Dismissed

Y.s. Prasad, Joint Commissioner of Labour v. Commissioner of Labour, State of Andhra Pradesh

Telangana HC4 Mar 2014WP/21528/2006

Case brief

AI extract

What is this about?

The court dismissed a writ petition seeking to correct the applicant's date of birth in his Service Record. Relying on the Tribunal and Supreme Court precedents, the court held that once the date of birth is entered in the Service Register based on school certificates, it becomes final and binding, precluding alteration despite a subsequent civil court decree.

What did the court decide?

The writ petition was dismissed with no order as to costs.

Y.s. Prasad, Joint Commissioner of Labour… — Pension and Retirement Benefits | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.21528 OF 2006

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This writ petition is filed seeking to issue writ of Certiorari calling for the records pertaining to the order, dated 28.7.2006, in O.A.No.6158 of 2004 on the file of the Andhra Pradesh Administrative Tribunal, Hyderabad (for short, “the Tribunal”) and quash the same.

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2. The applicant filed O.S.No.84 of 1988 on the file of the Principal District Munsif, Eluru for declaration of his date of birth as 28.1.1959 instead of 28.1.1958, as entered in his S.S.C. records. Later, he approached respondent No.1 for correction of his date of birth in the Service Record. Respondent No.1 negatived the request of the applicant by quoting Rules 2(5) and 4(2) of the A.P. Public Employment (Recording & Alteration of Date of Birth) Rules, 1984 (for short, “the Rules”) vide Memo No.A1/269/95, dated 24.2.1995. Aggrieved thereby, he preferred an appeal before respondent No.2. Respondent No.2 rejected the appeal on the same grounds, as was done by respondent No.1, vide Memo No.637/Lab IV/A1/2-2003-1, dated 2.6.2004. The applicant states that he was born on 28.1.1959 in St.Anna’s Hospitals, Vijayawada and at the time of admission of the applicant in the school, his date of birth was inadvertently stated as 28.1.1958 instead of 28.1.1959 by his father. The applicant passed the S.S.C. examination with the incorrect date of birth. The same mistake continued till it was noticed by the applicant in October, 1983. When he joined as Assistant Commissioner on 28.1.1988, he informed respondent No.1 vide letter, dated 31.3.1988, with regard to pendency of the aforementioned suit. Respondent No.1 informed the applicant

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that after necessary orders are passed by the Court, the applicant has to approach the Government. The Principal District Munsif Court passed the judgment on 24.1.1990 declaring that the date of birth of the applicant is 29.1.1959, but respondent No.1 negatived the applicant’s request by quoting Rule 2-A, sub-rule (5) of Rule 2 and Rule 4(2) of the Rules. Rule 2-A of the Rules states that the Rules shall have effect not withstanding anything contained in any judgment etc., of a civil Court in regard to the alteration of date of birth in the school records etc. Similarly, sub-rule (5) of Rule 2 of the Rules states that the date of birth as determined on the basis of the school records at the time of entering into service cannot be altered except in the case of bona fide clerical error, under the orders of the Government. As per Circular Memo No.W.89-01/088/II FFR I/89, dated 4.5.1989, the correction of possible mistakes i.e., for recording the date of birth, the employee shall make application only during the period of probation. The applicant prays that Rules 2(5) and 4(2) of the Rules are not intended for the cases like his, since, the litigation was pending at the time of entering into service and whatever date of birth was declared by the Principal District Munsif Court relates to the date of filing suit on 25.1.1988 whereas the applicant joined in the Government service subsequently i.e., on 28.1.1988. To set aside Memo No.A1/269/95, dated 24.2.1995, and Memo No.637/Lab.IV/A1/2-2003-1, dated 2.6.2004, he filed the aforementioned Original Application.

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3. The Tribunal, upon considering the material available on record, dismissed the Original Application. Challenging the same, the present writ petition is filed by the applicant.

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4. The facts are not in dispute. The petitioner was appointed as Assistant Commissioner of Labour after undergoing selection process and joined the duty on 28.1.1988. Thereafter, he filed a representation on 31.3.1988 to respondent No.1 informing that the matter is subjudiced, as he filed a suit for correction of his date of birth. It is not

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in dispute before this Court that the petitioner himself declared his date of birth as 28.1.1958 in the Service Register at the time of entering into the service. Three days prior to joining the duty, he filed the aforementioned civil suit i.e., on 25.1.1988. In pursuance of the representation of the petitioner, dated 31.3.1988, respondent No.1 issued proceedings, dated 19.5.1988, informing the petitioner that as per the instructions of the Government in force in this regard, after necessary orders are passed by the Court, the Commissioner for Government Examinations or appropriate authority has to make necessary correction in S.S.L.C. register which shall have to be disposed of by the Government through the proper channel. Thereafter, a decree was passed in favour of the petitioner on 24.1.1990. Immediately thereafter, he made another representation wherein he was advised to approach the concerned authority for correction of the date of birth in the records and get it published in the official gazette. Thereafter, another representation was made to respondent No.1 on 31.12.1994 for which, proceedings, dated 24.2.1995, were issued informing him that change in his date of birth cannot be considered in the light of Rule 2(5) and 4(2) of the Rules and thereby, rejected his representation. Basing on the above proceedings, respondent No.2 passed the order, dated 2.6.2004, stating that the request of the applicant cannot be considered in the light of Rule 2(5) and 4(2) of the Rules. The Government filed counteraffidavit in the Original Application contending that any change in the service register about the correction of date of birth amounts to change of contractual agreement of service, which cannot be altered unless the law permits.

