Ghulam Nabi Bhat vs State and Others

Petitioner seeks Writ of Certiorari to quash Govt. Order No. 827GAD of 1998 dated: 02071998, tentative seniority list issued vide

communication No. GAD/SER/8/96Genl. Post. dated: 09101998, final seniority list issued vide Govt. Order No. 1577GAD of 1998 dated:

08121998, notification bearing No. GAD (Ser) 5/96Genl/PS/HOD dated: 24042000 and also communication bearing No. GAD (Ser) 8905/GS

dated: 25072000. He also seeks a writ of Mandamus to treat the date of birth of the petitioner as 13041948 as shown in the University certificate

and pursuant thereto recorded in the Service Book and the seniority list prepared by the respondents. He further seeks direction to respondents

not to superannuated the petitioner taking into account his dale of birth as 13041943 and not to act on the notification No. GAD (SER)

5/96Genl/PS/ HOD dated: 24042001, whereby the petitioner has been retired with effect from 30042001.

Petitioner is an employee of the respondentsState. It is averred in the petition that while working as Private Secretary on 16071983 in the office

of Principal Chief Conservator of Forests Jammu, he had an occasion to go through his Service Book and noticed that one Mr. G.M. Bhat who

was holding the post of Joint Director, Horticulture Department, has allegedly altered the recorded dated of birth in the Service Book from

13041948lo 13041943 on the basis of some medical examination. Initially the date of birth was recorded on the basis of Higher Secondary

School Certificate issued by the University of Srinagar. The petitioner's claim is that it has been altered at his back without hearing him. Petitioner

made a representation to the respondents which has been decided vide Govt. Order No. 827GAD of 1998 dated: 02071998 confirming the dale

of birth of the petitioner as 13041943. Petitioner, thereafter, made many representations. The respondents vide communication dated: 25072000.

Annexure S, annexed with the petition have informed the petitioner that after consideration of representation his date of birth remains unchanged.

Respondents have filed the Counter Affidavit/reply stating therein that the dale of birth of the petitioner is incorrect and the correct date of birth

of the petitioner is 13041943 which has been assessed subjecting the petitioner to the Medical Board for ascertaining his dale of birth. This date of

birth has been recorded in the Service Book of the petitioner and the petitioner has also authenticated it by affixing his signatures. It has been

recorded by the competent officer under whom the petitioner was working at the relevant lime. It is also submitted in the reply that the petitioner

has the cause of action from 02071998 when his dale of birth as 13041943 was confirmed. He should have challenged it within one year as the

cause is available to be challenged only within one year under Article 14 Schedule I of the Limitation Act. It is also stated that the petitioner has

been retired on attaining the age of superannuation.

Heard learned counsel for the parties and perused the record.

The learned counsel for the petitioner has submitted that the date of birth recorded in the Service Book has been taken from the Higher

Secondary School certificate issued by the University. The respondents altered the date of birth unilaterallyat the back of the petitioner which has

prejudiced his right to continue in service till he attains the age of superannuation according to his date of birth recorded in the service record. In

support of this plea, he has relied upon the judgments of the Supreme Court 1967 SC, 1269,1981SC, 1481 and 1980 JKLR 557 with a view to

impress upon the court that the respondents have changed the date of birth of the petitioner at his back. The perusal of annexure D annexed with

the petition, which is the first page of the Service Book, where both the entries viz original and altered date of birth have been recorded, reveals

that the petitioner has authenticated the entries by affixing his signatures on each entry. Therefore, the plea of the learned counsel for the petitioner

that the altered date of birth has been recorded at his back is misplaced and unfounded on facts.

If the date of birth as pleaded by the petitioner is taken as true, it emerges that the petitioner at the time of his initial appointment in the year

1961 was of the age of 13 years. The petitioner could not have been appointed as a public servant being of such minor age. Dealing with such

proposition of facts and law, this court in case Z.M. Samnani Vs. State of J and K, reported in 2001 Jammu and Kashmir Law Reporter page 428

has observed as under:

The dispute of date of birth raised by the petitioner can also be looked by another angle and appears to be not workable. If the date of birth of

the petitioner as projected by him at the fag end of his service, is accepted, the . petitioner in that event would have been of 14 years of age when

he joined the police service in 1960. It is not shown by the petitioner that a boy of 14 years could be recruited in the Police Department under any

service rules whereas it cannot be denied that in the Police Department even in the year I960, no person could be recruited unless he has attained

the age of 18 years according to the date of birth recorded in his service Record. On this score also the dispute raised appears to be misplaced.

Court dealing with similar proposition while dismissing the cause of correction of date of birth has observed in G.M. Bharal Cocking Coal Ltd.

W.B. Vs. Shib Kumar Dushad reported in AIR 2001 SC 72 that:

The High Court in writ jurisdiction is not the appropriate forum for undertaking such enquiry into disputed question of fact. At this stage it is

relevant to stale that if the respondent's dale of birth is taken to be 09021946 then he would have been 14 years of age when he joined service in

1960. No material is available on record that the industrial undertaking where the respondent joined service was legally permitted to employ a

minor.'

The case of the petitioner alsois required to be examined as pointed out bythe learned counsel for the respondents as pleaded in their reply that

the cause of action has accrued to the petitioner to assail the dispute of date of birth on 2nd July, 1998 when the Govt. vide its order No. 827G

AD of 1998 decided the case of the petitioner maintaining his date of birth as 13041943 instead of 13041948. The petitioner has opted not to

challenge it within one year. The cause of the petitioner thus is time barred in terms of Article 14 ScheduleI of Jammu and Kashmir Limitation Act.

In support of his plea he has relied upon the judgment delivered in case Ab. Hamid Bhat Vs. State reported in SLJ 1999 page 511, wherein the

court has observed as under:

The impugned order was issued in the year 1993. The petitioners had the cause of action against the order from the very date the order came

into existence. This order could have been set aside even through the suit which could be instituted within the period of one year from the date of

its issuance. Under Article 14 Schedule1 of J and K. Limitation Act. the petitioners had one year's lime from the dale of the impugned order to sue

for getting it set aside. The relief to the cause was barred by Limitation Act. Even the suit was thus hopelessly barred by limitation in the year 195

when the writ petition was filed. State claims, related toservice matters, cannot be entertained moreso when subsequent developments have taken

place and the circumstances have changed. The writ petition is thus liable to fall on the ground of laches (Reliance AIR 1973 SC 1160).

No other point has been urged by the learned counsel for the parties.

For the aforesaid reasons, the petitioner is not found entitled to the relief prayed for. The writ petition is, accordingly, dismissed.