Abdul Rashid Dr. vs State of J & K

Bhawani Singh, Chief Justice.

This appeal is directed against the Judgment of Learned Single Judge dated August 9, 1995 whereby writ Petition has been dismissed.

Briefly material facts of the case are that the petitioner passed Matriculation examination from Jammu and Kashmir University in 1953 Under

Roll. No. 1378. He became Medical Officer in 1961 and thereafter transferred and promoted as Demonstrator in 1963. After some time he was

promoted as Assistant District Medical Officer in the gazetted cadre.

The date of birth of petitioner recorded in the Service Book is 791938 as per Matriculation Certificate allegedly issued by the University of

Jammu and Kashmir, Photostat Copy of this Certificate is on the file. Petitioner contends that respondent2 asked the petitioner to furnish his

original Matriculation Certificate vide Communication No. ISM/ACJ/7576 dated 761990. Accordingly, Petitioner submitted his original

Matriculation Certificate to the Director Indian System of Medicines, vide Communication No. HD/129/92 dated 263^1993, respondent1 also

requested the Petitioner for producing the original Matriculation Certificate. Through Communication No. ISM/DISM/ Sgr/124 dated 1241993

the Petitioner submitted that his original Matriculation Certificate was already with respondent2. Thereafter, petitioner was informed by

respondeni1 on 291993 about the decision to retire him on the basis of his date of birth being 791935 instead of 79:1938, recorded in the Service

Book.

Through the Writ Petition, petitioner challenged the change in his date of birth stating that the respondents had no jurisdiction to affect any

change in his date of birth once it was recorded in the Service Book in accordance with the provisions of Rule6.4 of the Jammu and Kashmir

Financial Code (Volume I) and Article 35A of the Civil Service Regulations. The date of birth has been changed without holding inquiry into the

matter and giving opportunity to the petitioner of being heard. Therefore, decision of respondents is in violation of principles of natural justice.

Respondents have opposed the continuation of petitioner in service beyond 3091993, the date of superannuation determined according to

correct date of birth 791935 based on Matriculation Certificate and verification from date of birth record of petitioner with the State Board of

School Education, Srinagar. True copy of original Matriculation Certificate bearing Roll No. 1378 with 791935 as date of birth is also produced.

According to respondents, information that petitioner had produced forged certificate with wrong date of birth at the time of preparation of his

Service Book for getting undue advantage of continuation in Service was received. Respondents were informed by the Assistant Secretary

(Certificates) State Board of School Education, Srinagar vide Communication No. F(CERTS).1/KD/B dated 29101992/121192 about the

correct date of birth of petitioner being 791935. Similar communication was received by the respondents from Joint Secretary, State Board of

School Education, Srinagar vide Communication No. F/JSS/CERTS/ CONF/93 dated 1391993 confirming the information with the respondents

that the correct date of birth of the petitioner was 791935. Consequently, the Petitioner was asked to produce his original Matriculation Certificate

but he went on making conflicting statement from time to time. In nutshell, it can be said that the case set up by the respondents is that correct date

of birth of the petitioner is 791935. He produced fake/ forged Matriculation Certificate at the time of preparation of his Service Book. Therefore,

he can not be permitted to get the benefit of more service on the basis of this certificate. Petitioner failed to produce dependable

documents/evidence in support of his case.

Rule6.4 of the Jammu and Kashmir Financial Code (Volume I) and note2 appended to Article 35A of Jammu and Kashmir Civil Service

Regulations read as under:

6.4. (i) Every person newly appointed to a service or a post under Government, should at the time of appointment declare the date of his birth by

the Christian Era with conformitory documentary evidence such as Matriculation Certificate, school certificate, Municipal Birth Certificate and so

on, as required by or permitted under note 2 to article 35A of the J and K C.SRS. If the exact date of birth is not known, an approximate date,

may be given. The actual date of the assumed date determined under Note 1 below should be record that may be kept in respect of the altered,

except in the case of a clerical error without the previous orders of Government.

35A. The certificate should be in the Treasury Form No. 49 with suitable modifications were necessary.

Note 1 When an officer, in whom a defect has been noticed by the examining officers, is transferee from one office to another, the duties of which

are different in character, a Medical Officer should report whether the defect will materially interfere with the discharge of the new duties of the

officer transferred.

Note 2 : The age to be entered in the Service records of an official should be that as entered in his University Certificate, but if he has no University

qualification it should be one that is entered in his School Certificate duly verified as correct, by a Gazetted Officer of the Education Department. In

the case of literate staff, it should invariably be in the employees own hand and in the case of others, they will be required' to produce some

documentary evidence, if available i.e. horoscope or an extract properly attested from the Municipal Birth Registrar in support of their date of birth

which shall be recorded by a responsible Gazetted Officer in their record of Service and witnessed by any other responsible employee of the

office.

