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
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
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
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”.
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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.
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Chairman, J&K Board Of Secondary Education vs Basharat Ahmad And Ors. on 2 March, 2002
Bench: M Jan
JUDGMENT
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
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 Srinagar
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 Srinagar
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
"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 Srinagar
"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
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.
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Cabinet may attach Dhar to save Govt’s face
Ahmed Ali Fayyaz
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.
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