Andhra HC (Pre-Telangana)
M. Vijaya Bhaskara Reddy vs High Court Of Andhra Pradesh on 3 December, 2001
Equivalent citations: 2002(1)ALD489, 2002(2)ALT382
JUDGMENT S.R. Nayak, J.
1. This writ petition is directed against the order ROC No. 4518/95-B Section dated 13-11-1997 of the High Court of Andhra Pradesh rejecting the application of the petitioner dated 1-8-1979 to alter his date of birth from 15-6-1948 to 15-8-1949.
2. The necessary and relevant facts leading to the filing of this writ petition be stated briefly as under:
3. The petitioner was initially appointed as District Munsif in the Andhra Pradesh State Judicial Service on 16-8-1976 and he had undergone training for six months from 16-8-1976 to 15-2-1977 and after completion of the training, he was posted as District Munsif, Satyavedu on probation. By the Order in ROC No. 3524/83-B-2, dated 30-12-1983 of the Registrar (Administration) of the High Court of Andhra Pradesh, the petitioner was declared to have satisfactorily completed his period of probation in the cadre of District Munsif with effect from 22-1-1980. In other words, the petitioner was on probation as District Munsif till 22-1-1980. Subsequently, he was promoted as sub-Judge (now redesignated as senior Civil Judge) on 22-4-1986. Subsequently, he was promoted as District and Sessions Judge-Grade II in the month of March, 1992 and it is stated that he was further promoted as District and Sessions Judge-Gr. I with effect from 5-12-2000.
4. On the basis of SSLC Certificate showing his date of birth as 15-6-1948, the date of birth of the petitioner was recorded in the Service Register as 15-6-1948. According to the petitioner, few days prior to 12-7-1979, he came to know that the date of birth recorded in the service register and certificates issued by the Elementary School, High School and College authorities showing his date of birth as 15-6-1948 is incorrect and his actual date of birth is 15-8-1949 after obtaining certified extract from the Register of Births and Deaths. The petitioner has stated that only in the year 1979, he noticed some of his elder and senior colleagues in the college were shown to be younger and that prompted him to apply for certified extract from the Register of Births and Deaths at Dhone. The petitioner immediately after obtaining the certified extract from the Register of Births and Deaths showing his date of birth as 15-8-1949 submitted a representation dated 1-8-1979 to the Chief Secretary, Government of Andhra Pradesh, requesting the Government to change his date of birth from 15-6-1948 to 15-8-1949, but there was no prompt response to his representation. Under the circumstance, the petitioner filed the suit OS No. 44 of 1981 on the file of the Principal District Munsif, Dhone against the Government of Andhra Pradesh represented by its Chief Secretary, for a declaration that this actual date of birth is 15-8-1949 and not 15-6-1948. The said suit was subsequently transferred to the file of the Principal District Munsif, Nandyal and the same was re-numbered as OS No.302 of 1981. The said suit was contested by the Government contending that the date of birth of the petitioner was recorded as 15-6-1948 on the basis of the declaration made by the petitioner himself and the SSLC certificate produced by him as proof in support of that date. The suit was also contested on the ground that according to G.O.Ms. No. 344, dated 3-12-1980, the Government servant shall be estopped from questioning in any judicial or quasi-judicial or administrative proceedings, the correctness or validity of the date of birth entered in the service Register and that no Court or Tribunal shall have jurisdiction to adjudicate on the correctness of such date of birth and therefore the suit filed by the petitioner was not maintainable. The civil Court on the basis of the pleadings of the parties, framed the following issues for trial:
Issues :
