Andhra Pradesh High Court - Amravati
Ch V Subbarao vs State Of Andhra Pradesh, on 15 March, 2023
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION Nos.10177 and 13047 of 2020
Ch.V.Subba Rao, S/o Ramanaiah, aged about
58 years, Occ: Employee, S3, Lalitesh Towers,
Sri Ramachandra Nagar, Vijayawada.
... Petitioner.
Versus
State of Andhra Pradesh, represented by its
Principal Secretary, Revenue (Lands)
Department, Velagapudi, Amaravati, Guntur
and another.
... Respondents.
Counsel for the petitioner : Sri T.V.P.Sai Vihari
Counsel for respondents : GP for Services-I
COMMON ORDER
Since the reliefs claimed in both the writ petitions are
inter-linked and parties are one and the same, these writ
petitions are dealt with jointly and disposed of by a common
order.
2. Petitioner filed W.P.No.10177 of 2020 seeking the
following relief:
"... to issue a Writ or order or direction more particularly
one in the nature of Writ of Mandamus declaring the
inaction and failure of the respondents in not conducting
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statutory enquiry relating to the petitioner's date of birth
in the service register as per the provisions of the
Registration of Births and Deaths Act, 1969 r/w Rule 2
(3) of Andhra Pradesh Public Employment (Recording &
Alteration of Date of Birth) Rules, 1984 as illegal,
arbitrary, unconstitutional and violative of Articles 14, 16
& 21 of the Constitution of India, and consequently
command the respondents to effect necessary changes on
the Service Register as to the petitioner's date of birth i.e.
to alter the petitioner's date of birth in the service
register from 01.07.1960 to 10.05.1962 and direct the
respondents to continue the writ petitioner in service till
he attains the age of 60 years as per corrected date of
birth with all attendant service benefits in the interest of
justice..."
3. W.P.No.13047 of 2020 is filed seeking the following
relief:
"... to issue a Writ or order or direction more particularly
one in the nature of Writ of Mandamus declaring
G.O.Rt.No.546 dated 25.06.2020 issued by the 1st
respondent as illegal, arbitrary, unconstitutional and
violative of Articles 14, 16 & 21 of the Constitution of
India, and consequently set aside the G.O.Rt.No.546
dated 25.06.2020, issued by the 1st respondent and
direct the respondents to reinstate the petitioner with all
attendant service benefits and also direct the
respondents to provide all consequential benefits with
retrospective effect in the interest of justice ..."
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4. (a) Facts
, in brief, are that petitioner joined as Assistant
Director, Survey and Land Records on 01.10.1990. At the
time of joining into service, the department collected all the
certificates relating to education qualification. Petitioner, later
noticed that his date of birth was not entered in the service
register and he submitted a written representation to the 2nd
respondent on 10.06.1996 to record his date of birth in
accordance with the Andhra Pradesh Public Employment
(Recording & Alteration of Date of Birth) Rules, 1984 (for
short "the Rules"). Petitioner also submitted extract of birth
register issued by the concerned authority. 2nd respondent
vide Memo No.E1/4847/96 dated 28.08.1997 intimated that
his date of birth as 01.07.1960, basing on secondary school
certificate of the petitioner. 2nd Respondent neither conducted
enquiry nor afforded an opportunity to the petitioner to
submit his explanation under Rule 2 (3) of the Rules.
(b) Aggrieved by the proceedings of 2nd respondent
recording his date of birth as 01.07.1960, petitioner made a
representation to the 1st respondent, who in turn issued
Memo No.91795/SS.2/97-4 dated 22.06.1998 directing the
2nd respondent to conduct a fresh enquiry in accordance with
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the procedure laid down under Rule 2 (3) of the Rules. In
spite of petitioner's approaching 2nd respondent to conduct
enquiry relating to date of birth, no enquiry was conducted.
(c) The date of birth certificate issued by the Registrar
of Birth & Deaths does not contain the name of petitioner and
further the in secondary school certificate the date of birth
was mentioned as 01.07.1960, petitioner filed suit O.S.No.82
of 2002 on the file of Junior Civil Judge, Podili. Suit was
decreed on 27.09.2004. Petitioner submitted written
representation dated 11.06.2018 to conduct enquiry
regarding his date of birth and to change the date of birth in
service register. As per the date of birth mentioned in the
service register, petitioner would be superannuated by
30.06.2020.
