A. Yadaiah vs The Telangana State Road ...
2023 Latest Caselaw 586 Tel

          HONOURABLE SRI JUSTICE E.V.VENUGOPAL

                WRIT PETITION No.19266 of 2019

ORDER:

1 Challenge in this writ petition is to the Notification dated

01.04.2019 issued by the third respondent whereby the petitioner

was declared to attain the age of superannuation i.e. 58 years of

age by 30.09.2019 and declared him to retire from service.

2 The learned counsel for the petitioner submits that the

actual date of birth of the petitioner was 06.05.1966 and the same

was mentioned in his service record, his driving licence, Adhar

Card, RTC CCS records, pay slips, LIC policy, PAN card and RTC

Staff Benevolent Fund Records. But without his knowledge the

same was altered as 16.09.1961. After noticing the said

Notification, he made a representation to the respondent

authorities, who replied that they noticed a medical certificate

dated 16.09.1961 in which his age was mentioned as 30 years as

on that date so that they calculated his date of birth as

16.09.1961 and accordingly issued the impugned notification.

The learned counsel for the petitioner further submitted that as

per Regulation 19 of the APSRTC Employees (Service) Regulations,

1964, once the date of birth was entered into service record, it

cannot be changed. Therefore, changing the date of birth of the

petitioner is contrary to the regulations. Therefore, he seeks the

intervention of this Court for setting aside the impugned

notification and to declare the date of birth of the petitioner as

06.05.1966.

3 The learned standing counsel for the respondents submitted

that at the time of joining the service, the petitioner did not

provide any supporting documents evidencing his date of birth.

Hence the petitioner was subjected to medical test to determine

his age and fitness. Accordingly, the medical officer examined the

petitioner and issued medical certificate No.34946 dated

16.09.1991 assessing the age of the petitioner as 30 years and

fixed his date of birth as 16.09.1961 as per Regulation No.19 of

the APSRTC Employees (Service) Regulations, 1963. He further

submitted that the office order dated 07.03.1992 providing

employment of Driver on daily wages shows the date of birth of the

petitioner as 16.09.1961. The petitioner accepted the same and

reported to duties. Therefore, the petitioner is estopped from

claiming that his date of birth is 06.05.1966. Hence prayed to

dismiss the writ petition.

4 In view of the rival contentions made above, this Court feels

it apt to deal with the relevant Rule.

5 Regulation No. 19(2)(b) of the Regulations reads as follows:

"Where the person concerned is unable to furnish satisfactory evidence of his age, it should be assessed or the age as declared by the

person, whichever is more, shall be accepted as final and the employee shall be assumed to have completed that age on the date of attestation by the Medical Officer."

6 It is an admitted fact that the petitioner did not produce any

documents at the time of entry into service in the respondent

Corporation. Since the petitioner has not produced any

certificates, as per Regulation No. 19(3) of the Regulations, once

the date of birth of an employee is entered in service register, the

same is held to be binding and no alteration of such date shall be

permitted subsequently.

7 In State of Madhya Pradesh and others v. Premlal

Shrivas1 it is held at para Nos. 8 and 9 as under:

"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag-end of his career, the Court or the Tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless, the Court or the Tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the Court or the Tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No Court or the Tribunal can come to the aid of those who sleep over their rights

9. In Home Department v. R. Kirubakaran, indicating the factors relevant in disposal of an application for correction of date of birth just before the superannuation and highlighting the scope of interference by the Courts or the Tribunals in such matters, this Court has observed thus:

1 (2011) 9 SCC 664

"An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth.

Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior."

8 In State of Haryana v. Satish Kumar Mittal and

another2 the Hon'ble Apex Court held at Para No.15 as under:

15. As recorded above, it has been held time and again that the application for correction of date of birth is also to be looked into from the point of view of the department concerned and the employees engaged therein. The other employees have expectations of promotion based on seniority and suddenly if such change is permitted, it causes prejudice and disturbance in the working of the department. It is, therefore, quite correct for the State to insist that such application must be made within the time provided in the rules, say, two years, as in the present case.

9 In view of the aforementioned judgments, the Apex Court

held that application for change of date of birth of an employee

cannot be entertained at the fag end of his service. The petitioner,

on his own admission, stated that he has not made an application

seeking change of date of birth initially and so, now after

retirement from service, he cannot blame the respondent

Corporation.

10 As seen from the proceedings dated 07.03.1992 the

petitioner was slated at Sl.No.34, wherein his date of birth was

mentioned as 16.09.1961. At the cost of repetition, that

proceedings were issued in the year 1992. The petitioner is not

disputing the same. So the petitioner has knowledge about the

mentioning of his date of birth as 16.09.1961 at the time of

recruitment / joining into the service as such. So, the petitioner,

having slept over the matter for more than two decades has

knocked the doors of the Court after retirement from service.

2 (2010) 9 SCC 337

11 It is to be seen that such applications are made very often,

almost at the end of the service of the employee or in any case,

belatedly. Whatever may be the reason, the fact remains that in

the present case, this petition was filed after the petitioner is

directed to retire from service. The approach of the petitioner is

not satisfying the conscious of this Court.

12 The petitioner filed some documents viz., PAN card, Adhar

card and LIC policy filed in support of his contentions. But those

are brought after the petitioner entered into the service. If the

petitioner is strongly of the opinion that his date of birth was

06.05.1966, what prompted him from not taking steps in this

regard for all these years is not known.

13 For the above reasons, the petitioner is disentitled for the

relief claimed. There are no merits in the writ petition and the writ

petition is liable to be dismissed.

14 In the result, the writ petition is dismissed. No order as to

costs. Miscellaneous petitions if any pending in this writ petition

shall stand dismissed.

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E.V.VENUGOPAL, J.

Date: 06.02.2023 kvsn