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Saturday, October 22, 2011

Law Secretary’s embezzlement exposes chinks in Rather’s strongbox

Finance Minister: I’m initiating thorough inquiry after returning from Delhi

Ahmed Ali Fayyaz

SRINAGAR, Oct 21: Embezzlement of public money by the Omar Abdullah government’s custodian of law has exposed chinks in the Finance Minister Abdul Rahim Rather’s strongbox. Finance Minister today described the illegal withdrawal as a serious matter but asserted that, immediately after his return from New Delhi on Sunday, he would order a thorough inquiry.

Authoritative sources revealed to Early Times that Department of Finance has taken serious note of some officials’ and bureaucrats’ unauthorized withdrawals from the state exchequer. “This is an extremely serious matter that a public servant (Law Secretary Ghulam Hassan Tantray), who happens to be the government’s custodian and interpreter of law and rules, has drawn the money from public exchequer on account of his private visit to Tamil Nadu”, said a senior government functionary. He disclosed that over 30 government officials, government advocates, judges and registrars also attended the same marriage ceremony but none of them, excluding the Law Secretary, has claimed the reimbursement from the state exchequer.

Highly placed bureaucratic sources said that immediately after learning about the embezzlement, officials of Finance Department checked all accounts regulated by Financial Advisors/ Chief Accounts Officers. They noticed that no such withdrawal had been approved, sanctioned or authorized by any official of Finance Department. According to them, it was reported later in the afternoon that the money had been withdrawn from a legal aid related account that was being regulated by none other than the Law Secretary himself. In other words, they said, Drawing and Disbursing Officer (DDO) had himself authorized his illegal reimbursement and transferred the amount to his personal salary account in the Moving Branch of Jammu & Kashmir Bank Ltd at Civil Secretariat.

Reached over telephone for his reaction, Finance Minister Abdul Rahim Rather told Early Times that he had viewed the matter seriously and that he would order a thorough inquiry after his returning from New Delhi on Sunday. He was on way to the union capital to attend a meeting with the Central government officials alongwith Chief Minister Omar Abdullah. Mr Rather asserted that he would not allow anybody to spend the taxpayers’ money on his or her private visits and engagements. He said that anybody found involved in embezzlement of state exchequer would be taken to task.

Notwithstanding such assurances, political and bureaucratic circles seem to be worried over the way money was being swindled from the public exchequer by even the highly placed officials. “This has clearly exposed chinks in Mr Rather’s strongbox. Who knows how much of public money---and how many times--- has been withdrawn by the exposed official and others functioning as DDOs of different government accounts? It is a state of grave financial anarchy. Contractors, suppliers and other payees are told at the treasuries that there is no money in the government coffers”, said a senior government functionary.

“It hardly matters that a small amount of Rs 27,694 has been swindled. It actually establishes that it is a free-for-all thing and there is no system of regulating the finances. It also indicates that such unauthorized withdrawals are being carried out by government officials without any fear of accountability and scrutiny. This may not be the first and the last transaction and Law Secretary may not be the only official involved in such matters”, observed a senior opposition leader. He said that at least one political party would soon demand a special audit of Finance Department into all tainted accounts like the one exposed by Early Times.


Thursday, October 20, 2011

Is Law Secretary Tantray law unto himself?

Bureaucrat draws Rs 27,694 from state exchequer for attending wedding in TN

Ahmed Ali Fayyaz

SRINAGAR, Oct 20: With the opposition complaining of ‘financial anarchy’ in Jammu & Kashmir, a senior bureaucrat has created an embarrassing situation for Finance Minister Abdul Rahim Rather by attending a private marriage ceremony in Tamil Nadu and drawing entire expenditure from the state exchequer.

Highly placed authoritative sources revealed to Early Times that in total violation of law, Law Secretary Ghulam Hassan Tantray today withdrew an amount of Rs 27,694 from an official account of the Department of Law on account of attending a private wedding ceremony in Tamil Nadu earlier this month. Without the sanction and approval of any financial authority, the amount of Rs 27,694 was credited to Mr Tantray’s personal salary account No: 3375 at Moving Branch of Jammu & Kashmir Bank at Civil Secretariat today.

Asked how the amount, incurred on the bureaucrat’s private visit, had been sanctioned and drawn from the public exchequer, Financial Advisor and Chief Accounts Officer in Law Department, P C Gupta, said that the treasury transaction had happened without his knowledge and approval. “I am the Drawing & Disbursing Officer of Current Account No: 149. I am sure I have neither sanctioned this expenditure nor got it transferred to Law Secretary’s personal account”, Mr Gupta asserted.