(d) Initially, petitioner filed W.P.No.10177 of 2020
seeking the relief referred supra and the matter was listed on
22.06.2020 and it was adjourned at the request of learned
Government Pleader. Later, consequent upon outbreak of
Covid-19, the matter was not listed. Meantime, 1st
respondent issued G.O.Rt.No.546 dated 25.06.2020
indicating the date of retirement of petitioner on attaining the
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age of superannuation of 60 years as 30.06.2020. Impugning
the same, W.P.No.13047 of 2020 is filed.
5. (a) 2nd Respondent filed counter affidavit and contended
interalia that as per the service register, date of birth of
petitioner is 01.07.1960. Petitioner herein submitted a
representation before the 2nd respondent on 10.06.1996.
Basing on which, 2nd respondent issued a Memo to petitioner
vide D.Dis.No.E1/4847/1996 dated 28.08.1997 informing
that his date of birth is 01.07.1960, entered in the service
register in terms of G.O.Ms.No.165 Finance and Planning
(Fin.Wing FR-I) Department, dated 21.04.1984. Basing on the
representation made by the petitioner, 1st respondent issued
a Memo No.91795/SS.2/97-4, Revenue (SS) Department
dated 22.06.1998 directing the 2nd respondent to take
necessary action, however, the memo issued by the 2nd
respondent dated 28.08.1997 was not set aside.
(b) 1st Respondent vide Memo dated 24.07.2018 and
21.08.2018 while enclosing the representation of petitioner,
requested the 2nd respondent to examine the issue and
furnish a detailed report. Thus, a detailed report was
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submitted by 2nd respondent duly informing the facts. 10th
class memo of petitioner was issued on 12.06.1977.
Petitioner enclosed copy of birth certificate extract, in which
date of birth is shown as 10.05.1962. The birth registration
extract was issued on 20.06.1980 i.e. after getting 10th class
memo. Petitioner himself confirmed that his date of birth has
been recorded in service register as 01.07.1960. The date of
birth entered in service register of petitioner, based on school
certificate is final and it cannot be altered. As per the rules
referred to supra, the date of birth entered in service register
on the basis of school record or on the evidence produced at
the time of entry into service shall be final and subsequent
Civil Court decree cannot be taken into consideration for
altering the date of birth of the employee. The 1st respondent
issued memo dated 29.06.2020 rejecting the claim of the
petitioner and the same was communicated to the petitioner
on 12.08.2020 and eventually prayed the Court to dismiss
the writ petitions.
6. Heard Sri T.V.P.Sai Vihari, learned counsel for
petitioner and learned Government Pleader for Services-I for
respondents.
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7. Undisputed fact, as per the material available on
record, are that petitioner joined in service on 01.10.1990
and he submitted all certificates relating to education
qualification at the time of joining into service.
8. It is apt to extract Rule 2 of the Andhra Pradesh Public
Employment (Recording & Alteration of Date of Birth) Rules,
1984 as follows:
"2. Recording of date of birth : - (1) Every Government
employee shall, within one month from the date on which
he joins duty, make a declaration as to his date of birth.
(2) On receipt of the declaration made under sub-rule (1),
the Head of Office or any other officer who maintains the
service record 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 determining the date of birth:
Provided that in cases where the date of birth as
determined under this sub-rule is different from the one
declared by the Government employee concerned under
sub-rule (1), he shall be given an opportunity of making
a representation, before a final order is made.
(3) Where a Government employee fails to make a
declaration within the time specified in sub-rule (1), the
Head of Office or the officer who maintains the service
records shall, after taking into consideration such
evidence as may be available and after giving an
opportunity of making a representation to the
Government employee concerned, determine the date of
birth of the employee within six months from the date on
which the Government employee joins service.
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(4) 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 stopped from disputing the
correctness of such date of birth.
(5) 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 error,
under the orders of the Government.
2A. "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."
9. A perusal of the rule extracted supra, an employee who
joins in service shall within one month make declaration as
to his date of birth. Upon such declaration, the concerned,
after enquiry, make an order within four months from date on
which the Government employee joins into service
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determining the date of birth. If the date of birth as
determined under sub-rule (2) is different from the one
declared by the Government employee concerned under sub-
rule (1), he shall be given an opportunity of making a
representation, before a final order is made. If the employee
fails to make declaration within the time stipulated, the Head
of office or the concerned, after considering such evidence as
may be available and after giving an opportunity of making a
representation, determine the date of birth within six months.
The date of birth determined basing on the school records or
any proof produced at the time of entering into service shall
be final and no subsequent variation of date of birth in the
school records, 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 error, under the orders of the Government.
10. In the case on hand, petitioner joined service on
01.10.1990 and his date of birth was mentioned, in service
records basing on school certificate, as 01.07.1960.
