MIR AHMED ULLAH Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a writ petition filed by Mir Ahmad Ullah under section 103 of the Constitution of Jammu and Kashmir read with Article 32 (2 -A) of the Constitution of India for quashing the Government order No. Police -211/66 dated 6 -7 -1966 sanctioning the retirement of the Petitioner with effect from 5 -10 -1965.

(2.) THE petitioner has averred that he joined the police force of the State in the year 1930 A. D. By dint of his hard work, efficiency and unblemished service record he was promoted from time to time and in 1963 was appointed as Deputy Superintendent of police In December, 1964 he received from the DIG Police (Border) a list of Gazetted Officer of the Police Department who were due to attain the age of superannuation during the year 1965 -66. The petitioner was informed on 12th March 1965 by the S. P Commandant that his superannuation would take effect from 5th Oct. 1965 which surprised the petitioner as according to the list the date of birth shown against his name was 5 -10 -1910 which was incorrect. The date of birth was based upon the entry in the character roll which was not the original character roll as the same was burnt in the fire in the DIG Office in 1957 and a new one had been reconstituted from the long roll which too was not authentic, nor could be relied upon for reconstituting one as long roll itself was not authentic and the original record. The Officer who reconstituted the record never verified the entry regarding the date of birth of the petitioner either from the petitioner or after obtaining the necessary date and material, nor was the entry recorded in the presence of the petitioner, nor was it authenticated as provided by the Service Rules as the original record had been destroyed in the fire. It was incumbent upon the concerned officer to have obtained information and proof of the age from the petitioner rather than depending upon an unverified and unauthentic entry in the long roll. It was more so incumbent upon the officer concerned to verify the same because for employees of the police force no service book as in the case of the employees of the other departments of the Government and as contemplated in the Jammu & Kashmir CSR is maintained. In the police force only a confidential composite record is maintained which is known as character roll which is inaccessible. In the case of service book maintained under the CSR an employee has to sign the service book entries at the time of its preparation. Under the circumstances mentioned above the entry in the newly prepared character roll was made unilaterally without any reference to the petitioner and contrary to note 2 of Rule 35 (A) of the Jammu and Kashmir CSR The petitioner never knew all the time as to his date of birth entered in the newly prepared character roll till he was apprised of the fact in the year 1965. Therefore he was not in a position to make any prior application for its correction. The school certificate mentioned 3 -11 -1963 as the date of birth of the petitioner which was in fact the true of date birth. The petitioner made a representation to the Government to correct the date of birth according to and on the basis of the certificates which he produced (vide annexures A and A (i). The representation was made on 30 -6 -65 prior to the reaching of the superannuation. This representation was strongly recommended by the S. P. by the D I. G. Police (Border) vide annexure B. Respondent was bound to ascertain petitioners age and correct the same before retiring him on attaining the assumed superannuation according to entries in the newly prepared character rolls. The petitioner was not permitted to function after 5th October 1965 though the petitioner did not handover the charge and that no order was passed by the Govt. In absence of the Government order of retirement the petitioner would be deemed to continue in employment even after crossing the income age of superannuation. Eventually the order of retirement was passed on 6 -7 -66 sanctioning the retirement of petitioner with retrospective effect from 5th Oct. 1965 which the government was not competent to do and this order too was passed after 9 months after the alleged date of superannuation according to the newly prepared character roll. The above mentioned order of retirement was passed after the petitioner had through a lawyer served a notice on the Govt. dated 28th of March 1966 (annexure (C) In the said notice the petitioner showed that his actual date of birth was 4 -11 -1913 as per School Certificate and that there was no order of retirement and therefore the petitioner would reach the age of superannuation not before 4 -11 -1968, and further that he claimed necessary correction in his character roll. The action of the authorities in not allowing him to discharge his duty as D. S. P. was illegal, unconstitutional and contrary to Rules, and that he was entitled to draw his pay at the usual rate he was drawing on 1st of October 1965 with yearly increments that might normally accrue to him till 4th of November 1968. Any restrictions and impediments upon his drawing the normal pay were illegal and against the rules. The petitioner has further averred that the order of retirement was passed despite the recommendation of the IGP the opinion of the Finance Department, the opinion of the Law Department and the Chief Secretary and the Home Minister in favour of the petitioner. In fact it was recommended that the order of the retirement be withdrawn and the case was sent to the Council of Ministers for approval. The Council of Ministers took a favourable decision upholding the claim of the petitioner which has not been implemented so far. The petitioner was asked by the Home Secretary to furnish the undertaking that the petitioner would not claim the post of S. P. to which he was entitled if he were not retired pre -maturely. This undertaking was made over to the Home Secretary on his asking for the same and the same is lying with him. The Home Secretary and the IGP got the date of birth as entered in the School Certificate duly verified, checked and investigated through DIG (CID) and SP (CID) and both of them stated that the date of birth entered in the school registers was authentic and beyond any suspicion. No reply to the notice was given by the respondent so far. The petitioner has been singled out for discrimination in the matter of correction of date of birth as against the other Government employees similarly situate. The petitioner has given the names of six officers whose date of birth were corrected on the basis of school certificates. The petitioner therefore seeks that the court may declare that the order of retirement dated 6 -7 -1966 sanctioning the retirement of the petitioner with retrospective effect from 5 -10 -65 is ultra vires and violative of Section 126 (2) of the Constitution of Jammu and Kashmir as it is tantamount to his removal from service without complying with the provisions of the Constitution. That the impugned order is also violative of the statutory provisions of rule 33 of the Jammu and Kashmir Civil Service (Classification Control and Appeal) Rules of 1956. It is further sought that the respondent be asked to accept the petitioners date of birth as given in the School certificate duly verified by a gazetted officer of Education Department by virtue of provisions of Rule 35 (a) of the Jammu and Kashmir Civil Services (Classification Control and appeal) Rules. The petitioner has in the end prayed that a writ of certiorary or any other writ, direction or appropriate order quashing the impugned order be issued ands also a writ in the nature of mandamus or any other appropriate writ to the respondent to correct the date of birth of the petitioner in accordance with the School Certificate be also issued. Further it be declared that the petitioner continued to be in police service as DSP from 5 -19 -65 and is entitled to emoluments and other benefits which in normal course would flow to the petitioner for all this time.

(3.) THE petition is supported by an affidavit. Alongwith the writ petition the petitioner has filed the following documents: -