Rehmatullah Khan vs State of Jammu and Kashmir

Mr. J.A.Kawoosa AAG, tenders statement that the objections filed by him may be treated as reply on behalf of respondents. His/statement is

taken on record.

Considered. Admit.

The matter can be taken up and on submission of counsel for the parties is taken up for final disposal. Heard

Petitioner was initially appointed as Safaiwalla on consolidated pay at Govt. Dispensary Murhara Uri. At this primary Health Centre he worked

a such Safiawalla for last over 25 years. In December 1996 petitioner's services as Safaiwalla were regularised as graded safaiwalla in the pay

scale of 750940{annexure PI), The respondents are superannuating the petitioner although, he has seven years service yet to render in terms of the

certificate given to him by Medical Supt. District Hospital Baramulla (Annexure P2). Petitioner belonging to inferior services is to retire at the age

of 60 years in terms of Article 20 of the CSR and therefore, continues in service.

Respondent in reply contend that the petitioner has retired from service on 30.06.1998. He has been paid and has received the consequential

retiral benefit? on completion of superannuating age of 60 years, worked out on recorded date of birth in the service book of the petitioner. The

petitioner's age recorded in his service record and front page of his service book is 18.06.1938. It is recorded in the year 1962. same is

authenticated by the petitioner under his own signatures and attested by the concerned officer. Copy of service book annexure A on record reveals

this position. It is denied that any further service is to be rendered by the petitioner to the department, after he has retired on superannuation on

30.06.1998. The temporary service rules are not applicable to this case, in so far as the petitioner has been working as sweeper on contingent

basis and has been paid out of contingent grants till his services were regularised in grade post as sweeper. Petitioner has not worked against any

vacancy. The petition is prayed to be dismissed.

The petitioner's counsel is taking preliminary objection that Addl. Advocate General Mr. J.A.Kawoosa is/not competent to represent the

respondents in absence of power of attorney. Though Mr.Kawoosa AAG is representing respondents right from the beginning yet Mr.Khan has

awakened to take the objection only at this stage. When case is being finally disposed of . However, this contention has no basis. Mr. Kawoosa

has been appearing in this case as also in other cases of Health department on behalf of the state and its officials as standing counsel of the J and K

State and pursuant to allocation of work to the Law Officers by the Advocate General.

Next Mr. Khan submits that the objections filed by the respondents may not be considered as they have not been field within time. Again the

objection is based on misconception, in so far as the objection has been filed in the registry way back on 23.11.1998, as even referred so/in the

order dated 3.02.1999 of this court. The contention of Mr. Khan that the order directing the respondents to allow the petitioner to discharge his

normal functions is determinative of the writ is again untrue but just oversimplification of the statement. The court directed respondent No.3 to

allow the petitioner to discharge his functions after taking note of the respondents alleged act of not filling the objections. Though as observed in the

order dated 3.02.1999 of this court the objections had been filed by then filed in the registry but possibly the same were not placed before the

Hon'ble judge on 4.12.1998. By this very order the Hon'ble Single Bench even granted further opportunity respondent to file the objections, which

infact had been by then. Thus, considered this objection of Mr. Khan too is without any substance or legal basis.

The attested copy of the service book of the petitioner annexure A, shows that the date of birth declared by him/and recorded in petitioner's

service book is 18.06.1938. This age is recorded on the basis of Chowkidar's birth certificate, as attested by the medical officer Mohura. The

entry is attested by Deputy Director and District Medical Officer Baramullah. The first service entry in the record appears entered on 1704.1964

whereas, the petitioner sweeper has been working as such sweeper since March 1954 on contingent basis and his service have been regularised

on 30.12.1996. The petitioner has not challenged the entry in the service records during last over three decades till he riled tm writ petition in

August 1998, after he was retired on superannuation in June 1998. Not only so, the petitioner as per the reply of the respondents has received all

the monetary retiral benefits consequential on his retirement on superannuation in June 1998. The whole attempt of the petitioner is to get the

benefit by extension of service on the claim date of birth of medical superintendent District Hospital Baramulla annexure P2 issued on 12.12.1996.

This is the photostat copy. No basis whatsoever for the age has been given in the certificate issued by a Doctor or medical Officer, is so far as it

does not give the basis whatsoever of the age recorded therein. Obviously annexure P2 to the petition has been procured to make out a case for

extension in service. The certificate if any, and the claim placed thereon is quite stale and also suffers from laches. The Date of birth entry in the

service record annexure A of the petitioner having been declared and entered at the time of is entry in the service is of utmost importance. If the

petitioner has/ declared his age at the initial stage of employment as in this case/he is precluded from attempting to alter the age and get advantage

after puttingforth the plea of claimed correct entry to be recorded in his service records.

In 1996(1) SLR 797, the Apex Court held that unreasonable delay in seeking change of date of birth can in t he circumstances of a case, suffice

to reject the claim.

In 1995 ScC1500 and 1996{1) SLR 797, it has been held by the Hon'ble Supreme Court that the claim of an employee, for correction of his

date of birth entry in his service book made towards the fag end of his services with avowed object of continuing in the service beyond normal

retirement period, should not be entertained. It is also laid down that the date of birth entry in the service record made on representation/ statement

of an employee cannot be changed at the Sweet will of an employee except in the manner permitted by the service conditions or the applicable

rules.

Rule 35A to J and K CSR read with Rule 6.4 of J and K Financial Code Vol 1st provides that an employee appointed to the service or post

must declare his date of birth at the time of his appointment with confirmatory documentary evidence. Once the date of birth is entered, it cannot

be corrected except in case of clerical error of some mistake,

In AIR 1995 SC(2) 1499 their lordship observed at page 1504 as under:

..The fact that an employee Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to

his date of birth accepted by the employer as correct when all of a sudden comes forward towards the fag end of his service career with a writ

application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of nonraising of an objection in the

matter by the employee, in our view, should he a sufficient reason for the High court, not to entertain such applications on grounds of

acquiescence:, undue delay and laches. moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and

judicially exercised if it entertains such writ application for no employee, who had grievance as to his date of birth in the ""Service and Leave

Record"" could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High

court. Therefore, we have no hesitation in holding that ordinary of High Courts should not in exercise his discretionary writ jurisdiction, entertain a

writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his

date of birth entered in his ""Service and Records"" or service Registered with the avowed object of continuing in service beyond the normal period

of his retirement....

Again in the case of State of Orrissa and Others Vs. Ramnanth Patnaik (AIR 1997 SC 2452), the Apex court observed that when an entry is

made in the service record and while the government servant is in service he make no attempt to have service record corrected, any amount of

evidence produced subsequently, would be of no avail.

In the result, the petition is dismissed and interim directions if any, also goes with the main writ petition.