Mian Jalal Ud Din, J.:— This if a writ petition filed by Mir Ahmed Ullah under section 103 of the Constitution of Jammu and Kashmir read with Art. 32(2-A) of the Constitution of India for quashing the Government order No. Police-2-51/66 dated 6-7-1966 sanctioning the retirement of the Petitioner with effect from 5-10-1965.
2. The petitioner has averred that he joined the police force of the State in the year 1930 A.D By dint of his hard work efficiency and unblemished service record he was promoted from time to time and in 1963 was appointed as Deputy Superintendent of Police. In December, 1964 he received from the D.I.G Police (Border) a list of Gazetted Officer of the Police Department who were due to attain the age of superannuation during the year 1965–1966. The petitioner was informed on 12th March, 1965 by the S.P Commandant that his superannuation would take effect from 5th October 1965 which surprised the petitioner as according to the list the date of birth shown against his name was 5-10-1910 which was incorrect. This date of birth was based upon the entry in the character roll which was not the original character roll as the same as burnt in the fire in the D.I.G Office in 1957 and a new one had been reconstituted from the long roll which too was not authentic, nor could be relied upon for reconstituting one as long roll itself was not authentic and the original record. The Officer who reconstituted the record never varified the entry regarding the date of birth of the petitioner either from the petitioner or after obtaining the necessary data and material, nor was the entry recorded in the presence of the petitioner, nor was it authenticated as provided by the Service Rules as the original record had been destroyed in the fire. It was incumbent upon the concerned officer to have obtained information and proof of the age from the petitioner rather than depending upon an unverified and unathentic entry in the long roll. It was more so incumbent upon the officer concerned to verify the same because for employees of the police force no service book as in the case of the employees of the other departments of the Government and as contemplated in the Jammu and Kashmir C.S.R is maintained. In the police force only a confidential composite record is maintained which is known as character roll which is inaccessible. In the case of service book maintained under the C.S.R an employee has to sign the service book entries at the time of its preparation. Under the circumstances mentioned above the entry in the newly prepared character roll was made unilaterally without any reference to the petitioner and contrary to note 2 of Rule 35(A) of the Jammu and Kashmir C.S.R The petitioner never knew all the time as to his date of birth entered in the newly prepared character roll till he was apprised of the fact in the year 1965. Therefore he was not in a position to make any prior application for its correction. The School certificate mentioned 4-11-1913 as the date of birth of the petitioner which was in fact the true date of birth. The petitioner made a representation to the Government to correct the date of birth according to and on the basis of the certificates which he produced vide annexures ‘A’ and A(i). The representation was made on 30-6-65 prior to the reaching of the superannuation. This representation was strongly recommended by the S.P by the D.I.G Police (Border) vide annexure ‘B’. Respondent was bound to ascertain petitioners age and correct the same before retiring him on attaining the assumed superannuation according to entries in the newly prepared character rolls. The petitioner was not permitted to function after 5th October, 1965 though the petitioner did not handover the charge and that no order was passed by the Government. In absence of the Government order of retirement the petitioner would be deemed to continue in employment even after crossing the incorrect age of superannuation. Eventually the order of retirement was passed on 6-7-66 sanctioning the ??? of the petitioner with retrospective effect from 5th October 1965 which the Government was not competent to do and this order too was ??? after 9 months after the alleged date of superannuation according to the newly prepared character roll. The above mentioned order of retirement was passed after the petitioner had through a lawyer served a notice on the Government dated 28th of March 1966 (annexure C). In the said notice the petitioner showed that his actual date of birth was 4-11-1913 as per School Certificate and that there was no order of retirement and therefore the petitioner would reach the age of superannuation not before 4-11-1968, and further that he claimed necessary correction in his character roll. The action of the authorities in not allowing him to discharge his duty as D.S.P was illegal, unconstitutional and contrary to Rules, and that he was entitled to draw his pay at the usual rate he was drawing on 1st of October 1965 with yearly increments that might normally accrue to him till 4th of Novemoer 1968. Any restrictions and impediments upon his drawing the normal pay were illegal and against the rules. The petitioner has further averred that the order of retirement was passed despite the recommendation of the I.G.P the opinion of the Finance Department, the opinion of the Law department and of the Chief Secretary and the Home Minister in favour of the petitioner. In fact it was recommended that the order of retirement be withdrawn and the case was sent to the Council of Ministers for approval. The Council of Ministers took a favourable decision upholding the claim of the petitioner which has not been implemented so far. The petitioner was asked by the Home Secretary to furnish the undertaking that the petitioner would not claim the post of S.P to which he was entitled if he were not retired prematurally. This undertaking