He explained that there was a set procedure of sanctioning official visits of the government servants and seeking approval from competent authority. “No such approval, sanction or transaction on this subject is in my knowledge. If at all this has happened, this may be within the confines of the cashier of Law Department and the Law Secretary’s subordinate staff. There’s no question of authorization of such bills from me”, Mr Gupta added. He made it clear that a government servant could in no circumstances draw expenditure of private visit from the public exchequer. “I’ll check tomorrow if any secret accounts are being operated there without the knowledge and sanction of Finance Department”, he said.

Even as Director General of Accounts & Treasuries, Mr Wali Mohammad, did not respond to calls from this newspaper, a far senior public functionary of the department admitted that there was no question of claiming air travel and other expenditure made by a public servant on account of a private wedding that too outside the state. He said that the state government employees were entitled to certain monetary benefits which they claim as Leave Travel Concession (LTC).

“They avail this opportunity once a year and always in company of their family members. They seek prior permission to it from the competent authority, take station leave permission, return after not less than two weeks and claim the reimbursement due to them under rules.  But, there is no such approval or sanction on record anywhere from Law Department to General Administration Department (GAD) to Finance Department”, he said after checking the records.

Another senior functionary regulating the Finance Department and official accounts said that rules were unambiguously clear on this subject. He said that sometimes officials dovetail government business with private functions and thus claim reimbursement. “But, nothing of the sort is on record. There is no such order regarding any official meeting in Tamil Nadu from GAD till 2300 hours tonight. Even the mandatory station leave permission has not been sought by the official in question from Chief Secretary for traveling to Tamil Nadu around October 8th.”

Advocate General of J&K Government, Mohammad Ishaq Qadiri, too maintained that there was no question of any public servant claiming the expenditure on private visits like attending wedding ceremonies. “I too attended the wedding you are referring to but I paid every penny out of my pocket. How could one claim it from public exchequer?” Mr Qadiri asked, without insisting to know the identity of the bureaucrat who had actually drawn the amount today.

Inquiries revealed that Mr Tantray stayed at a guest house of the Government of Tamil Nadu from October 8th to October 10th. Back in Srinagar, he produced his air tickets to a concerned official and got the money transferred from the public exchequer to his personal account today. Mr Tantray could not be reached for his explanation but sources in Jammu and Kashmir Bank confirmed to Early Times that the amount of Rs 27,694 was credited to his personal account.


Wednesday, October 19, 2011

SHRC asks Govt to reopen Kupwara mass rape investigation

‘Prosecute Dir Prosecution (then DGP); Pay Rs 2 Lakh to each victim’

Ahmed Ali Fayyaz

SRINAGAR, Oct 19: In a significant development, Jammu & Kashmir State Human Rights Commission (SHRC) has asked the state government to conduct fresh investigation into the infamous Kunan Poshpora mass rape of 1991. The Commission also directed the government to prosecute then Director of Prosecution for not holding the accused accountable by law and closing the investigation with the claim that the victims were “not traceable”.

While disposing a petition, the SHRC bench comprising Chairman Mr Justice (retd) Syed Bashiruddin and Member Mr Javed Ahmad Kawoosa, today directed the state government to constitute a Special Investigating Team (SIT), headed by an officer of the rank of SP, and conduct the investigation into the alleged mass rape of a number of women at Kunan Poshpora, Kupwara, afresh.

The petition had been filed by a group of 23 women, all residents of Kunan Poshpora, with the complaint that the matter had not been investigated and the guilty had not been prosecuted or punished. After eight sittings of hearing, the SHRC disposed the petition here today. The bench desired that the investigation be conducted afresh in the light of the report of then District Magistrate and DC of Kupwara (Syed Mohammad Yasin Shah). It was pointed out that the DM had submitted his report on the basis of medical examinations conducted on the complainants. “The troops behaved like wild beasts”, DC Kupwara had mentioned in his report.

The SHRC bench directed the government to hold an inquiry into the conduct of then Director General of Police, Mr B S Bedi, who later retired on a senior position in the central paramilitary forces, and investigate as to how the senior IPS officer as then Director of Prosecution in the state Home Department had ordered closure of the investigation on the ground that the alleged victims were “not traceable”. In yet another direction, the bench asked the government to pay compensation of Rs 2 lakh to each of the complainant women as victims of the mass rape.

According to the allegations leveled against Army by the villagers, troops of 4-Rajputana Rifles committed mass rape over a large number of women during a cordon-and-search operation after they were separated from the men on the night intervening February 23rd and 24th. Residents approached the local Army commanders with their first complaint on the incident on February 27th. Not satisfied with the troops’ conduct, the villagers later submitted the complaint to then Deputy Commissioner of Kupwara, Syed Mohammad Yasin Shah, on March 5th.

In his report to Governor Girish Chander Saxena’s administration, DC Kupwara demanded a thorough investigation into the “serious allegations of mass rape”. While the Police failed to investigate on account of the “absence” of then Additional SP of Kupwara, Mr Dilbagh Singh, Army launched its own investigation. In a few weeks, Army dismissed all the allegations as “baseless”. It claimed that troops had not moved out of their local camps in connection with any cordon-and-search operation on that particular night.

