KASHI NATH BONI Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an appeal from the judgment dated March 6, 1973 of a learned Single Judge dismissing a writ petition. The claim in the petition was that the Govt. Order No. Rev A 284 of 1971 dated 30 -6 -1971 was void, illegal and without jurisdiction. By virtue of that order, the Govt. had directed that the date of birth of the petitioner, a Govt. employee, be treated as 18 -6 1919 A D in place of 7th Bhadoon 1979 BK August, 1922 previously entered in his service records. The petitioner challenged the order mainly on the ground that the Govt. had acted without jurisdiction in reopening the matter and alternatively, on the ground that no reasonable opportunity was given to him to defend the existing entry in his service record. The learned Single Judge has repelled the challenge on both grounds.

(2.) BEFORE us, the learned counsel for the appellant assailed the decision solely on the first ground. The appellants case was that Rule 6 -4 precludes the Govt. from making any alteration in the date of birth recorded in the service records of a Govt. employee who has entered service prior to 22 -1941 AD; that the appellant had entered service in the year 1996 BK 1939 A. D ; and, that therefore, the Govt. had acted without jurisdiction in ordering alteration in his date of birth recorded in the service records. Dealing with this plea, the learned Single Judge has observed: "I do agree with the proposition enunciated by the learned counsel for the petitioner that it is only in regard to those Govt. servants who were appointed after the Council Order of 1941 that the Government can review their dates of birth, But the Govt. cannot enter upon the question of the rectification of the date of birth of such Government servants as were appointed before Council Order of July 1941 as in their case the basis being the age declared by then at the time of their entry in Government service. This is the rule itself and there appears to me some rationale behind such a rule. But the important question that falls for consideration in the present case is whether the case of the petitioner is saved by this proviso. The petitioner has saved vide annexure A shown that he worked as Patwari. intermittently and with breaks from 1939 AD to 1948 AD. He worked as Patwari Halqa Rattni Pora from 3rd of Katik 1996 Bikrami to 3rd of Har 1997, and according to the annexure filed by the respondent and attested by the tehsildar Mohra the petitioner after a break of six years joined again as patwari and worked from 2nd Assuj 2003 to Magh 2003 corresponding to the year 1946 A. D. There was again a break in his service. He worked in various officiating arrangements from 29th of Sawan 2004 intermittently upto 27th of Chet 2004 corresponding to the year 1947. His service book shows that it was only in the month of Magh 2005 February 1948 AD that he was permanently appointed as Patwari. It is from this date that his regular service in the Revenue Department has commenced and is continuous. In my opinion when there has been a break of six years in the service of the petitioner right from 1997 Bikrami 1940 AD to 2003 Bikrami 1946 A D the petitioner cannot be said to have held any substantive post in the Government Department continuously. All his previous appointments right from 1996 to Magh 2003 Bikrami were merely officiating or temporary and were occasioned by several breaks extending over many years. A Government servant who does not hold a post for a considerable period of many long years cannot claim the benefit of proviso to Rule 6 -4 of the Financial Code Every appointment in the case of the petitioner was a new appointment and previous appointments held by him could not qualify him for bringing his case within the purview of proviso to Rule 6 -4 of the Financial Code. Again, there is an important fact worthy of consideration. The record shows that the petitioner formally declared his date of birth in Magh 2005 i.e. February 1948, as his service book reveals. There is nothing on the record to indicate that he had declared his date of birth earlier before 1941 A.D which had found place in his service records. The petition has not made available any such record. We, therefore, have it that the petitioner made declaration in respect of his age only in Magh 2005 February 1948 when he was permanently appointed and when his service book was prepared and he was asked to declare his age. Now under the Rules the Head of the Department or the Controlling Officer has to prepare service book of a non gazetted incumbent in which various relevant particulars including his date of birth relating to the incumbent are entered. This is to be done according to Rule 6 -4 of the Financial Code and the other relevant rules of K. C. S. R. Therefore any temporary assignment held by the incumbent before the service book was prepared and which did not count towards his service is of no consequence as it does not find place in his service book. In the service book of the petitioner there is no mention of any previous temporary assignment held by him. Thus it is clear that for the purpose of Art. 6 4 of the Financial Code the age declared by the petitioner at the time of his appointment would be one as recorded at the time of preparation of the service book. In this connection it is also pertinent to refer to Rule 266 of the Jammu and Kashmir Civil Service Regulations Vol. 1 which provides that service book is to be supplied to every officer on his first appointment. It is to be kept in the custody of the Head of the office under whose signature the monthly payment of the establishment is made from the treasury. Now the expression first appointment occurring in the said Rule indicates the first substantive appointment or an appointment against a clear vacancy. Under Rule 6 -4 of the Financial Code it is at