was made over to the Home Secretary on his asking for the same and the same is lying with him. The Home Secretary and the I.G.P got the date of birth as entered in the School Certificate duly verified, checked and investigated through D.I.G (C.I.D) and S.P (C.I.D) and both of them stated that the date of birth entered in the school registers was authentic and beyond any suspicion. No reply to the notice was given by the respondent so far. The petitioner has been singled out for discrimination in the matter of correction of date of birth as against the other Government employees similary situate. The petitioner has given the names of six officers whose dates of birth were corrected on the basis of school certificates. The petitioner, therefore, seeks that the court may declare that the order of retirement dated 6-7-1966 sanctioning the retirement of the petitioner with retrospective effect from 5-10-65 is ultra vires and violative of section 126(2) of the Constitution of Jammu and Kashmir as it is tantamount to his removal from service without complying with the provisions of the Constitution. That the impugned order is also violative of the statutory provisions of rule 33 of the Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules of 1956. It is further sought that the respondent be asked to accept the petitioner's date of birth as given in the School certificate duly verified by a gazetted officer of Education Department by virtue of provisions of rule 35(a) of Jammu and Kashmir Civil Services Classification. Control and Appeal Rules. The petitioner has in the end played that a writ of certiorari or any other writ, direction or appropriate order qushing the impugued order be issued, and also a writ in the nature of mandamus or any other appropriate writ to the respondent to correct the date of birth of the petitioner in accordance with the School Certificate be also issued. Further it be declared that the petitioner continued to be in police service as D.S.P from 5-10-65 and is entitled to emoluments and other benefits which in normal course would flow to the petitioner for all this time.
3. The petition is supported by an affidavit. Alongwith the writ petition the petitioner has filed the following documents:—
(1) A copy of the School leaving certificate of the Multilateral Higher Secondary School Bagh Dilawar Khan showing the date of birth of the petitioner as 4-11-1913 Annexure ‘A’.
(2) A copy of the certificate of the Principal M.P Higher Secondary School Srinagar Kashmir certifying the date of birth of the petitioner as 4-11-1913 (Annexure A-I)
(3) Copy of the application to I.G.P (Annexure ‘B’)
(4) Copy of the letter of recommendation addressed to the Dy. Inspector General of Police by the Commandant KAP III Bn. Srinagar (Annexure ‘B’)
(5) Copy of the notice sent to the Chief Secretary under section 80 C.P.C (Annexure C).
(6) Copy of the letter addressed to the Chief Secretary asking for early reply to the petitioners notice (Annexure ‘D’).
4. The respondent has filed his objections through the Dy. Advocate General. Lafer on he sought permission to file a supplementary affidavit in support of the objection. The respondent has filed the counter affidavit which has been sworn in by Shri G.M Mir the Home Secretary. In the said objections and the counter affidavit the respondent has not denied that the petitioner was promoted from time to time to higher cadres by dirt of his hard work and efficiency. But it has been denied that the petitioner's date of birth as shown in the Superannuation list was incorrect. The said date of birth that if 5th of October 1910 was once declared by the petitioner himself at-he time of his entry into Government service and the same has been ??? recorded in the official records, the authenticity whereof, according ??? the respondent is irrefutable. The petitioner never challenged the entry the official records regarding his date of birth. The petitioner's contention that his date of birth has been incorrectly recorded was baseless and ???. It has been admitted that the petitioner's original character oil got burnt in a fire but the character roll is not the only record containing police officer's date of birth. There is also a long roll which also contains he particulars of service including the date of birth of a police officer and his is equally an authentic and reliable record. The duplicate character roll of ??? was also prepared on the basis of this long roll and the entries ??? therein were signed and verified by the Gazetted Officer after the same ??? thoroughly checked with the entries made in the long roll. It was not ??? on the respondent to make the duplicate character roll of the petitioner after giving him a notice of the same. The date of birth of the petitioner recorded in the long roll was the same as declared by the petitioner the time of his entry into service and the said date of birth has been ??? by the petitioner by his own ??? made in his application annexure ‘A’ to the objections. According to this the petitioner has ??? his date of birth as 23-6-67 Bk. Corresponding to 5th of october 1910 A.D The petitioner, however, sought to change his date of the after the superannuation list was issued. He made a representation is did not merit any consideration by the Government, However, in interest of justice the Govt. did not refuse to go into the matter which, scrutinized and the petitioner's case was found baseless. However, it is he counter affidavit that a proposal was submitted to the Council of lister by the Secretary to Government, Home Affairs for correcting the ??? date of birth. While considering the said proposal the Council ??? observed as under
“Proposal approved subject to verification whether the entries in the service book were made after enquiry from the Officer himself. If so, there will be no justification in making a change now.”