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5. Learned counsel for the petitioner/applicant contended that since Rule 2-A, which was amended by virtue of G.O.Ms.No.383, Finance and Planning, dated 16.11.1993, which came into force with effect from 21.4.1984, has no application because by the time of inserting Rule 2-

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A, the representation of the petitioner was pending; that there is laxity on the part of the Government in not considering the representation; that the Government has not acted upon with the existing Rules as on the date of the pendency of the representation of the petitioner and therefore, he prays to set aside the impugned order.

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6. On the other hand, learned Government Pleader for Services – I contended that once the date of birth has been determined and entered into the Service Register, it shall be final and it is binding on the Government employees and the Government employees are estopped from disputing the correctness of such date of birth and therefore, he prays to dismiss the writ petition.

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7. The Tribunal, by relying upon the judgment of the Hon’ble Supreme Court in Government of Andhra Pradesh and another vs. M.Hayagreev Sarma reported in (1990)2 SCC 682, held that Rule 2-A and 4(2) of the Rules does not allow any latitude for alteration of date of births, once it is entered in the Service Register of the employees based upon the date of birth in their S.S.L.C. certificates.

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8. Rule 2 (1) of the Rules reads that every Government employee shall, within one month from the date on which he joins duty, makes a declaration as to his date of birth. It is not in dispute before this Court that in pursuance of the said Rule, the petitioner made declaration by producing the school certificate and in pursuance of the school certificate, his date of birth was mentioned as 28.1.1958. Under Subrule (2), on receipt of the declaration made under sub-rule (1), the Head of Office or any other officer who maintains the service records in respect of such Government employee shall, after making such enquiry, as may be deemed fit with regard to the declaration and after taking into consideration such evidence, if any, as may be adduced in respect of the said declaration, make an order within four months from the date on which the Government employee joins service,

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determining the date of his birth. So, after making a declaration, the competent authority is given liberty to make an enquiry with regard to the declaration made by the employee and pass an order within four months determining the date of birth. In view of the fact that the declaration made by the applicant has been accepted, the question of conducting enquiry and passing an order within four months may not arise. If the concerned authority comes to the conclusion that the date of birth, as determined under sub-rule (2) of the Rules is different from the one declared by him under sub-rule (1), he shall give an opportunity to the employee. Sub-rule (3) has no application because it is not a case where the Government employee fails to make any declaration within the time specified within sub-rule (1). Sub-rule (4) of the Rules provides that the date of birth determined under this rule shall be entered in the service records of the employee concerned duly attested by the Head of the office or the officer, who maintains the service records, and the date of birth so entered shall be final and binding and the Government employees shall be estopped from disputing the correctness of such date of birth. Therefore, the above provision came up for consideration before the Supreme Court of India in Government of Andhra Pradesh and another vs. M.Hayagreev Sarma^[1] wherein it is held at para No.7 as under:

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“The object underlying Rule 4 is to avoid repeated applications by a government employee for the correction of his date of birth and with that end in view it provides that a government servant whose date of birth may have been recorded in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules, he will not be entitled for alteration of his date of birth. Rule 4 laid down a salutary principle to prohibit reopening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules. Since the question of alteration of the respondent’s date of birth had been made on the basis of the school certificate and his application for alteration had already been rejected in 1968, he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules. It was not open to the respondent to claim alteration of his date of birth, even on the basis of extracts of the entry contained in births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886 as the question of correction of his date of birth had already been finally decided in 1968.”

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From the above decision, it is clear that once the date of birth has been entered in the Service Register in accordance with the Rules applicable to him, it is not open to the petitioner to claim alteration of his date of birth, even on the basis of the extracts of the entry contained in the births and deaths register maintained under the Births, Deaths and Marriages Registration Act, 1886. So, in this case, it is to be noted that the petitioner’s date of birth has been recorded in his Service Register on the basis of S.S.C. Certificate at the time of his entering into the service. Therefore, that entry had become final and he was not entitled to re-open the correctness of that entry on the basis of decree that was passed by the competent civil Court.

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9. It is not in dispute before this Court that when the application of the petitioner with regard to the alteration of the date of birth is pending, Rule 2-A came into force, which reads as follows:

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“ “Civil Courts” Decree not to be taken into consideration:- In any proceedings before the Government or any Court, Tribunal or other authority for the alteration of date of birth in the service records, the decree of a Civil Court in regard to alteration of the date of birth in the School or the University records or the contents in the Judgment leading to such decree, or the effect of its implementation shall not be taken into consideration in derogation to these rules and it is hereby declared that these rules shall have effect notwithstanding anything contained in any Judgment Decree or Order of a Civil Court in regard to the alteration of date of birth in the School or the University records whether or not the Government is a party to such proceedings.”

