P. Pochamma Vs. Principal Secretary, Technical Education, Govt. of A.P. and ors. - Court Judgment

Excerpt:
service - validity of forensic report - writ petitioner retired by respondent on basis of date of birth fixed by forensic expert - date of birth in service record register not considered - once date of birth entered in service register and accepted by parties same cannot be changed unilaterally without unimpeachable evidence - no chance to show that certificate issued in her favour by sarpanch - held, writ petitioner entitled to be reinstated into service with all consequential benefits. - - we have seen the service register of the writ petitioner which shows that her date of birth is 16.5.1950 which has been endorsed by the officer who has entered it in the service register. 9. now another question raised by the learned counsel for the respondents is that the petitioner was referred to forensic examination in 1993, but she did not complain at that time, therefore she has no right to complain about it now.bilal nazki, j 1. two writ petitions have been decided by a learned single judge of this court being w.p. nos. 16123 and 16478 of 2003. both these writ petitions have been dismissed. this writ appeal has been filed by the petitioner in w.p. no. 16123 of 2003.2. the controversy is in a short compass. the management retired the writ petitioner on 31.7.2003 on the basis of date of birth fixed by them instead of the date of birth recorded in the service register. she was appointed as sweeper and later she was promoted as peon (attender) on 1.11.1981. the writ petitioner stated that at the time of entering into service, she submitted proof of her date of birth i.e., a certificate issued by sarpanch of gram panchayat, chinna chinthakunta, taluk narsapur and her date of birth was recorded in the service register as 16.5.1950. according to her, she was also sent to government hospital, nampally, hyderabad and doctor issued a certificate on 18.11.1987 showing her age to be 37 years. the certificate issued by the sarpanch of gram panchayat, chinna chinthakunta, taluk narsapur appears to have been accepted by the respondents which says:'it is certified that p. pochamma d/o anjaiah was born on 16.5.1950 in chinna chinthakunta village, taluk narsapur, medak district and the said certificate is issued on 10.11.1983. the date of birth of p. pochamma on 16.5.1950.'3. the writ petitioner also produced a copy of certificate issued by a doctor which shows that she was 37 years old as on 18.11.1987, the petitioner submits that in spite of her date of birth having been recorded as 16.5.1950 in the service register, she was served with an order of retirement on 2.1.2003 informing her that she would be retiring on 31.7.2003. thereafter she filed the writ petition on 31.7.2003.4. 3rd respondent stated in her counter-affidavit that the petitioner was appointed as a sweeper on 1.12.1980 on temporary basis. later she was appointed as a peon on 1.11.1981. it is stated that in her application the petitioner had not produced any documentary evidence relating to her age. later she produced a certificate issued by sarpanch, gram panchayat chinna chinthakunta village showing her date of birth as 16.5.1950 and it was accordingly entered in the service register. it is also contended that on a routine perusal of the records of the employees, it was found that some employees had not given proof of their date of birth. therefore a memo was issued on 11.11.1987 to 27 employees including the petitioner directing them to produce age certificate from civil surgeon, government hospital, nampally. the petitioner produced a certificate dated 18.11.1987.5. the certificate issued by sarpanch of gram panchayat, chinna chinthakunta, taluk narsapur and another certificate issued by civil surgeon, government hospital, nampally are admitted even by the respondents, but they contend that the certificate issued by the doctor on 18.11.1987 was based on the statement of the petitioner and as per her appearance and no scientific tests have been conducted. then in 1993 the management took a decision to send all class iv employees for forensic examination so that their date of birth is established. a certificate was issued by dr. m. narayan reddy, professor of forensic medicine, on 13.5.1993, who certified that the petitioner was 50 years as on the date of examination, therefore her date of birth was taken to be 50 years old at the time of examination and consequently she was retired.6. the learned single judge considered the arguments of the parties and dismissed the writ petition. law is settled that once a date of birth is entered in the service register and accepted by the parties i.e., the employer and the employee, it cannot be changed unilaterally without an unimpeachable evidence to show that the date of birth so entered in the service register is incorrect. that would contemplate that if an employer wants to change the recorded date of birth of an employee, he has to conduct an enquiry. when the case came up for hearing on the last occasion, we had requested the learned counsel for the respondents to tell us as to whether any enquiry had been conducted and if so record be produced. he produced the record, but there is nothing on record and it has been conceded by the learned counsel for the respondents that no enquiry has been conducted, but he would submit that asking the writ petitioner to submit herself to the forensic examination was an enquiry in itself. we cannot accept such an argument. we have seen the service register of the writ petitioner which shows that her date of birth is 16.5.1950 which has been endorsed by the officer who has entered it in the service register. it is also accepted in the counter-affidavit that a certificate issued by the sarpanch, gram panchayat, chinna chinthakunta village was produced by the petitioner at the time of her appointment. obviously this certificate has been accepted as proof of the date of birth