this stage that a Government Servant has to declare his date of birth so that it is recorded in his service book. From this it follows that it is the declaration made at this stage in regard to the date of birth which is relevance and significance. Therefore even assuming that the petitioner had made a statement regarding his date of birth earlier in the course of his temporary or officiating appointments for which of course there is no proof forthcoming that has got no significance in so far the Rule 6 -4 of the Financial Code and Rule 266 of the Jammu and Kashmir Civil Services Regulation are concerned. In his case the Service Book was supplied to him on his first substantive appointment in Magh 2005/1945 AD Therefore, there is no force in the contention of the petitioner that he had declared his age before 1941 AD and the Govt. was not competent to go into the question of the veracity of his date of birth, The contention is therefore overruled." The argument of the learned counsel for appellant is twofold. His first argument is that the learned Single Judge was not right in holding that a short term appointment does not qualify for entry into service for the purposes of Rule 6 -4 of the Financial Code even though that may be the first appointment of a person to a service or post under the Govt. He submitted that the entry contemplated by this rule is that based upon first appointment irrespective of the fact whether such appointment is permanent, temporary or only for a short period. His second argument is that the learned Single Judge was not right in holding further that the appellant had not declared his date of birth at the time of his first appointment as a Patwari for a short term in the Samvat year 1996 -1939 AD and that, at any rate, such declaration was of no consequence under Rule 6 -4 as the only declaration contemplated by the Rule is that made by a Govt. servant at the time of his service book. He submitted that there was ample evidence on the record to show that the appellant had declared his date of birth at the time of his first appointment as a Patwari for a short term in the year 1996 -1939 AD and that, such declaration was the only relevant declaration under rule 6 -4as the declaration of date of birth recognised by that rule is that alone which is made by a person at the time of his first appointment to a service or post under the Govt.. 4 Rule 6 -4 reads thus: "Every person newly appointed to a service or a post under Government should at the time of appointment declare the date of his birth by the Christian Era with confirmatory documentary evidence such as Matriculation Certificate, School certificate Municipal Birth Certificate and so on, as required by or permitted under note 2 to Art, 35 -A of the J&K C. S. Rs. If the exact date of birth is not known, an approximate date may be given. The actual date or the assumed date determined under Note I below should be recorded in the Service Book or any other record that may be, kept in respect of the Government Servants service under Government and once recorded, it cannot be altered, except in the case of a clerical error, without the previous orders of Government. Government, however, reserve the right to make a correction in the recorded age of a Government servant at any time against the interests of that Government servant when it is satisfied that the age recorded in his service book or in the history of services of a Gazetted Government Servant is incorrect and has been incorrectly recorded, with the object that the Government servant may derive some unfair advantage there from. This will, however, apply to the cases of those Government Servants only who entered service after the date of issue of Council Order No. 677 -C of 1941 dated 22. 7. 1941 as in the cases of those who entered service prior to 22. 7. 1941 the basis is the age declared at the time of their entry in Government service. ii The appointing authority will be responsible for seeing that a person newly appointed to the non -gazetted service of the Government is of the prescribed age and will communicate his date of birth to the Head of the Office where such person has first been posted, for entry in the service book or services rolls, as the case may be, stating therein the basis on which the date of birth has been accepted. In the case of persons appointed to the gazetted service of the Govt. the Head of the Department in which the person has been appointed will send the above information to the Accountant General for entry in the service records of the Govt. servant. If the person appointed is him self a Head of the Department, the in formation to the Accountant General will be communicated by the Administrative Department concerned of the Secretariat. The Accountant General will bring to the notice of the competent authority any case in which the date of birth has not been accepted in accordance with the rules." 5 Reading this rule with regulation 35 -A of the K. C. S. R. three things follow : Firstly, that every new entrant to the Govt. service should at the time of his appointment make a declaration of his date of birth supported by documentary evidence. Secondly, that the date of birth so declared should, after due verification, be entered in his service book or in the history of services depending upon whether the person employed is a non gazetted or a gazetted servant. Thirdly, that the date of birth once entered in the service book or in the history of gazetted services shall not be altered, except in the case of a clerical error, without the previous orders of the Govt. and that too in respect of those Govt. Servants only who have entered service before 22 7. 