PUSHPA DEVI Vs. STATE OF J&K

JUDGEMENT

(1.) THE facts are short and not in dispute. The petitioner joined her service in a permanent capacity on 7.9.1957 as a Dai (A N.F.). At the time of her first entry into the Government service, she submitted proof in support of her date of birth through horoscope and birth certificate. The then Civil Surgeon Jammu, thereupon, recorded an entry in the service book of the petitioner giving her date of birth as 24th Phagan 1986 Bikrimi. According to the said date of birth, she would have reached the age of superannuation on 24th of Phagan, 2041 Bikrimi. However, on 17 -6 -1981 she received a communication from the Block Medical Officer, Primary Health Centre, Palanwala, intimating to her that she was due for retirement with effect from 16th of July, 1981. On an enquiry by the petitioner as to the basis for calculating the said date of superannuation, she was informed that her date of birth recorded in the service book was 16 -7 -1926. Petitioner, thereupon, obtained a certified copy of the first page of her service book and was astonished to find that there had been alterations in the entry regarding her date of birth. The first date of birth recorded in the service book was 24th Phagan, 1986, Bikrimi. This was scored off and replaced by an entry regarding her date of birth as 17 -9 -1932, which again was scored off and third date of birth was recorded as 16 -7 -1926. According to the petitioner, she has no knowledge as to how three different dates carne to be recorded in her service book one after the other. Her case is that she had declared her date of birth at the time of her first entry into the Government service in a permanent capacity and had tendered proof in support of that declaration and the then Civil Surgeon, Jammu, had after verification, recorded her date of birth on the service book as 24th Phagan, 1986, Bikrimi and that the said entry had been altered twice -without her knowledge and behind her back without affording her any opportunity to show cause against the alteration and she has been prejudicially affected by the alteration. She has, therefore, through the medium of this writ petition, sought the quashing of the communication from the Block Medical Officer, Primary Health Centre, Palanwala, dated 17 -6 -1981, intimating to her the date of her retirement as 16th July, 1981 and for direction to the respondents to treat her in service and not be superannuate her before 24th Phagan, 2041, Bikrimi, on the ground that her date of birth had been correctly recorded when she first entered the Government service as 24th Phagan, 1986, Bikrimi.

(2.) IN the counter filed on behalf of the respondents, it has .not been disputed that at the time of joining service on 7 -9 -1957, the then Civil Surgeon, Jammu, had prepared the service book of the petitioner and had, on the basis of the documents submitted by her, recorded her date of birth as 24th Phagan, 1986. It has also not been disputed that the said date of birth was changed to 7 -9 -1932 and later on to 16 -7 -192. It also is not disputed that before the alteration of the date of birth of the petitioner, no enquiry was held and no right of hearing was granted to the petitioner. The case of the respondents, however, as projected in the counter -affidavit and as canvassed by Shri Khajuria, appearing for the respondents, is that the alterations had been made on the basis of the certificates submitted by the petitioner from time to time and that the alteration had been made by the order of the Government. Reliance in support of this submission is placed on Government Older No. 35 -MD/G of 1958 dated 5 -2 -1958, mention whereof has been made in the service book of the petitioner and show that the Government had sanctioned the relaxation of the age bar to the extent of 4 years in favour of the petitioner at the time when her date of birth was altered and record correction in the recorded age of a Govt. servant at any time against the interest of that Government servant when it is satisfied that the age recorded in the service book incorrect. Reliance in support of this submission is placed on Rule 64 of the Jammu and Kashmir Financial Code Volume I.

(3.) TWO ed as 16 -7 -1926. According to Mr. Khajuria, it was open to the Government to made a short questions therefore, arises for consideration in the present case; (1) what is the sanctity of the date of birth recorded in the service book of a government servant at the time of his first substantive appointment by the competent authority, and (2) whether the date of birth so recorded can be unilaterally altered by the Government to the disadvantage of the Government employee without holding an enquiry and granting a reasonable opportunity of hearing to the concerned Government employee ? QUESTION NO. 1. To answer the first question, the provisions of Rule 64 of the Jammu and Kashmir Financial Code, Volume I and Regulations 35 -A and 266 of the Jammu and Kashmir Civil Service Regulations require to be considered: Rule 64 of the Financial Code Volume I reads thus: - 64 (1) Every person newly appointed to service or a post under Government, should at the time of appointment declare the date of his birth by the Christain Era with conformatory documentary evidence such as Matriculation Certificate, School Certificate, Municipal Birth Certificate and so on, as required by or permitted under Note 2 to Article 35 -A of the J&K C.S. Rs. If the exact date of Birth is not known, 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 therefrom. 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 27 -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." Regulation 35 -A of the Jammu and Kashmir Civil Service Regulations inter -alia lays down that in the case of an employee who is matriculate, date of birth will be determined on the basis of date of birth recorded in the Matriculation Certificate and in other cases various proofs have been held to be relevant for determining the date of birth.