of the petitioner. then in 1987 the petitioner was again referred to a doctor who certified her date of birth on the basis of her appearance and her statement. for four years from 1987 to 1993 the respondents did not do anything, but in 1993 they subjected the petitioner to forensic examination. we presume that the date of birth of the petitioner was recorded in her service register on the basis of certificate issued by sarpanch, gram panchayat, chinna chintakunta. that certificate was never challenged, no enquiry was conducted, therefore, in our view, the learned single judge was not right in dismissing the writ petition.7. there are various judgments which have been referred to by the learned counsel for the parties. the learned counsel for the petitioner relies on a judgment of the supreme court reported in state of orissa v. dr. binapani dei, : (1967)iillj266sc . this judgment was passed also in similar circumstances. the date of birth of a doctor was accepted and entered in the service register as 10.4.1910 at the time of entry into service. some anonymous letters were addressed to the accountant-general that the doctor misstated her age when she was admitted to service of the state. an enquiry was held and her date of birth was changed to 16.4.1907. the supreme court held in para-12:'it is true that some preliminary enquiry was made by dr. s. mitra. but the report of that enquiry officer was never disclosed to the first respondent. thereafter the first respondent was required to show-cause why april 16, 1907, should not be accepted as the date of birth, and without recording any evidence the order was passed. we think that such an enquiry and decision were contrary to the basic concept of justice and cannot have any value. it is true that the order is administrative in character, but even an administrative order which involves civil consequences, as already stated, must be made consistently with the rules of natural justice after informing the first respondent of the case of the state, the evidence in support thereof and after giving an opportunity to the first respondent of being heard and meeting or explaining the evidence. no such steps were admittedly taken, the high court was, in our judgment, right in setting aside the order of the state.'8. there are various other judgments referred to by the learned counsel for the petitioner, which pertain to claim of employees for change of date of birth and it has been consistently held by the supreme court that date of birth as entered in the service register should not be ordered to be changed unless there is unimpeachable evidence. the same principle will apply to the employer who wants to change the recorded date of birth of an employee.9. now another question raised by the learned counsel for the respondents is that the petitioner was referred to forensic examination in 1993, but she did not complain at that time, therefore she has no right to complain about it now. the learned counsel for the petitioner, on the other hand, submits that there is nothing on record to show that the medical certificate issued by the forensic expert was ever given to the petitioner. but in the counter-affidavit it has been stated that on 22.9.1994 a notice was issued to 11 employees showing the date of birth as determined by the forensic department and the age of retirement and the learned counsel for the respondents submits that this notice has not been challenged. we do not think that non-challenging of 1994 order would non-suit the petitioner because the real cause of action accrued to the writ petitioner on 2.1.2003 when she was informed that she would be retiring on 31.7.2003. immediately thereafter she filed the writ petition on 31.7.2003 i.e., on the date of retirement itself.10. the learned counsel for the respondents relies on a judgment of the calcutta high court reported in rabindra naith banerjee v. union of india, 2002 (6) slr 175, to suggest that a writ petition after retirement was not maintainable. we have gone through this judgment. this was not a case where the date of birth of the petitioner had been changed. the petitioner had been retired on the basis of recorded date of birth. the court found that he had got his date of birth corrected in the previous employment in 1966, but in his new employment he did not make any effort to get his date of birth corrected upto 1988, his request was rejected in 1990, even then he did not take any steps to get his date of birth corrected. he approached the court after one month of retirement. the learned counsel for the respondents also relies on a judgment of the supreme court reported in state of orissa v. ramanath patnaik, : (1997)iillj1022sc . this was also a different case and this case in effect goes against the respondents. the supreme court held that the correction of date of birth was not permissible after retirement. the petitioner in that case had been retired on 31-12-1976. in 1981 he filed a suit against the rejection of his representation for correction of his date of birth. this was again a case where an employee had been retired on the basis of his date of birth as entered in the service register, whereas in the present case the i writ petitioner was not retired on the accepted date of birth as entered in her service register, but on the basis of date of birth arrived at by the respondents on the basis of a forensic expert which was not even ever put to the petitioner. the petitioner was not even given a chance to show-cause as to whether the report of the forensic expert obtained in 1994 should be relied upon or not. she was not even given a chance to show that the certificate issued in her favour in 1983 by the sarpanch, gram panchayat chinna chintakunta village was genuine.11. for these reasons we allow the writ appeal, set aside the order of the learned single judge and direct that the writ petitioner shall be reinstated into service with all consequential benefits. no order as to costs.