Andhra Pradesh High Court - Amravati

Smt. Vaddadi Ravanamma, vs The State Of Andhra Pradesh, on 7 July, 2021

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          *HON'BLE SRI JUSTICE D.V.S.S. SOMAYAJULU

               + WRIT PETITION No.10426 of 2021


                         % 7th July, 2021

#    Smt. Vaddadi Ravanamma

                                                          ... Petitioner

AND

$ The State of A.P. rep. by its Principal
   Secretary,    Medical   and      Health
   Department,       A.P.      Secretariat,
   Velagapudi,     Amaravathi,     Guntur
   District and another.

                                                       ... Respondents.



! Counsel for the Petitioner    : Sri A. Ashok Kumar


^ Counsel for the respondents : Government Pleader for Services-III




< Gist:




> Head Note:



? Cases referred:

1) AIR 1993 SC 1367
2) 1994 Supp (1) SCC 155 = AIR 1993 SC 2647
3) (2006) 6 SCC 537
4) AIR 2005 SC 4192
5) AIR 1988 SC 1796 = 1988 Supp SCC 604
6) (1988) 4 SCC 534
7) (1995) 4 SCC 172
8) AIR 1966 SC 1047
9) AIR 1981 SC 736
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      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
              WRIT PETITION No.10426 of 2021
ORDER:

This Writ Petition is filed for the following relief:

"....to issue a Writ, order or direction more in the nature of Writ of Certiorari calling records pertaining to the service register and declare the action of the respondents in not considering the representation dated 13.11.2019 by rejecting vide its office order dated 19.01.2021 is illegal, arbitrary, violation of Article 14, 16 & 21 of the Constitution of India and against the natural principles of justice and consequently direct the respondents to make a correct entry of my date of birth as 10.04.1970 in my service record and issue appropriate proceedings and to pass such other orders as this Hon'ble High Court may deem fit and proper in the circumstances of the case."

At the stage of admission, a learned single Judge

directed that the matter should be listed on 14.06.2021 in

view of the urgency being expressed by the learned counsel

for the petitioner stating that the petitioner was retiring on

30.06.2021. The learned Single judge also expressed his

apprehensions about the maintainability of the writ etc. The

matter was listed on 16.06.2021 and this Court also

expressed apprehension that the maintainability of the Writ

Petition for correction of the Date of Birth etc. It was noted

that the evidentiary value of the document filed will have to

be brought to the notice of this Court. Learned counsel

agreed to argue the matter on its merits. On 23.06.2021 he

filed an additional affidavit with the case law and applicable

rules and regulations. He also reiterated about the urgency,

made repeated requests and ultimately argued the matter on

its own merits. The additional affidavit was also received and

the arguments were heard.

Learned counsel for the petitioner argues that the Writ

Petition is maintainable. According to him there is no

absolute bar against the correction of the date of birth

included in the Service Register. Relying upon the A.P. Public

Employment (Recording and Alteration of Date of Birth) Rules

1984, learned counsel argues that as per Rule 2 (5) the Date

of Birth can be corrected. Rule 2 (5) is as follows:

"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 bona fide clerical error under the orders of the Government."

Relying upon the documents filed, learned counsel

argues that he has filed a record sheet of the petitioner from

her school, which shows that the petitioner's date of birth is

10.04.1970. Thereafter he relies upon the Date of Birth as

disclosed in the Aadhaar Card and other documents, wherein

mentioned as 10.04.1970. He relies upon the A.P.

Government Insurance Policy issued to the petitioner's

husband to argue that as the petitioner's husband was born

on 01.07.1967 it is improbable that the petitioner was born in

1961. This is pleaded specifically in the Writ Petition also.

Learned counsel also argues that the respondents did not

consider these facts when they passed an order dated

19.01.2021 rejecting the representation of the petitioner

dated 13.11.2019 and learned counsel submits that the rule

referred to above permits the correction of the Date of Birth if

there is a genuine clerical error. He argues that in this case

because of the error committed in the recording of the Date of

Birth, which according to him is a bona fide clerical error,

this Court has the necessary authority and the power to issue

the direction as prayed for. Relying upon the case law the

submission is made that Courts have entertained writ

petitions against the respondents for the relief of correction of

Date of Birth. Therefore, it is submitted that the petitioner

has made out a case for grant of an order.