Then DGP, B S Bedi, claimed at a news conference at Police Control Room Srinagar that the charges of mass rape had not been established. On the same day, then Governor Girish Chander Saxena appeared on Doordarshan with the announcement that Army had conducted its own investigation into the allegations leveled by the complainants and found these to be “without substance”.

Following DM’s report, increased publicity about the incident led to strong denials from Army. On March 17, Mufti Baha-ud-Din Farooqi, then Chief Justice of Jammu & Kashmir High Court, led a fact-finding mission to Kunan Poshpora. Over the course of his investigation, he interviewed fifty-three women complainants who claimed to have been raped by the soldiers.

According to Mufti Bahauddin’s his report, villagers claimed that a police investigation into the event had never commenced because the officer assigned to the case, Assistant Superintendent Dilbaugh Singh, was on leave. Mufti later stated that in his 43 years on the bench he "had never seen a case in which normal investigative procedures were ignored as they were in this one.".

On March 18, then Divisional Commissioner of Kashmir, Wajahat Habibullah, visited the village, and filed a confidential report, parts of which were later released to the public. He concluded:
"While the veracity of the complaint is highly doubtful, it still needs to be determined why such complaint was made at all. The people of the village are simple folk and by the Army’s own admission have been generally helpful and even careful of security of the Army’s officers… Unlike Brig. Sharma I found many of the village women genuinely angry … It is recommended that the level of investigation be upgraded to that of a gazetted police officer."

In response to criticism of the government's handling of the investigation, the army requested the Press Council of India to investigate the incident. The investigative team, that included veteran journalist B G Verghese, visited Kunan Poshpora in June 1991.

Upon interviewing a number of the alleged victims, the team claimed that contradictions in their testimony rendered their allegations of rape "baseless." The team interviewed hospital officials who stated that one of the women who had been pregnant at the time of the incident had given birth to a child with a fractured arm just 4 days afterwards. She claimed that she had been kicked during the rapes; a pediatrician who visited the village as part of the Jammu and Kashmir People's Basic Rights Committee, confirmed her story.

 The Press Council team claimed that the foetus had been injured during delivery. Medical examinations conducted on 32 of the women between March 15 and 21, nearly one month after the incident, confirmed that the women had wounds on their chests and abdomens, and that the hymens of three of the unmarried women had been torn. The team claimed that "such a delayed medical examination proves nothing" and that the medical findings were typical among villagers.

Ultimately, the team concluded that the charges against the army were, "well-concocted bundle of fabricated lies" and "a massive hoax orchestrated by militant groups and their sympathizers and mentors in Kashmir and abroad...for reinscribing Kashmir on the international agenda as a human rights issue.

The Press Council's dismissal of all the Kunan Poshpora allegation, and the manner in which it carried out its investigation were widely criticized. Human Rights Watch wrote:
“While the results of the examinations by themselves could not prove the charges of rape, they raised serious questions about the army's actions in Kunan Poshpora. Under the circumstances, the committee's eagerness to dismiss any evidence that might contradict the government's version of events is deeply disturbing. In the end, the committee has revealed itself to be far more concerned about countering domestic and international criticism than about uncovering the truth.

Asia Watch, in its 1991 report, stated: "The alacrity with which military and government authorities in Kashmir discredited the allegations of rape and their failure to follow through with procedures that would provide critical evidence for any prosecution – in particular prompt medical examinations of the alleged rape victims — raise serious concerns about the integrity of the investigation...Given evidence of a possible cover-up, both the official and the Press Council investigation fall far short of the measures necessary to establish the facts in the incident and determine culpability."

The United States Department of State, in its 1992 report on international human rights, rejected the Indian government's conclusion, and determined that there was "credible evidence to support charges that an elite army unit engaged in mass rape in the Kashmiri village of Kunan Poshpora."


Tuesday, October 18, 2011

Basharat matured for retirement on 30-09-2009

Early Times obtains ultimate proof of IAS officer’s DOB cheating: J&K High Court dismissed Basharat Ahmed Dhar’s suit in 2002, decreed that change in DOB can’t be granted 24 years after passing Matriculation Examination

Ahmed Ali Fayyaz

SRINAGAR, Oct 18: In a rare development, unprecedented in the history of Jammu & Kashmir’s bureaucracy, an Indian Administrative Service (IAS) officer is working as Commissioner-Secretary of Power Development Department (PDD) in Omar Abdullah’s coalition government over two years after he reached superannuation on September 30th, 2009. Incontrovertible judicial evidence, that is n0w very much in possession of Early Times, makes it conclusively clear that Mr Basharat Ahmed Dhar has concealed facts and offered fiction in claiming that he had “never ever in my life” changed or manipulated his date of birth (DOB) from joining his school to the end of his service career for overstaying in the government service.

