2011 Supreme(J&K) 251

JAMMU & KASHMIR HIGH COURT
Muzaffar Hussain Attar, J.
Farooq Ahmad -Appellant
Versus
State of J&K & Ors. -Resopndent
SWP No. 305/2011 & CMP No. 462/2011
Decided On : 19-05-2011

The State Government had the power to change the petitioner's date of birth even after his appointment by promotion to Indian Police Services.

Headnote:

Date of Birth Change - Indian Police Service Appointment - Rule 16-A of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, Rule 2 (b) of the All India Services (Conditions of Service and Residuary Matters) Rules, 1960, Article 35-AA of SRO 310 of 1995 - The court considered the effect of Rule 16-A of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958 and other relevant rules on the date of birth change of the petitioner. It held that the State Government had the power to change the date of birth of an employee even after appointment by promotion to Indian Police Services. The court also considered the effect of the quashment of the selection and appointment of the petitioner to Indian Police Services by the Central Administrative Tribunal. It concluded that the petitioner's date of birth as ascertained by the concerned Government is 25.11.1951 and it is this date of birth on the basis of which the petitioner is to be retired on superannuation from service. The court also declared that the impugned order and communication were non-est and void ab-initio in the eyes of the law, not affecting the service rights of the petitioner.

Fact of the Case:

The petitioner was appointed as Deputy Superintendent of Police and later promoted to Indian Police Service. The State Government changed the petitioner's date of birth from 5th February, 1949 to 25th November, 1951. Subsequently, the Government rescinded the order and ordered the petitioner's retirement on superannuation. The petitioner challenged this order in the writ petition.

Finding of the Court:

The court found that the State Government had the power to change the petitioner's date of birth even after his appointment by promotion to Indian Police Services. It also held that the impugned order and communication were non-est and void ab-initio in the eyes of the law, not affecting the service rights of the petitioner. The court quashed the impugned order and declared that the petitioner would be deemed to have continued in service and entitled to all service benefits, including pay, notwithstanding the passing of the impugned order. The respondents were directed to give appropriate posting to the petitioner commensurate to his rank and status.

Issues: The legal issues raised in the case included the effect of Rule 16-A of the All India Services (Death-Cum-Retirement Benefits) Rules, 1958, Rule 2 (b) of the All India Services (Conditions of Service and Residuary Matters) Rules, 1960, and the quashment of the selection and appointment of the petitioner to Indian Police Services by the Central Administrative Tribunal.

Ratio Decidendi: The court held that the State Government had the power to change the petitioner's date of birth even after his appointment by promotion to Indian Police Services. It also declared that the impugned order and communication were non-est and void ab-initio in the eyes of the law, not affecting the service rights of the petitioner.

Final Decision: The court quashed the impugned order and declared that the petitioner would be deemed to have continued in service and entitled to all service benefits, including pay, notwithstanding the passing of the impugned order. The respondents were directed to give appropriate posting to the petitioner commensurate to his rank and status.