5. Accordingly the matter was subjected to further scrutiny and after ough examination of the material produced by the petitioner and the ??? it was proved that the petitioner's date of birth as reflected the official records was correctly recorded on the basis of the ??? own declaration made by him at the time of his recruitment in the service of the State. No change in the petitioner's date of birth therefore ordered by the Government. As regards the undertaking ??? by the petitioner it is denied that any such undertaking was taken pursuant to any direction of the Government or any other competent authority. The undertaking alleged by the petitioner was tendered by him at the instance of the then Home Secretary who while proposing to the Council of Ministers that a change in the petitioner's date of birth be suggested on his own motion observed that the aforesaid undertaking be obtained from him. The petitioner even applied for leave prepartory to retirement thereby accepting the correctness of his date of birth as recorded in his official records. The impugned order sanctioning of the petitioner's retirement was well founded and did not suffer from any illegality. It is further submitted that the contentions raised in the notice issued by the petitioner were found completely baseless and without any substances. The Government did not accept the contention of the petitioner in regard to his date of birth, nor was any sort of undertaking as alleged by the petitioner either suggested to him or obtained from him. The opinion expressed by the various officers of the Government by examining the petitioner's case for correction of his date of birth could not confer any right upon the petitioner. The School certificate produced by the petitioner was not found to be authentic. The petitioner would have been minor below 18 years of age at the time of his recruitment of his date of birth as put in by him now is to be accepted as correct. The allegation of discrimination is also baseless. It is submitted that the facts of the petitioner's case are quite different and distinct from those related to the officers mentioned in the petition. Finally it is submitted that there is no ground disclosed by the petitioner making out a case for issuance of a writ in his favour. During the course of argument an application was made by the petitioner seeking the production from the respondent the character roll of the petitioner and the concerned file prepared by the Home Department relating to the case of the-petitioner in case of the petitioner in connection with his change in the date of birth. Objections to this application were invited from the respondent. In his objections the ??? objected to the production of the file of the Home Department but agreed to the production of character roll of the petitioner. By an order dated 18th August 1969 this court, however, observed that the respondent could not claim any privilege in regard to the production of the file except the opinion of the Law Department. The said file was necessary for the disposal of the case. It was, therefore, ordered that barring the opinion of the Law Department the other documents should be made available for inspection. Accordingly the respondent produced the said file of the Home Department. Also a copy of the seniority list was also brought on the file at the request of the petitioner as it was pointed out that this contained relevant matter regarding the date of birth of the petitioner and was necessary for the disposal of the case. The respondent has filed an extract of annual establishment return for the year 1958–89 (Annexure ‘A’) copy of the leave application of the petitioner (Annexure ‘B’) and also copy of an application for sanction of pension made by the petitioner (Annexure ‘C’) in order to controvert the allegations regarding the date of birth of the petitioner.