After an extensive professional exercise, Early Times today discovered that after nearly 14 years of continuous service, Mr Basharat Ahmed Dhar filed a suit in the court of City Munsiff Srinagar on 07-04-1988 for declaration and injunction with the prayer that the Chairman, Jammu & Kashmir Board of Secondary Education (BOSE) be directed to record his DOB as 25th Chet, 2007, (07-04-1951 A.D) in the Board records, instead of 07-09-1949 as reflected in his Matriculation Certificate. He prayed for issuance of a fresh Matriculation certificate accordingly.

After months of hearing, City Munsiff decreed in an ex parte judgment on 09-05-1989 that the change in DOB be granted in favour of the petitioner and a fresh Matriculation Certificate be issued to him. Chairman BOSE went in appeal to the Court of District & Sessions Judge Srinagar. Fourth Additional District & Sessions Judge Srinagar dismissed the appeal on 28-08-1993 on the ground of delay in filing the appeal and rejection of the application for condonation of delay. Subsequently, Chairman BOSE filed Civil Revision No: 195 in J&K High Court, seeking annulment of orders of both the subordinate courts.

Mr Dhar has been inducted into IAS, with his year of allotment as 1989, on the basis of his Matriculation Certificate which mentions
His DOB as 25-12-1951. According to this document, which has been submitted to all offices from General Administration Department (GAD) of J&K Government to the office of Accountant General and union Public Service Commission (UPSC), and which forms the basis of Mr Dhar’s Service Book, he passed Matriculation Examination under Roll No: 4806 in the year 1966. However, in the suit filed in Srinagar subordinate court, Mr Dhar has recorded on oath that he passed Matriculation Examination under Roll No: 4013 in annual session of the year 1964. His DOB is recorded as 07-09-1949.

All these facts were concealed by Mr Dhar when he claimed to this newspaper yesterday while claiming that he had never ever in his life changed or manipulated his DOB.

Finally, in the elaborate judgment delivered by Mr Justice Muzaffar Jan of J&K High Court on 02-03-2002, Mr Dhar’s petition was fully dismissed and orders of both, City Munsiff Srinagar and Fourth Additional District & Sessions Judge Srinagar, were set aside. It is now clearly a case of investigation for Central Vigilance Commission (CVC) as to how Mr Dhar obtained a fresh Matriculation Certificate from BOSE which mentions his DOB as 25-12-1951 instead of 07-09-1949 and records that he passed Matriculation Examination under Roll No: 4806 in the year 1966 instead of Roll No: 4013 in the year 1964.

This revelation, which comes from the state’s highest judicial forum, has made all of Mr Dhar’s testimonials, service records and even the process of his induction into IAS suspect.

Officials at J&K State Board of School Education as well as Advocate Hakeem Ishtiaq Hussain, who represented the Board in J&K High Court, told Early Times that after losing his case at High Court, Mr Dhar did not approach any higher judicial forum with appeal. Board officials said that, to the best of their knowledge, no fresh Matriculation was issued to Mr Dhar. “There was no question of issuing a fresh certificate or effecting change in Mr Dhar’s DOB as the matter was settled by High Court in favour of the Board”, said an official.

Even as the final judgment of Justice Jan, dated 02-03-2002, was published in Srinagar Law Journal in the year 2002 and top rungs of J&K bureaucracy are believed to have had knowledge of this important development, none of the successive Chief Secretaries or Secretaries of GAD bothered to make necessary corrections in Mr Dhar’s service records. Nobody in successive governments made any attempt to inform Department of Training & Personnel, that regulates Indian Administrative Service and functions directly under Prime Minister of India, that the IAS officer of J&K cadre was due to reach superannuation on 30-09-2011.

Interestingly, after his induction into IAS on the basis of forged or wrongfully issued documents, Mr Dhar functioned not only as Secretary and Commissioner-Secretary of key departments like PDD but also headed the all important GAD. He also remained posted as Divisional Commissioner of Kashmir. Omar Abdullah’s government recently awarded him the prestigious Chief Minister’s Gold Medal for impressive and efficient performance in service.

As clearly recorded in the judgment, Justice Jan decreed that change in DOB in favour of the official could not be granted 24 years after his passing the Matriculation Examination in 1964. He has observed that Mr Dhar should have sought correction in his DOB within a year of the declaration of result under Rule 17 of the Rules of the Board. In case of failure at the Board, petitioner could have sought judicial intervention within three years i.e. upto 1967.

“Article 67 of the Schedule to Limitation Act relating to the grant of relief on the ground of mistake prescribed three years’ period of limitation and the time from which the period begins to run is relatable to the discovery of the mistake by the plaintiff. Apart from Article 67, Article 181 of the Schedule to Limitation Act also prescribes three years as period of limitation for such like suits. That being so, respondent No: 1 could have filed the suit in the year 1967. He, instead, filed the suit in the year 1988 i.e. 24 years after he gained the knowledge”, Justice Jan has observed in the order.

