Abdul Kabir Yatoo vs Union Of India & Ors
2023 Latest Caselaw 964 j&K/2

                                                                       Page |1



      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR

                        WP(C) No. 1532/2021
                                           Reserved on:16.08.2023
                                           Pronounced on: 18.08.2023

Abdul Kabir Yatoo

                                          ...Appellant(s)/Petitioner(s)

           Through: Mr. Hamza Prince, Advocate.

                              Vs.
Union of India & Ors.
                                                  ...Respondent(s)

           Through: Mr. T.M.Shamsi, DSGI.

CORAM:
           HON'BLE THE CHIEF JUSTICE
           HON'BLE MR. JUSTICE M. A. CHOWDHARY, JUDGE
                           JUDGMENT

Per Chowdhary, J

1. Petitioner - Abdul Kabir Yatoo, through the medium of this Writ

Petition, has challenged the order dated 10.05.2021, passed by the

Central Administrative Tribunal Jammu Bench, ( the Tribunal) in TA

No. 8557/2020(SWP No. 987/2018) titled Abdul Kabir Yatoo Vs.

Union of India & Ors., whereby the plea of the petitioner to direct

the respondents to take his date of birth as 01.09.1964 instead of

24.04.1959, as was recorded by them in his Service Book, was

rejected.

2. The impugned order dated 10.05.2021 has been challenged by the

petitioner on the ground that the same is absolutely perverse and

based on self imagined facts as the learned Tribunal has in the very

first Para of the judgment noted down that the petitioner came before

this Court with the writ petition only after retirement notice dated Page |2

28.01.2019 was served upon him, which was factually correct as the

petitioner had approached the court in the year 2018 only when his

grievance was not redressed for five years and the retirement notice

was served upon him in the year 2019; that there was gross non-

application of mind as the matter has been dealt with absolute

callousness; that the grounds agitated in the writ petition have

neither been dealt with nor considered by the learned Tribunal which

has concluded that both the documents are signed by the petitioner

and entries are made on his own accord, whereas, fact of the matter

is that the petitioner had applied to the department seeking

correctness of his date of birth and admittedly the department after

finding merit in his application referred the matter to the constituted

Medical Board for determining his age in accordance with the norms

in vogue; that the medical board comprising of several doctors

examined the petitioner in all respects and determined that his date

of birth is 01.09.1964; that the respondents have deprived the

petitioner of his lawful service by tampering the records, due to

vengeance and ill motives; that the respondents have arbitrarily

refused to correct the date of birth of the petitioner based on the

medical board report, having been referred by them. Finally it was

prayed that the impugned judgment dated 10.05.2021 passed by the

learned Tribunal be set aside and the relief prayed for in the petition,

decided vide above judgment, may be granted in favour of the

petitioner in the interest of justice.

3. Mr. Hamza Prince, learned counsel for the petitioner, argued that the

petitioner came to be engaged as Craft Instructor in the respondent

department on 28.02.1986 on 'daily wage basis' and in view of the Page |3

judgment dated 27.10.2009 passed in OWP No. 650/2008, after

prolonged legal battle, the services of the petitioner were regularized

by the Government vide order dated 02.03.2012. He further argued

that after implementing the court judgment and regularizing the

services of the petitioner, the respondents referred the petitioner to

the medical board for determination of his age which had to be

reflected in his Service Book. Further argument of learned counsel is

that the medical board certified the age of the petitioner as 48 years

as on 28.04.2012 as per the certificate issued by Chief Medical

Officer Pulwama. It has been further pleaded that the department

thereafter prepared the Service Book of the petitioner and the date of

birth of the petitioner was mistakenly shown as 24.04.1959,

however, at page 3 of the Service Book, date of birth of the

petitioner recorded as 01.09.1964 is correct, based on the medical

examination report. The petitioner had made a number of requests to

the respondents to correct the mistake which had crept in recording

his date of birth in the Service Book, however, needful was not done

and the petitioner filed the writ petition SWP No. 987/2018 before

this Court and the respondents instead of rectifying their mistake

served retirement notice upon the petitioner, treating his date of birth

to be 24.04.1959. It was further argued that this Court in IA No.

05/2019 directed continuation of services of the petitioner vide order

dated 26.04.2019. He further argued that on creation of Central

Administrative Tribunal at Jammu, the writ petition filed by the

petitioner was transferred to the Tribunal where it was registered as

T.A. No. 8557/2020and the learned Tribunal vide impugned Page |4

judgment, decided the petition filed by the petitioner, rejecting his

claim.

4. Learned counsel for the petitioner reiterating the grounds agitated in

the memorandum of petition argued that the learned Tribunal had

rejected the petition filed by the petitioner on flimsy grounds and

instead of directing the respondents to correct the date of birth of the

petitioner, which had been determined by the medical board, on

reference having been made by the respondents to determine the age

of the petitioner, had rejected the petitioner's plea when the

respondents were bound to make correction in the date of birth of the

petitioner on the basis of the certificate issued by the medical board

on the reference made by the respondents with regard to the age of

the petitioner. It was finally prayed that the petition be allowed and

the impugned judgment passed by the Tribunal be set aside directing

the respondents to make correction in the date of birth of the

petitioner and the age determined by the medical board instead of

what is recorded by the respondents in the Service Book of the

petitioner. He further argued that the petitioner despite the orders of

this court for continuation of the petitioner in service and despite his

working had not been paid the dues to which he was entitled to in

terms of the court order.

