S.Ram Manohar S/O. Late S.Sundera Murt Vs. the Union OfIndia,rep. by the Deputy Co - Court Judgment

SooperKanoon Citationsooperkanoon.com/1029844
CourtAndhra Pradesh High Court
Decided OnApr-24-2013
JudgeASHUTOSH MOHUNTA AND THEHON'BLE SRI J
AppellantS.Ram Manohar S/O. Late S.Sundera Murt
RespondentThe Union OfIndia,rep. by the Deputy Co
Excerpt:
the hon'ble sri justice ashutosh mohunta and the hon'ble sri justice b.n. rao w.p. no.38766 of 201.24.04.2013 s.ram manohar s/o. late s.sundera murthy the union of india,rep. by the deputy commissioner,kendriya vidyalaya sanghatan, regional office, picket, secunderabad, and another counsel for the petitioner: mr.v.r. balachary counsel for respondents:mr.b.narasimha sarma head note: referred cases: nil order: (per hon'ble sri justice b.n. rao nalla) this writ petition is filed for a writ of certiorari calling for the records relating to the order dated 05.10.2012 passed by the central administrative tribunal, hyderabad bench (for short 'the tribunal') in o.a. no.866 of 2012, and to quash the same by declaring the action of the respondents in prematurely retiring the petitioner from service as contrary to law, and consequently direct the respondents to correct the entry relating to the date of birth of the petitioner in the service record as 08.07.1954 with all attendant benefits including reinstatement into service. 2. the brief facts of the case of the petitioner are that he was appointed on 22.12.1975 as lower division clerk with the respondents, thereafter he was promoted as upper division clerk and subsequently he was promoted as assistant. the date of birth of the petitioner was recorded as 08.07.1952 in service register. the petitioner came to know through his mother that his actual date of birth is 08.07.1954. the petitioner approached the schools where he studied. his date of birth was wrongly entered as 08.07.1952 instead of 08.07.1954, in transfer certificate issued by government primary school, kattelguda, hyderabad where he studied from iii standard to v standard and the same was entered in admission records in government high school, azampura, where he studied from vi standard to x standard. the petitioner made a representation to the school authorities to correct his date of birth in the records, however, the school authorities advised him to approach a competent civil court for declaring the correct date of birth. then the petitioner filed o.s.no.2516 of 1990 on the file of vii assistant judge, city civil court, hyderabad against the 2nd respondent, government high school, azampura, hyderabad, secretary, board of intermediate education and registrar of osmania university, hyderabad for a declaration that his date of birth as 08.07.1954 instead of 08.07.1952 as entered in school records and in all services including his service record. the defendants did not contest the suit and the suit was decreed ex parte on 27.04.1993. as the defendants did not challenge the decree, it has become final. pursuant to the decree and judgment, he made several representations to the respondent authorities, but there was no response from them. 3. while the petitioner was working at kendriya vidyalaya, gachibowli, hyderabad, the 1st respondent issued proceedings dated 01.12.2011 to the principals of all kendriya vidyalayas in hyderabad region calling upon them to send the details as to the retirement of employees on superannuation during the period 01.04.2012 to 31.03.2013. the principal, kendriya vidyalaya, gachibowli, sent a reply dated 07.12.2011 showing the retirement date of the petitioner as 31.07.2012. immediately, the petitioner got issued a notice, dated 07.12.2011 to the 1st respondent bringing to his notice the decree and judgment dated 27.04.1993 passed in o.s.no.2516 of 1990 wherein his date of birth is declared as 08.07.1954, and called upon him to direct the concerned authority to stop further proceedings with reference to letter (reply) dated 07.12.2011. the 1st respondent sent a reply dated 16.01.2012 to the said notice stating that his request for correction of date of birth could not be conceded as it should have been urged within five years of his joining the service as per rule 56 of the fundamental rules. then the petitioner filed writ petition no.8990 of 2012 before this court assailing the premature retirement letter dated 07.12.2011 in pursuance of proceedings dated 01.12.2011 stating that his actual date of birth is 08.07.1954 but it was wrongly entered in service record as 08.07.1952 by the respondent authorities and that the vii assistant judge, city civil court, hyderabad, passed a decree and judgement dated 27.04.1993 in o.s. no.2516 of 1990 declaring his date of birth as 08.07.1954. this court while admitting the said writ petition on 26.06.2012 granted interim order in w.p.m.p.no.11371 of 2012 suspending the impugned proceedings and directed the respondent authorities to continue the petitioner in service by reckoning his date of birth as 08.07.1954. the respondents filed a counter affidavit in the said writ petition raising a plea that the kendriya vidyalaya sanghathan is an institution notified under section 14 of the administrative tribunals act, 1985 and this court has no jurisdiction to entertain the said writ petition. in view of the same, the writ petition was dismissed. then the petitioner approached the tribunal by filing o.a.no.866 of 2012 questioning the legality and validity of the proceedings of the 1st respondent dated 01.12.2011 and the information furnished by the principal through letter dated 07.12.2011. 