And the operative portion of the High Court order reads: “Consequently, the judgment and order dated 09-05-1989, passed by the learned City Munsiff Srinagar, and order dated 28-08-1993, passed by learned IV Additional District Judge Srinagar, are set aside. Since the suit of the respondent plaintiff (Basharat Ahmed Dhar) has been held to be hopelessly barred by limitation, the same is dismissed”.


This order of J&K High Court pronounced by Mr Justice Muzaffar Jan on 02-03-2002, which remains unchallenged till date and has also been partly published in Srinagar Law Journal in the year 2002, makes it unambiguously clear that Date of Birth of Mr Basharat Ahmed Dhar (IAS), Commissioner-Secretary Power Development Department in J&K Government, is 07-09-1949 and he has reached superannuation on 30-09-2009.

Chairman, J&K Board Of Secondary Education vs Basharat Ahmad And Ors. on 2 March, 2002

Bench: M Jan


Muzaffar Jan, J.

1. This revision petition has been directed against judgement and order dated 28th Aug, 1993 passed by IV Additional District Judge, Srinagar in Appeal No 11 of 22.11.1989 dismissing the appeal as time barred. Some relevant basic facts may be noted.

2. Record reveals that the respondents No. 1 (Plaintiff) filed a suit for declaration and injunction with the prayer that the Chairman, Jammu and Kashmir Board of Secondary Educations, be directed to record his date of birth as 25th Chet, 2007, which corresponds to 7th April, 1951, in the Board record instead of 7.9.1949 as reflected in his Matriculation certificate and consequently to issue a fresh Matriculation certificate in his favour. The suit was decreed by learned City Munisff, Srinagar, vide Judgment and Order dated 9.5.1989 in ex-parte. The appeal filed against the judgment and order of the learned City Munisff, Srinagar, dated 9.5.1989 was dismissed in IV Additional District Judge, Srinagar on the ground of delay in filing the appeal and rejection of the application for condonation of delay vide order dated 28.8.1993. It is the validity of this order of learned IV Additional District judge Srinagar which has been challenged in the present proceedings.

3. This revision petition is pending in this Court since 1995. The respondents have been consistently absent inspite of knowledge and, as the revision petition is pending since long and involves purely a question of law, it is taken up for final adjudication.

4. The main grounds taken in the revision petition are that although respondent No. 1 knew that 7.9.1949 was written as his date of birth in the school record, yet he did not apply for correction of the said date of birth immediately after he became aware of the alleged wrong entry of his date of birth in the school register. In the admission form for the Matriculation Examination in 1964, respondent No. 1 endorsed his date of birth as 7.9.1949 without disputing the genuineness of this entry and respondent No. 1 in fact, acted upon it for 24 years without raising any objection. After 24 years respondent No. 1 filed suit No. 10 in the court of city Munsiff, Srinagar, for correction of his date of birth. The suit being barred by limitation was not maintainable, yet the trial court permitted the relief in ex-parte and directed the correctness of the date of birth in abject violation of law by exceeding his jurisdiction. An appeal was filed against the judgment and order of learned City Munsiff, dated 9.5.1989. The learned IV Additional District Judge, Srinagar, rejected the appeal on the ground of limitation without considering the legal aspect that the suit before the trial court filed on 7.4.1988 was barred by limitation and suffered from laches. The petitioner, accordingly, prays for setting aside the orders dated 9.5.1989 and 28.8.1993.

5. Heard learned counsel for the petitioner at length and perused and considered the entire material on record.

From the perusal of annexure 'c' which is a photocopy of Admission Form of respondent No. 1 for the Matriculation Examination pertaining to the year 1964, it is manifestly clear that respondent No. 1 has written his date of birth as 7.9.1949 way back in the year 1964. This fact by itself, substantially and conclusively, shows that respondent No. 1 was fully aware of the entry of his date of birth in the school register as 7.9.1949. Being aware of this fact and also on acquiring this knowledge, respondent No. 1 could have filed a suit for correction of his date of birth within a period of three years from the date of acquiring the knowledge of his date of birth recorded as 7.9.1949 in 1964. In this connection it may be appropriate to quote Section 3 of the Limitation Act which reads thus:

"3. Dismissal of suits, etc., instituted, etc. after period of limitation. Subject to the provisions contained in Section 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefor by the first Schedule shall be dismissed, although limitation has not been set-up as a defence"

6. Article 67 of the Schedule to Limitation Act relating to the grant of relief on the ground of mistake prescribed three years period of limitation and the time from which the period begins to run is relatable to the discovery of the mistake by the Plaintiff. Apart from Article 67, Article 181 of the Schedule to Limitation for such like suits. That being so, respondent No. 1 could have filed the suit in the year 1967. He instead filed the suit in the year 1988, i.e., 24 years after he gained the knowledge.

