Gh.Mohd.Khan vs State of J & K

The petitioner joined is services on 29.10.1955 in the respondentdepartment, as an orderly. He submits that on the first page of his Service

Book, his date of birth shown to be 1.1.1941. In the year, 1996, the Joint Director of Industries and Commerce suspected that the Date of Birth

entered in the Service Book of the petitioner had been tampered with, and therefore, he directed the petitioner to produce the Date of Birth

Certificate, so that his correct Date of Birth could be authenticated. The petitioner further submits in this petition that he could not produce any

evidence from Primary School Wazir Bagh, Srinagar, as the said School had gutted in a fire. Petitioner also submits that no record was available

with him by which he could substantiate that his Date of Birth was 1.1.1941. He further submits that he obtained a certificate from Dr. G.N.Najar

a Radiologist, who confirmed that the age of petitioner was between 53 to 55 years, and the certificate was produced before respondent No.3.

The respondent No.3, according to the petitioner, refused to entertain the certificate. The Joint Director vide his letter dated: 24.9.1996 again

directed the petitioner to furnish proof of his Date of Birth within seven days from the date of issuance of the letter. He was also informed that in

case he failed to produce his Date of Birth Certificate, his superannuation w.e.f 30.12.1996 shall be confirmed. The petitioner further states that in

the month of November, 1996, he represented before the respondents that he was not in a position to furnish the Date of Birth Certificate after a

lapse of forty years of service, therefore, he be allowed to continue in service. According to the petitioner, he filed an application on 22.11.1996

before respondent No.3 for issuance of a Photostat copy of first page of Service Book to him, the same was issued to him which hp has placed on

record. He submits that while he was working at Jammu with the Director of Industries and Commerce department, he received an order on

24.12.1996 issued by respondent No.3, in which it was stated that since petitioner had completed 42 years of service, he will be superannuated

on 31.12.1996. This order has been challenged in this writ petition on various ground including the ground that petitioner's Service Book shows his

Date of Birth to be 1941. Since he has to retire after attaining the age of 60 years, therefore, he should continue in service till 2001. Petitioner has

also stated that if the respondents wanted to change the Date of Birth of the petitioner to his detriment, they should have conducted an enquiry into

the matter.

Objections have been filed by the other side.

3.1 have heard learned counsel for the parties. The order of superannuation of the petitioner is an elaborate one. It states that the petitioner has

already completed 42 years of service, and even if it is presumed that he joined the services at the minimum age of 18 years, even then he had

attained the age of 60 years, which is the age of superannuation of ClassIV employees. I have seen the copy of first page of the petitioner's Service

Book. It appears to the naked eye that the earlier entry with regard to Date of Birth has been erased and a hew entry has been made. Without

going into this controversy, I feel that a person who has completed 42 years of service must be presumed to be 60 years of age. There are only

two possibilities; either the petitioner had got has appointment when he was underaged or he has now given a wrong Date of Birth. In both cases

this writ petition must fail. If he was able to secure appointment at an age when he was less than 18 years, which was always the prescribed

minimum age limit for entry into Government Service, then he has already taken the benefit by remaining in service for a maximum period that is

available to a ClassIV Government servant. And if the petitioner has wrongly agitated that his Date of Birth is incorrectly recorded in the Service

Book, even then his petition must fail, becausehe has put in maximum number of years in service that is possible under the Service Rules. One can

draw support from a recent judgment of the Supreme Court (which has decided a controversy of identical nature) titled: Union of India V/s C.

Rama Swamy & Others reported in (SIC) 1997 (4) SCC page 647. In the said Judgment, the Supreme Court has held, as under:

In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of

the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage

had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable

to presume that when a candidate, as the first instance, communicates a particular date of birth there is obviously his intent in that his age calculated

on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office.

In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore more

suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to

be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit

to a person concerned. That being so, were find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a

case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability.

In such a case, even in the absence of a statutory rule like Rule 16A the principle of estoppel would apply and the authorities concerned would

be justified in declining to alter the date of birth. If such a decisions challenged the court also ought not to grant any relief even if it is shown that the

date of birth, as originally recorded, was incorrect because the candidate concerned had represented a different date of birth to be taken into

consideration obviously with a view that would be to is advantage. Once having secured entry into' the service, possibly in preference to other

candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent

the decision in Manak Chand case does not lay down the correct law.

Although, the Supreme Court was interpreting a particular rule but, at the same time, it held that even if a decision of retirement is challenged in

the Court, the Court ought not be grant any relief even if it is shown that the date of birth, as originally recorded, was incorrect. It also laid down

the principle of computation of service. In the present case, what is the harm in retiring a person on superannuation after serving the department for

42 years, which is the maximum period for which he could have served.

Looking to the controversy from a different angle, if the Date of Birth quoted by the petitioner is accepted and it is held that his correct date of

birth is 1.1.1941, then he has joined the service at the age of 14 years; as he has submitted in the petition that he joined his service on 29.10.1955.

It is unconvievable that the petitioner had joined his services when he was hardly of 14 hears age. But even if that is so, he has got the benefit

which he would have got, had he joined the services when he was eighteen years of age.

For the aforesaid reasons, I do not find any merit in this petition, which is, accordingly, dismissed. Interim direction shall stand vacated.