GH MOHD KHAN Vs. STATE OF J&K

JUDGEMENT

(1.) THE petitioner joined his services on 29.10.1955 in the respondent -department, as an orderly. He submits that on the first page of his Service Book, his date of birth is shown to be 1.1.1941. In the year 1996, the Joint Director of Industries and Commerce suspected that the Date of Birth entered in the Service Book of the petitioner has been tampered with, and therefore, he directed the petitioner to produce the Date of Birth Certificate, so that his correct Date of birth could be authenticated. The petitioner further submits in his petition that he could not produce any evidence from PrimaRY School Wazir Bagh, Srinagar, as the said School had gutted in a fire. Petitioner also submits that no record was available with him by which he could substantiate that his Date of Birth was 1.1.1941. He further submits that he obtained a certificate from Dr. G.N.Najar a Radiologist, who confirmed that the age of petitioner was between 53 to 55 years, and the certificate was produced before respondent No.3. The respondent No.3 according to the petitioner refused to entertain the certificate. The joint Director vide his letter dated 24.9.1996 again directed the petitioner to furnish proof of his date of birth within seven days from the date of issuance of the letter. He was also informed that in case he failed to produce his date of birth certificate, his superannuation w.e.f. 30.12.1996 shall be confirmed. The petitioner further states that in the month of November, 1996, he represented before the respondents that he was not in a position to furnish the date of birth certificate after a lapse of forty years of service, therefore, he be allowed to continue in service. According to the petitioner he filed an application on 22.11.1996 before respondent No.3 for issuance of a photostat copy of first page of Service Book at him, the same was issued to him which he has placed on record. He submits that while he was working at Jammu with the Director of Industries and Commerce department, he recieved an order on 24.12.1996 issued by respondent No.3, in which it was stated that since petitioner had completed 42 years of service, he will be superannuated on 31.12.1996. This order has been challenged in this writ petition on various grounds including the ground that petitioners Service Book shows his date of birth to be 1941. Since he has to retire after attaining the age of 60 years, therefore, he should continue in service till 2001. Petitioner has also stated that if the respondents wanted to change the date of Birth of the petitioner to his detriment, they should have conducted an enquiry into the matter.

(2.) OBJECTIONS have been filed by the other side.

(3.) I have heard learned counsel for the parties. The order of superannuation of the petitoner is an elaborate one. It states that the petitioner has already completed 42 years of service, and even if it is presumed that he joined the services at the minimum age of 18 years, even then he had attained the age of 60 years, which is the age of superannuation of Class -IV empolyee. I have seen the copy of first page of the petitioners Service Book. It appears to the naked eye that the earlier entry with regard to Date of Birth has been erased and a new entry has been made. Without going into this controversy, I feel that a person who has completed 42 years of service must be presumed to be 60 years of age. There are only two possibilities; either the petitioner had got his appointment when he was under -aged or he has now given a wrong date of birth. In both cases this writ petition must fail. If he was able to secure appointment at an age when he was less than 18 years, which was always the prescribed minimum age limit for entry into Government service, then he has already taken the benefit by remaining in service for a maximum period that is available to a Class -IV Government servant. And if the petitioner has wrongly agitated that his date of birth is incorrectly recorded in the Service Book, even then his petition must fail, because he has put in maximum number of years in service that is possible under the Service Rules. One can draw support from a recent judgment of the Supreme Court (which has decided a controversy of identical nature) titled: Union of India V/s C.Rama Swarrvy and others reported in 1997(4) SCC page 647. In the said judgment, the Supreme Court has held, as under: