Jammu & Kashmir High Court - Srinagar BenchCharanjeet Kour vs State Of J & K & Ors on 7 June, 2023Author:Javed Iqbal WaniBench:Javed Iqbal WaniSr.No. 01\n\n\n                  HIGH COURT OF JAMMU & KASHMIR AND LADAKH\n                              AT SRINAGAR\n\n                                                    SWP No. 1461/2017\n                                                    CM No. 8198/2021\n\n                                                    Reserved on    : 24.04.2023\n                                                    Pronounced on : 07.06.2023\n\nCharanjeet Kour                                         .... Appellant(s)/ Petitioner(s)\n\n                    Through :- Mr. Syed Riyaz Khawar, Advocate\n\n         V/s\n\nState of J & K & Ors.                                               ....Respondent(s)\n                    Through :- Mr. Altaf Haqani, Sr. Advocate with\n                               Mr. Asif, Advocate\nCoram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE\n                        JUDGMENT07.06.20231.        Prithpal Singh, the original petitioner filed the instant petition underArticle 226of the Constitution of India in the year 2017, however, during\n\n          the pendency of the petition, the said petitioner died on 26.02.2021\n\n          (herein after, for short, 'deceased petitioner') necessitating bringing on\n\n          record his legal heirs as petitioners namely Charanjeet Kour-Wd/o\n\n          Prithpal Singh, Satheer Singh and Daljit Singh, both sons of Prithpal\n\n          Singh in terms of order dated 27.09.2021.2.        In the petition, following reliefs have been sought :-I. Writ of Certiorari, quashing the impugned retirement order\n\n                     no. SRTC/MPS/1595-A dated 01.09.2003 and the adverse\n\n                     endorsement made on the 1st page of service book whereby the\n\n                     date of birth of the deceased has been shown as 27.10.1945\n\n                     instead of 10.07.1957.2                               SWP No. 1461/2017II. Writ of Certiorari, the impugned consideration order no.\n\n               JKSRTC/EC-1/21 dated 18.05.2016 passed by respondent no. 5\n\n               may be quashed.III. Writ of Mandamus, commanding the respondents to pay all\n\n               consequential service benefits including salary allowances,\n\n               increment, benefits of pay revision and also retiral benefits in\n\n               favour of the petitioner as if no order of illegal retirement was\n\n               ever passed against deceased by the respondents.\n\n           IV. Writ of Mandamus, commanding the respondents to treat the\n\n               deceased to have retired on superannuation on 10.07.2017,\n\n               after attaining the age of 60 years.The aforesaid reliefs have been sought on the premise that the deceased\n\n     petitioner came to be engaged as a driver in the State Road Transport\n\n     Corporation (for short, 'the corporation') on 19.02.1986 and upon his\n\n     appointment, his age came to be recorded in the service book as of 28\n\n     years on 10.07.1985 on the basis of age certificate issued by Chief\n\n     Medical Officer, Baramulla as the deceased petitioner was not possessed\n\n     of any academic qualification.3.   The age certificate (supra) on the basis of which the Date of Birth of the\n\n     deceased petitioner was recorded in the service book is stated to have\n\n     been accepted by the corporation.4.   It is being stated that during the working of the deceased petitioner in the\n\n     corporation, he came to know that he is being retired from the service on\n\n     31.08.2003 through Order No. SRTC/MPS.1595-A dated 01.09.2003 at\n\n     the age of 46 years instead of 60 years.3                               SWP No. 1461/20175.   It is being further stated that the corporation in the year 1993 started an\n\n     enquiry regarding the genuineness of the birth certificates of many\n\n     drivers working in the corporation including that of deceased petitioner\n\n     and that Respondent 3 vide order dated 12.08.1993 allowed drawing of\n\n     the increments in favour of the deceased petitioner on the basis of\n\n     Vigilance Commissioner's Report as also the report of an enquiry\n\n     submitted by General Manager Vigilance wherein, it had been provided\n\n     that the drivers figuring at S. No. 6 to 9 had produced the false age\n\n     certificates and the drivers figuring at S. No. 1 to 5 had produced the\n\n     genuine age certificates and that the deceased petitioner was figuring at\n\n     S. No. 4 therein.6.   It is being also stated that despite order dated 12.08.1993, the corporation\n\n     continued to pursue the case of retirement of the deceased petitioner and\n\n     upon its failure to address to his grievance, the deceased petitioner filed\n\n     SWP 876/2005 before the Court which came to be disposed on\n\n     10.08.2007 with the direction to the respondents to consider the case of\n\n     the deceased petitioner on the basis of stand taken in the petition and pass\n\n     appropriate orders within a period of two months from the date order was\n\n     served.7.   