4. the respondents filed their counter denying the claim of the petitioner and stated that while entering into service, he declared his date of birth as 08.07.1952 and as per rules he has to retire on 31.07.2012, and as such, the application is devoid of merit and the same is liable to be dismissed. 5. the tribunal taking into consideration the material available on record and the submissions made by either counsel, dismissed the o.a. on 05.10.2012 holding that the petitioner has not made out any case for correction of date of birth in his service register as 08.07.1954 in place of 08.07.1952. as against the order of dismissal, the petitioner filed the present writ petition. 6. heard the learned counsel for the petitioner and the learned standing counsel for kendriya vidyalaya sanghathan appearing for the respondents. 7. the learned counsel for the petitioner vehemently contended that the tribunal having observed that the judgment of the civil court became final, erred in observing that the petitioner has not filed execution petition for implementing the decree and judgment of the civil court and that the tribunal has no jurisdiction to direct the respondents to correct the date of birth of the petitioner in service register basing on the judgment of the civil court. the learned counsel for the petitioner contended that the tribunal has erroneously held that the petitioner did not make any application for correction of date of birth within the stipulated period as per instructions dated 07.10.1988 under rule 56 of the fundamental rules, in fact, the said instructions are not applicable to him since he was appointed prior to framing of those instructions. the learned counsel for the petitioner further contended that the tribunal erred in observing that the petitioner gave a declaration before the respondent authorities on 30.11.1994 that his date of birth is 08.07.1952. the learned counsel for the petitioner submitted that the tribunal ought to have seen that the date of birth of the petitioner is corrected in all the school records including the matriculation certificate on the basis of the decree and judgement of the civil court. 8. on the other hand, the learned standing counsel for kendriya vidyalaya sanghathan appearing for the respondents submitted that the tribunal has given cogent and convincing reasons while passing the impugned order, and as such, it needs no interference at the hands of this court. 9. we have perused the record. the petitioner entered the government service on 22.12.1975 as lower division clerk, thereafter he was promoted as upper division clerk and then as assistant. the date of birth of the petitioner was recorded in service register as 08.07.1952 based on his matriculation certificate and his declaration. the petitioner filed declaratory suit in 1990 for correction of his date of birth as 08.07.1954 in all records including service records i.e. after completion of almost 15 years of his joining the service. even if it is assumed that the date of birth of the petitioner is wrongly entered in the service records, the petitioner has not properly explained what prevented him from getting his date of birth altered by taking necessary steps within a reasonable period of time, and as such, it cannot be said that the petitioner is diligent in taking steps to correct his date of birth. the apex court time and again cautioned the civil courts including high courts against entertaining and accepting the claim made by the government servant long after entering into service for correction of the recorded date of birth. further, the petitioner cannot seek a direction from the tribunal to the respondent authorities for correction of date of birth in his service register pursuant to the decree and judgment in o.s. no. 2516 of 1990, as the tribunal is not competent forum for implementing the decree and judgment passed by a civil court. further, a perusal of the record shows that on 30.11.1994, the petitioner submitted his declaration declaring that his date of birth is 08.07.1952, which is subsequent to passing of decree and judgment by the civil court. in the circumstances, we do not find any error or irregularity in the impugned order warranting interference by this court in exercise of jurisdiction under article 226 of the constitution of india. 10. the writ petition is devoid of merit and the same is accordingly dismissed. no order as to costs. _______________________ ashutosh mohunta, j b.n. rao nalla, j date:24.04.2013
Judgment:

THE HON'BLE SRI JUSTICE ASHUTOSH MOHUNTA AND THE HON'BLE SRI JUSTICE B.N.

