Johan Massih vs State of Jammu & Kashmir and others

O.P. Sharma, J.—The petitioner was employed as a Safai Karamchari in G.G.M. Science College, Jammu. His case is that at the time of his

appointment he gave his date of birth as 9.2.1994 (Bik) which in fact was the date of birth of his elder brother. On the basis of this entry in his

service book, he was to retire in Sept. 1995. However, before retirement he was asked to produce verification about the date of birth recorded in

the Service Book. The matter was referred to the Principal, Medical College, Jammu and Dr. B.R. Sharma, Lecturer Foresenic Science vide

certificate dated 26.9.1996 certified him to be of 51 years of age. However, this certificate was ignored by the respondent and he was retired in

Sept. 1996.

He challenges the order of his retirement on the ground that respondent Principal having accepted his plea for correction of date of birth by

referring the matter to the Principal, Govt. Medical College, Jammu, he could be retired only either on the basis of the medical record or after

holding proper inquiry to determine his correct age. However, the petitioner has admitted that he gave his date of birth as 9.2.1994 (Bik) at the

time of entry in service about 25 years ago. The plea that this date of birth is that of his elder brother is an afterthought coined only to get his

superannuation postponed. It is not possible to accept such explanation. Since birth certificate does not contain his name, it becomes a disputed

question of fact whether he or his brother was born on this date which cannot be investigated in exercise of writ jurisdiction. Moreover, petitioner

cannot be allowed to retract his admission made 25 years ago while seeking employment that he was born on 9.2.1994 (Bik). Moreover the

question of date of birth cannot be allowed to be reopened after 25 years as held in Union of India v. Ramsuia Sharma, (1996)7 SCC 421, which

reads :

The controversy raised in this appeal is no longer res integra. In a series of judgments, this Court has held that a Court or tribunal at the belated

stage cannot entertain a claim for the correction of the date of birth duly entered in the service records. Admittedly, the respondent had joined the

service on 16.12.1962. After 25 years, he woke up and claimed that his correct date of birth is 2.1.1939 and not 16.12.1934. That claim was

accepted by the Tribunal and it directed the Government to consider the correction. The direction is per se illegal"".

This applies to the facts of the case. Moreover the petitioner has approached this Court much after the retirement and as such the petition

cannot be entertained. There is thus no merit in this petition which is dismissed.