ABDUL REHMAN BHAT Vs. STATE

JUDGEMENT

(1.) THE petitioner was initially appointed as Guardsman in Home Guards on 24th Oct. 1970 and later enrolled as Constable in J&K Police Department vide order dated 14th March 1975. THE petitioner claims to have on his appointment as Guardsman declared his date of birth as 2nd July 1953. THE petitioner resultantly had to retire on superannuation on 31st July 2011. THE petitioner is aggrieved with order no. 3275 of 2009 dated 9th Sept. 2009 whereby the petitioner is deemed to have superannuated on 31st July 2009. THE petitioner accordingly impugns the aforesaid order on the grounds taken up in the petition and seeks a writ of certiorari for quashment of aforesaid order and a writ of mandamus commanding the respondents to permit the petitioner to continue in service till he attains the age of superannuation on the basis of his recorded date of birth 2nd July 1953 and pay him salary due till the date of his superannuation.

(2.) THE petition is opposed on the grounds that the petitioners date of birth was initially recorded as 2nd July 1951 and later allegedly mutilated/forged to read as 2nd July 1953. THE respondents place reliance on Aamal Nama (character rolls) prepared at the time of appointment of the petitioner as Guardsman in the Home Guards wherein the petitioners date of birth on the basis of school leaving certificate issued by Government High School Pulwama vide file no. 26 dated 31st May 1969 is recorded as 2nd July 1951. THE respondents also seek to draw support from Forensic Science Laboratory (FSL) report whereby mutilation/insertion in character roll of the petitioner has been affirmed. THE respondents deny that any of the rights of the petitioner have been violated while passing the impugned order so as to entitle the petitioner to invoke the extraordinary writ jurisdiction of the court.

(3.) IT has been held in State of Orissa versus Dr. (Miss) Binapani Dei and others, AIR 1967, SC 1269 that an order declaring a government employee to have superannuated on the ground of his disputed date of birth amounted to compulsory retirement before attaining the age of superannuation. The court further held that when a public servant disputes the claim that his date of birth recorded in his service record is not correct, he must be informed of the stand of the government and the evidence in support thereof and given a fair opportunity to meet the case before the decision is taken in the matter. In the aforesaid case the court observed it is one of the fundamental rules of our constitutional setup that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would therefore, arise from the very nature of the function intended to be performed: it need not be shown to be super-added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. That is a basic concept of the rule of law and importance thereof transcends the significance of a decision in any particular case. The court repelled the argument that the order was administrative in character and did not require adherence to the principle of audi alteram partem observing: IT is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the State, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. No such steps were admittedly taken, the High Court was, in our judgment, right in setting aside the order of the State.