1. Whether the plaintiff was born on 15-8-1949?
2. Whether the plaintiff is estopped from disputing the date of birth as entered in his service register ?
3. Whether this Court has no jurisdiction to entertain the suit?
4. Whether Section 80 CPC notice issued is defective and if so the suit is not maintainable?
5. To what relief ?
The civil Court, on the basis and appreciation of the evidence led in the case, decided all the issues in favour of the petitioner-plaintiff and against the Government and accordingly it decreed the suit by a judgment and decree dated 31-3-1982. The judgment and decree passed by the learned Principal District Munsif, Nandyal in OS No. 302 of 1981 have become final in the absence of any further appeal by the Stale Government. The petitioner, after obtaining the decree in OS No. 302 of 1981 against the Government, submitted a representation dated 20-5-1982 to the Government to implement the decree in his favour and change his date of birth to 15-8-1949 from 15-6-1948. The said representation of the petitioner was rejected by the Government in their Memo No. 67/Cts/C 82-4, dated 10-6-1982. The petitioner being aggrieved by the said action of the Government preferred WP No. 1156 of 1983 in this Court and this Court disposed of that writ petition by its order dated 3-9-1987 directing the respondents to consider representation made by the petitioner as expeditiously as possible. No orders have been passed by the respondents pursuant to the directions of the High Court in the aforementioned writ petition. Therefore, the petitioner filed another WP No. 17882 of 1989 in this Court impleading the State Government as well as High Court as respondents 1 and 2 respectively, for implementation of the decree passed in OS No. 302 of 1981 on the file of the Principal District Munsif, Nandyal and the said writ petition was allowed by this Court on 13-4-1993. The operative portion of the order- reads:
"Under these circumstances, the decree passed by the civil Court has got to be honoured and entries in the service register of the petitioner have got to be made by the respondents stating his date of birth as 15-8-1949. This exercise shall be done by the respondents within one month from the date of receipt of this Order.
The writ petition is allowed accordingly. No order as to costs."
As directed by the High Court in WP No. 17882 of 1989, the Government issued order in G.O.Ms. No. 484, Home (Cts.C) Dept., dated 30-10-1993 changing the date of birth of the petitioner as 15-8-1949 from 15-6-1948. However, the High Court represented by the Registrar (Admn) filed Writ Appeal No. 1262 of 1993 against the order of the learned single Judge made in WP No. 17882 of 1989. That writ appeal was heard with another Writ Appeal No. 1127 of 1993 and both the writ appeals were disposed of by a common judgment dated 17-12-1993. Writ Appeal No. 1262 of 1993 filed by the High Court was allowed and the order of the learned single Judge dated 13-4-1993 made in WP No. 17882 of 1989 was set aside. The Division Bench, in the light of the judgments of the Apex Court in Chandra Mohan v. State of U.P., AIR 1966 SC 1987, State of West Bengal v. Nripendra Nath, , State of Assam v. Ranga Muhammad, , High Court of Punjab and Haryana v. State of Haryana, , State of Haryana v. Inder Prakash, , All India Judges' Association v. Union of India, , Chief Justice of Andhra Pradesh v. LV.A. Diskshitulu, , High Court of Punjab and Haryana v. State of Haryana, , and Samsher Singh v. State of Punjab, , has opined that the High Court alone is the competent authority either to enter the date of birth or alter the date of birth already recorded in the service register of the members of the Andhra Pradesh State Judicial Service or Andhra Pradesh State Higher Judicial Services and therefore the order of the Government vide Memo No. 67/Cts/C 82-4, dated 10-6-1982 is one without authority of law. The Division Bench also held that the High Court is not bound by the decree of the civil Court not bound by any decision or order issued by the Government. The Division Bench has also opined that the "High Court is not at all estopped from considering the request of the writ petitioner for recording or altering his date of birth already recorded in his service register and taking a decision thereon." In that view of the matter, the Division Bench directed the High Court to consider and dispose of the representations of the petitioner for change of his date of birth in the service register on the basis of the "materials available and in accordance with law."