7. Apart from the above, the plaintiff in para 1 of his plaint had specifically averred that he passed Matriculation Examination in the year 1964. The relevant para of the plaint is quoted below:-

" 1. That the plaintiff passed Matriculation Examination under Roll No. 4013 in the year 1964 (Annual)."

8. It is not his case that till 1988 the Matriculation Certificate was not issued in his favour. It is a matter of course that Matriculation Certificate is issued immediately after the results are declared. In that view of the matter, respondent No. 1 would have received the said certificate in the year 1964 itself. Thus he must have seen his dated of birth in the certificate as 7.9.1949. If he was not satisfied about its correctness, he could have made an application to the Board for correction of his date of birth within a period of one year from the date of issue of the Matriculation Certificate in terms of Rule 17 (i) of the Rules of the Board. Obviously and admittedly, the respondent did not choose to avail of this remedy, ostensibly because at that time he was satisfied about the correctness of his date of birth recorded in his Matriculation Certificate.

9. In view of the above legal and factual position, the suit before the learned city Munsiff, Srinagar, was hopelessly barred by limitation. The learned Munsiff, without applying his mind to the facts attendant to the case, permitted the relief. The trial court ought to have considered the aspect of limitation without a plea in the pleadings in terms of the express provisions of law contained in Section 3 of the Limitation Act quoted hereinabove as also in view of the law laid down by this court in J&K State Board of School Education vs Mohd Sharief reported in 1994 KLJ J&K 516 wherein it has been held:

"The trial court should have considered the question of limitation even without there being any defence set up by the defendant, especially when it was dealing with the suit ex-parte."

10. It may be observed here that courts are not obliged to pass decrees in favour of plaintiffs in ex-parte unless the facts on record are proved to justify the relief. Simply because the defendants do not appear and are set ex-parte should not be weighed as a circumstance against the defendants while considering the controversy in issue. The basic rule of evidence is that the party approaching the court must only prove the facts by producing cogent evidence, but must also show that the relief prayed for is not barred by an express provision of law or other legal disability. In the present case there was a legal bar of limitation which seems not to have been brought to the notice of the learned City Munsiff, Srinagar. On that count alone the judgment and order dated 9.5.1989 passed by the learned City Munsiff, Srinagar, deserves to the set aside. The learned IV Additional District Judge, Srinagar, did not realise that by rejecting the application for condonation of delay and dismissing the appeal as time barred, validity would be given to an illegal order which was contrary to law. The learned District Judge should have kept this thing in mind that dismissing the appeal on technical ground of limitation would not, in any way, advance the interest of justice but admittedly would abuse and violate the existing law. Law of Limitation has been enacted to advance the cause of substantial justice. It is not meant to give lease to orders which are otherwise contrary to substantive laws. While dealing with applications for condonation of delay, courts are required to proceed in the matter with the object of doing substantial justice to all the parties concerned and each case has to be dealt with on the facts and circumstances attendant thereto. Further, the court has also to weigh the far reaching effect an illegal order will have if it is allowed to remain intact on the technical grounds. In this view I am supported by a judgment of the Apex Court in State of Bihar v. Kameshwar Prasad Singh AIR 2000 Sc 2306 the relevant portion of which is quoted hereunder:-

"14 Looking into the facts and circumstances of the case, as noticed earlier and with the object of doing substantial justice to all the parties concerned, we are of the opinion that sufficient cause has been made out by the petitioners which has persuaded us to condone the delay in filling the petitions. Dismissing the appeal on technical grounds of limitation would not, in any way, advance the interests of justice by admittedly, result in failure of justice as the impugned judgments are likely to affect not only the parties before us but hundreds of other persons..."

11. In the instant case, if the impugned judgment and order of the trial court is allowed to remain, it will open a flood gate of such litigation and everybody would be tempted to seek correction of his date of birth to derive undue benefit of extended length of service in Government Departments. On that count also, the judgment and order of the trial court cannot be allowed to sustain.

12. 1n view of the legal bar of limitation for seeking correction in date of birth the judgment and order passed by the learned City Munsiff, Srinagar, dated 9.5.1989, cannot be sustained as the same has been passed in breach of jurisdiction against a mandatory direction of law. The learned IV Additional District Judge, Srinagar has equally fallen into a grave error by ignoring the facts involved in the case and dismissing the appeal as time barred.

13. Consequently, the judgment and order dated 9.5.1989 passed by learned City Munsiff Srinagar and order dated 28.8.1993 passed by learned IV Additional District Judge, Srinagar, are set aside. Since the suit of the respondent plaintiff has been held to be hopelessly barred by limitation, the same is dismissed.


