(1) This is a writ petition filed by Ghulam Mohd. Khan for quashing the order No. CEM & B/195 dared 221970 passed by the Chief Engineer
Mechanical and Stores respondent No. 1.
(2) The petitioner has averred that he, on the basis of some previous experience and practical knowledge about mechanics, was employed as Air
Compressor Operator in 1951 on temporary basis in the Sindh Valley Division After working for about six years in the Sind Vally Division he was
employed in 1557 on regular establishment as a Foreman vide Chief Engineer Irrigation's order No. NOL 124GE/1260910 dated 161257 with
effect from 11157 in the grade of 80140. Subsequently the petitioner was placed in the time scale pay of 80200 w e. f. 1462 in pursuance of SRO
160 dated 6862 as foreman. The petitioner was not admitted to any scale before he was employed. His date of birth was ascertained on the basis
of attestation of Halqa President and the Assistant Engineer Sindh Valley Division, which was duly recorded as 19228 in his service Book. Vide
letter No CEM & S/Conf/23137C dated 781968 the petitioner received communication from the respondent No. 1, to the effect that some
information was received by the Deputy Secretary to Government General Department that the petitioner's date of birth on the basis of his School
Certificate was 1881910 and that the petitioner was due to superannuate in the year 1965 He was asked to submit within one week from the date
of receipt of the letter documentary evidence in connection with his correct date of birth (vide copy of the letter annexure 2). On receipt of the said
letter the petitioner submitted to the Chief Engineer that he had never attended any School and that he had picked up the rudiments of literacy at
home during his boy hood. It was denied that the date of birth of the petitioner according to the School leaving certificate was 18323 as alleged,
and that his correct date of birth was 14228; as recorded in his service book. The petitioner submitted an affidavit alongwith a letter (copy vide
annexure 3 (A). The petitioner after some time received a copy of the letter from the Executive Engineer Mechanical Division addressed to him by
the Chief Engineer Mechanical Stores endorsing the copy of the letter addressed to him by the Daputy Secretary to Govt. This was to the effect
that the petitioner should be asked to prove by documentary evidence that the certificate furnished by one complainant Shri Mohd. Amin tiandoo
was not authentic and did not pertain to him and that in case he failed to do so within a month the date of birth recorded in the certificate would be
taken as correct The petitioner submitted that his date of birth was 1421928 which has been appearing in the annual Establishment lists. Therefore
the petitioner was interrogated by the Executive Engineer in regard to the matter of his age. He was told that a copy of the alleged School Leaving
Certificate was produced by Mohd. Amin in connection with the date of birth of the petitioner. After some time the petitioner received a
questionnarie from the Anti Corruption Organisation which was replied to by the petitioner (vide annexures '6' and 6 A ). Subsequently the
petitioner received a copy of the Show Cause Notice No. 394952 dated 2531970 from the respondent No. 1 through the Executive Engineer
under his No. 1478 dated 30570 in which some charges w4re made against the petitioner on the basis of the alleged finding of Anti Corruption
Organisation. The petitioner replied to the said Show Cause Notice and denied all the allegations as false and baseless (vide annexures '7A' and
7B'). Nothing further was heard by the petitioner in regard to the matter but on 10 271 the petitioner received an order No. 8085 dated 10271
informing the petitioner, that he was discharged from service (vide annexure 'B') The petitioner also received order Mo. CEMS/195 of 1971 dated
2271 from respondent No. 1 to the effect that the petitioner was discharged from service forthwith and it was also proposed to take action against
the petitioner for the recovery of the alleged excess pay drawn from 17101965 (vide copy Annexure 'A'). The petitioner has challenged this order
of discharge on the ground that the same was without jurisdiction and was passed without holding any enquiry and without the participation of the
petitioner in any inquiry and at his back. Any investigation conducted by the D. I. G. Anticorruption organisation had no force of enquiry under law
and the petitioner could not be discharged on the basis of that report. The ( petitioner was not given any opportunity to challenge the allegations
and assertion made by the complainant Shri Mohd Amin Handoo with whom the petitioner had long sterling enmity, No formal charge sheet was
framed against the petitioner and as such the show cause notice based solely on irrelevant material was illegal, unconstitutional and unjust The
petitioner has there, fore prayed that a writ of mandamus or any other appropriate writ quashing the order of discharge be passed in the case,
(3) In the counter affidavit filed by Shri R. L. Sharma Chief Engineer Mechanical & Stores Department Srinagar it is stated that there has been no
violation of any statutory rule and the order of discharge has been passed according to rule It is admitted that the petitioner was employed as Air
Compressor Operator in the. Department till he was transferred to Central work ship Division Srinagar. It is stated that the petitioner had not
produced any authentic proof of medical certificate in support of his statement regarding his age His date of birth according to the entry in the
Service Book has been shown as 14121928 but the same shall not be deemed as authentic and correct. However on the information received
after preliminary enquiry it was found that the petitioner's actual date of birth was 1831910 as disclosed by his School Leaving Certificate. As he
was due for superannuation no notice was issued to him to produce evidence in support of the variation of his date of birth. The petitioner sent his
reply where the petitioner disclosed that he had not received education in any school and that his date of birth was 1421928, but the petitioner did
not produce any documentary proof in support of his allegation. She petitioner was given opportunity to rebut the entry made in the School
