Md Riaz Sultana vs The State Of Ap
2021 Latest Caselaw 3291 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
               WRIT PETITION No.12857 of 2020
ORDER:

This Writ Petition is filed seeking a Mandamus and

questioning the rejection of the petitioner's representation for

alteration of her date of birth.

This Court has heard Sri B. Chandra Sekhar, learned

counsel and the learned Government Pleader for School

Education.

The petitioner before this Court is seeking the correction

of her date of birth from 01.07.1962 to 15.08.1964. Learned

counsel for the petitioner argues based upon a genuine clerical

error the petitioner wanted to change her date of birth.

According to the petition averments 13 years after joining the

service the petitioner visited the Municipal Corporation

Primary School, Kadapa where she studied and noticed that

her date of birth was wrongly recorded. Only then she saw the

date of birth in the school records she realized the mistake.

Therefore, it is submitted that after a few years (because of

sickness) she made a representation to the Government and

the said representation was rejected relying upon the rules

which prohibits the correction except in case of bona fide

clerical error. Thereafter she filed O.A.No.1053 of 2018, but

the O.A. was also dismissed. Thereafter, pursuant to the

finding of the Administrative Tribunal, the petitioner

approached the School Education Department for correction of

her date of birth, the same was also rejected. Hence, the Writ

Petition is filed for a Mandamus.

Learned counsel for the petitioner took great pains to

explain that the genuine error occurred in recording of the date

of birth and that the petitioner has secured the said certificate

issued by the Head Master on 21.02.2019, which shows that

the correct date of birth is 15.08.1964. Similarly, the study

certificate issued by the Head Master, Municipal Corporation

Primary School also records the date of birth as 15.08.1964.

Therefore, it is submitted that the right from the 1st standard

when the petitioner joined in her education the Date of Birth is

correctly recorded as 15.08.1964. Thereafter, when she joined

in her 7th class it was wrongly recorded as 01.07.1962. 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."

Learned counsel for the petitioner points out that the

petitioner had over a period of time tried to submit

representations and sought for correction. It is his contention

that there is "bona fide clerical error" in making the Date of

birth. Therefore, he prays for a Mandamus.

In reply to this learned Government Pleader for School

Education argues that 13 years after joining the services the

petitioner states she has discovered the wrong date of birth.

Even thereafter she did not take any steps to correct the date

of birth and only approached the Tribunal in 2018. The

Tribunal also noticed that there is no clerical error committed

by the department. Learned Government Pleader also relies

upon G.O.Ms.No.430, dated 13.12.1992 and argues that

within three years from the date of completion of the degree

course, the application for correction of date of birth should be

made. The clerical error, that the petitioner relies upon

according to the learned counsel for the petitioner, is not a

clerical error committed by the department. Relying upon the

case law including the case of Bharat Coking Coal Ltd. &

Ors., v Shyam Kishore Singh1 the learned Government

Pleader argues that even if there is good evidence the Court

should be very cautious in correcting the date of birth. He

argues that the petitioner, who is working as a Government

servant, has created a story only to extend her period of service.

He argues that there are no merits in the Writ Petition.

Civil Appeal No.1009 of 2020

The law on the subject is clearly well settled that the

correction of Date of Birth long after the person enters the

service is not permitted. In a number of cases the Hon'ble

Supreme Court of India has held that the petitioners cannot

seek correction of the Date of Birth long after entering into the

service. Hon'ble Supreme Court of India held in Secretary

and Commissioner, Home Department and Others v R.

Kirubakaran2 that 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 any relief.

The law on the subject with regard to the quality of

evidence which is also very correct. The judgment in Bharat

Cooking Coal Ltd., case (1 supra) which is relied upon by the

learned Government Pleader itself states that even if there is

irrefutable evidence the Court should be very cautious in

issuing directions.

If the case on hand is examined it is clear that the

petitioner has not filed any documents, which are extracted

from or are certified copies from a statutory register. The

documents filed are study certificates. It is not clear who has

entered the date of birth and under what circumstances the

entries are made in these certificates. Evidentiary value of

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

these documents, in the opinion of this Court, is highly

suspected. This Court has already held in Vaddadi

Ravanamma v State of Andhra Pradesh and another 3

(W.P.No.10426 of 2021) that the correction of Date of Birth in

similar circumstances is not possible.

Even with regard to the clerical error, which is relied

upon by the learned counsel for the petitioner, it is clear from

a reading of the rule that the date of birth which can be

corrected on the basis of bona fide clerical error is the date of

birth as entered into the service register. Therefore, there

should be clear and categorical proof that at this stage that a

genuine bona fide clerical error had occurred. As to what is

the bona fide clerical error is already specified in the judgment

referred to above. It is an error which is ex facie visible to the

naked eye and does not require a process of explanation. But

in the case on hand on the basis of study certificates which are

issued by the schools, the petitioner wants to change her date

of birth from 01.07.1962 to 15.08.1964. By this she will be

gaining clear two years in service. The effect of this order on

her colleagues is also not explained. This Court is of the

opinion that in such cases as the evidentiary value of these

documents is a paramount importance, the Writ Court is not a

Court for adjudication of such rights. In Secretary and

Commissioner, Home Department and Others v R.

2021 SCC Online AP 1798 = (2021) 4 ALD 646

Kirubakaran4 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 tests

laid down by the Hon'ble Supreme Court of India in various

judgments. The original entries are also not explained and how

the "error" crept into the school records is also not explained.

In this Court's opinion the documents relied on by the

petitioner do not constitute evidence of "unimpeachable value".

The law on the subject is also against the petitioner. 13

years after joining the service and after working as an officer in

the Government of Andhra Pradesh the current writ petition is

filed.

This Court is of the opinion that there are no bona fides

in this said Writ Petition. The documents filed do not inspire

confidence. They cannot be treated "irrefutable proof" nor can

be said to be proved as required under law. The delay and

laches in filing of the case are also clear. 13 years after joining

services she states that she discovered the error. Even

thereafter steps were not taken in time. This is also not a

reasonable delay.

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

Therefore, for all the above reasons the Writ Petition is

dismissed. There shall be no order as to costs.

Consequently, the Miscellaneous Applications, if any,

pending shall also stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:01.09.2021.

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