Disposed

Dr. a. Prabhakara Rao, v. The District Collector

Telangana HC1 Nov 2011WP/21211/2007

Case brief

AI extract

What is this about?

In this writ petition, a lecturer sought correction of his date of birth from 1953 to 1956 for pension entitlement. While the judge noted birth certificates generally prevail over school records and discussed relevant Government Orders, he did not decide the merits of the correction itself. Instead, he directed the Director of Schools to dispose of the petitioner's pending representation within on

What did the court decide?

Directed the Director of Schools, Hyderabad to dispose of the representation dated 24.05.2007 regarding correction of date of birth within one month.

Dr. a. Prabhakara Rao, Vs The District… — Pension and Retirement Benefits | Telangana HC (2011)

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THE HON’BLE SRI JUSTICE G. CHANDRAIAH

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WRIT PETITION No.21211 of 2007

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ORDER:

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This Writ petition is filed for issuance of Writ of Mandamus, declaring the impugned letter dated 19.05.2007 vide X.N.Dis.No.27/C8/2007 refusing to correct the date of birth of the petitioner as illegal and arbitrary, and consequently direct the respondents to correct the date of birth.

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The case of the petitioner, as averred in the affidavit filed in support of the writ petition, is that he is working as Lecturer in the 7^th respondent-college, and his correct date of birth is 04.05.1956. But his parents, due to inadvertence, wrongly mentioned his date of birth as 14.10.1953. It is stated that after completion of his education, he secured employment as Lecturer in the Department of Chemistry in the 7^th respondent-college on 06.10.1980.

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The 7^th respondent-college is a private autonomous college. Subsequent to securing employment, he noticed the error that occurred in his date of birth. Therefore, he made a representation to the 1^st respondent i.e., the District Collector, East Godavari, Kakinada, on 16.06.1986, stating that the marriage of his father was performed on 22.11.1953 and hence, it is beyond doubt and practically impossible for him to be born on 14.10.1953.

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His case is that his father admitted him directly in 2^nd Class and, at the instance of school authorities, his father was constrained to declare his date of birth as 14.10.1953. Except that, there is no willful or deliberate intention in mentioning an incorrect date of birth. Thereafter, the petitioner made a representation to the

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3^rd respondent i.e. District Education Officer (DEO), requesting for alteration of his date of birth and also to forward his application to the

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2^nd respondent i.e. the Director of Schools, A.P., for taking necessary action. The 3^rd respondent-DEO returned his application stating that, as per the provisions of G.O.Ms.No.94 dated 15.03.1994, there is no provision for making alterations to date of birth; but, however, as per G.O.Ms.No.430 of 31.12.1992, the 2^nd respondent-Director of Schools, A.P., has the power to entertain and effect alterations or corrections in date of birth in SSLC/HSC/HSMP/SSC. It is the case of the petitioner that G.O.Ms.No.94 dated 15.03.1994 and its provisions are applicable only to the Government Servants, but in the instant case, the petitioner is working in a private college and hence, the said G.O. has no application in the case of the petitioner. Thereafter, the petitioner filed a detailed representation dated 24.05.2007 before the 2^nd respondentDirector of Schools, reiterating the facts and circumstances and requesting him to correct his date of birth as 04.05.1956 instead of 14.10.1953. The petitioner also enclosed a copy of the extract of the Register of Births. Since the

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2^nd respondent-Director of Schools has not passed any orders on his representation dated 24.05.2007, the petitioner filed the present writ petition.

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The learned counsel for the petitioner submits that the petitioner is working as Lecturer in the 7^th respondent-college and he submitted a representation to the District Collector, East Godavari District, Kakinada on 19.04.1986 and 16.06.1986 for alteration of his date of birth. He also enclosed a copy of the extract of the register of births issued by the Joint Sub-Registrar. The District collector, East Godavari, by his Endorsement vide L.Dis.No.B-2/7128/86 dated 30.04.1986 disposed of the application of the petitioner observing that the petitioner is requesting alteration/correction of date of birth as 04.05.1956 instead of 14.10.1953 and, if that is so, it is far from truth that the petitioner has appeared for SSLC exam at the age of 12 years. The petitioner submitted an application to the 3^rd respondent-DEO

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requesting for correction in date of birth and also to forward his application to the 2^nd respondent-Director of Schools, A.P., Hyderabad. The petitioner has also applied to the 2^nd respondentDirector of Schools, for alteration of date of birth. It is stated that the 3^rd respondent-DEO disposed of the application by order dated 19.05.2007 duly informing that the claim of the petitioner is not feasible as per the instructions contained in G.O.Ms.No.94, Finance & Planning, dated 15.03.1994. It is also stated that as per the provisions of G.O.Ms.No.430, Education, dated 31.12.1992, the powers are delegated to the Director of Schools, A.P., Hyderabad, to entertain and effect corrections or alterations in respect of the applications for correction or alterations of date of birth in SSLC/HSC/HSMP/SSC; but, however, no such application for correction or alteration of date of birth in the said certificates shall be entertained after a period of three years from the date of completion of the said course.