6. I have heard the counsel for the parties and have also gone through the relevant records.
7. Learned counsel for the petitioner has argued that the petitioner has got a genuine case. His representation was duly processed by the authorities and ultimately after meeting the approval of all his superior officers including the then I.G.P, Home Secretary, Chief Secretary, it culminated in the form of submission of a proposal to the Council of Ministers which was finally approved; but despite this the petitioner has not been afforded the necessary relief. He has been driven from pillar to post by the red tape of the executive. The Government refused to give relief to the petitioner notwithstanding the fact that all the concerned departments including Finance Department had given their opinion in favour of the petitioner in regard to correction of his date of birth, when these departments had taken cognizance of the School Certificates produced by the petitioner and were convinced of the legitimate claim of the petitioner. The Government could order the correction of the date of birth when a prima facie case as made out by the petitioner, more so when the original record (character roll) had been destroyed and in its place a duplicate record had been prepared which had ??? basis or authenticity. The impugned order it is submitted, was violative of Section 126 of the J&K. Constitution and Rule 33 of Civil Services (Classification, Control and Appeal) Rules, 1956 which had statutory force as it amounted to premature retirement of the petitioner. The documents filed by the respondent (Annexures A, B & C) to the reply affidavit were, it is submitted, of no consequence as the same did not operate as an estoppel against the petitioner's case. The petitioner had every right to press his claim regarding his actual date of birth inspite of these annexures.
8. The Deputy Advocate General has, on the other hand, submitted that age once declared by a Government servant cannot be altered except with the leave of the Government and that too in very special cases. It is submitted that the petitioner himself declared his due of birth as 23rd of Assuj 1967 corresponding to 5th Oetober 1910 A.D and this date of birth was entered in the character roll and later on appeared in his service record prepared by the police department. Nay, this date of birth was admitted by the petitioner in his various leave applications including in his application for praying for sanction of pension (vide annexure ‘B’ and ‘C’) It was too late in the day for the petitioner to have made an application for the correction of his date of birth at the fag end of his service, even that representation made by the petitioner was considered by the Government. But there is no authentic proof either disclosed or produced by the petitioner that would have moulded the authority concerned to take a favourable view of the matter. Even when in pursuance of the representation made by the petitioner, a proposal was submitted to the Council of Ministers, the same met with approval but subject to verification whether the entries in the service book were made after enquiry from the officer himself. It was envisaged in C.O that if the entry had been made after enquiry there was no justification in making a change now. The matter was later on further investigated and it was found that the petitioner had no case warranting a change in his date of birth.
9. Again, it is submitted that it was not correct that the duplicate character roll was prepared without and basis and that the entries in that were not verified and checked. In the face of these entries relating to his date of birth in the service record of the petitioner which were made at his instance and after proper verification the petitioner had no genuine case now to ask for a change in this date of birth entered in his service record.
10. The following propositions of fact and law emerge from the arguments advanced by counsel for the parties:—
(1) Right of a Government servant to ask at a subsequent stage for correction of his date of birth entered in his service records at the initial stage;
(2) Duty of the appointing authority to go into the matter when a fair question relating to the said correction is raised before him;
(3) Whteher the circumstances and the facts of the case before us warrant correction in the date of birth of the petitioner;
(4) Whether also in the instant case the petitioner's right to ask for correction of his date of birth his been denied to him. If so, what are its consequences, and to what relief, if any, he is entitled?
11. On a consideration of the first proposition I am of the opinion that it is not correct to hold that age once declared by Government cannot be corrected by the competent authority because such Government servant has himself declared it so at the initial stage. Maybe that such Government servant has inadvertently or wrongly not knowing true state of facts declared his age at the time of his appointment and if he is in possession of an irrefutable proof relating to his age, he can legitimately approach the competent authority and ask for its correction. This right cannot be denied to him. It must further be conceded that the right of a Government servant to be retained in service till he actually attains the age of 55 years is a guaranteed right under the statute and if a Government servant is retired before he actually attains the age of 55 years, unless it is a case of compulsory retirement, or is in public interest, this would be an act visited with civil consequence and would be violative of section 126 of the Jammu and Kashmir Constitution read with Art. 311(2) of the Constitution of India and also Rule 33 of Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules 1956 as this will amount to his virtual removal from service. The same question arose for consideration before me in the case of Malik Abdul Khaliq v. State of J. and K. and latter on before the Division Bench in Letters Patent appeal. The division Bench consisting of Hon'ble Chief Justice and Jaswant Singh, J. was pleased to observe thus:
“We are clearly of the opinion that the age recorded in the Service record of a Government servant can be already if the Government servant is able to produce authentic material to establish that the actual date of his birth is not what his recorded in his service record but some other date or if the Government has sufficient material to show that the date of birth declared by a Government servant is incorrect and has been incorrectly recorded with the ulterior object of gaining some unfair advantage therefrom provided that in the latter case due enquiry is held and sufficient opportunity as contemplated by Art. 311(2) of the Constitution of India corresponding to section 126(2) of the Constitution of Jammu and Kashmir is given to the Government servant concerned.”