In case, an illiterate person cannot produce any documentary evidence of his date of birth, it will be ascertained by the head of the office provided

he is a Gazetted Officer or by a Superior Gazetted Officer in case such head of the office is a NonGazetted official in any manner considered

suitable which may include the certificate or a competent medical officer, The date so ascertained will be recorded in the service recordsof the

Government Servant under proper attestation of a responsible gazetted officer. In all the cases, enumerated above a note will be kept under the

date of birth itself recorded in the service record specifying the source from which the same has been ascertained.

Perusal of above quoted provisions makes it abundantly clear that date of birth in the Service record of an official should be entered on the basis of

Matriculation Certificate issued by the University since the petitioner has also based his claim on the certificate. Surprisingly, there are two

certificates on record. These are issued by the same University under the same Roll Number but containing different date of birth. However, the

certificate produced by the petitioner does not exactly tally with certificate produced by the respondents with the reply. Therefore, either of the two

certificates is forged. Consequently, examination of this question is material to settle the main controversy about the exact date of birth of the

petitioner. With a view to establish it, we called for the register containing original Forms of Candidates who appeared in Matriculation

Examination in 1953. This register contains the admission form of petitioner for the Matriculation examination 1953. It has been filled up and signed

by the petitioner. Against entry2 relating to date of birth according to Christian Era (in words and figures) the petitioner has written ""September

7th, one thousand ninehundred and thirty five, 791995."" This evidence clinches the issue and settles the controversy as to the exact date of birth of

the petitioner being 791935. Thus concluded, it is crystal clear that the certificate produced by the petitioner mentioning his date of birth 791938 is

forged. Therefore, his date of birth 791938 mentioned in the Service Book on the basis of his certificate cannot be accepted for giving him benefit

of further service on this basis. On the contrary, a part from the admission form of petitioner for the Matriculation Examination 1953 referred to

above, the State Government has produced Matriculation Certificate giving his date of birth as 791935. This certificate is in consonance with other

evidence on record. The petitioner has failed to rebutt this evidence nor he produced the original Matriculation Certificate demanded by the

respondents. The explanation offerred by him is hardly convincing and is liable to be rejected.

Petitioner further contended that his date of birth in the service record could not have been altered without affording him opportunity of being

heard. Reliance, in support of this submission, was placed on AIR 1981 SC 1481 (Sarjoo Prasad Vs The General Manager and another), 1986

K.L.J 427 (Shrimati Pushpa Devi Vs State of J and K and others) and 1988 Srinagar Law Journal 44 (Mohd Sadiq Fani Vs Deputy

Commissioner, Doda and others).

Having given our anxious consideration to the material facts of the case, we are of the opinion that this contention has no merit. The decisions

referred to above say that the change should not take place without notice and hearing the petitioner. So what kind of notice and hearing is

required depends on the facts of each case.

Grievance of the petitioner is that he was not given opportunity of being heard is patently unsustainable. It was with in the knowledge of the

petitioner that there was controversy about his correct date of birth ""one reflected in the Service record on the basis of certificate produced by him

at the time of preparation of Service Book and the other produced by the respondents coupled with the information supplied by the Education

Board based on his own admission in admission form for the Matriculation Examination 1953. Always, the respondents were asking the petitioner

to produce his original Matriculation Certificate but he failed to do so despite several opportunities. Instead, he went on putting up explanations

which were/are exfacie, mere excuses. What was all this, before it was decided to superannuate him on the basis of his date of birth being

791935? Undoubtedly, this was an inquiry for settling his correct date of birth in the service record and he was affording adequate opportunity to

substantiate his claim that his date of birth was 791938 and not 791935. He failed to do so before the respondents, then before the learned Single

Judge and now before this court. It is well settled that principles of natural justice are not embodied principles. What principles of natural justice

should be applied in a particular case depends on the facts and circumstances of that case. All that courts have to see is whether the

nonobservance of any of those principles in a given case has resulted in deflecting the course of justice.

No other point was urged.

Having examined the matter in the context of material before us and the submissions of learned counsel for the respective sides, we see no

merit in this appeal and the same is accordingly dismissed.

Having come to the conclusion that petitioner survived on the basis of forged certificate and the court order thereby preventing genuine person

to occupy the post, he would not be entitled to any salary and other benefits of service beyond 3091993. Amounts/benefits, if any, paid to the

petitioner for this period/ service shall be refunded by him to the State within a period of three months from the date of this decision.