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The 4^th respondent-Regional Joint Director of Collegiate Education filed a counter affidavit denying the claim of the petitioner, inter alia, contending that the petitioner entered into service as lecturer in the 7^th respondent-college against

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grant-in-aid post. As per the SSLC certificate issued by the Headmaster, ZPHS, Tallarevu, his recorded date of birth is 14.10.1953. As per the guidelines in G.O.No.2027, Education, dated 06^th October, 1955, the Head Master of the school has obtained the age declaration from the parents of the petitioner. The parents also confirmed the date of birth of the petitioner as 14.10.1953, and the same was carried on further in his service and is entered in the service register of the 7^th respondent-college at the time of his appointment i.e. 06.10.1980. It is further stated that the Government has issued orders under Circular Memo No.20548/448/FR.I/2004 dated 13.10.2004, wherein it is clearly mentioned that the date of birth as entered at the

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time of entry into service shall be final for the purpose of service and the same shall not be altered except in the case of a bona fide clerical error.

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It is contended that the date of birth of the petitioner was entered into the records as 14.10.1953 as per SSLC certificate produced at the time of appointment, and as the same is not a bona fide clerical error, the petitioner is not entitled for correction of date of birth at this distance of time.

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In the instant case, the petitioner has completed SSLC course in the year 1963 and he approached the District Collector, East Godavari, for correction of date of birth in the year 1986 and the same was rejected by the District Collector on 30.04.1986, and he submitted another representation on 24.05.2007 to the Director of Schools, A.P. Hyderabad, after a lapse of 21 years. Therefore, the case of the petitioner is liable to be rejected for the laches on the part of the petitioner.

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Having regard to the pleas taken by the petitioner as well as the respondents, the point that arises for consideration is that whether the petitioner is entitled for the relief sought for in the writ petition.

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The learned counsel for the petitioner submits that the date of birth of the petitioner was inadvertently entered in the school records as 14.10.1953, as informed by his parents and the same was carried on further in his service. It is further submitted that the marriage of the father of the petitioner took place on 23.11.1953 and, in support of his contention, he filed a receipt stated to have been issued by the owner of the marriage hall, and therefore, it is beyond imagination that the petitioner had taken birth to his parents prior to their marriage. His further contention is that receipt of booking of marriage hall was issued by the owner of marriage hall on 27.05.1986. His further contention is

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that the Registrar of the Births and Deaths is the competent authority to register and issue birth certificates and, therefore, on the application made by the petitioner, the Registrar had issued the birth certificate dated 28.01.1984 showing the date of birth of the petitioner as 04.05.1956 and that the date mentioned in the certificate issued by the Registrar of Births and Deaths prevails over the school records. It is also the contention of the learned counsel for the petitioner that since the petitioner is not a public servant, the G.O.Ms.No.94 dated 15.03.1994 relied upon by the respondents has no application in his case, as the said G.O. and its provisions are applicable only to Government servants, but not to the employees of private college and, the petitioner being an employee of 7^th respondent-college, the said G.O has no application in the petitioner’s case. In support of his contention, the petitioner relied upon the judgment rendered by this Court in

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W.P.No.198 of 2004 in which, reliance was placed in case between INDRASEN JAIN v. RAMESHWAR DAS. This Court, while allowing the said writ petition, held that:

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“In INDRASEN JAIN v. RAMESHWAR DAS, the Supreme Court dealt with a case wherein a retired teacher of a private aided school, who was receiving pension from State funds sought to claim benefits reserved for Government servants. The Court was, therefore, called upon to determine whether such a claim was tenable. The Supreme Court, after considering the matter opined that the teachers in aided posts in a private school who received pension after retirement cannot claim to be Government servants merely for that reason. Therefore, it is held that in the light of the said judgment, the stand of the official respondents that merely because the petitioner drew his salary from grant-in-aid funds, he would qualify as a Government servant so as to make applicable to him the Rules of 1984, does not stand to reason. Once the Rules of 1984 are held to be inapplicable, it is not open to the second respondent, being a party to the suit O.S.No.103 of 1990, to disobey the decree dated 04.04.1994, directing the correction of the petitioner’s date of birth in all relevant records. The relevant records, for this purpose, would include not only education records but also the service record of the petitioner. Therefore, it is held that the request of the 4^th respondent-college for permission to do so therefore

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ought not to have been rejected by the second respondent, who is equally bound by the decree of the competent Civil Court. The writ petition is therefore allowed setting aside the proceedings of the second respondent in Rc.No.967/Admn.III1/2003 dated 18.09.2003 and consequently directing the respondents to treat the petitioner’s date of birth as 20.03.1948 and not 08.01.1946 for all purposes. The respondents shall pay the salary and other benefits due to the petitioner for the service rendered by him upto March, 2006 and shall also take into account such service for the purpose of reckoning his pensionary and retirement benefits. The amount due to the petitioner pursuant to this order shall be remitted within a period of three months from the date of receipt of a copy of this order. In the circumstances of the case, there shall be no order as to costs.”