12. There is thus no force in the contention raised on behalf of the respondent that age once declared cannot be changed. Age can subsequently be corrected when a Government servant is in possession of an authentic and conclusive proof regarding his actual date of birth.
13. The next question that we are called upon to consider is as to what is the duty of an appointing authority when faced with the foregoing situation Also is it in every case that an enquiry is to be held? It may be stated here that there is no obligation cast on an appointing authority to go into the question of correction of the date of birth in every case when it is initially declared by a Government servant and when there is no proof positive warranting its correction. It is only when the appointed authority is confronted with a situation where the case of a Government servant appears to be genuine and he has got prima facie proof in his possession relating to date of birth that an enquiry can be held in such a case.
14. The necessary corollary to the foregoing proposition would be that where a competent authority is satisfied with regard to genuineness of the case of a Government servant, it has to afford reasonable opportunity to him to substantiate his case and also to afford necessary relief to him by ordering correction of his age; for otherwise not to correct the age would amount to the premature retirement of such Government servant.
15. In the instant case we find that the petitioner did make a representation to the competent authority for a change in his date of birth and furnished proof in the shape of a document school leaving certificate; in support of his assertion according to which the date of birth of the petitioner is 22-7-1970 BK/4-11-1913 A.D The authorities felt satisfied that the petitioner had been able to make out a prima facie case. After obtaining view of the concerned departments the administrative secretariate of the police department referred the matter to the Council of Ministers with the recommendation that necessary correction might be ordered in the date of birth of the petitioner.
16. However before dwelling upon this aspect of the matter in detail it is important to state the history of the case. It not denied that the original character roll in which the date of birth of the petitioner was recorded was destroyed in fire which is said to have been taken place some time in the year 1957 in the office of the D.I.G Police, Kashmir. It is not therefore possible to assess the basis on which the petitioner's age was recorded in his original character roll at the time of his initial appointments. A duplicate character roll was however prepared from the Long Roll maintained by the dapartment, but this would not indicate the basis of the initial entry. It cannot, therefore, be said with certainty as to on what and how the initial entry of the date of birth was recorded. Under Rule 35 of the Jammu and Kashmir CSR. the age of an incumbent at the time of the initial appointment is to be recorded on the basis of his university certificate or if there is no university certificate then according to the entries in his school certificate duly verified by a Gazetted Officer of the Education Departmeat or by other means provided therein. The petitioner has averred in his petition that he was apprised of the fact that he had to superannuate on 5-10-1965 at a very late stage in year 1965 when he, for the first time, came to know that his date of birth had been wrongly recorded and that he had to retire two years and some months before the actual date of superannuation. He accordingly made a representation to his commandant which was forwarded by him with his recommendation to the D.I.G Police (Border). The matter was placid before the then I.G.P (Mr. Madhok). The petitioner furnished proof of his date of birth (his school leaving certificate). According to this certification the date of birth of the petitioner was 22-7-1970/4-11-1913 and not 4-11-1910 as disclosed in the duplicate character roll. Mr. Madhok it appears, considered the representation of the petitioner gave a fair opportunity to him to substantiate it and concluded his remarks by saying that it was not possible to prove that the certificate produced by the applicant was not correct Under these circumstances he thought that the petitioner would have to be given the benefit of doubt and the age given in the school certificates would have to be taken as true. The matter was thereafter recommended to the Home Department and the Home Department feeling convinced of the genuineness of the case of the petitioner but apprehending that he may not lay any claim to promotion if his date of birth is ??? asked the petitioner to furnish an undertaking that in case he was reinstated and the order of superannuation was revoked he would not later on represent for his promotion. In para 11 of the counter affidavit the Home Secretary has denied that any such undertaking from the petitioner pursuant to the ??? of the Government or any other Competent Authority was obtained. But this appeals to be not a correct state of fact because Mir Ahmed Ullah did say that he would furnish an undertaking in which he agreed that in case the Government agreed to his reinstatement after changing the date of birth he would not claim any promotion to which he might have become eligible during the period from 5-10-65 and on-wards. The question of giving this undertaking appears to have been discussed by the Home Secretary with the Chief Secretary who also accorded his approval thereon. Thereafter the case was placed before the Council of Ministers when a proposal with necessary recommendations was submitted to them. This would show that the authorities at that time felt convinced of the genuineness of the claim of the petitioner in regard to the correction of his date of birth and even they went to extent of fortifying their position by demanding an undertaking from him. The Council of Ministers, as would appear from the counter affidavit, approved the proposal subject to