P. Venkata Ramana Rayulu Vs. High Court of A.P., Hyd. - Court Judgment

Excerpt:
service - alteration in date of birth - rule 2 and proviso to rule 2 of andhra pradesh public employment (recording and alteration of date of birth) rules, 1984 - petitioner after being selected as district munsif filed petition to alter date of birth on basis of primary school records - petitioner sure of his correct date of birth - no reason assigned for mentioning wrong date of birth - rejection of allowing such alteration justified as petitioner's act of non-disclosure not in good faith. - - such an approach has been deprecated by this court and the supreme court in good number of decisions. in such a case, even in the absence of a statutory rule like rule 16-a, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. 7. the petitioner was well qualified, served as a lawyer for good number of years and sought selection for the post of district munsif by which period he was aware of his date of birth being entered as 12-7-1957 in the school and college records. it can also be inferred from this that the petitioner was siding on fence waiting for an opportunity of selection and only after selection he tried his level best to get his date of birth altered so as to become younger by about one year seven months. similar attempts have been disapproved by the supreme court. but this contention is also rejecled for the simple reason that in his first representation dated 17-5-1989 itself, the petitioner had not only complained as to his date of birth but also enclosed wedding card, study certificate issued by the primary school at visakhapatnam and a small bound book in support of his case which in fact was placed before the committee.ordern.v. hanumanthappa, j1. of late the persons who enter into service are wishing to become younger ignoring the entries as to the date of birth made in school and university records and even obtain decrees of civil courts ex parte. such an approach has been deprecated by this court and the supreme court in good number of decisions.2. as far as the case on hand is concerned the petitioner is an officer of the judicial department working as junior civil judge of state of andhra pradesh. he has filed this writ petition seeking a writ of mandamus declaring that the proceedings of this court in roc. no.4518/97-b.section, dated 18-11-1997 rejecting his request to approve his date of birth as 12-2-1959 as entered in his service register, as illegal and to enter his date of birth as 12-2-1959. hiscase is that pursuant to the selection to the post of district munsif the government of andhra pradesh issued g.o. ms, no.87, dafed 21-2-1989 appointing him as district munsif and he assumed charge as district munsif, chirala on 1-5-1989. at the time of filing the writ petition he was working as principal junior civil judge, chittoor. according to him his date of birth is 12-2-1959 and that it has also been entered in the service registeras 12-2-1959. in high school and college certificates his date of birth is recorded as 12-7-1957. his parents got married on 13-4-1958 and in the primary school certificate his date of birth is shown as 12-2-1959. his grand-father maintained a diary wherein the dates of births of all his family members are noted and the petitioner's date of birth is noted as 12-2-1959. he could trace all these on 1-8-1988 i.e., prior to his selection and appointment as district munsif. thereafter he filed a suit - os no.38 of 1989 on the file of the principal junior civil judge, eluru for declaration of correct date of birth. in the said suit some documents pertaining to his admission to school were marked including examining his parents and the head-mistress of primary school, visakhapatnam. the said suit is decreed. after joining duty as principal junior civil judge on 1-5-1989 he made a representation to the respondent on 17-5-1989 requesting to record his dale of birth as 12-2-1959 in his service register as by that time no service record is opened. but no action is taken on his representation which is followed by reminders of the petitioner. according to him, rule 2 of the andhra pradesh public employment (recording and alteration of date of birth) rules, 1984 (hereinafter referred to as 'the rules') a government employee shall make a declaration as to his date of birth within one month from the date of his joining duty and the concerned authority shall make an order within four months after making such enquiry as deemed fit. but inspite of the