Learned counsel submits that as the petitioner is

retiring on the date of hearing it is imperative that immediate

orders should be passed, as otherwise the petitioner would

suffer serious loss.

COURT:

After hearing the learned counsel this Court notices

that the petitioner joined in service in the year 2001. The 1st

representation was made by the petitioner for correction of

the date of birth on 13.11.2019 when according to the

originally recorded date of birth (01.07.1961) she was to retire

on 30.06.2021. Therefore, at the fag end of her service she

made a request to change the Date of Birth by submitting a

representation, which was rejected by the respondents citing

that the representation is made 19 years after the entry into

the service. The judgment of the Hon'ble Supreme Court of

India in Civil Appeal No.502 of 1993 was also quoted in the

said order mentioning that such a request should be made

within five years of joining the service. In addition, the

G.O.Ms.No.94, dated 15.03.1994 was also quoted while

rejecting the request.

Learned counsel for the petitioner himself has filed

judgment of the Hon'ble Supreme Court of India in Civil

Appeal No.502 of 1993, which is the case of the Union of

India Vs Harnam Singh1. The Hon'ble Supreme Court of

India held in this decision that (a) Civil servant can claim the

correction of the date of birth as per the rules and within the

time stipulated in the rules. If no such time is stipulated the

request should be made within the reasonable time. In

paragraph 14 it was clearly held as follows:

"Inordinate and unexplained delay or latches on the part of the respondent to seek the necessary correction would in any case have justified the refusal of relief to him. Even if the respondent had sought correction of the date of birth within five years after

AIR 1993 SC 1367

1979, the earlier delay would not have non-suited him but he did not seek correction of the date of birth during the period of five years after the incorporation of note 5 to FR 56 in 1979 either. His inaction or all this period of about thirty-five years from the date of joining service, therefore, precludes him from showing that the entry of his date of birth in service record was not correct."

Apart from this Hon'ble Supreme Court of India held in

Secretary and Commissioner, Home Department and

Others v R. Kirubakaran2that the application should be

made within the stipulated time and if there is no time limit

prescribed "within a reasonable time." The Hon'ble Supreme

Court of India also cautioned that in such cases the Court

should be very very guarded in granting interim relief (this is

the same opinion that was expressed by this Court in its

earlier orders and that is why the Writ Petition itself is taken

up for hearing). Similar statements of law are also found in

State of Gujarat and Others v Vali Mohd. Dosabhai

Sindhi3.

Therefore, from a conspectus of case law as referred to

above the application can only be preferred within the time

stipulated. However, if there is no time stipulation it should

be made within a reasonable period. The State relied upon

the rule which stated that the application should be made

within five years of the petitioner joining service. This five

1994 Supp (1) SCC 155 = AIR 1993 SC 2647

(2006) 6 SCC 537

year period expired in 2006 and the request for correction of

Date of Birth is only made in 2019. Therefore, on this ground

itself the petitioner is not entitled to any relief. The Hon'ble

Supreme Court of India has held in more than once case that

an application for correction of date of birth at the fag end of

service should not be permitted.

But in view of the fact that a number of matters of this

nature are coming up and as the petitioner advanced

impassioned arguments, this Court is taking up the other

issues also.

PLEADING AND QUALITY OF EVIDENCE FOR DATE OF BIRTH ISSUES:

The case law cited by the learned counsel for the

petitioner includes State of U.P. v Shiv Narain

Upadhyaya4 wherein it was held as follows in paragraph 9 as

follows:

"As such, unless a clear case on the basis of clinching materials which can be held to be conclusive in nature, is made out by the respondent and that too within a reasonable time as provided in the rules governing the service, the Court or the Tribunal should not issue a direction or make a declaration on the basis of materials which make such claim only plausible."