Register and to prove that the certificate furnished by one Mohd. Amin Handoo complainant was neither authentic not pertained to him. He was
further informed that if he did not do so the certificate will be deemed as correct Then a subsequent show cause notice was issued to him but the
petitioner did not produce any proof at all. The Executive Engineer made an enquiry and apprised the petitioner of the complaint and also of the
entries in the School Leaving Certificate produced against the petitioner. The matter was thereafter referred to AntiCorruption Organisation who
also came to the same conclusion regarding the age of the petitioner. It was therefore that the order of superannuation was passed by the
competent authority after due satisfaction and proper enquiry taking the date of the petitioner's birth as 18.8. 1910. The petitioner being home on a
regular temporary establishment he was liable to be discharged at the completion of the 55 years of age. There was thus no fault in the order
passed.
(4) I have heard the arguments in the case
It is appropriate to mention that hate the scope of writ is not to make any pronouncement on the age of the petitioner. This court has not to record
a finding as to whether the date of birth of the petitioner is 14223 as recorded in his service book and as alleged by the petitioner or 1881910 as
averred by the respondent. This court is not to substitute its own finding of fact for the finding arrived at by the respondent in respect of the age of
the petitioner. What this court has to examine is whether the finding arrived at by the respondent conforms to the principles of law and constitution
and does not militate against the principles of natural justice. If it is found that the finding has been arrived at after duly observing the procedure and
in accordance with the requirement set by law then this court cannot interfere with the order recorded; but should it be found that the order of
discharge militates against the principle of natural justice and violates or offends any of the accepted notions of law or of the constitution then this
court will have no hesitation in declaring the said order as illegal and in quashing it.
(5) Before we appreciate the facts of the case it is pertinent to refer to the rule regarding the declaration of age to be furnished by an incumbent at
the time of his joining the Government Service. Rule 64 of the Jammu and Kashmir Financial Code Volume I Chapter VI) is the relevant rule which
provides:
''64 (i) Every person newly appointed to a service or a post under Government, should at the time of appointment declare the dace of his birth by
Christian Era with Confirmatory documentary evidence.......The actual date or the assumed date determined under Note I below should be
recorded in the Service Book or any , other record that may be kept in respect of the Government Servant's service under Government and once
recorded, it cannot be altered, except in the case of a clerical error, without the previous orders of Government.
Government, however, reserve the right to make a correction in the recorded age of a Government servant at any time,, against the interests of that
Government servant when it is satisfied that the age recorded in his service book or in the history of services of a Gazetted Government Servant is
incorrect and has been incorrectly recorded, with the object that the Government servant may derive some unfair advantage
therefrom....................
Note : 1 (a) If a Government servant is unable to state his exact date of birth but can state the year or year and month of birth, 1st July or the 16th
of month respectively may be treated as the date of birth.
(b) If a Government servant is only able to state his approximate age, his date of birth may be assumed to be the corresponding date, after
deducting the number of years representing his age, from his date of appointment.
(ii) The appointing authority will be responsible for seeing that a person newly appointed to the nongazetfed seivice of the Government is of the
presented age and will communicate his dace of birth to the Head of the Office where such person has first been posted for entry in service book
or service rolls, as the case may be, stating therein the basis on which the date of birth has been accepted,
(6) From the above it follows that correction in the date of birth can be made only should the circumstances of the case so warrant. Where it is
found by the Government or the competent authority that the age declared by a Government Servant is not correct, necessary correction can be
ordered. But if the age is to be altered to his disadvantage then it is necessary to take him into confidence, place before him all the material, give
him an opportunity to be heard in the matter and after holding proper enquiry, make then the necessary order. This procedure is to be followed
because when the age is varied to the disadvantage of the Government Servant such an order visit him with evil consequences' A Government
servant has right to be retained in service till he actually attains the age of 55 years. Age once declared and accepted by the competent authority
and entered in the service records and then carried year after year in the annual establishment and also in the records maintained by the Accountant
General carries with it a presumption of truth in favour of the incumbent and that presumption can only be displaced by furnishing cogent evidence
to the contrary. The burden of proof to rebut the accepted entry relating to the date of birth recorded in the service book is on the person who
calls it in question. In the instant case what I find is that the authority concerned has not discharged its obligation by observing the rule of evidence
relating to presumptions He has, on the other hand, put the petitioner in the dock and has acted on the assumption, believing to all intents and
purposes, that what the adversary of the petitioner has said or produced in regard to the age of the petitioner was correct and was the last word on
the subject. The petitioner believed that it was established from the School Register that the date of birth of the petitioner was 18.8.1910 and not
1421928 as recorded in his service book and that therefore he had to superannuate earlier.