RAO W.P.

No.38766 OF 201.24.04.2013 S.Ram Manohar s/o.

late S.Sundera Murthy The Union of India,rep.

by the Deputy Commissioner,Kendriya Vidyalaya Sanghatan, Regional Office, Picket, Secunderabad, and another Counsel for the petitioner: Mr.V.R.

Balachary Counsel for Respondents:Mr.B.Narasimha Sarma HEAD NOTE: Referred Cases: nil ORDER: (Per Hon'ble Sri Justice B.N.

Rao Nalla) This writ petition is filed for a writ of Certiorari calling for the records relating to the order dated 05.10.2012 passed by the Central administrative Tribunal, Hyderabad Bench (for short 'the Tribunal') in O.A.

No.866 of 2012, and to quash the same by declaring the action of the respondents in prematurely retiring the petitioner from service as contrary to law, and consequently direct the respondents to correct the entry relating to the date of birth of the petitioner in the service record as 08.07.1954 with all attendant benefits including reinstatement into service.

2.

The brief facts of the case of the petitioner are that he was appointed on 22.12.1975 as Lower Division Clerk with the respondents, thereafter he was promoted as Upper Division Clerk and subsequently he was promoted as Assistant.

The date of birth of the petitioner was recorded as 08.07.1952 in service register.

The petitioner came to know through his mother that his actual date of birth is 08.07.1954.

The petitioner approached the schools where he studied.

His date of birth was wrongly entered as 08.07.1952 instead of 08.07.1954, in transfer certificate issued by Government Primary School, Kattelguda, Hyderabad where he studied from III standard to V standard and the same was entered in admission records in Government High School, Azampura, where he studied from VI standard to X standard.

The petitioner made a representation to the school authorities to correct his date of birth in the records, however, the school authorities advised him to approach a competent civil Court for declaring the correct date of birth.

Then the petitioner filed O.S.No.2516 of 1990 on the file of VII Assistant Judge, City Civil Court, Hyderabad against the 2nd respondent, Government High School, Azampura, Hyderabad, Secretary, Board of Intermediate Education and Registrar of Osmania University, Hyderabad for a declaration that his date of birth as 08.07.1954 instead of 08.07.1952 as entered in School records and in all services including his service record.

The defendants did not contest the suit and the suit was decreed ex parte on 27.04.1993.

As the defendants did not challenge the decree, it has become final.

Pursuant to the decree and judgment, he made several representations to the respondent authorities, but there was no response from them.

3.

While the petitioner was working at Kendriya Vidyalaya, Gachibowli, Hyderabad, the 1st respondent issued proceedings dated 01.12.2011 to the Principals of all Kendriya Vidyalayas in Hyderabad region calling upon them to send the details as to the retirement of employees on superannuation during the period 01.04.2012 to 31.03.2013.

The Principal, Kendriya Vidyalaya, Gachibowli, sent a reply dated 07.12.2011 showing the retirement date of the petitioner as 31.07.2012.

Immediately, the petitioner got issued a notice, dated 07.12.2011 to the 1st respondent bringing to his notice the decree and judgment dated 27.04.1993 passed in O.S.No.2516 of 1990 wherein his date of birth is declared as 08.07.1954, and called upon him to direct the concerned authority to stop further proceedings with reference to letter (reply) dated 07.12.2011.

The 1st respondent sent a reply dated 16.01.2012 to the said notice stating that his request for correction of date of birth could not be conceded as it should have been urged within five years of his joining the service as per Rule 56 of the Fundamental Rules.

Then the petitioner filed Writ Petition No.8990 of 2012 before this Court assailing the premature retirement letter dated 07.12.2011 in pursuance of proceedings dated 01.12.2011 stating that his actual date of birth is 08.07.1954 but it was wrongly entered in service record as 08.07.1952 by the respondent authorities and that the VII Assistant Judge, City Civil Court, Hyderabad, passed a decree and judgement dated 27.04.1993 in O.S.

No.2516 of 1990 declaring his date of birth as 08.07.1954.