If the present case is viewed against the backdrop of this

judgment of the Hon'ble Supreme Court of India, the

AIR 2005 SC 4192

petitioner who should produce good irrefutable proof or

clinching material which can be held to be conclusive in

nature, (which makes out a case in favour of the petitioner),

only filed an extract of what is termed as a record sheet

bearing No.4450, dated 13.06.1975. According to this

document the date of birth of the petitioner is '10.04.1970'.

As this Court has pointed out to the learned counsel for the

petitioner, evidentiary value of this document is a matter of

serious concern. This is not an extract or a certified copy from

any statutory register to enable this Court to draw any

presumption.

In Birad Mal Singhvi v Anand Purohit5it was clearly

held as follows:

14. .......... The date of birth mentioned in the scholar's' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined. The entry contained in the admission form or in the scholar's register must be shown to be made on the basis of information given by the parents or a person having special knowledge about the date of birth of the person concerned. If the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since

AIR 1988 SC 1796 = 1988 Supp SCC 604

the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents have no probative value and the dates of birth as mentioned therein could not be accepted".

In R. Kirubakaran case (2 supra) mentioned above the

Hon'ble Supreme Court of India also held that there should

be "unimpeachable evidence". In the absence of any proof as

to how the entry was made and by whom the entry was made

it cannot be presumed that the petitioner has filed documents

which meet the rigorous test laid down by the Hon'ble

Supreme Court of India in the above mentioned judgments.

In this Court's opinion the said document does not constitute

evidence of "unimpeachable value".

Normally, in a writ petition evidence is not taken. In a

civil suit there should be a pleading and evidence to support

the case. In Bharat Singh v State of Haryana6in

paragraph 13 it was held as follows:

"13. As has been already noticed, although the point as to profiteering by the State was pleaded in the writ

(1988) 4 SCC 534

petitions before the High Court as an abstract point of law, there was no reference to any material in support thereof nor was the point argued at the hearing of the writ petitions. Before us also, no particulars and no facts have been given in the special leave petitions or in the writ petitions or in any affidavit, but the point has been sought to be substantiated at the time of hearing by referring to certain facts stated in the said application by HSIDC. In our opinion, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter-affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter- affidavit, as the case may be, the court will not entertain the point. In this context, it will not be out of place to point out that in this regard there is a distinction between a pleading under the Code of Civil Procedure and a writ petition or a counter-affidavit. While in a pleading, that is, a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter- affidavit not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it. So, the point that has been raised before us by the appellants is not entertainable. But, in spite of that, we have entertained it to show that it is devoid of any merit."

In the opinion of this Court, this document filed in this

case does not meet the tests laid down by the Hon'ble

Supreme Court of India. An entry in a document, which is

neither properly pleaded nor explained, cannot be a ground to

grant a relief. As mentioned earlier it is not a certified copy or

an extract from a statutory register. The lack of any

explanation as to who made the entry, how and in what

circumstances the entry was made in the Writ affidavit also

clearly disentitles the petitioner from relying on the said

document to hold that she was born on 10.04.1970. These

are matters which should be very clearly set out with clarity

in the writ affidavit. The documents filed should also be of

"unimpeachable quality". If the respondent objects to the

same the document will have to be proved as per law.

The petitioner with his additional affidavit did not also

file any clinching material.It is found in this case that based

on a sole entry in a document (which is neither explained nor

described in the writ affidavit) the entire relief is claimed. The

other documents like the Aadhaar card etc., are also not of

help to the petitioner's case. The basis on which the Aadhaar

card is issued is not explained and pleaded. These cards are

normally issued on the basis of self-declarations. Even

otherwise the data /document to support the date of birth in

the Aadhaar card are not mentioned or filed.

The other ground urged is that the petitioner's

husband was born on 01.07.1967 and therefore it is

improbable that the petitioner should naturally be born

earlier than that. This by itself is not a ground to grant a

relief as a person can marry someone older to her.

In conclusion this Court holds that ordinarily a writ is

not the proper remedy to correct the date of birth entered in a

service record. The HonourableSupreme Court of India has

held in a number of cases that ordinarily the Writ Court

should not exercise its discretionary jurisdiction to correct

date of birth. The following passage from Burn Standard

Co. Ltd. & Ors. v Dinabandhu Majumdar & Another7,

makes this clear:

".....Therefore, we have not hesitation, in holding, that ordinarily High Courts should not, in exercise of their discretionary writ jurisdiction, entertain a writ application / petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement."