(7) I was led through the said register. I find that the relevant entry is interpolated. It has vigorously been contented by the learned counsel for th
petitioner that this entry does not pertain to his client at all. In fact his client was never confronted with this entry by the officer making enquiry. In
fact no enquiry was made to the knowledge of the petitioner or in his presence The question is has the identity of the person whose name is
recorded in the School Register been established to be that of the petitioner ? Has any enquiry of this fact been made with., in the knowledge of
the petitioner ? No convincing answer to the satisfaction of the court has been given by the respondent. No proof has been made available to
establish the indentiry of the petitioner and to connect him with the entry recorded in the School Register. The entry is so interpolated that it raises
doubt on the whole case. It is not known as to when this interpolation has taken place. The respondent could not satisfy the court as to whether
any person connected with the maintaining of register or in whose charge the register remained had come forward before the officer making
enquiry to say that the disputed entry in the School Register related to the petitioner and that the date of birth recorded there was that of the
petitioner at the time of his admission.
(8) Again, the petitioner has been discharged (to use the words occurring in the impugned order) from service on the basis of his date of birth
having been established by the Anti Corruption Organisation (to whom the matter was referred) to be 18. 8.1910. It is useful to reproduce here
below the contents of the order of discharge served on the petitioner by the Chief Engineer respondent No 1: the order reads;
''Where as the date of birth of Shri Ghulam Mohd. Khan, Foreman 100220 scale was recorded in the Service records of the Mechanical Division,
Srinagar as 14121928, and the Affidavit to this effect was also filed by him; and whereas a complaint against the Foreman was made by one
Mohd Amin Handoo, Shopkeeper Nawabazar Srinagar stating that the actual date of birth of the official was 18 8.1910; and where as the
allegation was investigated by the D. I. G. AntiCorruption on a reference having been made by the Deputy Secretary to Government, Genera]
Department (Anticorruption); and whereas the D. I, G. Anticorruption, after investigation, established the correct date of birth of the Foreman as
18th August 1910 A. D. and the Works and Power Secretariat held the findings as absolute; and whereas, in view of the date of birth of the
Foreman having been established by the Anticorruption to be 18.10.1910, the Foreman was due to retire on 17101965, but has been continuing in
service for a period beyond that prescribed under rules; and whereas the Foreman was given sufficient time to explain his position which he has
failed to do to over ride the above decision as intimated by the Works and Power Secretariat.
Now therefore in terms of Secretary to , Government, Works and Power Department's No. MS148/67 dated 31121970 it is hereby ordered that:
(1) the Foreman Shri Gh. Mohd. Khan be discharged from service forthwith.
Sd/ R. L. Sharma
Chief Engineer,
Mechanical & Stores Department Jammu.
(9) It is clear that the order discharging the petitioner from service is merely based on the finding arrived at by the Anticorruption organisation. An
order discharging a Government Servant from service, as stated above, undoubtedly is visited with civil consequence as it affects his emoluments,
his pension, gratuity etc. Therefore the law requires that such an order must be made after the incumbent is given reasonable time to be heard in the
matter The enquiry must be held to and within his knowledge. He must be given reasonable time to explain his position and to place every material
at his disposal before the authority. Here the enquiry is shrouded in mystery and its result is destitute of any legal effect or value.
(10) For the foregoing reasons I am of the view that the order of dischage is illegal. The same, therefore, deserves to be quashed.
(11) I, therefore, allow this writ petition and quash the order of discharge, This of course will not preclude the respondent No. 1 from holding an
enquiry into the date of birth of the petitioner, but that enquiry must be held so as to meet all requirements of law and must be made within the
knowledge of the petitioner and should be in accordance with the accepted notions of justice and principles of law as enunciated above. I
however, make no order as to costs.