It is being further stated that the corporation instead of deciding the case\n\n     of the deceased petitioner within a period stipulated by the Court,\n\n     rejected the same in terms of order dated 16.10.2012, which order as well\n\n     came to be challenged by the deceased petitioner in SWP 35/2013 before\n\n     this Court and the same came to be disposed on 27.07.2015 quashing the\n\n     order dated 16.10.2012 directing the respondents to consider the whole\n\n     issue and pass fresh order within two weeks from the date, copy of order4                               SWP No. 1461/2017was served upon them and while passing fresh order, the respondents\n\n      were to consider all the documents including that may be produced by\n\n      the deceased petitioner.8.    It is being further stated that for enabling compliance of order dated\n\n      27.07.2015, a copy of the same was served upon respondents along with\n\n      all necessary documents but the respondents failed to comply with the\n\n      order, resulting into filing of a contempt petition against the respondents\n\n      being Contempt Petition No. 877/2015 and in response to the said\n\n      contempt petition, the respondents produced the impugned consideration\n\n      order dated 18.05.2016, where under the case of the deceased petitioner\n\n      came to be again rejected.9.    It is being also stated in the petition that on the basis of his date of birth\n\n      recorded in the service book by the corporation, the deceased petitioner\n\n      had to be retire in the year 2017 upon attaining the age of 60 years and\n\n      that the respondents issued the impugned orders suggesting the year of\n\n      retirement of deceased petitioner as 2003 and that the respondents failed\n\n      to follow the constitutional mandate including the relevant service rules\n\n      and that the respondents altered the recorded date of birth of the deceased\n\n      petitioner without holding any enquiry or else issuing a show cause\n\n      notice to the deceased petitioner and that the impugned order dated\n\n      18.05.2016 came to be issued by the respondents illegally.10.   Objections to the petition have been filed by the respondents, wherein it\n\n      is being stated that the petitioner was one of the nine drivers who came to\n\n      be appointed in the corporation on 19.02.1986 and during the course of\n\n      his   service,   corporation   received    various   complaints    regarding\n\n      authenticity of the age certificates produced by the appointed drivers5                               SWP No. 1461/2017including the deceased petitioner, whereupon the matter was referred to\n\n      the Vigilance Department for investigation.11.   It is being admitted that the deceased petitioner was not found involved\n\n      in the production of fake date of birth certificate in the Vigilance Report\n\n      and that service benefits at that point of time though, were released in his\n\n      favour, yet the recorded date of birth of the deceased petitioner was\n\n      examined on the basis of particulars recorded in his driving license and\n\n      on the basis of computations made as per the date of birth recorded in the\n\n      said driving license of the deceased petitioner, the date of his retirement\n\n      came to be determined as 31.08.2003 and consequently the petitioner was\n\n      retired and he accepted the retiral benefits without any demur.12.   It is being denied that the orders under challenge in the petition were\n\n      either punitive in nature or else violated any of the rights of the deceased\n\n      petitioner.Heard learned counsel for the parties and perused the record.13.   The short question to be addressed in the instant petition would be as to\n\n      whether the corporation could have altered the recorded and accepted\n\n      date of birth of the deceased petitioner recorded in his service records by\n\n      them without issuing any notice to the deceased petitioner or holding any\n\n      enquiry thereof.14.   