State of J & K vs B.L.Choudhary and Anr.

As the respondentwrit petitioner (herein after referred to as the writ petitioner) is not likely to suffer any irreparable injury and as he can always

be compensated, it is accordingly submitted that he was not entitled to any interim relief. The interim relief came to be granted in a writ petition

preferred by him. Even though, the Enquiry Officer has recorded a finding that as per the date of birth given by the writ petitioner, he stands

superannuated w.e.f. 12th Nov. 96, yet the relief has been granted. This relief is to the effect that the writ petitioner shall remain in service at his

own risk and cost and shall not be entitled to any salary if he fails in the petition. It is this relief granted by a learned Single Judge of this Court,

which is subject matter of challenge in this appeal.

The facts in brief are as under:

The writ petitioner came to this court earlier also. Two writ petitions were preferred by him. He challenged appointment of the Enquiry Officer,

who was supposed to look into the correct date of birth of the petitioner. The writ petitions on the subject came to be disposed of with an

observation that the Enquiry Officer can go into the question as to what is the correct date of birth of the petitioner. It was also observed that the

finding of the Enquiry Officer shall govern the fate of the intervening period and further continuance of the petitioner in senice. It was further

directed that till the enquiry is completed and a finding is returned, the status quo as on 4th Aug. 98 i.e. the date on which the two writ petitions

came to be disposed of. shall continue to operate. The writ petitioner preferred a Letters patent Appeal. This appeal came to be dismissed.

In pursuance of the directions given by this court, the Enauiry Officer initiated the proceedings. Sh SS Kapoor. Commissioner/Secretary to

Government Higher Education Department, was appointed as Enquiry Officer. An order to this effect was issued on 22nd May 98. The writ

petitioner was called upon to appear before him. The writ petitioner appeared before the Enquiry Officer on 05061998. On this date, an

application was submitted by the writ petitioner. He wanted to place on record the following documents:

i/School certificate.

ii/Birth certificate.

iii/Document relating to first page of Service book.

iv/Document relating to at the time of entering into Government service. v/A personal statement relating to date of birth.

vi/Any other document relating to it.

The writ petitioner was allowed to do the needful. On 16th JuneUS the writ petitioner again sought time and on this date, the proceedings were

adjourned to 23rd June' 98. On this date the Enquiry officer was not in his office. The further proceedings were taken on 25th June' 98. On this

date, the writ petitioner placed on record following documents:

i/Attested copy of the front page of the service book attached with the copy of Medical Report dated 8.11.1969 sent to Government by the Head

Office (DTO. Jammu) wherein date of birth is shown as 13.11.1942.

ii/A copy of the J&K Public Service Commission's recommendation letter dt. 10.4.1971 sent to the government for filling up two posts of

Compilers (Gazetted) in the State Gazetteers Unit.

For submission of other documents, the writ petitioner again sought adjournment. The proceedings were further adjourned to 23rd July'98. In

the meanwhile, a representation was submitted before the Clu'ef Secretary of the State. Bias was alleged against the enquiry officer. The initial

representation made on 29th July'98 was followed by a reminder. This reminder was given on 5th Oct.'98. As the Government did not pass any

order, the enquiry officer, therefore, proceeded to determine the correct date of birth of the writ petitioner.

It be seen that the date of birth which the writ petitioner wanted to project was 13th Nov.'1942. The Government was. however, of the view

that the date of birth of the petitioner is 13th Nov.'38. The fact that the date of birth of the writ petitioner was reflected as 13th Nov.' 1938 in the

Civil list prepared in 1978 and 1982 and it later came to be reflected as 13th Nov. 42 in the civil list prepared in 1978 and 1982 and it later came

to be reflected as 13th Nov. 42 in the civil list prepared in the year 1990. was a matter which drew the attention of the Government. Under what

circumstances, in the civil list of 1990. the date of birth of the writ petitioner came to be altered was sought to be looked into. The Jammu and

kashmir State Board of School Education was asked to clarify this aspect of the matter. The Board submitted the following report:

After verifying the xerox copy of the certificate sent to this office for verification, the candidate namely Bachan Lal. S/o shri Sain Dass has passed

his Matriculation examination in the year 1957 under Roll No. 1111 through this Board. The actual date of birth of the candidate is (13.11.1938)

(thirteenth of November N.H. & thirty eight) only and not (13.11.1942) as has been wrongly recorded on the certificate by the candidate. The

Board Certificate No. is 03277.