5. After the disposal of WA No. 1262 of 1993, the High Court on administrative side clubbed the representations of the petitioner with the representations of as many as 24 other judicial officers belonging to the cadres of District Judges, Sub-Judges and District Munsifs wherein similar requests were made to change their dates of birth and all those representations were placed before the Administrative Committee of the High Court on 15-10-1997. According to the High Court, on consideration of the representations of those 25 officers, a common resolution was passed rejecting the applications/representations. In pursuance of the above resolution of the Administrative Committee of the High Court, the Registrar (Admn) passed an Order in ROC No. 4518/ 97-B Section, dated 13-11-1997. It reads:
"Proceedings of the High Court of Andhra Pradesh: Hyderabad Sub: Public Services - APSJS -Representation of Sri M. Vijaya Bhaskara Reddy, II Additional Chief Judge, City Civil Court, Hyderabad - Request for alteration of Date of Birth from 15-6-1948 to 15-8-1949 -Considered and rejected.
Read: 1. Application Dis No. Nil, dated 1-8-1979 from Sri M. Vijaya Bhaskara Reddy
2. Lr. Dis. No. 4930, dated 10-8-1979 from the District Judge, Chittoor
3. High Court's Lr. Roc No. 300/78-B2, dated 25-6-1982 Order: Roc No. 4518/97-B Section : Dated 13-11-1997 The representation first read of Sri M. Vijaya Bhaskara Reddy, formerly I Additional Munsif Magistrate, Madanapalli, now Chief Judge, CCC., Hyderabad for alteration of his date of birth from 15-6-1948 to 15-8-1949, has been considered by the High Court and the same is rejected. The resolution of the Administrative Committee is as follows:
"Considered and since it is found that entry in respect of the date of birth in the Service Record 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."
Registrar (Administration) To Sri M. Vijaya Bhaskara Reddy, Chief Judge, City Civil Court, Hyderabad."
Hence, this writ petition assailing the above Order of the High Court.
6. Sri C.V. Mohan Reddy, learned Counsel for the petitioner would contend that the impugned order is not a speaking order inasmuch as it does not disclose any reasons in support of the decision. The learned Counsel would also contend that there is total lack of application of mind on the part of the High Court to the evidence produced by the petitioner in support of his claim. The learned Counsel would point out that admittedly the petitioner has produced large number of documents such as extracts from the register of births and deaths, certificates issued by the Elementary, High School authorities, judgments, of this Court, judgment and decree passed by the civil Court and several other relevant documents, whereas there is absolutely no reference to any of these documents much less consideration of the same in the impugned order. The learned Counsel would maintain that the impugned order cannot be sustained solely on the basis that it is not a speaking order and that there is total lack of application of mind on the part of the High Court, if not for any other reason. The learned Counsel would next contend that the claim of the petitioner is not a belated claim as the High Court seems to think; the petitioner made representation as far back as on 1-8-1979 well before his appointment as District Munsif was confirmed on successful completion of period of probation with effect from 22-1-1980. The petitioner has produced clinching evidence in support of his actual date of birth and though the decree passed by the civil Court is not binding on the High Court in deciding the application of the petitioner, certainly, that decree is a relevant piece of evidence produced by the petitioner and it cannot be ignored. Apart from the civil Court decree, the petitioner has produced public documents such as extract from the register of births and deaths, certificates from the authorities from the local bodies like Gram Panchayat and authorities of schools. There was absolutely no material whatsoever in possession of the High Court to discredit or disbelieve the overwhelming documentary evidence produced by the petitioner. Therefore, the learned Counsel would maintain that the observation of the High Court that the materials produced by the petitioner including civil Court decree do not inspire confidence, is a clear indication of non-application of mind. The learned Counsel lastly would submit that the petitioner has been knocking at the doors of the Government and High Court on administrative side and the civil Court and the High Court on judicial side for justice since 1979 and therefore at this distance of time, it is not appropriate to again to direct the High Court to reconsider the claim of the petitioner afresh because such a course of action would further delay in the decision making and that will be totally prejudicial to the interest of the petitioner and requests the Court to decide the claim of the petitioner on merits finally. While making this request, the learned Counsel would highlight that even in the counter filed by the High Court in this writ petition, no materials or circumstances are stated which would disentitle the petitioner to seek change of date of birth from 15-6-1948 to 15-8-1949. The defence that since the date of birth is entered in the service register of the petitioner on the basis of his own declaration, his request cannot be granted, the learned Counsel would submit, is only a technical ground and that the High Court has nothing to say on merits of the claim of the petitioner.