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The above proviso was added by G.O.Ms.No.383, Fin. & Plg. Dated 16.11.1993, which came into effect from 21.4.1984. So, when these rules came into effect from 21.4.1984, the petitioner has not joined service. It may be a fact that there is some laxity on the part of the Government in not taking any decision with regard to the correct date of birth. The bona fides of the petitioner also have to be doubted because three days prior to the joining of the service, he filed the aforementioned civil suit and ultimately, obtained the decree on 24.1.1990. He has not made any request at the time of entering in the Service Register. He has not produced any material to show that his

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correct date of birth is 28.1.1959 because he is entitled to give a declaration as to the date of birth within one month. Nothing prevented him to produce any material showing that his correct date of birth is 28.1.1959. But instead of doing so, he gave a declaration basing on the S.S.C. certificate to the effect that his date of birth is 28.1.1959. Rule 2(4) of the Rules completely prohibits the Government employee disputing the correctness of the date of birth.

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10. However, learned counsel for the petitioner placed reliance on G.O.Ms.No.1263, Education Department, dated 6.5.1961. According to it, the Director of School Education is empowered to entertain and effect corrections and alterations in respect of the applications for correction or alteration of the date of birth in completed S.S.C./H.S.C./S.S.L.C./H.S.(M.P)/S.L.C. However, no application for correction of date of birth shall be entertained after a period of three years from the date of completion of the said course. Admittedly, in this case, the applicant has not applied for correction of the date of birth in S.S.C./H.S.C. /S.S.L.C./H.S.(M.P)/S.L.C. within three years of completion of S.S.C. Therefore, G.O.Ms.No.1263, dated 6.5.1961, has no application to the present facts of the case.

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11. Learned counsel for the petitioner placed reliance on a decision of the Hon’ble Supreme Court in High Court of A.P. v. N.Sanyasi Rao^[2] wherein it is held at para No.14 as under:

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“Strangely, in the present case, no determination of the Judicial Officer’s date of birth was made as contemplated and required in Rule 2 of the 1984 Rules. The District Judge, Vishakhapatnam on opening the service register of the Judicial Officer mentioned both the dates namely; March 29, 1953 based on the decree and also July 1, 1949 based on the Secondary School Leaving Certificate. Nothing has been shown to us by the learned counsel for the appellant about the firm date of birth recorded in the service record of the Judicial Officer. As a matter of fact, there has been no determination of the date of birth of the Judicial Officer at all and, therefore, the Division Bench, in the impugned order observed and, in our view rightly, that the judicial officer had not asked for any alteration in the date of birth but his prayer had been for recording correct date of birth in the relevant service record. Curiously, the

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Judicial Officer has placed on record two half yearly lists of the members of the Andhra Pradesh Higher Judicial Service, corrected up to July 1, 2003 and July 1, 2004. The Judicial Officer had already become member of the higher Judicial Service by that time and in both these lists published by the High Court of Andhra Pradesh. The Judicial Officer’s date of birth has been shown as March 29, 1953. In the impugned resolution rejecting the representation of the Judicial Officer, no reasons have been stated. It is a non-speaking order on its face. For about nine years, the High Court on the administrative side, sat over the representation made by the Judicial Officer. Treating the Judicial Officer’s date of birth as July 1, 1949, the High Court on the administrative side issued an order on June 8, 2009 that the Judicial Officer would retire from the service on attaining the age of superannuation of 60 years on June 30, 2009 and, accordingly, the Judicial Officer has been made to retire on that date.”

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The above decision has no application to the present facts of the case because admittedly, no record is produced to show about the date of birth recorded in Service Register, but in the present case, admittedly, in the Service Register, the date of birth was mentioned basing on the S.S.C. Certificate produced by the petitioner.

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12. Learned counsel for the petitioner also relied upon a decision reported in Ex-Major N.C.Singhal v. Director General, Armed Forces Medical Services, New Delhi and anothe r^[3] wherein it is held at para No.7 as under:

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“We think that the appellant’s conditions of service were governed by para 13 of Army instruction No.I/S of 1954 and his previous full pay commissioned service should be taken in the matter of ‘ante-date’ for the purpose of his pay. The condition of service in this regard was not liable to be altered or modified to the prejudice of the appellant by a subsequent administrative (Army) instruction which was given retrospective effect from 26^th October, 1962.”

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No doubt, from the above decisions, the Government has no power to alter or modify the condition of service with retrospective effect, which is prejudiced to the Government Servants, but in this case, Rule 2-A is not under challenge. Therefore, that decision would not come to the rescue of the petitioner.

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13. Therefore, for the aforesaid reasons, we find no infirmity in the order passed by the Tribunal and that order needs no interference by

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this Court. The Writ Petition is devoid of merits and is liable to be dismissed.

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14. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS

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Date: 04.03.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.21528 OF 2006