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An perusal of facts and circumstances of that case and the facts and circumstances of the present case reveal that in that case there was a decree and judgment declaring the date of the birth of the petitioner therein as 20.03.1948 contrary to the date of birth entered in his service i.e. 08.01.1946. In the instant case, there is no such decree.

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The learned counsel for the respondents, placing reliance on the Apex Court judgment in PUNJAB & HARYANA HIGH COURT AT CHANDIGARH v. MEGH RAJ GARG AND ANOTHER^[1] , submit that the writ petition is not maintainable because it is not for the Court to correct the date of birth of the petitioner. The Apex Court, in the said judgment, while disallowing the claim of the Respondent No.1 therein, observed that:

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“In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor

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to asses suitability, an order person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability.”

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“By applying the ratio of the abovenoted judgments, we hold that the suit filed by Respondent 1 for correction of the date of birth recorded in his service book after twelve years of his joining the service was clearly misconceived and the trial court committed a serious error by passing a decree in favour of Respondent 1 and the lower appellate court and the High Court repeated the same error by refusing to set aside the decree passed by the trial court.”

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The petitioner before this court is trying to seek remedy basing on disputed question of fact, stating that there is a record to declare his date of birth as 04.05.1956 as against 14.10.1953. But the 4^th respondent refused to entertain the application on the ground that it is barred by limitation in terms of G.O.Ms.No.94 dated 15.03.1994. Further, the petitioner takes a contradictory view, in the sense that, when the rules framed by the Government have no application to his case, it is not known as to why the petitioner made a representation to the 3^rd respondent-DEO.

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The DEO has rightly refused to forward the application to the 2^nd respondent-Director of Schools on the ground that there is no provision as such, and that the claim of the petitioner is barred by limitation. G.O.Ms.No.94 dated 15.03.1994 contemplates as under:-

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“The date of birth as determined on the basis of the School Records or any proof produced at the time of entering into service and entered in the service record shall be final and no subsequent variation of date of birth in the school records for any reason, shall be relevant for the purpose of service and on that basis the date of birth entered in the service records shall not be altered except in the case of bonafide clerical

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error, under the orders of the Government.”

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“No subsequent variation of the date of birth in the School records shall be relevant for the purpose of service nor shall such variation be a valid ground for ordering an alteration of the date of birth by any Court, Tribunal or other authority.”

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Pursuant to the said G.O., the Government also issued orders in Circular Memo No.20548/448/FR.I/2004 dated 13.10.2004 wherein Rule 2(5) of also reiterates the provisions as contained in G.O.Ms.No.94 dated 15.03.1994.

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Therefore, the plea of the petitioner is unsustainable as far as the power of the 4^th respondent in dealing with the matter of correction of date of birth is concerned. The contention of the learned counsel for the petitioner is that since the petitioner is having the certificate issued by the Registrar of Births and Deaths which prevails over the school records, it is the duty of the authorities to consider the case of the petitioner. The petitioner’s counsel relied upon the judgment rendered by a division bench of this Court in W.P. No.6364 of 2010, wherein it was held that:

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“It is also apparent on the face of the record that the certificate of birth pertaining to the petitioner has been issued by the competent authority under the provisions of section 12/17 of the Registration of Births and Deaths Act 1969 read with Rule 8 of the A.P. Registration of Births and Deaths Rules, 1999. If that being the case, the deaths and births register maintained by the statutory authorities raises a presumption of correctness and such entries are admissible in evidence in terms of section 35 of the Evidence Act, as held by the Apex Court.”

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The petitioner has produced a photocopy of the certificate issued by Registrar of Births and Deaths. It is difficult for this Court to verify the correctness of the said certificate. It is for the concerned authorities to take into consideration when the matter is being considered by them.

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Having regard to the facts and circumstances of the case,

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it appears that the petitioner made a representation dated 24.05.2007 to the 2^nd respondent-Director of Schools, A.P., Hyderabad. The contention of the petitioner is that the

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2^nd respondent-Director of Schools has not passed any orders on his representation. The 3^rd respondent-DEO states that as per the G.O.Ms.No.94 dated 15.03.1994, there is no provision to correct the date of birth except for a bona fide clerical error. However, it is stated that as per the G.O.Ms.No.430 dated 31.12.1992, the

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2^nd respondent-Director of Schools, A.P., Hyderabad is empowered to entertain and effect corrections or alterations in respect of the applications for correction or alterations of date of birth in SSLC/HSC/HSMP/SSC.

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Therefore, without expressing any opinion on the merits of the case, this writ petition is disposed of, directing the 2^nd respondentDirector of Schools, A.P., Hyderabad, to dispose of the representation dated 24.05.2007 filed by the petitioner seeking correction of date of birth, within one month from the date of receipt of a copy of this order.

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Accordingly, the writ petition is disposed of. There shall be no order as to costs.

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___________________________ JUSTICE G. CHANDRAIAH

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01^st November, 2011 KSM

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[1] (2010) 6 Supreme Court Cases 482

Dr. a. Prabhakara Rao, v. The District Collector

Case brief

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Dr. a. Prabhakara Rao, v. The District Collector

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