petitioner submitting representation within 30 days from the date of his joining duty no action is taken. hisfurther case is that on 17-8-1991 his service register is opened wherein his date of birth is shown as 12-2-1959 as per the decree passed in os no.38 of 1989. the respondent passed an order on 13-11-1997 rejecting his request without assigning any valid reasons. aggrieved by the same the present writ petition is filed.3. heard the learned counsel for the petitioner and the learned standing counsel for the andhra pradesh high court.4. the learned counsel for the petitioner contended that if no action is taken within four months it shall be deemed that the petitioner's date of birth as mentioned by him be ordered. according to sri p. gangaiah naidu, the learned counsel appearing for the petitioner, the order rejecting the petitioner's request is not only contrary to rule 2 of the rules but it is also the result of non-application of mind as to compliance of principles of natural justice. when nothing fraud or misrepresentation is made out in giving the petitioner's date of birth the same should have been properly considered by the respondent and appropriate order should have been made. he also brought to our notice the relevant rule position. thus arguing he submitted that the writ petition be allowed and the respondent be directed to correct the dale of birth as 12-2-1959 but not 12-7-1957.5. the learned standing counsel for the respondent submitted that the petitioner mentioned his date of birth as 12-7-1957 in the application submitted by him seeking appointment as district munsif. as per the amended rule 2 issued by the government in g.o. ms. no.383, dated 16-11-1983 the decree of a civil court does not bind the authorities in the matter of alteration of date of birth. in the first page of the service register the date of birth entry was got attested by the mandal revenue officer, tiruvur though at that time he was under the control of the district judge, krishna atmachilipatnam. when the petitioner submitted his application seeking alteration of his date of birth the matter was placed before the administrative committee of the high court and the administrative committee., after considering the entire material, took a decision as under :'considered and since it is found that entry in respect of the date of birth in the service records has been made on the basis of the representation of the concerned officer/officers and materials produced including decrees of civil courts do not inspire confidence resolved that representations for alteration of dates of birth be rejected.'the same was communicated to the petitioner. smt. bhaskara lakshmi, learned counsel appearing for the high court, submitted that there is no merit in the writ petition. according to her when the petitioner was aware of his date of birth as 12-2-1959 he should have mentioned the same at the time of submitting his application. the petitioner was quite aware at the time of submitting his application that he is seeking selection to one of the important positions in judicial department. but the petitioner is trying to get his date of birth altered after his selection. she submitted that the order passed by the respondent is the result of application of mind and the question of applying principles of natural justice will arise only when an issue is in dispute and not otherwise. she also submitted that when once the petitioner mentioned his date of birth as 12-7-1957 in his application he is estopped from taking a different stand subsequent to his selection as district munsif. in support of her contention she relied upon a judgment of the supreme court in union of india v. c. rama swamy, : [1997]3scr760 , wherein considering the scope of article 309 of the constitution of india and the all india services (death-cum-retirement benefits) rules, 1958 as amended in 1978 regarding changing of date of birth of an officer, the court held as follows :'reading sub-rules (2) and (3) together it is clear that whereas in the case of sub-rule (2) the date of birth has to be accepted which is indicated in the application for recruitment but in the case covered by sub-rule (3) if the date ofbirth as recorded in the service book is different from the one which was contained in the application, possibly because of an alteration having been made at the instance of the officer concerned, then that is the date which has to he accepted by the central government. the date of birth as recorded in the service book, in