GH MOHD BHAT Vs. STATE
LAWS(J&K)-1986-9-15
HIGH COURT OF JAMMU AND KASHMIR
Decided on September 26,1986

Gh Mohd Bhat Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) PETITIONER is serving in the Police Department and a change is said to have been effected in his date of birth by the respondents. It is averred by the petitioner that his date of birth was 10.7.1989 BK and he was due to be retired on the basis of that date of birth after attaining the age of superannuation of 55 years. It is further averred that in his character roll petitioners date of birth was recorded as 10.7.1989 BK when he joined the service, but somewhere in 1957 his character roll was gutted in fire. A duplicate character roll is said to have been constructed and prepared in which petitioners date of birth was recorded incorrectly which was different than the one which was recorded in the original character roll. In 1981 January, petitioner was asked by the S. P. Budgam to submit his matriculation certificate showing his date of birth. Petitioner is said to have obtained school leaving certificate from S P.M.L Higher Secondary Institute, from the Principal of the said Institute wherein his date of birth was shown as 10.7.1989 BK. By virtue of annexure -I to the writ petition, the SP is said to have acknowledged the receipt of the said certificate as also copy of the school leaving certificate showing the petitioners date of birth as 10.7.1989 BK copy of the said certificate is annexure -II to the writ petition. By virtue of Annexure -III the SP Budgam is said to have forwarded the school leaving certificate of the petitioner showing his date of birth to the Dy. Inspector General of Police, CID (Crime and Railways J&K Srinagar) for verification. This communication was addressed to the said DIG on 3 10.1981. The Staff Officer DIG, Crime and Railways is said to have in terms of Annexure -IV conveyed to the respondent No. 2 that perusal of the character roll of the petitioner, which is duplicate one reveals that his date of birth was recorded as 2.4.1986 BK where as the certificate produced by the petitioner indicates his date of birth as 10.7.1989 BK To verify the petitioners date of birth and to verify the correctness of the said certificate Shri J.L. Pandita, SP Computer is said to have been asked to do the needful. Necessary verification is said to have been done by Inspector T. N Tickoo No. 249/NG -O who is said to have verified the authenticity of the school leaving certificate and found it genuine. It was further remarked that since there exists some cuttings and initials to the date of birth, the Dy. S. P. crime branch was asked to verify the cuttings and initials of the officer. The Principal concerned who had issued the Date of birth certificate was contacted. He admitted the correctness of the certificate. The cuttings on the certificate also were said to have been initialled by the then principal Peerzada Mohd Yousuf. A request was made to the respondent No. 2 to issue necessary sanction/orders effecting correction to the date of birth of the petitioner in the character roll. The character roll as also the school leaving certificate was sent to the respondent No. 2 for his perusal and further action. This communication is dated 8.5.1984. After the receipt of the letter, the respondent No. 2 is said to have informed the DIG Police Crime and Railways that the date of birth already recorded in the character roll cannot be changed at this stage.
(2.) ON the basis of the aforesaid facts the petitioner urges that communication contained in Annexure V of the respondent No. 2 is illegal and void as it effects the petitioners service rights. Petitioners date of birth could not be changed and on enquiry which was conducted by the department it was found that the petitioners date of birth was 10.7.1989. There fore respondent No. 2 could not have refused to change the incorrect date of birth and order that the incorrect date of birth be maintained which was written in the duplicate character roll, the original having been lost. The duplicate character roll is said to be incorrect in so far as the date of the petitioner is concerned. The State Govts power to record correct date of birth of any of its employees is concerned, but it is submitted that recording of date of birth must be based on some evidence. The genuineness of the date of birth certificate produced by the petitioner contained in Annexure -II is said to have been scrutinized and certified to be correct, therefore respondent No. 2 could not on the basis of the report of verification of his own department fasten incorrect date of birth on the petitioner. The arbitrary action of the respondent No. 2 whereby he is to be retired on the basis of date of birth of 2.4.1986 is illegal and would amount to premature retirement of the petitioner in violation of his service rights. Accordingly Annexure -V is requested to be quashed.
(3.) MR . A. R. Nanda, IPS, Additional Inspector General of Police, J&K, Srinagar has filed reply on behalf of the respondents. It is conceded by him that in 1957 service record of various officers including that of the petitioner was gutted and present service character roll of the petitioner is a duplicate one. The date of birth recorded in original character roll is not available. In the duplicate character roll the petitioners age is shown as 24 years. According to the Medical from attached to it which has been calculate and put at 2.4 1986 BK corresponding to 14.7.1929. It is also admitted that SP Budgam had asked the petitioner to submit the original Matriculation certificate, and subsequently he forwarded his service record alongwith the date of birth certificate so produced by the petitioner the DIG Crime and Railways for verification Averments contained in para 6 of the writ petition to the effect that authenticity and genuineness of the certificate was verified by the authorities and a communication was addressed to the DIG on 8.5.1984, stating therein that the date of birth certificate of the petitioner, copy whereof is annexure -II, was correct and his date of birth be fixed according to that certificate are admitted. However, it is denied that respondent No. has acted arbitrarily. Respondents have also denied that petitioners rights have been affected. School leaving certificate contained in Annexure -II is said to indicate the date of birth of the petitioner as 10.7.1989 BK. It is averred that age of the petitioner at the time of this enrolment had been assessed by the Medical Officer. It is further contended that in terms of Govt. circular date of birth as entered in the character roll is not liable to be altered. At the same time genuineness and correctness of Annexure -II which is date of birth certificate is admitted in unequivocal terms by the respondents. Retirement age is said to have been determined on the basis of assessment made by the medical officer. Retirement of the petitioner on the basis of date of birth as 2.4.1986 BK is said to be justified. From the reading of the pleadings i.e. the writ petition and the reply affidavit, the few facts which are admitted in this case are as under: - i. That original character roll of the petitioner was gutted in 1957 in an accidental fire; ii. Thereafter duplicate character roll was constructed by the department; iii. Date of birth of the petitioner was recorded not on the basis of any evidence but on the basis of some assessment of his age said to have made by some Medical Officer at the time of his entry in service thought all entries regarding his 1st entry in the recorded in the character roll is said to have been destroyed by fire. iv. Superintendent Police Budgams communication to the Principal S.P.M.L Higher Secondary School contained in Annexure -I and thereafter issuance of Date of birth certificate by the Principal to the petitioner contained in Annexure -II is admitted. v. Perusal of Annexure -II which is school leaving certificate issued by the Principal, M.L. Higher Secondary School, genuineness and correctness whereof is found correct reveals that the petitioners date of birth as 10.7.1889 BK and the said date of birth of the petitioner is not said to be incorrect; vi. The recommendation on the basis of verification report is forwarded to the respondent No, 2 by the DIG Crime and Railways and request is made to affect the necessary correction in the petitioners date of birth, which impliedly would mean that the date of worth of the petitioner recorded in the character roll was not found correct. On the basis of aforesaid facts, the question which falls for determination of this court is as to whether Annexure -V can be said to be valid and as to whether the petitioner is liable to be retired on the basis of his date of birth entered in the duplicate character roll as 2.4.1986 BK.;


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