Petitioner made a petition before the 2nd respondent on
10.06.1996. 2nd Respondent, in turn, issued Memo
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No.E1/4847/1996 dated 28.08.1997 that his date of birth
was mentioned as 01.07.1960 as per secondary school
certificate. Aggrieved by the said memo, petitioner filed appeal
before the 1st respondent. The 1st respondent by Memo dated
22.06.1998 observed that an opportunity should be given to
the petitioner under Rule 2 (3) of the Rules.
11. After the order was passed by 1st respondent on
22.06.1998, petitioner made a written representation dated
11.06.2018 to the 1st respondent to conduct enquiry and for
effecting necessary changes in the service register qua date of
birth. Nothing is forthcoming from the affidavit as to why the
petitioner did not make such representation before the
concerned authority immediately after the order was passed
by the 1st respondent on 22.06.1998. Petitioner having kept
quiet for nearly two decades, made a written representation
dated 11.06.2018, when his age of superannuation is
nearing.
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12. In N.Naga Raju vs. The High Court of Andhra
Pradesh1, the Division Bench of the composite High Court
observed as follows:
"Once the date of birth is recorded on the basis of the
school records or any proof produced at the time of
entering into service, shall be final and no variation of
date of birth in the school records for any reason shall be
relevant for the purpose of service. Therefore, what Sub-
rule (5) of Rule 2 of the Rules contemplates is that
variation of date of birth in the school records, for any
reason, cannot be made except in case of bona fide
clerical error under the orders of the Government."
13. In Karnataka Rural Infrastructure Development
Limited and Ors. Vs. T.P. Nataraja and Ors.2, the Hon'ble
Apex Court held thus:
"10. Considering the aforesaid decisions of this Court
the law on change of date of birth can be summarized as
under:
(i) application for change of date of birth can only be
as per the relevant provisions/Regulations applicable;
(ii) even if there is cogent evidence, the same cannot be
claimed as a matter of right;
(iii) application can be rejected on the ground of delay
and latches also more particularly when it is made at the
fag end of service and/or when the employee is about to
retire on attaining the age of superannuation."
2007 (1) ALT 727
2021 Law Suit (SC) 541 = MANU/SC/0680/2021
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14. In Sundilla Lingaiah Vs. The Singareni Collieries
Company Ltd. and Ors.3, the learned single Judge of the
composite High Court held thus:
"14. Before parting with the judgment, this Court deems
it apposite to observe that the attitude and tendency of
approaching the Courts for correction of Date of Birth
and for further continuation in service, at the fag end of
the service is on higher side in recent times when
compared to past. In some deserving cases, such people
are emerging successfully also. But there must be proper
check and thorough verification of the claims, touching
the alteration of date of birth, otherwise the same would
be a burden on the State exchequer and the belated
claims shall not be entertained. While considering the
claims for correction of Dates of Birth, it is also
incumbent and obligatory on the part of the authorities
to simultaneously examine the corresponding age of the
claimants at the time of passing the examinations such
as Seventh Class, Tenth Class etc., also and their
relevant eligibilities pertaining to the age, unless the
same being exempted by competent authority, as on the
date of such examinations. If any claimants are
permitted for such examinations without the prescribed
age, in the absence of such exemption of age granted by
the competent authority, the same shall be a relevant
criteria and factor for examining the claims for alteration
of Date of Birth."
15. In State of Madhya Pradesh and others Vs. Premlal
Shrivas4, the Hon'ble Apex Court held thus:
"Change of date of birth in service record at fag end of
career can be permitted only in exceptional cases, on
2016 (4) ALT 407
(2011) 9 SCC 664
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irrefutable proof. The Court or Tribunal should be loath to
allow correction of date of birth in service record of
incumbent at fag end of his career unless it is satisfied by
irrefutable proof of date of birth and that real injustice
has caused to incumbent and claim is in accordance with
procedure prescribed. Circumspection, caution and
carefulness must be observed. The Government Servant
cannot claim as a matter of right the correction of date of
birth in service record after lapse of time fixed by
employer, even if he has good evidence to establish
erroneous entry - On facts held, High Court committed
manifest error in allowing change of date of birth after
lapse of over two decades notwithstanding that no period
for filing such application was prescribed."
16. In State of Tamil Nadu Vs. T.V.Venugopalan5, the
Hon'ble Apex Court held thus:
"That when date of birth recorded after entry into the
service and countersigned by the Government Servant, it
would not be permitted to be challenged by the
Government Servant at the fag end of the service."