This Court while admitting the said writ petition on 26.06.2012 granted interim order in W.P.M.P.No.11371 of 2012 suspending the impugned proceedings and directed the respondent authorities to continue the petitioner in service by reckoning his date of birth as 08.07.1954.

The respondents filed a counter affidavit in the said writ petition raising a plea that the Kendriya Vidyalaya Sanghathan is an institution notified under Section 14 of the Administrative Tribunals Act, 1985 and this Court has no jurisdiction to entertain the said writ petition.

In view of the same, the writ petition was dismissed.

Then the petitioner approached the Tribunal by filing O.A.No.866 of 2012 questioning the legality and validity of the proceedings of the 1st respondent dated 01.12.2011 and the information furnished by the Principal through letter dated 07.12.2011.

4.

The respondents filed their counter denying the claim of the petitioner and stated that while entering into service, he declared his date of birth as 08.07.1952 and as per Rules he has to retire on 31.07.2012, and as such, the application is devoid of merit and the same is liable to be dismissed.

5.

The Tribunal taking into consideration the material available on record and the submissions made by either counsel, dismissed the O.A.

on 05.10.2012 holding that the petitioner has not made out any case for correction of date of birth in his service register as 08.07.1954 in place of 08.07.1952.

As against the order of dismissal, the petitioner filed the present writ petition.

6.

Heard the learned counsel for the petitioner and the learned Standing Counsel for Kendriya Vidyalaya Sanghathan appearing for the respondents.

7.

The learned counsel for the petitioner vehemently contended that the Tribunal having observed that the judgment of the civil Court became final, erred in observing that the petitioner has not filed execution petition for implementing the decree and judgment of the civil Court and that the Tribunal has no jurisdiction to direct the respondents to correct the date of birth of the petitioner in service register basing on the judgment of the civil Court.

The learned counsel for the petitioner contended that the Tribunal has erroneously held that the petitioner did not make any application for correction of date of birth within the stipulated period as per instructions dated 07.10.1988 under Rule 56 of the Fundamental Rules, in fact, the said instructions are not applicable to him since he was appointed prior to framing of those instructions.

The learned counsel for the petitioner further contended that the Tribunal erred in observing that the petitioner gave a declaration before the respondent authorities on 30.11.1994 that his date of birth is 08.07.1952.

The learned counsel for the petitioner submitted that the Tribunal ought to have seen that the date of birth of the petitioner is corrected in all the school records including the matriculation certificate on the basis of the decree and judgement of the civil Court.

8.

On the other hand, the learned Standing Counsel for Kendriya Vidyalaya Sanghathan appearing for the respondents submitted that the Tribunal has given cogent and convincing reasons while passing the impugned order, and as such, it needs no interference at the hands of this Court.

9.

We have perused the record.

The petitioner entered the Government service on 22.12.1975 as Lower Division Clerk, thereafter he was promoted as Upper Division Clerk and then as Assistant.

The date of birth of the petitioner was recorded in service register as 08.07.1952 based on his matriculation certificate and his declaration.

The petitioner filed declaratory suit in 1990 for correction of his date of birth as 08.07.1954 in all records including service records i.e.

after completion of almost 15 years of his joining the service.

Even if it is assumed that the date of birth of the petitioner is wrongly entered in the service records, the petitioner has not properly explained what prevented him from getting his date of birth altered by taking necessary steps within a reasonable period of time, and as such, it cannot be said that the petitioner is diligent in taking steps to correct his date of birth.

The Apex Court time and again cautioned the civil Courts including High Courts against entertaining and accepting the claim made by the government servant long after entering into service for correction of the recorded date of birth.

Further, the petitioner cannot seek a direction from the Tribunal to the respondent authorities for correction of date of birth in his service register pursuant to the decree and judgment in O.S.

No.

2516 of 1990, as the Tribunal is not competent forum for implementing the decree and judgment passed by a civil Court.

Further, a perusal of the record shows that on 30.11.1994, the petitioner submitted his declaration declaring that his date of birth is 08.07.1952, which is subsequent to passing of decree and judgment by the civil Court.

In the circumstances, we do not find any error or irregularity in the impugned order warranting interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

10.

The writ petition is devoid of merit and the same is accordingly dismissed.

No order as to costs.

_______________________ ASHUTOSH MOHUNTA, J B.N.

RAO NALLA, J DATE:24.04.2013