Before adverting to the aforesaid issue, it is pertinent to note that Ours' is\n\n      a country governed by Rule of Law and every action of state\n\n      functionaries must be informed by reason and be fair and in conformity\n\n      with settled principles, norms, rules and regulations. No state functionary\n\n      including the corporation herein being a "State" within the definition ofArticle 12of the Constitution can be permitted to act arbitrarily or6                              SWP No. 1461/2017capriciously. The courts would judicially review any administrative\n\naction and have duty to intervene when it finds a particular action to be\n\narbitrary.Under service jurisprudence, every newly appointed person to a service\n\nor post under the Government at the time of appointment has to declare\n\nhis/her date of birth by Christian Era with conformity documentary\n\nevidence. The said date of birth recorded in the service records\n\nconsequently becomes the basis for superannuation and the date of birth\n\nso declared by such person at the time of appointment has to be accepted\n\nby the appointing authority on production of conformity documentary\n\nevidence. Thus, once a date of birth of a government servant is recorded\n\nin his service records having been declared by such government servant\n\nand accepted by the appropriate authority, same cannot be altered by the\n\nconcerned authority except in the case of a clerical error and though, an\n\nappropriate authority reserves the right to make the correction in the\n\nrecord of the government servant at any time against the interests of the\n\ngovernment servant when it is satisfied with the age recorded in the\n\nservice record of such government servant is incorrect and has been so\n\nincorrectly recorded with the object that the said government servant may\n\nderive some unfair advantage therefrom.Therefore a great sanctity is attached to the entry of date of birth recorded\n\nin the service records of a government servant at the time of his first\n\nappointment and a government servant acquires a right to continue in the\n\nservice till the attaining of age of retirement, unless such service is\n\ndispensed with on other grounds in accordance with rules. Thus, once a\n\ndate of birth of an employee is recorded and accepted by the employer,7                              SWP No. 1461/2017the same cannot be altered by the employer without giving such an\n\n      employee an opportunity of hearing or else to hold an enquiry in the\n\n      matter.15.   Keeping in mind the aforesaid position of law and reverting back to the\n\n      case in hand, it is not in dispute that the corporation upon appointing the\n\n      deceased petitioner as driver recorded the date of birth of the petitioner\n\n      on the basis of documentary proof furnished by the petitioner being an\n\n      age certificate issued by Chief Medical Officer. It is also not in dispute\n\n      that the age proof produced by the deceased petitioner came to be\n\n      accepted by the corporation and consequently entered into his service\n\n      records. The said age proof certificate of the deceased petitioner even had\n\n      been got verified by the corporation in an enquiry after the corporation\n\n      had received complaints about fakeness of various date of birth\n\n      certificates of the drivers including the deceased petitioner.In view of\n\n      this admitted position, the corporation could not have altered the date of\n\n      birth of the deceased petitioner that too at his back without issuing any\n\n      notice to him or else holding an enquiry therein, moreso, after\n\n      considerable period of more than 15 years in the year 2003 from the date\n\n      of his appointment in the year 1986, in view of settled position and\n\n      principle of Estoppels in as much as in view of the law laid down by\n\n      Apex Court in case titled as "Sarjoo Prasadi vs. The General Manager\n\n      & Anr.reported in AIR 1981 SC 1481 wherein it has been held as\n\n      under:-"Constitution of IndiaArticle 226-Date of birth of employee\n                altered by the employer after accepting it-Employee not given\n                opportunity of hearing-Order correcting birth date and retiring8                               SWP No. 1461/2017employee on that basis is liable to be set aside in view of the\n                  principles of natural justice."16.     Since the deceased petitioner has been retired by the corporation on the\n\n        basis of altered date of birth in breach and violation of the settled\n\n        principles of law as noticed in the above paras, as such, retirement of the\n\n        deceased petitioner would have no legal significance, even though, the\n\n        deceased petitioner had allegedly accepted the retiral benefits from the\n\n        corporation without any objection.17.     For what has been observed and analyzed herein above, the instant\n\n        petition deserved to be allowed and is accordingly allowed,\n\n        consequently the impugned Order(s) dated 01.09.2003 and 18.05.2016\n\n        are quashed and the respondents are commanded to release all service\n\n        benefits including pensionary/retiral benefits to the petitioner/s herein in\n\n        accordance with law while treating the deceased petitioner to have\n\n        superannuated on 10.07.2017.(Javed Iqbal Wani)\n                                                                 Judge\n\nJammu:07.06.2023\nManan\n\n\n                     Whether the order is speaking     :       Yes\n\n                     Whether the order is reportable   :       Yes