Cabinet may attach Dhar to save Govt’s face

Ahmed Ali Fayyaz

SRINAGAR, Oct 18: Apprehending embarrassing queries with regard to Mr Basharat Ahmed Dhar’s overstay in IAS service by over two years already from Central Vigilance Commission and Department of Training & Personnel, Government of Jammu & Kashmir is reliably considering the attachment of the senior bureaucrat.

Early Times learned from highly placed authoritative sources that on Wednesday Cabinet was likely to order Mr Dhar’s attachment in a last ditch attempt to help him get pensionary benefits before 31-12-2011, the day of superannuation as per his forged or wrongfully obtained Matriculation Certificate. Sources disclosed that the office of Accountant General, that has been processing Mr Dhar’s pension case, has already frozen it after learning that the IAS officer had actually reached superannuation on 30-09-2009.

Amid suggestions, pouring in to the corridors of power from different quarters after three stories exclusively carried by Early Times, some of the Ministers have begun to conceive absurdity. Interestingly, one of the Cabinet Ministers proposed that Mr Dhar be declared to have retired on 30-09-2009 and the following two years be treated as extension to his service. However, Chief Secretary Madhav Lal is said to have made it clear that under the rules governing the central services, extension to service could be granted to only the officers of unblemished service record in exigencies and emergencies and it could not be given for more than three months.


Monday, October 17, 2011

Basharat Dhar claims he didn’t change DOB

Law Deptt sources: IAS officer’s changed DOB was endorsed by City Munsif in 1989 but rejected by High Court in 2002

Ahmed Ali Fayyaz

SRINAGAR, Oct 17: Senior IAS officer and Commissioner-Secretary Power Development Department, Basharat Ahmad Dhar, today claimed that he had neither changed nor manipulated his Date of Birth (DoB) to overstay in service. Sources in the government’s Law Department, however, insisted that the IAS officer had obtained a desired order from the court of City Munsif in Srinagar in May 1989 for effecting change in his DOB but the same order was quashed by J&K High Court in 2002.

In reaction to two news reports carried by this newspaper on October 15th and October 17th, Commissioner-Secretary PDD, Basharat Ahmad Dhar, asserted today that he had “never ever in my life” changed or manipulated his DOB to overstay in government service. Without publishing any facts approvingly and without identifying any officer, Early Times had only reported that Central Vigilance Commission (CVC) had received an anonymous complaint and sought verification from J&K Chief Secretary as well as Accountant General (AG).

Mr Dhar said that the news reports were about himself and it was none other than him against whom the complaint had been submitted. He complained that he was being targeted “out of malice and professional rivalry” at the verge of his retirement. On his part, he insisted to “set the record right” by producing his Matriculation, BA and MA certificates, as well as the first page of his service book. He said that he had received the first communication on this subject from AG’s officer on October 16th and nobody in the state government had brought contents of any complaint to his notice till date.

“But when I learned that a whisper campaign, leading to a character assassination campaign, was gaining currency against me, I voluntarily went to Chief Minister and explained my position to him with concrete supporting evidence”, Mr Dhar said.

This senior KAS officer, who was inducted into IAS with 1989 as his year of allotment, is due to reach superannuation on 31-12-2011. With the help of supporting documents, Mr Dhar claimed that 25-12-1951 was his DOB right from the day of joining his school till the end of his service. He claimed that he had neither changed nor manipulated his DOB. He further claimed that all the three retired officers, namely Mumtaz Afzal, Ghulam Mohiuddin and Prof Abdul Ahad, who had been mentioned in one of the newspaper reports as his colleagues in Archives Department, were far senior and older to him and his comparison to them was “completely irrelevant”.

Mr Dhar claimed that Mrs Naseem Lankar (now Commissioner-Secretary School Education), Mr Mohammad Sayeed Khan (now Commissioner-Secretary General Administration Department) and Mr Zahoor Ahmad Chisti (now IGP) were his contemporaries at University of Kashmir. He pointed out that all three were very much in active service of the state government.

According to the Matriculation Certificate produced by Mr Dhar, he passed his Matriculation Examination under Roll No: 4806 in the year 1966. Signed by Secretary ‘The Jammu & Kashmir Board of Secondary Education, Srinagar”, on 20-06-1966, this certificate mentions the candidate’s name as “Basharat Ahmad S/o Gulam Ahmad” and his DOB as 25-12-1951.

Another certificate, signed and issued by Controller and Vice Chancellor of “The University of Jammu & Kashmir” on 20-10-1971 mentions that the candidate “Basharat Ahmed S/o Gulam Ahmed Dhar” appeared in annual session of 1971 under Roll No: 1263 (Registration No: 8152-S-66) and passed his examination of Bachelor of Arts in the year 1971. It does not mention any DOB.