the case of a pre 4th december, 1971 entrants, and the date as declared by an officer in the application for recruitment, in the case of post 4th december, 1971 entrants, has to be accepted as correct by the central government and, this can be altered only if under sub-rule (4) it is established that a bona fide clerical mistake had been committed in accepting the date of birth. rule 16-a as amended in 1978, except in cases where a clerical error has occurred, docs not entitle an officer to ask for change in the date of birth which is once recorded in his application as mentioned in sub-rule (ii) or in the service book as mentioned in sub-rule (iii) of rule 16-a. bona fide clerical error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded. in such a case, even in the absence of a statutory rule like rule 16-a, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. if such a decision is challenged the court also ought not to grant any relief even if it is shown that the date of birth, as originally recorded was incorrectbecause the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that would be to his advantage.' 6. the main ground on which the petitioner is attacking the order of the respondent is that the same is not in compliance with rule 2 of the rules and also rule 2-a of the rules as amended with effect from 21-4-1984. proviso to rule 2(2) contemplates that where the date of birth determined by the authorities is different from the one declared by the government employee, then he shall be given an opportunity of making a representation. in the case on hand before the respondent asking for the explanation of the petitioner, the petitioner himself volunteered in giving declaration immediately after selection that his date of birth as 12-2-1959 but not 12-7-1957. that means the petitioner was quite aware of his position when he mentioned his date of birth at the time of submitting application seeking selection for the post of district munsif. whatever material he wanted to rely upon was also produced. as such there was no question of once again giving any opportunity to the petitioner. apart from this the proviso to rule 2(2) of the rules does not contemplate an oral hearing. all that it contemplates is making a representation which in fact was made by the petitioner. as such the complaint of sri p. gangaiah naidu that there was non-compliance of principles of natural justice has no force.7. the petitioner was well qualified, served as a lawyer for good number of years and sought selection for the post of district munsif by which period he was aware of his date of birth being entered as 12-7-1957 in the school and college records. the same was mentioned by him in his application seeking selection. subsequent to his selection the petitioner chose to say that his correct date of birth as 12-2-1959 and this he cameto know only when he saw the marriage invitation card of his parents and the diary maintained by his grand-father wherein the dates of birth of all his family members are alleged to have been noted. it is very difficult to accept the theory proposed by the petitioner. the petitioner was also sure that his date of birth in the primary school records was noted as 12-2-1959. there is no acceptable explanation or answer why he kept silent for a long period till the date of his application and trying to redo only when he came to know that he is selected. his very silence amounts to estoppel. it can also be inferred from this that the petitioner was siding on fence waiting for an opportunity of selection and only after selection he tried his level best to get his date of birth altered so as to become younger by about one year seven months. similar attempts have been disapproved by the supreme court.8. the learned counsel for the petitioner also contended that the order rejecting the petitioner's application does not indicate material which the committee considered. but this contention is also rejecled for the simple reason that in his first representation dated 17-5-1989 itself, the petitioner had not only complained as to his date of birth but also enclosed wedding card, study certificate issued by the primary school at visakhapatnam and a small bound book in support of his case which in fact was placed before the committee. the committee felt that the material produced including the decree of the civil court does not inspire confidence,9. viewed from any angle there is no merit in the writ petition. accordingly, the writ petition is dismissed.