In some extraordinary cases (which are the exception

rather than the rule) a Writ Petition can be filed. In such

cases-

a) adequate and proper details /averments must be

present in a Writ affidavit and the documents also should be

of unimpeachable quality which will enable the court to

correct the date of birth;

and

(1995) 4 SCC 172

(b) the petitioner should clearly plead that due to a

genuine clerical or human error which is patently visible the

mistake has occurred.

If there is a serious objection to the documents etc.,

from the respondent / opposite party they have to be proved

as required under law. The parties will have to be relegated to

a civil court in such cases. A Writ is not a proper remedy in

such cases particularly where disputed questions arise for

determination.

CLERICAL ERROR:-

The last submission of the learned counsel is about

Rule 2 (5) and a genuine clerical error. The rule is

reproduced earlier.

In the opinion of this Court an error of this nature is

not a clerical error in the opinion of this Court. If "1-7-1976"

is noted instead of "1-7-1967" it can be said to be a clerical

error. This is a case - if it is true- of an erroneous date of

birth being noted. Even if a liberal interpretation is given to

the rule - it permits the correction of a genuine clerical error

upon a Government Order. This rule in the opinion of this

Court is only applicable if the party convinces the

Government that a genuine clerical error had occurred and

the Government then passes an order for correction of the

date of birth. After this stage is crossed if the authorities do

not act further to correct the date of birth, a mandamus can

be claimed. This situation has not arisen in the present case.

The petitioner did not establish before the Government that a

genuine "clerical" error had crept in and that the date of birth

is to be corrected "under the orders of the government" [Rule

2 (5)]. In the affidavit filed in support of the writ also there

are no averments about the clerical mistake. It is not pleaded

as to how the mistake occurred, when it occurred or who was

responsible for the same. In the absence of such details no

relief can be claimed by the petitioner. The Hon'ble Supreme

Court of India held as follows regarding "clerical error" in the

following two judgments:

Master Construction Co.(P) Ltd., v State of Orissa8 "....An arithmetical mistake is a mistake of calculation; a clerical mistake is a mistake in writing or typing. An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification namely, such an error shall be apparent on the face of the record, that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of fact or law."

Smt. Sooraj Devi v Pyarelal and Anr9 -

"A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court. It represents that which the court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a

AIR 1966 SC 1047

AIR 1981 SC 736

mistake of calculation, and a clerical error is a mistake in writing or typing."

Thus, if the error is visible from the face of the record and

does not need any explanation for its correction it can be

called a clerical error. This case does not fit into this category

as the petitioner prays that 01.07.1961 should be corrected

as 10.04.1970.

EFFECT OF THE ORDER:

The effect of an order of this nature would not only

affect the petitioner but others working in the same

organization/department particularly those below her. The

petitioner seeks to correct her date of birth/year of birth from

1961 to 1970 and wants to get 9 years of service on the basis

of this correction. The Courts should be extremely guarded

in granting such prayers and should carefully sift through the

evidence with a fine tooth comb. Further in such cases the

petitioner should disclose that by virtue of the allegedly wrong

date of birth recorded she did not secure any benefit or that

she became eligible for appointment with the initial age / date

of birth as mentioned. If she secured any advantage and got

employment with the said wrong date she cannot reprobate at

a later stage. In all such cases Courts should be very

reluctant to grant any relief.

CONCLUSION:-

Therefore, this Court holds -

(a) That the petitioner did not approach the Court within

time - the five-year period stipulatedThe

representation is made in 2019, which is almost 18 /

19 years after joining in service and just before the

retirement

(b) The documents filed, in the opinion of this Court, do

not constitute irrefutable proof nor are they

documents having unimpeachable character.

(c) Lastly, the rule on which the petitioner mentioned

talks of correction in date of birth on the basis of a

bona fide clerical error and under the orders of the

Government. There is no such "clerical error" in this

case.