HC Abdul Rehman Bhat vs State and Others

Honble Mr. Justice Hasnain Massodi, Judge

The petitioner was initially appointed as Guardsman in Home Guards on 24th Oct. 1970 and later enrolled as Constable in J&K Police

Department vide order dated 14th March 1975. The petitioner claims to have on his appointment as Guardsman declared his date of birth as 2nd

July 1953. The petitioner resultantly had to retire on superannuation on 31st July 2011. The petitioner is aggrieved with order no. 3275 of 2009

dated 9th Sept. 2009 whereby the petitioner is deemed to have superannuated on 31st July 2009. The petitioner accordingly impugns the

aforesaid order on the grounds taken up in the petition and seeks a writ of certiorari for quashment of aforesaid order and a writ of mandamus

commanding the respondents to permit the petitioner to continue in service till he attains the age of superannuation on the basis of his recorded date

of birth '2nd July 1953' and pay him salary due till the date of his superannuation.

The petition is opposed on the grounds that the petitioner's date of birth was initially recorded as 2nd July 1951 and later allegedly

mutilated/forged to read as 2nd July 1953. The respondents place reliance on Aamal Nama (character rolls) prepared at the time of appointment

of the petitioner as Guardsman in the Home Guards wherein the petitioner's date of birth on the basis of school leaving certificate issued by

Government High School Pulwama vide file no. 26 dated 31st May 1969 is recorded as 2nd July 1951. The respondents also seek to draw

support from Forensic Science Laboratory (FSL) report whereby mutilation/insertion in character roll of the petitioner has been affirmed. The

respondents deny that any of the rights of the petitioner have been violated while passing the impugned order so as to entitle the petitioner to

invoke the extraordinary writ jurisdiction of the court.

Heard and considered.

The order impugned in the petition admittedly has been passed more than five weeks after the petitioner, according to the respondents, was due

to retire on superannuation according to his date of birth as recorded in his Aamal Nama (character roll), and that too without issuing a show cause

notice to the petitioner and affording an opportunity to him of being heard. The respondents are expected to realise that the impugned order has in

effect changed the petitioner's date of birth as recorded in his service book and preponed his retirement by two years. The respondents even if

convinced at their place that the petitioner's actual date of birth was 2nd July 1951 and not 2nd July 1953, were required to issue a show cause

notice to the petitioner so that the petitioner could respond to the allegation that the date of birth recorded in his service book prepared on his

enrolment in J&K Police Department was not true and correct but the outcome of mutilation/insertion. Pertinently, the respondents have produced

the petitioner's Aamal Nama (character roll) prepared at the time of his enrolment in Home Guards as Guardsman wherein his date of birth is

recorded as 2nd July 1951 and again his Aamal Nama (character roll) prepared at the time of his enrolment in J&K Police Department as

Constable wherein his date of birth appears to be 2nd July 1953, which according to the respondents was originally 2nd July 1951 and has been

converted into 2nd July 1953 by forgery to make digit '1' in 1951 appear as digit '3' as also the expert opinion that digit '3' is forged. This,

however, does not change the complexion of the matter as regards fallout of violation of principle of natural justice on the case set up by the

respondents to oppose the writ petition. It is well settled law that an executive action/order can be successfully questioned amongst others on the

ground of violation of principle of natural justice.

It has been held in State of Orissa Vs. Dr. (Miss) Binapani Dei and Others, that an order declaring a government employee to have

superannuated on the ground of his disputed date of birth amounted to compulsory retirement before attaining the age of superannuation. The court

further held that when a public servant disputes the claim that his date of birth recorded in his service record is not correct, he must be informed of

the stand of the government and the evidence in support thereof and given a fair opportunity to meet the case before the decision is taken in the

matter. In the aforesaid case the court observed 'it is one of the fundamental rules of our constitutional setup that every citizen is protected against

exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore, arise from the very nature of the function intended

to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act

judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order

is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case. The

court repelled the argument that the order was administrative in character and did not require adherence to the principle of audi alteram partem

observing: 'It is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already

stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in

support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were

admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State.'

For the reasons discussed the order impugned in the petition having been passed in violation of principle of natural justice is liable to be set

aside. The writ petition is accordingly allowed. The respondents, however, would be at liberty to issue a show cause notice to the petitioner

requiring the petitioner to show cause against the order declaring him due to have superannuated with effect from 31st July 2009 and after

affording the petitioner an opportunity of being heard pass such orders as are warranted under facts and circumstances of the case.

Disposed of.