1941. The question arises : What is the nature of the initial appointment to a service or post under the Govt. contemplated by this rule ? The answer to this question is provided by the following words appearing in this rule : "The actual date or the assumed date determined under Note I below should be recorded in the Service Book or any other record that may be kept in respect of the Government servants service under Government and once recorded, it cannot be altered, except in the case of a clerical error, without the previous orders of Government" 6 These words clearly show that object and purpose of obtaining a declaration from a Govt. servant in respect of his date of birth is to have it recorded in his Service Book or in the history of gazetted services depending upon whether he is non -gazetted Govt. servant. It necessarily follows that the appointment should be of a kind which makes it necessary to prepare and maintain the service record of the appointee. The question at once arises: What kind of appointment renders it necessary to have the service record of an appointee under the Govt. ? That takes us to Rules 264, 265 and 266 of the Kashmir Civil Service Regulations. Rules 264, 265 and 266 read thus : "264. A record of the service of Gazetted Officers is maintained by the Accountant General who audits the salaries. When a Lent Officer is reverted to his appointment in the Government of India, a copy of his Service Register will be sent by the Audit Officer to the Accountant or Controller General accounting for the contribution." 265. With the exceptions noted below, every non -gazetted officer holding a substantive appointment on a permanent establishment, is required to keep up a Service Book Treasury Form No. 60, in which every step in his official life, in minute detail, should be recorded. It should show changes if pay, leave taken, transfer, deputation and suspension, and other interruption in service, in detail, with duration of each duly contemporaneously attested by the Head of the office. If the officer is himself the Head of the office, the contemporaneous attestation should be made by his immediate superior. The following are the exceptions referred to - i. Police Officers, for whom a special form of character rolls has been prescribed by the concerned Administrative Department. ii. Menial and inferior servants of such large establishment as Gardeners, Boatman Sweepers and mates in the Municipality and Syces, etc., in the Stables and Baggikhana who are constantly leaving the service either of their own accord or are dismissed for sundry faults, for whom Service Rolls Treasury Form No. 57 and 58, have been prescribed. 266. A Service Book is supplied free of cost, to every officer on his first appointment. It is kept in the custody of the Head of the Office under whose signature the monthly pay bill of the establishment is paid from the Treasury. When an employee is transferred to another office, his service book should be sent to the Head of the office to which he is transferred and not made over to him, nor should it be given to him when proceeding on leave. When a non -gazetted officer is officiating in a gazetted appointment, his service book should be kept by the Head of the office to which such officer permanently belongs, but when he is confirmed in such appointment, his service book should be forwarded to the Accountant General for record in his office. The service book may be given up to the officer concerned if he resigns or is discharged without fault, an entry being first made therein to this effect." 7 The expression first appointment has been defined in Rule 16 of the Kashmir Civil Service Regulations as under: - "First appointment" includes the appointment of a person not at the time holding any appointment under Government even though he may have previously held such an appointment." 8 These regulations, conjoinly read, make it amply clear that the service record of a Govt. servant in the form of Service Book of History of gazetted service is required to be prepared and maintained only when he has been appointed substantively on a permanent establishment or when appointed temporarily, he is eventually confirmed in his appointment without their being any interruption in his service. It necessarily follows that Rule 6 -4 contemplates first appointment which is a substantive or which, though temporary, eventually becomes permanent without their being any interruption in the service of the person appointed. It does not include first appointment for a short term only. It necessarily follows that the declaration of date of birth relevant for purposes of the said rule is the one made by a Government servant at the time of his first appointment which is permanent or which, though only temporary, ends in his permanent appointment without their being any interruption in his service. The rule does not recognise such declaration made at the time of first appointment for a fixed period only. Needless to add that the declaration need not synchronise with the issue of the order of appointment. The requirement of the rule will be satisfied even if the declaration is made later at the time of actual preparation of the service record provided the order of appointment is of the kind which rendered it necessary to prepare such record. In this background, even if it were assumed that the appellant had made declaration of his date of birth at the time of his short term appointment in the year 1939 A. D, the declaration would not be relevant for the purposes of Rule 6 -4 of the Financial Code. The only relevant declaration would be that made by him at the time of his substantive appointment which admittedly took place in the Samvat year 2005 1948 A. D. In this view we are inclined to agree with the learned Single Judge, though for slightly different reasons, that the bar created by Rule 6 -4 cannot be justifiably pressed into service by the petitioner. 9 The result therefore is that this appeal fails. It is dismissed accordingly but without any order as to costs.