GIRDHARI LAL GUPTA Vs. STATE OF J&K

JUDGEMENT

(1.) THIS petition which has been referred to this bench by one of us arises in the following circumstances: - The petitioner entered the service of the State as a clerk in the Medical Department on Phagan 24, 1997 (Samvat): March 4, 1941, A.D. At the time of his joining the State Service he gave November 14, 1924, as the date of his birth. After serving in the said department for sometime, his services were transferred to the Revenue Department where in course of time he rose to the position of an Assistant Commissioner. In 1983 while he was posted as Tehsildar Reasi, the Deputy Commissioner, Udhampur, finding some confusion in the records relating to the date of his (petitioners) birth asked him vide his No. 55/5/A -ST dated March 28, 1969, to furnish a copy of his Matriculation Certificate to enable him to write to the Government regarding the correct date of his birth. The petitioner did not respond to the letter with the result that the Additional Secretary to Government, Revenue Department, wrote to him vide No. Rev. (A) 165/61 dated June 5, 1969, drawing his attention to the aforesaid letter of the Deputy Commissioner and calling upon him to furnish his Matriculation Certificate or any other documentary proof in respect of the date of his birth within ten days of the receipt of the letter. The Additional Secretary also informed the petitioner that in case he failed to do the needful, November 14, 1913, as recorded in his college records would be taken as the date of his birth and action under rules on the basis thereof would follow. In the reply which the petitioner submitted to this letter he, inter -alia stated that the Deputy Commissioner, Udhampurs query regarding the date of his birth was wholly unjustified and unwarranted by rules and principles laid down by the Government, that the college records collected by the Deputy Commissioner were not admissible in evidence, that the authenticity of school record collected by the Deputy Commissioner was also doubtful, that the Punjab University had also to correct its record regarding the date of his birth during his High School studentship, and that the date as entered in his service book was unchallengeable and could not be altered. In support of his contentions, the petitioner relied on rule 6 -4 of the Financial Code (Volume I) and submitted that in case of gazetted Government servants who had entered service period to July 22, 1941 the basis of their date of birth was the same as recorded in their service books at the time of their entry into Government service. The petitioner further submitted that his Matriculation certificate had been lost during the Pakistani raids of 1947, that he had applied for a duplicate copy of the said certificate to the Registrar of the Punjab University at Chandigarh, but the Registrar had written to him saying that the record relating to his birth was not available. The Additional Secretary to Government, Revenue Department, thereupon referred the case to the General Department by letter No Rev (A) 165 -61 dated June 30, 1969, and solicited orders in regard to the action that should be taken. On examination of the matter, the General Department found that according to the information available with the Government the petitioner passed the Matriculation Examination in the year 1934 under Roll No. 18176, that the petitioners assertion that the date of his birth was November 14, 1924, could not be accepted as he could not have passed the Matriculation Examination in 1934 i. e. at the age of nine years when he was still a child, that the school and college admission records showed that the date of the petitioners birth was November 14,1913, and he apparently practised a fraud while recording the date of his birth in his Service Book in order to gain an undue benefit. The department also made enquiries about the date of the birth of the petitioner from the Registrar, Punjab University, who wrote back to say that the petitioner be directed to send the prescribed form duly filled up by him" and attested by such competent authority who had direct personal knowledge of his success in the Matriculation Examination from the date of the declaration of the result with sound basis." The Registrar further advised that the petitioner would have to remit a fee of Rs. 10/ - and it would only be on receipt of the fee and the form duly filled up that further action would be taken. The prescribed form sent alongwith the aforesaid letter bore the following note: -

(2.) APPEARING on behalf of the petitioner Mr. Devi Das Thakur, has vehemently urged that the date of the birth of the petitioner as entered in his Service Book could not be altered as he was a Gazetted Government servant and had entered the State Service before July 22, 1941. He has in support of his contention relied upon Para 2 of rule 6 -4(i) occurring in Chapter VI of the Jammu and Kashmir Financial Code, Volume I, and a decision of a Division bench of this court in Abdul Khalik Malik Versus State of Jammu and Kashmir, 1971 J & K Law Reporter, 119.

(3.) WE have given our careful consideration to the submissions of the learned counsel for the parties.