shown as 24.04.1959 and soon after the regularization order the petitioner appears to have moved an application before the respondents to refer his case for determination of his age to the medical board for recording his correct date of birth. The petitioner has relied upon the medical certificate issued by the Dental Surgeon of District Hospital Pulwama, counter signed by Chief Medical Officer Pulwama showing his age in the year 2012 as 48 years, meaning thereby that his year of birth would have been 1964. The respondents, however, did not act upon the said certificate and the petitioner in the year 2018 filed the writ petition before this Court when he was about to reach the age of superannuation in the year 2019 based on his date of birth recorded in the Service book as 24.04.1959. The respondents, however, did not act upon the said certificate and the petitioner in the year 2018 filed the writ petition before this Court when he was about to reach the age of superannuation in the year 2019 based on his date of birth recorded in the Service book as 24.04.1959. Though the parties have not placed on record the notice of superannuation served upon the petitioner, however, it appears that the petitioner had filed this writ petition when he may have been issued notice for his superannuation which is generally issued, before six months of retirement of an officer/official. 8. It is trite in law as has been authoritatively held by the Apex Court of this Country that the plea for change of date of birth at the fag-end of service of a Government employee should not be entertained. The petitioner, did not move, from the year 2012 to 2018, seeking rectification in his age, waiting for the notice of superannuation and had approached the Court at the fag-end of his service. 9. The medical certificate, though claimed to have been issued by a Medical Board of experts by the petitioner, but on its perusal it is found that it has been issued by Dental Surgeon posted in District Hospital Pulwama and this certificate has been counter signed by the Chief Medical Officer Pulwama, therefore, the said certificate cannot be said to be issued by a validly constituted medical board. It is also very strange to find that the doctor issuing the certificate had certified so precisely the age of the petitioner as 48 years with date of birth as 01.09.1964. 10. It is unknown as to how the medical expert has so precisely issued the certificate with regard to the age and had given, even the month and date of the birth of the petitioner. It appears that the said certificate has either been managed or wrongly issued by the Dental Surgeon as there is no expertise available so far in the medical world to be so precisely authentic to indicate even the date and month of the birth of a person. Through experience, it has been observed that the Medical experts indicate the age of a person, based on different tests including that of ossification, that the approximate age of the person is of such an years with plus/minus of two years. 11. Through experience, it has been observed that the Medical experts indicate the age of a person, based on different tests including that of ossification, that the approximate age of the person is of such an years with plus/minus of two years. 11. The petitioner at the time of initiating the preparation of Service book had given his particulars including his parentage, residence and date of birth as 24.04.1959, cannot be said to be an insertion made by the respondents at their own without being disclosed by the petitioner. The contention of learned counsel for the petitioner with regard to petitioner’s illiteracy and relying upon the medical certificate issued by Dental Surgeon so as to take different date of birth as disclosed by the petitioner, cannot be accepted. 12. For the reasons that the petitioner having knowledge of his date of birth being recorded as 24.04.1959 in the year 2012 had waited till the year 2018 when he was to retire in the year 2019 and approached this Court at the fag-end of his service and his reliance on the doubtful certificate issued by Dental Surgeon posted in District Hospital Pulwama, the petitioner had no good ground for seeking correction of his age and the learned Tribunal had rightly decided the matter rejecting his plea. 13. In this backdrop of the matter, the impugned order passed by the learned Tribunal does not call for any interference by this Court exercising writ jurisdiction. Otherwise also the question of determining the date of birth is a factual aspect, which without evidence cannot be gone into by the Writ Court in roving enquiry. The petitioner shall be well advised to seek appropriate and efficacious remedy by approaching the civil court. In view of this Court order passed in earlier writ petition which was transferred to the Central Administrative Tribunal, if petitioner’s salary had not been paid even after overstaying, he is found to be entitled to the salary for that period during which he worked, till his superannuation was sanctioned. The respondents are directed to make payment to the petitioner of his salary for the period during which he had worked. 14. Having regard to the afore-stated observations, petition is found to be devoid of any merit and is disposed of in the above terms. Impugned order is upheld, subject to the observation made in preceding para.