Yet another certificate, signed by Controller of Examinations and Vice Chancellor of “University of Kashmir” and issued on 20-10-1975 mentions that the candidate “Basharat Ahmed S/o Ghulam Ahmed Dhar” appeared under Roll No: 379 in session of 1973 and passed his Master of Arts in Economics in the year 1974. It also does not mention any DOB.

Mr Dhar also produced the first page of his Service Book which mentions his name as “Basharat Ahmad Dhaar S/o Kh Ghulam Ahmed Dhaar”. It also records his DOB as 25-12-1951.

“It stands amply clear in the light of all these certificates that my date of birth has remained unchanged as 25-12-1951 and there is no question of my having manipulated it at any point of time during my education or service period”, Mr Dhar asserted.

However, well-placed sources in the government’s Law Department maintained that the matter was “under investigation”. They disclosed that, notwithstanding Mr Dhar’s claims and clarifications, it has surfaced that he had started the process of changing his DOB from 7-9-1949 to 25-12-1951 in the year 1989 with an application in the court of City Munsif Srinagar.

According to these sources, whose inputs are now being verified by Early Times, City Munsif Srinagar granted change in DOB as prayed for by the applicant Mr Basharat Ahmed Dhar in an exparte judgment on 9-5-1989. In compliance to the court order, J&K Board of School Education issued a fresh Matriculation certificate that recorded Mr Dhar’s DOB as 25-12-1951. Later, Fourth Additional District Judge Srinagar issued another order on the appeal on 28-8-1993.

Finally on 2-3-2002, Mr Justice Muzaffar Jan of J&K High Court quashed both the orders and did not permit any change in Mr Dhar’s DOB. Sources said that the facts surfacing dramatically with regard to the IAS officer’s DOB were being scrutinized and in case same were established as correct, Mr Dhar would be treated to have reached superannuation on 30-09-2009 and criminal proceedings could be separately initiated against him.


Efforts underway to protect 2 IAS officers

CVC, SVO files of 2 Commissioner-Secretaries tossed to Law Department

Ahmed Ali Fayyaz

SRINAGAR, Oct 16: Efforts are currently underway at Civil Secretariat to protect two senior IAS officers, both holding the rank of Commissioner-Secretary, from punitive actions of Central Vigilance Commission (CVC) and J&K State Vigilance Organisation.

In what is widely perceived to be a rescue operation, state bureaucracy has begun to toss files of two senior IAS officers from one department to another with the objective of blocking the CVC and SVO action against them. Top ranking sources in Law Department disclosed to Early Times that the Government had sought its views with regard to the controversy arising over the date of birth of a Commissioner-Secretary who has allegedly overstayed in service for four years and was reaching superannuation on 31-12-2011.

“We are nowhere in the picture. Had the government been serious in inquiring whether the IAS officer’s date of birth was real or fudged, it could have taken five minutes to conduct the verification with the result gazette of Matriculation at J&K Board of School Education. We fail to understand why such files are tossed between the office of Accountant General, GAD and Law Department at the Civil Secretariat”, a senior official said.

He further disclosed that in order to protect another IAS officer, who figured in a group of officials involved in one of SVO’s high profile investigations in Gulmarg, officials of Law Department were now “under strict instructions” to delay opinion in the matter of the prosecution of the IAS officer till he reaches superannuation on 30-11-2011. “This is clearly a signal to protect two IAS officers at the verge of their retirement in November and December 2011”, said the Law Department’s official.

Sources said that a powerful lobby of IAS officers was secretly digging the past of one Commissioner-Secretary who is retiring at the end of December 2011. Complaints being framed against him include acquisition of a hotel in the name of a relative on Srinagar-Airport Road besides waiving the probation period of the IAS officer’s daughter. It has been pointed out that only to grant undue benefit to the IAS officer’s daughter, probation period of less than a dozen Junior Engineers was reduced from the mandatory two years to one year in Power Development Department few years back.

Officials at GAD contended that probation period for all government employees stood fixed at two years and it would be a “clear case of misuse of official position” if anybody in the government has reduced the same to one year at the behest of any authority. They said that none of the bureaucrats was authorized to take or order such an action which was the exclusive prerogative of the state Cabinet. They insisted that Cabinet had never taken such a decision and the probation period in all departments stood fixed at two years.

As already reported in this newspaper, CVC has lately received a complaint with regard to the “surreptitious change” in the date of birth of an IAS officer of J&K cadre, holding the rank of Commissioner-Secretary, and the same has been forwarded to J&K Chief Secretary as well as Accountant General for verification. If contents of the complaint turn out to be true, the official has already overstayed in service for over four years. The IAS officer at the receiving end has reportedly claimed that he would “soon” establish with documentary evidence that his date of birth was “real and unchanged”. However, his Matriculation certificate is said to be “missing” and efforts are allegedly being made to remove the result notification and gazette of Matriculation examination of a particular year at J&K State Board of School Education.