Bal Krishan Pandita vs Jammu & Kashmir Police on 31 December 2024

O R D E R

(Per: Mr. Rajinder Singh Dogra, Judicial Member)

SWP No. 1556 of 2015 has been filed by the petitioner (Applicant) in the Hon’ble High Court and after the reorganization of State of Jammu and Kashmir into Union Territory of Jammu & Kashmir and Ladakh and in view of the Notification No. G.S.R. 267 (E) dated 29.04.2020 read with notification No. G.S.R. 317 (E) dated 28.05.2020 issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training), the jurisdiction to adjudicate upon the lis regarding service disputes of the employees of UT of J&K and Ladakh was conferred upon this Tribunal and while considering the said fact, the record of Service Writ Petition No. 1556 of 2015 was ordered to be transferred by the Hon'ble High Court of J&K to this Tribunal on 21.09.2020 and renumbered as Transferred Application No. 8295 of 2020.

2. Facts of the case as averred in the Transferred Application (in short T.A.) are that applicant came to be appointed in the Police Department after facing due process of selection as constable on 08.03.1979. At that point of time the applicant was under matric and he produced the school leaving certificate issued by the Principal Govt. Higher Secondary School Kulgam wherein the date of birth of the applicant was recorded as 05.06.1956. Since applicant appeared in matric examination but failed and by that time applicant came to be appointed in the police department as constable as the

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qualification for appointment of constable was 8th pass only. It is further stated in the T.A. that because of his hard work and dedication shown while discharging his official duties, applicant came to be promoted upto to the post of ASI and was also awarded gold medal by the respondent No.2 for his dedication to duty, professional competence and contribution to the overall objectives of J&K Police during the year 2012. 2.1 At the time of his appointment as constable in the police department on 08.03.1979, the service book of applicant appears to have been prepared and the applicant was believing that the date of birth of the applicant is recorded as 05.06.1956 as per the school leaving certificate of the school. It is further stated in the T.A. that the service book lies with the department and has never shown to the applicant as applicant was not also required of the service book. Further, the applicant in the year 1982 appeared and passed his matriculation examination. 2.2 It is further averred that up to May, 2014, the Govt. employee supposed to retire at the age of 58 years and the Govt. announced in the month of February, 2014 that the age of the Govt. employees will be raised up to 60 years and no order was passed because of the parliamentary elections as at that point of time, Model Code of Conduct was in operation. It is further submitted that the respondent No. 4 vide communication dated 04.02.2014 addressed to the respondent No.3 showing the employees who were retiring at the age of 58 years in the month of May, 2014 wherein the name of the

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applicant was also shown at serial No. 3 and along with that communication the original certificates of matriculation were also submitted. When this communication was displayed by the respondent No.4, the applicant was shocked to see that he is being retired from active service in the month of May, 2014 though at that point of time the retirement age was 58 years. It is further submitted that the applicant requested the respondents that his date of birth is 05.06.1956 and he is supposed to retire by the end of June, 2014. It is further submitted that in pursuance of the submissions of the applicant, the respondent No.3 vide communication dated 01.04.2014 addressed to Joint Secretary JKBOSE, Srinagar requesting him to verify regarding genuineness of matriculation marks card issued by JKBOSE Srinagar under Roll No. 19704 S.No.72689 Session November, 1982 in favour of Bal Krishan Pandita S/o Prem Nath Pandita R/o Kulgam. In pursuance of the aforesaid communication, the Joint Secretary JKBOSE vide communication dated 17.04.2014 returned the verification of the certificate of the applicant and specifically stated that the certificate is genuine and the date of birth is recorded as 05.06.1956. 2.3 It is further averred in the T.A. that the Government announced the enhancement in retirement age after 15.05.2014 from 58 years to 60 years specifically observing that no employee shall be retired from 01.06.2014. It is further submitted that since the retirement of the applicant was also due on 30.06.2014 as per the date of birth in the matriculation certificate, but the applicant was sent to retirement on

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31.05.2014 on the ground that in the service book, the date of birth is recorded as 05.05.1956 and thereafter was not allowed to work and perform his duties in the department. It is pertinent to mention here that no retirement order was issued to the applicant but was retired from the active service. It is further submitted that the applicant made a detailed representations requesting the Respondents to withdraw the retirement order so that he can be allowed to perform his duties up to the age of 60 years i.e. 30.06.2016. 2.4 In pursuance of the representation, the respondent No.2 vide communication dated 18.06.2014 addressed to the respondent No.3 seeking detailed factual report at an earliest but nothing was done by the respondents and again vide communication dated 03.07.2014 addressed to the respondent No.3 reminder was issued requesting him to send the detailed report without any further delay. 2.5 Since, the Respondents did not consider the case of the applicant, the applicant filed SWP No.3269/2014 before the Hon'ble High Court of J&K and thereafter vide order dated 19.11.2014, the Hon'ble Court disposed of the same by directing the Respondents to take all necessary steps as required at their respective levels simultaneously so as to ensure that the representation filed by the applicant is finally decided within a period of four weeks from the date, copy of the order was served upon them with the further direction that right is reserved to the applicant to agitate, if thereafter, cause survives.