verification whether the entries in the service were made after enquiry from the officer himself. It is not however clear as to who had to make the necessary verification and to whom the query was addressed, nor does it appear from the counter affidavit that any verification was made after taking the petitioner into confidence and after associating him with the enquiry as the principles of natural justice demanded as it affected his rights. Moreover, the order of the Council of Ministers envisaged that the verification had to be held relating to the entries in the service book of the petitioner and it was to be ascertained whether these entries had been made after enquiry from the officer himself. It is clear that the service book of the petitioner was his original character roll which had been destroyed in the fire in 1957. A duplicate service book was no doubt prepared from the long rolls but it is not possible to find, to assess and to know the basis on which the applicant's age was first recorded in his original character roll at the time of his initial appointment, whether it was on the basis of his own declaration or on the basis of a horoscope or some other document so that a due enqury for the purpose of ??? the verification in terms of the Council order could be made in the case. Nothing his been shown at the bar that at the time of the initial appointment the date of birth of the petitioner was recorded after enquiry from the officer. It may be stated here that a copy of the seniority list of 1960–1961 his been filed by the petitioner. It is contended by him fiat in the seniority list the date of birth of the petitioner is shown as disputed or ‘to be verified.’ The argument is that having regard to this it can well be said that the authorities themselves were not sure about the date of birth of the petitioner; otherwise they should not have written the words ‘disputed’ or to be verifier in the said list. I, however, do not agree with the petitioner that the word ‘disputed’ occurring in the list has got any reference to his date of birth. The expression has reference to the case of his seniority or promotion. Mr. Surrinder Nath, I.G.P has in his additional affidavit explained the contents of the said seniority list. He has deposed therein that the word ‘disputed’ appearing in the remarks column relates to the petitioner seniority his promotion to the rank of Inspector and not to his date of birth. This appears to be the correct position. So far as this expression used is concerned. But there is no satisfactory explanation furnished as to why the words ‘to be verified’ appear against the ??? of the date of birth of the petitioner. From this it would appear that the date of birth of the petitioner had yet to be verified even in the year 1960–1961. If it had teen verified earlier there was no point for restating this fact in the seniority list. The expression ‘to be verified’ is not without meaning. It means that there was some doubt or question raised with regard to the date of birth of the petitioner which required to be verified.
17. From the above it would appear that because the case could not admit of any enquiy and that the verification envisaged in the Council Order was not possible in view of the fact that there was no basis available to determine whether the age of the petitioner was recorded at the time of his first appointment after enquiry from him, the approval recorded by the Council of Ministers to the proposal became final, and therefore the Council decision according approval to the proposal had to be implemented and age corrected.
18. Again, even assuming for the sake of argument that the petitioner had made a declaration of his age at the time of his initial appointment either inadvertently or under some wrong notion not knowing the true state of fact; is he debarred from seeking its correction when he furnished authentic proof of his actual date of birth. As the law is that if he furnished an authentic proof of his date of birth there was no bar for the competent authority to order its correction in the light of the unimpeachable evidence notwithstanding such earlier declaration even if recorded after making enquiry from the officer. If the same was not done and this was denied to him, his retirement before he actually reached the age of superannuation would be violative of Section 126 of the Constitution of Jammu and Kashmir. He had yet to put in a period of three years and odd of his service more according to the certificate furnished by him and further if this is not conceded in his case it would mean loss of emoluments, loss of increment and loss of pension benefits to him.
19. An attempt has been made to show that the petitioner himself had prepared several documents which showed his date of birth as 5-10-1910 A.D In this connection the respondent has filed copies of three documents (Annexures A, B and C to the counter affidavit). These are the copies of the leave application of the petitioner, annual establishment list and application for grant of pension. It is contended that when the petitioner himself recorded his date of birth as 5-10-1910 in these documents he could not say that this was wrong or incorrect. But these documents will not help the respondent in-as-much as the leave application and the annual establishment list containing recitals relating to his age have been borrowed from the entries in the character roll. Annual establishment list is prepared by the office. The petitioner has not to stand any responsibility for that. Something of course could be said about the application for sanction of pension (Annexure (C) where it is alleged that the date of birth has himself been recorded by the petitioner as 5-10-1910. But it is clear that this is qualified by the words (as told) and (as recorded) so this will not help the respondent and will not put the petitioner out of court. Moreover it must be acknowledged that these documents were taken any notice of by the Home Department or the Council of Minister; otherwise they would have figured there.