The writ petitioner was accordingly directed to furnish the original of the matriculation certificate. However, before this could be done, he

approached this Court. An interim order was passed on 26th Nov.'96. It was directed that the writ petitioner shall not be superannuated at the end

of Nov.. 1996 but his continuance in service would be subject to the outcome of the enquiry which was being contemplated against him by the

respondents. The writ petitioner was also directed to produce his matriculation certificate before his Administrative Secretary within two days of

the date of passing of order and the respondentState was directed to complete the enquiry within one month Later on, as indicated above, the writ

petition came to be disposed of permitting the appellant State to determine the correct date of birth of the writ petitioner. It was in these

circumstances, the enquiry officer was appointed. The writ petitioner as indicated above, was asked to furnish whatever material is available with

him. After examining evidence which had come on the record, the enquiry officer expressed an opinion that the correct date of birth of the writ

petitioner is 13th Nov.'38. In coming to this conclusion, the documentary evidence which was taken note of, is being serialised as under:

i/the writ petitioner had appeared in the matriculation examination in the year 1957. He was a regular student of Government High School,

Chambb. In the admission form, which was filled by him the date of birth was indicated as 13th Nov.'1938. the entries made in this form are in

English. This form was meant only for those candidates who wanted to appear in exam.

this form was shown to the writ petitioner who was present in the Court. He did admit that this form contains his signatures. He showed

ignorance about other entries in the form in question.

ii/List of candidates who had appeared in the matriculation examination in the year 1957 and which is maintained by the Janimu and Kashmir

University, was also taken note of. At is. No. 1111 against Roll No. 1111. the entry is with regard to Bachan Lal s/o sh sain Dass. His date of

birth is shown as 13th Nov.'38: iii/The enquiry officer also took note of the fact that wherever any alteration was made in the date of birth, this was

supported by corresponding authorisation: iv/The photostat copies of matriculation certificates of two candidates namely Tahira, d/o sh Mohd

Abdullah, R/o Srinagar and Kartar Nath, S/o Sh Jamit Rai. R/o Jammu, were also examined, the discrepancies which were found visavis certificate

produced by the petitioner and these two candidates were noticed. Paragraph 5( 1) of the enquiry report is relevant and is reproduced below:

A perusal of the above certificates in relation to the one produced by Shri Choudhary initially indicates that nothing is amiss. However, on a closer

examination it turns out that while the Serial Numbers given on the back of the certificates of Ms Tahira and sh Kartar Nath are seemingly in print,

the same cannot be said of the S.N. affixed at the back of Sh Choudhary's certificate (copy enclosed as annexureE) which appears to be of the

seal/stamp type. This becomes more obvious when original certificates are seen. This raises further doubts about the authenticity of the certificate.

While the undersigned was proposing to refer the above certificates alongwith the allegedly rubbed off/mutilated first page of the Service book to

forensic experts for returning a finding, another document concerning this matter came to hand which conclusively nails the claims of Sh Choudhary

about his DOE"".

v/The writ petitioner was also asked to furnish the original of the matriculation certificate. This he did not produce. On the other hand, he stated

that he had shown this certificate to the auditor in the office of Accountant General.

vi/Another factor which was taken not of by the enquiry officer was the application submitted by the writ petitioner seeking leave. In this

application filled up by him. the date of birth was given as 13th Nov. '38.

Taking note of the admission form noticed above, the list of candidates who had appeared in the examination and the application seeking leave

in which the date of birth was shown as 13th Nov.'38. the enquiry officer concluded that the correct date of birth of the writ petitioner was 13th

Nov.' 1938.

The enquiry officer also took note of the fact that in the communication sent by the Jammu and Kashmir Public Service Commission, the date

of birth of the writ petitioner was indicated as 13th Nov.'42. This was sought to be got verified by making a reference to the office of the State

Editor, Gazetteers Unit. The State Editor had made a reference to the Accountant General. The Accountant General did ask for the original

certificate. The writ petitioner made a noting in this correspondence which is to the effect that ""my matriculation certificate has been shown to the

concerned auditor in the office of Accountant General personally by me"".

The writ petitioner, who was present in person, was asked to produce the original matriculation certificate. The stand taken by him was that

this was left with the State administration and was not returned.

We are of the opinion that the enquiry officer after examining the admission form, the list of candidates who had appeared in the examination

and also the application submitted by the writ petitioner seeking leave, recorded a finding that the date of birth of the writ petitioner is 13th

Nov.'38. This finding primafacie is based on good and cogent evidence. The stand of the writ petitioner that his matriculation certificate was left

with the Government, stands negatived from the stand taken by him before the Accountant General office. It was state by him that the matriculation

certificate was shown by him to the auditor in the office of Accountant General. It is too late for him now to suggest that the matriculation certificate

was with the State Government. Again reliance on the correspondence which was entered into by the Jammu and Kashmir Public Service

Commission with the State Government in which the date of birth of the writ petitioner is said to have been 13th Nov.'42. is not supported by any

material on the record. As to how this entry came to be made is not clear and it was rightly discarded by the enquiry officer.

Where the appointment is secured on the basis of a particular date of birth, then it is not unreasonable to presume that the information given by

a candidate is correct. See Union of India Vs. C. Rama Swamy. AIR 1997 SC 2055. In the aforementioned case, following observations were

made:

... But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth, there is obviously

his intention 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.