Judgment:
ORDER

N.V. Hanumanthappa, J

1. Of late the persons who enter into service are wishing to become younger ignoring the entries as to the date of birth made in School and University records and even obtain decrees of civil Courts ex parte. Such an approach has been deprecated by this Court and the Supreme Court in good number of decisions.

2. As far as the case on hand is concerned the petitioner is an officer of the judicial department working as Junior Civil Judge of State of Andhra Pradesh. He has filed this writ petition seeking a writ of mandamus declaring that the proceedings of this Court in Roc. No.4518/97-B.Section, dated 18-11-1997 rejecting his request to approve his date of birth as 12-2-1959 as entered in his service register, as illegal and to enter his date of birth as 12-2-1959. Hiscase is that pursuant to the selection to the post of District Munsif the Government of Andhra Pradesh issued G.O. Ms, No.87, dafed 21-2-1989 appointing him as District Munsif and he assumed charge as District Munsif, Chirala on 1-5-1989. At the time of filing the writ petition he was working as Principal Junior Civil Judge, Chittoor. According to him his date of birth is 12-2-1959 and that it has also been entered in the service registeras 12-2-1959. In High School and College Certificates his date of birth is recorded as 12-7-1957. His parents got married on 13-4-1958 and in the primary school certificate his date of birth is shown as 12-2-1959. His grand-father maintained a diary wherein the dates of births of all his family members are noted and the petitioner's date of birth is noted as 12-2-1959. He could trace all these on 1-8-1988 i.e., prior to his selection and appointment as District Munsif. Thereafter he filed a suit - OS No.38 of 1989 on the file of the Principal Junior Civil Judge, Eluru for declaration of correct date of birth. In the said suit some documents pertaining to his admission to school were marked including examining his parents and the Head-Mistress of primary school, Visakhapatnam. The said suit is decreed. After joining duty as Principal Junior Civil Judge on 1-5-1989 he made a representation to the respondent on 17-5-1989 requesting to record his dale of birth as 12-2-1959 in his service register as by that time no service record is opened. But no action is taken on his representation which is followed by reminders of the petitioner. According to him, Rule 2 of the Andhra Pradesh Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 (hereinafter referred to as 'the Rules') a Government employee shall make a declaration as to his date of birth within one month from the date of his joining duty and the concerned authority shall make an order within four months after making such enquiry as deemed fit. But inspite of the petitioner submitting representation within 30 days from the date of his joining duty no action is taken. Hisfurther case is that on 17-8-1991 his service register is opened wherein his date of birth is shown as 12-2-1959 as per the decree passed in OS No.38 of 1989. The respondent passed an order on 13-11-1997 rejecting his request without assigning any valid reasons. Aggrieved by the same the present writ petition is filed.

3. Heard the learned Counsel for the petitioner and the learned Standing Counsel for the Andhra Pradesh High Court.

4. The learned Counsel for the petitioner contended that if no action is taken within four months it shall be deemed that the petitioner's date of birth as mentioned by him be ordered. According to Sri P. Gangaiah Naidu, the learned Counsel appearing for the petitioner, the order rejecting the petitioner's request is not only contrary to Rule 2 of the Rules but it is also the result of non-application of mind as to compliance of principles of natural justice. When nothing fraud or misrepresentation is made out in giving the petitioner's date of birth the same should have been properly considered by the respondent and appropriate order should have been made. He also brought to our notice the relevant rule position. Thus arguing he submitted that the writ petition be allowed and the respondent be directed to correct the dale of birth as 12-2-1959 but not 12-7-1957.

5. The learned Standing Counsel for the respondent submitted that the petitioner mentioned his date of birth as 12-7-1957 in the application submitted by him seeking appointment as District Munsif. As per the amended Rule 2 issued by the Government in G.O. Ms. No.383, dated 16-11-1983 the decree of a civil Court does not bind the authorities in the matter of alteration of date of birth. In the first page of the service register the date of birth entry was got attested by the Mandal Revenue Officer, Tiruvur though at that time he was under the control of the District Judge, Krishna atMachilipatnam. When the petitioner submitted his application seeking alteration of his date of birth the matter was placed before the Administrative Committee of the High Court and the Administrative Committee., after considering the entire material, took a decision as under :

'Considered and since it is found that entry in respect of the date of birth in the service records has been made on the basis of the representation of the concerned officer/officers and materials produced including decrees of civil Courts do not inspire confidence resolved that representations for alteration of dates of birth be rejected.'

The same was communicated to the petitioner. Smt. Bhaskara Lakshmi, learned Counsel appearing for the High Court, submitted that there is no merit in the writ petition. According to her when the petitioner was aware of his date of birth as 12-2-1959 he should have mentioned the same at the time of submitting his application. The petitioner was quite aware at the time of submitting his application that he is seeking selection to one of the important positions in judicial department. But the petitioner is trying to get his date of birth altered after his selection. She submitted that the order passed by the respondent is the result of application of mind and the question of applying principles of natural justice will arise only when an issue is in dispute and not otherwise. She also submitted that when once the petitioner mentioned his date of birth as 12-7-1957 in his application he is estopped from taking a different stand subsequent to his selection as District Munsif. In support of her contention she relied upon a judgment of the Supreme Court in Union of India v. C. Rama Swamy, : [1997]3SCR760 , wherein considering the scope of Article 309 of the Constitution of India and the All India Services (Death-cum-Retirement Benefits) Rules, 1958 as amended in 1978 regarding changing of date of birth of an officer, the Court held as follows :

'Reading sub-rules (2) and (3) together it is clear that whereas in the case of sub-rule (2) the date of birth has to be accepted which is indicated in the application for recruitment but in the case covered by sub-rule (3) if the date ofbirth as recorded in the service book is different from the one which was contained in the application, possibly because of an alteration having been made at the instance of the officer concerned, then that is the date which has to he accepted by the Central Government.