20. To advert to the merits of the question before us, it is not denied that the petitioner has produced to certificates annexures ‘A’ and ‘AI’. These are from the Principal Multilateral Higher Secondary School, Srinagar. One is the discharge certificate which shows that the petitioner was the student of the institution in 10th Class in the year 1936 A.D and his date of birth recorded therein is 22-2-70 BK/4-11-1913 A.D According to Annexure ‘AI’ the date of birth recorded in the certificate is exactly and precisely the same. Nothing has been shown that these certificates are not authentic and genuine. In the absence of any rebuttal proof, these documents being indisputable serve as authentic proof of the age of the incumbent.
21. From these it would appear that the age of superannuation of the petitioner would be 4-11-1968. He petitioner has been ordered to retire retrospectively with effect from 5-10-1965 which would appear to be a case of premature retirement and would be violative of section 126 of the Jammu and Kashmir Constitution read with Art. 311(2) of the Constitution of India. Reliance is also placed on A.I.R 1957 S.C 892 AIR 1958 S.C 36 : A.I.R 1965 S.C 1995 : A.I.R 1963 M.P 335 and A.I.R 1964 J&K 92 (F.B) which enunciate the principles involved in the case before us. The impugned order cannot therefore be said to be sustainable in the eye of low. Again, the petitioner in his petition has mentioned the following cases of the Government employees whose dates of birth as entered originally were corrected on the ground that these persons had subsequently produced proofs relating to the correction of their dates of birth:—
1. Shri Dina Nath Gupta, Ex. Sub Inspector of Police.
2. Shri Qasim Ali Manager Passenger Service Food Supplies and Transport Department.
3. Shri Prem Nath Kaul, Head Assistant, Information Department.
4. Shri Amar Nath Bhan Inspector of Police Anti Corruption Organisation Sringar.
5. Shri Shankar Das A.S.I Jammu and
6. Shri Ghulam Ahmad Kakru Head Clerk in the office of S.P Baramulla.
22. It has been contended that no reasons have been assigned as to why in their cases the authorities readily agreed to the correction of dates of birth whereas the petitioner being similarly situate and in possession of the same authentic proof of his date of birth was denied this right. In the written objections filed by the respondent it has been averred that the allegation of discrimination is baseless. The facts of the petitioner are quite different and distinct from those related to the officers mentioned in the petition. But it has not been shown as to how the facts of those cases were different from the one involved in the present case. The question posed in those cases was the same as to whether the date of birth initially recorded of the police officers in those cases could be rectified in view of some prima facie proof furnished by those persons. The contention was accepted in their cases. It is not denied that in their cases notification was not ordered. The petitioner also stood in the same position. He raised the same contention before the competent authority, made representation in this behalf and furnished a prima facie proof in favour of the said representation. The petitioner has been denied this right whereas in cases of other gentlemen, similarly circumstanced, this right has been conceded. This action appears to be a case of discrimination and therefore violative of Art. 14 of the Constitution of India.
23. At any rate, as stated above, the impugned order being not sustainable the same is liable to be quashed.
24. I would, therefore, allow this writ petition quash the impugned order No. Police 211/66 dated 6-7-66 sanctioning the retirement of the petitioner retrospectively with effect from 5-10-1965 as ultra vires and violative of section 126(2) of the Constitution of Jammu and Kashmir and also of the staturory provisions of Rule 33 of the Jammu and Kashmir Civil Services Classification, Control and appeal Rules, 1956 and direct by a writ of mandamus to the respondent to correct the date of birth of the petitioner in accordance with the School Certificate as mentioned above. The petitioner will be deemed to have continued in service as D.S.P from 5-10-65 to 4-11-68 the date of his superannuation which in normal course would be his date of retirement. The petitioner will be entitled to draw all allowances for this period. The petitioner will also be entitled to Rs. 200/- as costs.
25. Petition allowed.