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| Govt loses prestige case on Date of Birth controversy of IPS officer | | HC sets aside IGP Farooq’s termination | | Early Times Report
SRINAGAR, May 19: Mr Justice Muzaffar Hussain Attar of Jammu and
Kashmir High Court today set aside the State Government’s order which
had retired senior IPS officer and the then IGP Security J&K Farooq
Ahmad from services.
Defending the petitioner, senior counsel Zaffar Ahmed Shah said that
the court quashed the state Government’s order dated 18th February,
2011, which had rescinded its own earlier order of August 1998
following a
communication from the Union Ministry of Home Affairs and ordered
Farooq Ahmad’s retirement with effect
from March 2009.
Justice Muzzafar Hussain Attar passed final orders on the writ
petition challenging the state Government’s decision to retire the
petitioner. Justice Attar observed that the State Government had
ordered the retirement of the petitioner without proper application of
mind. He dismissed it as unconstitutional, illegal and void ab-Initio.
Justice Attar also held that the petitioner had not been heard before
order was issued. “No notice was issued to him and the order against
him was passed without hearing him”. The counsel also submitted that
the change of date of birth in respect of petitioner had been ordered
by the State Government while it had the authority to do so.
“There was no fraud, mala fide or manipulation by the petitioner who
approached the state government back in 1981 for change of his date of
birth from 1949 to 1951. The petitioner had put all the facts before
the state government while seeking the change in date of birth. After
17 years the state government passed the orders accepting the request
of the officer.
Court over ruled the contention of the counsels of Union of India and
the State government that the petitioner stood inducted into IPS when
the change in the date of birth was ordered by the state government
and that the state had no powers to do so. The petitioner’s counsel
further contended that though the officer had been inducted into IPS
in 1995, the entire list had been quashed by the Central
Administrative Tribunal of Chandigarh in July 1998. “By virtue of CAT
quashment the officer literally reverted back to state services, he
said.
The Court also observed that the counsel for the state government had
fairly stated that there was no fraud, mala fide intention or
manipulation by the petitioner while seeking his change in the date of
birth.
Concluding the judgment, Justice Attar ordered the petitioner be
treated as an IPS officer who had not retired and all emoluments and
perks due to him be released immediately. The court also directed the
State Government to post Farooq Ahmad appropriately against a post
commensurate with his stature within one week.
Principal Secretary to Home Department, B R Sharma, vide order no
(Home-143(P) of 2011) had ordered the retirement of Farooq Ahmed
stating that the period of his overstay shall be decided separately.
Sharma also rescinded the order (Home 304(P) of August 8, 1998) and
ab-initio deemed Farooq Ahmad to have retired on February 28, 2009.
Farooq Ahmed, IPS was initially appointed as Deputy Superintendent of
Police(Dy SP) vide Government Order NO. 2233-GAD of 1977 dated
December 15, 1977 in the J&K Police (Gazetted) Service.
“Whereas the date of birth of Farooq Ahmed as recorded in the Matriculation Certificate issued by the J&K State Board of School Education in his favour is 05.02.1949 and the same has been recorded in the service book of the officer, when he joined the Government Service. Whereas, the Jammu and Kashmir Civil Services Regulations, 1956, as amended from time to time, are applicable only to the State Government employees,” the order reads.
The termination order states that Farooq Ahmad was inducted into the IPS by the Ministry of Home Affairs, Government of India vide notification no (14011/17 Police Service (IPS) dated September 4,1995 on the basis of his recorded date of birth as 5.2.1949.
It stated that after induction into the IPS, Farooq Ahmad ceased to be a member of the J&K Police (Gazetted) Service, and as such his service conditions had to be regulated as per the rules governing the All India Services and not as per the provisions of J&K Civil Service Regulations, 1956, as amended from time to time.
It further stated that the sub-rule (3) & (4) of rule 16-A of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 provide that in relation to a person to whom sub-rule (2) does not apply, the date of birth as recorded in the service book or other similar official document maintained by the concerned government shall be accepted by the Central Government.
The order maintains that the date of birth as accepted by the Central Government shall not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3).
It read: “Whereas, Farooq Ahmad had represented for a change of his date of birth from 05.021949 to 25.11.1951 and the Government vide its Order NO. Home 304 (P) of 1998 dated 13.08.1998, changed the date of birth of the officer from 05.02.1949 to 25.11.1951 in pursuance of the provisions of Jammu and Kashmir Civil Service Regulations 1956 as amended vide SRO-310-F dated 29.11.1995 even though the officer had ceased to be a member of the J&K Police (Gazetted) Service.”
However, the Ministry of Home Affairs, the order states, asked the State Government to explain the circumstances and rules under which Farooq Ahmad’s date of birth was altered from 05.02.1949 to 25.11.1951.The order stated that the State Government furnished a factual report to the Home Ministry vide its letter
“Home/PB-I/10/2001, January 1,2011 indicating the circumstances and rules under which the officer’s date of birth was changed.
The Ministry of Home Affairs maintained that as Farooq Ahmad had been inducted into the IPS with effect from September 4, 1995, his service was governed by the All India Service Rules. “And the State Government had no authority under the said rules to alter the date of birth of the officer in any manner whatsoever.”
“The Order No. 304(P) of 1998 dated 13.08.1998 of Government of Jammu and Kashmir, Home Department, changing/ altering the date of birth of Farooq Ahmed, IPS (SPS:JK:90) as 25.11.1951 instead of 05.02.1949 was examined in this Ministry vis-a-vis the rule position on the subject.
It has been decided that the above referred order of the state Government shall not have any bearing on the date of birth presently on record i.e. 5.2.1949 of Farooq Ahmed, IPS in so far as Indian Police Service is concerned and that his date of birth will continue to be considered as 5.2.1949 only for all official purposes as the member of India Police Service”, the Home Ministry in its order(No.I-45013/18/2010-IPS.I dated February 9,2011 to the State Government.
“Now, therefore, in view of the above, factual and the rule position as also the aforementioned decision of the Government of India, the State Government decided to rescind aforesaid Government Order No:
Home- 304(P) of 1998 dated 13.08.1998 and the said Order is accordingly, hereby rescinded ab-initio and as a consequence there Farooq Ahmed shall be and shall always be deemed to have been, retired on superannuation with effect from 28.2.2009 as per his original date of birth viz; 05.02.1949, The treatment of the period, the officer has overstayed in service from 01.03.2009 to 18.02.2011 shall be decided separately,” Sharma stated in the order.
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