17. In P.S. Bheemeswara Rao Vs. Regional Joint
Director of Intermediate Education and Ors.6, the learned
single Judge of the composite High Court held thus:
11. A reading of the rules extracted above, reveals that
the date of birth entered in the service records shall be
final and any variation or alteration of the date of birth in
the school record does not constitute any basis for
corresponding change of birth in the service records.
(1994) 6 SCC 302
MANU/AP/1193/2003
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Even, the exception provided in Rule 2(5), is to be treated
as the one relating to clerical error while making the
entries in the Government records. That view becomes
fortified with the language employed in Rule 4(2). There is
a definite object behind these rules. Instances of
employees coming forward with the requests for alteration
of dates of birth at the fag end of service are in the
increase. It should not be forgotten that age of a person,
while entering the service or when being selected will,
certainly constitute an important factor, particularly
when the selection is on the basis of merit. There may be
instances where, if, the date of birth as altered were to
have been taken into account at the time of appointment,
the candidate would not have been eligible at all. In the
decision reported in State of Tamil Nadu v. T.V.
Venugopalan, MANU/SC/0855/1994: (1994)6SCC302 the
Supreme Court held that it is impermissible for an
employee to seek correction of date of birth in the service
records at the fag end of service. The judgment of the
administrative tribunal permitting such correction was
set aside.
12. At the time of appointment, the candidates are
required to give a declaration as to the correctness of
various particulars furnished by them, including the one
relating to date of birth. One can understand the
situation, where a person considered for employment
against an unskilled post is an illiterate or semiliterate
person and his date of birth is entered not on the basis of
record, but on guesswork without his knowledge. In such
cases, there may be semblance of justification for such
employees to come forward with a plea, if supported by
records. The petitioner is a postgraduate. He was aware of
his date of birth at least on the date when he was leaving
his school. If there existed any basis for correction of his
date of birth, he ought to have taken steps immediately.
The date of birth cannot be permitted to gain importance
only when a person is employed or when he is about to
retire. In the case referred to above, the Supreme Court
observed as under:
"This Court has, repeatedly, been holding that the
inordinate delay in making the application is itself a
ground for rejecting the correction of date of birth. The
government servant having declared his date of birth
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as entered in the service register to be correct, would
not be permitted at the fag end of his service career to
raise a dispute as regards the correctness of the
entries in the service register. It is, common
phenomenon that just before superannuating, an
application would be made to the Tribunal or Court
just to gain time to continue in service and the
Tribunal or Courts are unfortunately unduly liberal in
entertaining and allowing the government employees
or public employees to remain in office, which is
adding an impetus to resort to the fabrication of the
record and place reliance thereon and seek the
authority to correct it."
18. As referred to supra, in the first place, petitioner joined
into service on 01.10.1990, however, he did not submit his
date of birth certificate within one month, as mandated under
sub-rule (1) of Rule 2 of the Rules. The authorities basing on
secondary school certificate recorded the date of birth of
petitioner as 01.07.1960. Thereafter, the petitioner sought
informed by way of representation and the same was
furnished to him vide memo dated 28.08.1997. Petitioner
filed appeal before the 1st respondent, who in turn requested
the 2nd respondent to take action in consonance with Rule 2
(3) of the Rules. The 2nd respondent passed order by way of
memo dated 22.06.1998. As can be seen from the record,
petitioner submitted written representation dated
11.06.2018, after two decades. Thus, petitioner waited till fag
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end of his career and made representation. This conduct of
the petitioner, in view of the expressions referred to supra,
does not warrant exercise of equitable jurisdiction under Art
226 of the Constitution of India. Nothing is available in record
except the oral assertion of the petitioner that he has been
requesting the authorities regarding change of date of birth.
19. Though the learned counsel for petitioner would submit
that petitioner approached the civil Court and got decree, in
view of Rule 2A of the Rules, the decree of a civil Court
regarding alteration of date of birth of an employee, does not
bind the employer. Petitioner approached the authorities at
the fag end of his career and later, approached this Court.
In view of expressions in the cases of referred to supra, the
claim of the petitioner for change of date of birth at the fag
end of service cannot be entertained.
20. When the petitioner made a representation dated
11.06.2018, 1st respondent rejected the claim of petitioner
vide memo dated 29.06.2020. However, the said proceedings
are not challenged before this Court.
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21. In view of the discussion made supra, this Court is of
the considered opinion that there are no merits in both the
writ petitions and they are liable to be dismissed.
22. Accordingly, both the Writ Petitions are dismissed. No
order as to costs.
As a sequel, pending miscellaneous petitions, if any,
shall stand closed.
________________________________
JUSTICE SUBBA REDDY SATTI
15th March, 2023
PVD
