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2016 Supreme(J&K) 328
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Ali Mohd. Magrey, J.
Gh. Mohd. Ganaie – Appellant
Vs.
State of J&K and Ors. – Respondents
SWP No. 1305 of 2004 and CMP No. 2524 of 2004
Decided On : 30-05-2016
For the Appellant :M.I. Qadiri, Sr. Advocate and Mushtaq Ahmad, Advocate
For the Respondent: N.A. Beigh, Sr. A.A.G.
The main legal point established in the judgment is the determination of the petitioner's actual date of birth, the reliability of the Forensic Science Laboratory opinion, and the violation of the principles of natural justice and constitutional rights in the impugned order and communication.
Headnote:
Date of Birth - Retirement - Jammu and Kashmir Financial Code Vol. I - Rule 6.4 - Financial Code - Service Benefits - Quashing of Orders
Fact of the Case:
The petitioner challenged and sought quashing of an order issued by the Deputy Inspector General of Police, Armed Range, Jammu, which retroactively changed the petitioner's date of birth and resulted in his premature retirement. The petitioner also challenged a communication directing the registration of a criminal case against him. The petitioner contended that the impugned order was unfounded, based on no material, and suffered from non-application of mind. The respondents argued that the date of birth recorded in the character roll of the petitioner was found mutilated and altered, and the Forensic Science Laboratory (FSL) opined that the original date of birth was different from the one recorded in the school certificate. The petitioner contended that the FSL opinion was unreliable in the presence of school records and that his actual date of birth was 03.08.1947. The respondents resisted the petition, relying on the FSL opinion and alleging tampering in the petitioner's date of birth.
Finding of the Court:
The court found that the petitioner's date of birth could not have been 03.08.1945, as it contradicted the records and evidence, and that the FSL opinion was unreliable and uncorroborated. The court held that the petitioner's actual date of birth was 03.08.1947, as supported by the school discharge certificate and school records. The court also found that the impugned order and communication were unconstitutional, unreasonable, and arbitrary, violating the principles of natural justice and the mandate of Articles 14 and 16 of the Constitution. The court quashed the impugned order and communication, directing the respondents to treat the petitioner in service until his ordinary retirement age and to release all service benefits due to him.
Issues: The issues revolved around the determination of the petitioner's actual date of birth, the reliability of the FSL opinion, the legality of the impugned order retroactively changing the petitioner's date of birth, and the violation of the principles of natural justice and constitutional rights.
Ratio Decidendi: The court held that the petitioner's actual date of birth was 03.08.1947, as supported by the school discharge certificate and school records. The court also found that the impugned order and communication were unconstitutional, unreasonable, and arbitrary, violating the principles of natural justice and the mandate of Articles 14 and 16 of the Constitution. The court quashed the impugned order and communication, directing the respondents to treat the petitioner in service until his ordinary retirement age and to release all service benefits due to him.
Final Decision: The court allowed the petition, quashed the impugned order and communication, directed the respondents to treat the petitioner in service until his ordinary retirement age, and ordered the release of all service benefits due to the petitioner. The court also levied costs against the respondents and directed the respondents to deposit the costs within a specified time period.
Ali Mohd. Magrey, J.
1. This is yet another instance where a simple case has unfortunately remained pending disposal in this Court for the last about twelve years, though returns on behalf of the parties in the case were filed and completed in 2005 itself. The petitioner preferred this writ petition challenging and seeking quashing of Order No. 244 of 2004, dated 27.08.2004 issued by Respondent No. 4 (Dy. Inspector General of Police, Armed Range, Jammu) under Endorsement No. AROJ/GB/10606-08, dated 27.08.2004 whereby, only on the basis of the report of the Forensic Science Laboratory, sanction was accorded to treating the date of birth of the petitioner as 03.08.1945 instead of 03.08.1947 and, consequently, to his retrospective retirement on superannuation with effect from 31.08.2003. The petitioner also challenged Communication No. AROJ/P-File/04-GB/1125-38, dated 28.08.2004, addressed by Respondent No. 4 to Respondent No. 5 (Commandant, JKAP 4th Security Battalion, Jammu) directing him to request the SSP, Crime and Railways, Jammu, to register a criminal case against the petitioner and others in regard to the tampering in question. The petitioner further prayed that the respondents be directed to continue him in service till his superannuation on the basis of the date of birth recorded in his school leaving certificate viz. 03.08.1947 and to pay him all the service benefits.
2. I heard learned counsel for the parties, perused the pleadings and the material placed before the Court and considered the matter.
3. Briefly put, the facts attendant to the case are as follow. These facts are drawn from the overall record before the Court, including the original service record produced by the respondents.
4. The petitioner was appointed as a Constable in the Jammu and Kashmir Armed Police in terms of Order No. 199, dated 14.06.1966. With the passage of time, he rose to the rank of Assistant Sub-Inspector.
5. On 03.01.2003 the Police Headquarter issued Circular No. G-II/2003/PHQ whereby Respondent No. 2, the Director General of Police, J & K, desired all the concerned Police authorities to verify and ascertain whether there had been any mutilation, overwriting or obliteration committed in the recorded date of birth of any force personnel.
6. The petitioner on the relevant date was posted in JKAP TV Battalion Security, Jammu. The Commandant, JKAP IV Battalion Security, Jammu (Respondent No. 5) wrote Letter No. Estt/Sec/IV/03/10557, dated 16.12.2003 to Respondent No. 4, inter alia, to the following effect:
"On perusal of 1st page of Character Roll in respect of Shri Ghulam Mohd. ASI No. 8769/NGO of this office, his date of birth has been found mutilated. The Character Roll reveals that he has been appointed as Constable on 15.6.1966 and as per medical form the official has declared his age 20 years on 15.6.1966 which has been certified by the Police Medical Officer. According to his declared age he is due to superannuate with effect from 30.6.2004 in view of his calculated date of birth as 15.6.1946.
But perusal of his Character Roll further reveals that after mutilation his date of birth has been recorded as 3.8.1947 as per School Certificate showing him reading upto 8th class issued by Head Master Govt. High School Hardu Panzu (Beeru) issued on 7.4.1964.
Since the School certificate shows date of issue as 7.4.1964 which indicate that the official was having school certificate in his possession on 15.6.66 and he should have got his date of birth recorded as per school certificate and should not have declared his age 20 years on 15.6.1966.
It is as such requested that the matter of adoption of his date of birth may kindly be taken up with higher authorities as warranted under rule 6.4 of J&K Financial Code Vol. I. The matter requires your immediate attention because in case of adoption of his declared age he is superannuating w.e.f. 30.6.2004."
7. Respondent No. 4 vide his Communication No. ARO/J/ESTT/ASI/8769/NGO/4th/1041-42, dated 23.1