The date of birth as recorded in the service book, in the case of a pre 4th December, 1971 entrants, and the date as declared by an officer in the application for recruitment, in the case of post 4th December, 1971 entrants, has to be accepted as correct by the Central Government and, this can be altered only if under sub-rule (4) it is established that a bona fide clerical mistake had been committed in accepting the date of birth.

Rule 16-A as amended in 1978, except in cases where a clerical error has occurred, docs not entitle an officer to ask for change in the date of birth which is once recorded in his application as mentioned in sub-rule (ii) or in the service book as mentioned in sub-rule (iii) of Rule 16-A. Bona fide clerical error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded. In such a case, even in the absence of a statutory rule like Rule 16-A, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. If such a decision is challenged the Court also ought not to grant any relief even if it is shown that the date of birth, as originally recorded was incorrectbecause the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that would be to his advantage.'

6. The main ground on which the petitioner is attacking the order of the respondent is that the same is not in compliance with Rule 2 of the Rules and also Rule 2-A of the Rules as amended with effect from 21-4-1984. Proviso to Rule 2(2) contemplates that where the date of birth determined by the authorities is different from the one declared by the Government employee, then he shall be given an opportunity of making a representation. In the case on hand before the respondent asking for the explanation of the petitioner, the petitioner himself volunteered in giving declaration immediately after selection that his date of birth as 12-2-1959 but not 12-7-1957. That means the petitioner was quite aware of his position when he mentioned his date of birth at the time of submitting application seeking selection for the post of District Munsif. Whatever material he wanted to rely upon was also produced. As such there was no question of once again giving any opportunity to the petitioner. Apart from this the proviso to Rule 2(2) of the Rules does not contemplate an oral hearing. All that it contemplates is making a representation which in fact was made by the petitioner. As such the complaint of Sri P. Gangaiah Naidu that there was non-compliance of principles of natural justice has no force.

7. The petitioner was well qualified, served as a lawyer for good number of years and sought selection for the post of District Munsif by which period he was aware of his date of birth being entered as 12-7-1957 in the school and college records. The same was mentioned by him in his application seeking selection. Subsequent to his selection the petitioner chose to say that his correct date of birth as 12-2-1959 and this he cameto know only when he saw the marriage invitation card of his parents and the diary maintained by his grand-father wherein the dates of birth of all his family members are alleged to have been noted. It is very difficult to accept the theory proposed by the petitioner. The petitioner was also sure that his date of birth in the primary school records was noted as 12-2-1959. There is no acceptable explanation or answer why he kept silent for a long period till the date of his application and trying to redo only when he came to know that he is selected. His very silence amounts to estoppel. It can also be inferred from this that the petitioner was siding on fence waiting for an opportunity of selection and only after selection he tried his level best to get his date of birth altered so as to become younger by about one year seven months. Similar attempts have been disapproved by the Supreme Court.

8. The learned Counsel for the petitioner also contended that the order rejecting the petitioner's application does not indicate material which the committee considered. But this contention is also rejecled for the simple reason that in his first representation dated 17-5-1989 itself, the petitioner had not only complained as to his date of birth but also enclosed wedding card, study certificate issued by the primary school at Visakhapatnam and a small bound book in support of his case which in fact was placed before the committee. The committee felt that the material produced including the decree of the civil Court does not inspire confidence,

9. Viewed from any angle there is no merit in the writ petition. Accordingly, the writ petition is dismissed.