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2.6 In compliance to the judgment of the Hon'ble High Court of J&K, Respondents have considered the case of the applicant and passed order No. 320 of 2015 dated 07.02.2015 whereby, the case of the applicant has been rejected.

3. Being aggrieved by the rejection order dated 07.02.2015, the applicant approached this Tribunal seeking the following reliefs:-

A. WRIT OF CERTIORARI:-

(i) Quashing the order No.320 of 2015 dated 07.02.2015 contained in Annexure-К.

(ii) Quashing the retirement order of the applicant as well as the retirement notification No.Rlys/Estt/14/1443-44 dated 04.02.2014 as contained in Annexure-D. B. WRIT OF MANDAMUS:-

(i) Commanding on the respondents to reconsider the case of the applicant afresh for his reinstatement by treating him in service after 31.05.2014 without being influenced by the retirement order s well as order dated 07.02.2015.

(ii) Commanding on the respondents to rectify the error in recording the date of birth of the applicant as 05.05.1956 instead of 05-06-1956 in the service book and allow applicant to perform his duties in the department upto ending June, 2016.

4. Learned counsel for the applicant started his arguments by submitting that applicant was appointed as Constable on 08.03.1979, the appointment was made on the basis of date of birth shown in school leaving certificate of 9th Class wherein the date of birth is recorded as 05.06.1956 and the service book is maintained by the

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department and the employee has no control over the service book. It is also stated that during the employment of the applicant, the applicant qualified the matriculation examination and produced the matriculation certificate in the year 1983 itself, wherein, the date of birth is again record as 05.06.1956. It is further submitted that up to May, 2014, each Government employee was supposed to retire after 58 years and once the list of the officials who were supposed to retire ending May, 2014 wherein the name of the applicant figured at S.No.13, the applicant approached the respondents that he is supposed to retire by the end of June, 2014 as per his date of birth. Further, the respondents sought verification of JKBOSE who confirmed that the date of birth of the applicant is 05.06.1956. 4.1 Learned counsel for the applicant further stated that government enhanced the retirement age of the employees w.e.f. 01.06.2014, the applicant was supposed to serve for two more years i.e. up to 30.06.2016 but to the shock and dismay of the applicant, the applicant was sent to retirement on 31.05.2014 without issuing any order to that effect. It is further submitted that once applicant did not find any legal favour from the respondents, applicant was constrained to challenge the action of the respondents through the medium of SWP No.3269/2014 before the Hon'ble High Court of J&K and thereafter vide order dated 19.11.2014, the Hon'ble Court disposed of the same by directing the Respondents to take all necessary steps as required at their respective levels simultaneously so as to ensure that the representation filed by the applicant is finally

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decided within a period of four weeks from the date, copy of the order was served upon them with the further direction that right is reserved to the applicant to agitate, if thereafter, cause survives. Learned counsel for the applicant further stated that in compliance to the judgement of the Hon'ble High Court of J&K, Respondents have considered the case of the applicant and passed order No. 320 of 2015 dated 07.02.2015 whereby, the case of the applicant has been rejected. It is further submitted by learned counsel for the applicant that how the respondents have taken the date of birth of the applicant as 05.05.1965, is not forthcoming from the records and no reasoning has been given by the Respondents about the date of birth of the applicant by showing 05.05.1956 instead of 05.061956. Such action of the Respondents is unreasonable and arbitrary in nature and therefore, the impugned order deserves to be quashed.