5. Mr. Shamsi, learned DSGI, while supporting the judgment passed by

the learned Tribunal has argued that the Service Book of the

petitioner was prepared on the basis of the particulars furnished by

him with regard to all the details including his date of birth, wherein

he had shown his date of birth as 24.04.1959. He has also disputed

the medical certificate allegedly issued by the medical board Page |5

asserting that as per the certificate dated 28.04.2012, the petitioner

was stated to have been examined by the Dental Surgeon of District

Hospital Pulwama and not by any Board of Doctors as claimed by

the petitioner. The certificate dated 28.04.2012 had been issued by

the Dental Surgeon of District Hospital Pulwama which has been

counter signed by Chief Medical Officer Pulwama, whereby it was

certified that as per the clinical examination the approximate date of

birth of the petitioner was 01.09.1964, as such, he was of the age of

48 years at the time of examination. He further argued that the

petitioner after giving his date of birth at the time of preparation of

his Service Book, cannot turn around and claim different date of

birth, presumably on the basis of medical certificate issued by Dental

Surgeon, and that the learned Tribunal had rightly decided the

petition of the petitioner rejecting his petition. He has finally prayed

that the impinged order be upheld and the writ petition be dismissed.

6. Heard, perused and considered.

7. As noticed above the petitioner had been engaged as Craft Instructor

on daily wage basis in the year 1986 and his services were

regularized by the respondent-department in the year 2012. After his

regularization the Service Book was prepared and at the time of

preparation of Service book, the particulars of the petitioner were

recorded and his date of birth was shown as 24.04.1959 and soon

after the regularization order the petitioner appears to have moved an

application before the respondents to refer his case for determination

of his age to the medical board for recording his correct date of birth.

The petitioner has relied upon the medical certificate issued by the

Dental Surgeon of District Hospital Pulwama, counter signed by Page |6

Chief Medical Officer Pulwama showing his age in the year 2012 as

48 years, meaning thereby that his year of birth would have been

1964. The respondents, however, did not act upon the said certificate

and the petitioner in the year 2018 filed the writ petition before this

Court when he was about to reach the age of superannuation in the

year 2019 based on his date of birth recorded in the Service book as

24.04.1959. Though the parties have not placed on record the notice

of superannuation served upon the petitioner, however, it appears

that the petitioner had filed this writ petition when he may have been

issued notice for his superannuation which is generally issued,

before six months of retirement of an officer/official.

8. It is trite in law as has been authoritatively held by the Apex Court

of this Country that the plea for change of date of birth at the fag-end

of service of a Government employee should not be entertained. The

petitioner, did not move, from the year 2012 to 2018, seeking

rectification in his age, waiting for the notice of superannuation and

had approached the Court at the fag-end of his service.

9. The medical certificate, though claimed to have been issued by a

Medical Board of experts by the petitioner, but on its perusal it is

found that it has been issued by Dental Surgeon posted in District

Hospital Pulwama and this certificate has been counter signed by the

Chief Medical Officer Pulwama, therefore, the said certificate cannot

be said to be issued by a validly constituted medical board. It is also

very strange to find that the doctor issuing the certificate had

certified so precisely the age of the petitioner as 48 years with date

of birth as 01.09.1964.

Page |7

10.It is unknown as to how the medical expert has so precisely issued

the certificate with regard to the age and had given, even the month

and date of the birth of the petitioner. It appears that the said

certificate has either been managed or wrongly issued by the Dental

Surgeon as there is no expertise available so far in the medical world

to be so precisely authentic to indicate even the date and month of

the birth of a person. Through experience, it has been observed that

the Medical experts indicate the age of a person, based on different

tests including that of ossification, that the approximate age of the

person is of such an years with plus/minus of two years.

11.. The petitioner at the time of initiating the preparation of Service

book had given his particulars including his parentage, residence and

date of birth as 24.04.1959, cannot be said to be an insertion made

by the respondents at their own without being disclosed by the

petitioner. The contention of learned counsel for the petitioner with

regard to petitioner's illiteracy and relying upon the medical

certificate issued by Dental Surgeon so as to take different date of

birth as disclosed by the petitioner, cannot be accepted.

12. For the reasons that the petitioner having knowledge of his date of

birth being recorded as 24.04.1959 in the year 2012 had waited till

the year 2018 when he was to retire in the year 2019 and approached

this Court at the fag-end of his service and his reliance on the

doubtful certificate issued by Dental Surgeon posted in District

Hospital Pulwama, the petitioner had no good ground for seeking

correction of his age and the learned Tribunal had rightly decided the

matter rejecting his plea.

Page |8

13. In this backdrop of the matter, the impugned order passed by the

learned Tribunal does not call for any interference by this Court

exercising writ jurisdiction. Otherwise also the question of

determining the date of birth is a factual aspect, which without

evidence cannot be gone into by the Writ Court in roving enquiry.

The petitioner shall be well advised to seek appropriate and

efficacious remedy by approaching the civil court. In view of this

Court order passed in earlier writ petition which was transferred to

the Central Administrative Tribunal, if petitioner's salary had not

been paid even after overstaying, he is found to be entitled to the

salary for that period during which he worked, till his

superannuation was sanctioned. The respondents are directed to

make payment to the petitioner of his salary for the period during

which he had worked.

14. Having regard to the afore-stated observations, petition is found to

be devoid of any merit and is disposed of in the above terms.

Impugned order is upheld, subject to the observation made in

preceding para.

              (M. A. CHOWDHARY)                  (N. KOTISWAR SINGH)
                   JUDGE                            CHIEF JUSTICE


Srinagar
18.08.2023
Muzammil. Q


              Whether the order is reportable:      Yes / No