If an employee seeks correction in his date of birth, he must show that it was on account of negligence on the part of some other person that

the date of birth has been wrongly recorded. In the present case, the admission form was filled up by the writ petitioner himself and he did sign the

same. As such, the ratio of decision given in Commissioner of Police, Bombay V. Bhagwan Vs. Lahane. AIR 1997 SC 198f>. would be attracted

to the facts of this case. In the aforesaid case, the extracts from birth register was produced subsequent to recording of date of birth on the basis of

School Leaving Certificate. There was refusal to correct the date of birth in the service book on the basis of such extract. It was observed that the

extract from the birth register could be ignored

In Union of India Vs. Saroj Bala. AIR 1996 SC 1000. the correction in the date of birth was sought after 18 and a half years of service. This

was disallowed. The delay in the matter of seeking correction in the date of birth is a factor which normally goes against the person who seeks such

a correction. See Union of India Vs. Ram Suia Sliarma, 1996 (7) SCC 421.

In another case reported as State of M.P. Vs. R.P. Sharma, 1996 (10) SCC 516. the Middle School, Secondary School and college

certificates as well as the gradation list for two years i.e. 1964 and 1965 indicated the date of birth as 13th Nov. 1936. A loan application was

given by the employee. In this also, the date of birth was recorded as 13th Nov. 1936. Later on, an attempt was made to get the date of birth

corrected by projecting that it should read as 28th June 1938. The certificates on which reliance was placed were not found to be genuine. In these

circumstances, reliance was placed on the Middle School. Secondary School and college certificates as well as on the loan application in which the

date of birth was recorded as 13th Nov. 1936.

If the judicial precedentes noticed above are taken note of, then it becomes apparent that the enquiry officer has relied upon admissible

evidence and has given sound and convincing reasons for not placing reliance on the material which was sought to be relied upon by the writ

petitioner.

It be seen that one of the pleas taken by the writ petitioner is that the enquiry report was not shown to him. It was his case that this was not

shown even when he filed the writ petition. The enquiry report has since been made available to the writ petitioner and il was read in its entirety

when this appeal was heard. As indicated above, the writ petitioner was asked to indicate as to whether he had filled the admission form in which

the date of birth is given as 13th Nov. 1938. He did admit that this contained his signatures. Notwithstanding this, the argument raised was that the

writ petitioner is entitled to hearing in terms of the decision of Supreme Court in the case AIR 1967 SC 1269, State of Orissa Vs. Binapan Devi

and Ors.

It be seen that the rules of natural justice are to be moulded as per the facts of each case. In State of M.P. Vs. R.P. Sharma, referred to

above, there was unimpeachable evidence regarding correct date of birth. This evidence was collected in an enquiry in which the civil servant was

associated. Under these circumstances, it was observed that there was no need to hold an enquiry. What was observed in para 9 is being

reproduced below:

The question arises whether a further opportunity needs to be given to the respondents ? In our considered view, the principles of natural justice

cannot be stretched to the ridiculous edge of opportunity at every stage. Since the Lokayukta, a retired Chief Justice had undertaken full fledged

trial whereat the respondent had been given ample opportunity to prop up his best trump card and had given his report in the light of the

unimpeachable evidence repeat performance by the Government would be an empty ritual. The principle of natural justice must be pragmatically

allowed fruitful play to meet the given fact situation. When the respondent had the opportunity before the Lokayukta and had adduced all the

evidence, no further opportunity needed to be given at the time of correcting the date of birth on the basis of the report submitted by the

Lokayukta. It would, therefore, be seen that the Tribunal was grossly in error in directing that he should be given an opportunity afresh before

correcting the date of birth.

Therefore, to say that merely because the enquiry report was not made available to the petitioner the principles of natural justice stood violated

and this should furnish a ground to the writ petitioner to seek a relief from this court, may not be a correct position in law.

It be seen that at the time of hearing of the appeal, the parties agreed that the material which has come on the record be examined for the

purposes of decision of this appeal. This has been done. Prima facie we have come to the conclusion that the material which has been relied upon

by the enquiry officer is good and sufficient material for recording a finding that the date of birth of the writ petitioner is 13th Nov. 38. If this be the

position, then the appellantState is well justified in contending that no case is made out for grant of interim relief with regard to the grant of interim

relief in such cases, the Supreme Court of India in the case of Burn Standard Co. Ltd. and others Vs. Dinabandhu Majumdar and air. 1995 (4)

SCC 172, has made following observations:

Therefore, there should be no hesitation in holding that ordinarily High Court should not. in exercise of its 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 Leave Record' or Service Register with the avowed object of continuing in service beyond the normal

period of his retirement.

It was further observed as under:

Prudence on the part of every High Court should prevent it from granting interim relief in a petition for correction of the date of birth filed under

Article 226 of the Constitution by an employee in relation to his employment.

Similar opinion has been expressed in 1994(1) SCC Suppl. 155.

In view of the above, we are prima facie of the opinion that the enquiry report is based on good and sufficient material. No case has been

made out for grant of interim relief. This appeal is accordingly allowed. It is. however, made clear that nothing said in this judgment would be taken

as final expression of opinion when the writ petition is taken up for final disposal. Whatever has been said in this order is for the purpose of grant or

nongrant of interim relief only.

Therefore, as indicated above, the appeal is allowed. The interim directions contained in the order under appeal are vacated. The State to file

objections/counter at the earliest preferably within a period of six weeks from today and thereafter, the writ petition be listed for final disposal.

Original file returned to Sh I.P. Singh.

Disposed of accordingly.