5. Vehemently opposing the contentions made by the learned counsel for the applicant, learned D.A.G. started his arguments by submitting that applicant was initially appointed in the police department as Constable in the year 1979 and at the time of preparation of his character roll, date of birth of the applicant was recorded as 05.05.1956 in the relevant column of the character roll which is intact and bears no sort of mutilation, interpolation or overwriting and on the basis of date of birth recorded in his character roll, the retirement of the applicant was notified as 31.05.2014 as required under the relevant rules upon which, he prepared the pension papers which included affidavit for obtaining NDC, Form 3

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Form 5, wherein, the applicant solemnly accepted his date of birth as 05.05.1956. Consistent to the aforementioned, the applicant on superannuation pension w.e.f. 31.05.2014 corresponding to his date of birth initially recorded and all along accepted by him i.e. 05.05.1956 and the applicant never raked up the issue of his date of birth during his tenure of service. 5.1 He further stated that the applicant approached the Hon'ble High Court through the medium of SWP No.3269/2014 with the same relief/prayer as made by the applicant in the present petition and vide order dated 19.11.2014, the Hon'ble Court disposed of the same by directing the Respondents to take all necessary steps as required at their respective levels simultaneously so as to ensure that the representation filed by the applicant is finally decided within a period of four weeks from the date, copy of the order was served upon them with the further direction that right is reserved to the applicant to agitate, if thereafter, cause survives. Learned D.A.G. further stated that in compliance to the aforesaid order, the matter was placed before the Designated Committee constituted at PHQ for examining such cases on 16.12.2014. During scrutiny of the case, the Committee observed that the retired ASI was well aware about his date of birth as recorded on the first page of his character roll viz 05.05.1956 throughout his service career and did not make any representation during 35 years of service for correction in his date of birth on the strength of academic certificate. The representation made by the applicant for correction in his date of birth at the time, when he had

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already proceeded on superannuation corresponding to date of birth initially recorded in his service book, is untenable and goes in contravention of clause (C) of Art 35 AA of J&K CSRs. Vol. I. 5.2 Learned D.A.G. based on their written objections averred the State Government vide SRO 164 of 2014 dated 05.06.2014 effected following amendments in the J&K Civil Services Regulations: Vol. 1; "provided further that a Government Servant in service on 01.06.2014, or appointed on or after that date., shall retire on his attaining the age of 60 years" which prompted the applicant to grab the opportunity wherein the retirement age of the Government employees was enhanced from 58 years to 60 years and hence the applicant raked up the issue of his date of birth to seek re- entry in the Department for another 2 years as a result of enhancement of retirement age. He further submitted that as per clause (C) of Art 35 AA of J&K CSRs. Vol. I, it is provided that the date of birth so declared by the Government servant and accepted and once recorded by the appropriate authority in the service book or any other record of service of the Government servant as the case may be, shall not be subject to any alteration except in case of a clerical error without the orders of the Government. However, for such a change, the request is to be made by the Government servant within 5 years of his entry in the Government service. Whereas, the applicant came to be appointed in the year 1979 and after putting in 35 years of service in the department, claimed for correction in his date of birth, that too when he was no more in the Government service, and just for his

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covetous nature to seek re-entry in the department as a sequel of enhancement of retirement age by the State Government vide SRO 164 of 2014 dated 05.06.2014. Further, the applicant did not raise any grievance with regard to this date of birth within the prescribed period and accepted his date of birth all along as 05.05.1956 and after having accepted the same, the applicant is stopped under law to question the same at this end. On these grounds, the Committee had recommended for rejection of the representation of the applicant. 5.3 Therefore, with regard to the facts as mentioned above, the Transferred Application being devoid of any cogent reasons/justified grounds besides untenable under clause (C) of Art 35 AA of J&K CSRs. Vol. I deserves dismissal.

6. Heard learned counsel for the applicant, learned D.A.G. and perused the records.

7. Since the applicant has approached the Respondents for correction in his date of birth after putting in 35 years of service and that too when he was not more in the Government service and as per clause (C) of Art 35 AA of J&K CSRs. Vol. I, the date of birth so declared by the Government servant and accepted and once recorded by the appropriate authority in the service book or any other record of service of the Government servant as the case may be, shall not be subject to any alteration except in case of a clerical error without the orders of the Government. However, for such a change, the request is to be made by the Government servant within 5 years of his entry in the Government service, which fact has already been held by the

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Hon’ble Apex Court in the case of “Karibukaran Vs. State of Karnataka” and the applicant did not raise any grievance with regard to his date of birth within the period prescribed therefore, we see no justification and reason to interfere with the impugned order passed by the Respondents.

8. In view of the observation made above and the facts and circumstances of the case, we do not find any merit in the case.

9. Accordingly, Transferred application is dismissed.

10. With these directions, the Transferred Application No. 8295 of 2020 stands disposed of.

11. No order as to costs.

(Ram Mohan Johri)

(Rajinder Singh Dogra) Administrative Member

Judicial Member PS/VS…