7. Smt. M. Bhaskara Lakshmi, learned Standing Counsel for the High Court, on the other hand, placing reliance on the judgments of the Supreme Court in Union of India v. C. Rama Swamy, and Direct Recruit Class II Engineering. Officers' Association v. State of Maharashtra, , would maintain that the claim of the petitioner is untenable because the date of birth of the petitioner was recorded on the basis of the declaration made by himself and the proof furnished by him and therefore under no circumstance he will be permitted to alter the date of birth. In other words, the leaned Standing Counsel would maintain that the petitioner is estopped from seeking change of date of birth from 15-6-1948 to 15-8-1949 in his service register.
8. In the light of the rival contentions of the learned Counsel for the parties, the following points arise for our consideration and decision:
I. Whether the Order of the High Court in ROC No. 4518/97- B Section, dated 13-11-1997 impugned in this writ petition is a speaking order?
II. Whether the impugned order is vitiated on account of non-application of mind on the part of the High Court ?
III. Whether the impugned order is vitiated on account of non-consideration of relevant materials and evidence ?
IV. Whether the petitioner is estopped from seeking change of date of birth from 15-6-1948 to 15-8-1949 in the service register?
V. Whether the petitioner is entitled to seek change of date of birth ?
Points Nos. I to III:
9. Points No. l to 3 may conveniently be considered together. Admittedly, the petitioner after disposal of the Writ Appeal No. 1262 of 1993 by a Division Bench of this Court on 17-12-1993 submitted representations enclosing several documents in support of his plea. The petitioner in para (13) of the affidavit filed in support of the writ petition has stated:
"13. I am to submit that subsequently, I addressed a letter dated in ROC No. 63/SC/ 94, dated 2-2-1994 to the respondent to consider and dispose of my application. On 21-4-1995 also I addressed a DO letter in ROC No. 759/SC/95 to Sri M.E.N. Patrudu, the then Registrar (Management), High Court of Andhra Pradesh in the above regard. I had also submitted various documents viz.
(1) Extract from the Register of Births, dated 12-7-1979 (which was marked as Ex. A1 in OS No. 302 of 1981 on the file of District Munsif, Nandyal.
(2) Certificate issued by the Head Master of Elementary School (Veldurthi) which discloses that my date of birth was entered as 1-7-1948 in their records (this was marked as Ex. A2 OS No.302 of 1981) (3) Certificates of date of birth issued by the High School authorities which discloses that my date of birth was entered as 15-6-1948 in their records (marked as Ex. A3 in OS No. 302 of 1981) (4) Certificate issued by Veldurthi Gram Panchayat Executive Officer to the effect that there was no entry in the Register of Births that a child was born to my parents either on 15-6-1948 or 1-7-1948 (this was marked as Ex.A4 in OS No. 302 of 1981) (5) Office copy of my first application dated 1-8-1979 addressed to the A.P. Government through Registrar of A.P High Court requesting for alteration of my date of birth (marked as Ex.A6 in OS No.302 of 1981) (6) Certificate copy of the judgment in OS No. 302 of 1981 dated 31-3-1982 on the file of District Munsif, Nandyal (declaring my date of birth as 15-8-1949).
(7) Proceedings of the High Court of A.P. in ROC No. 3524/83-B2, dated 30-12-1983 (to the effect that I completed my probation on the F/N of 22-1-1980) (8) My subsequent application dated 12-12-1987 addressed to the Registrar of A.P. High Court requesting for alteration of my date of birth (9) My application dated 15-12-1987 addressed to the Registrar of A.P. High Court (in continuation of my earlier letter dated 12-12-1987) (10) My another application dated 29-3-1988 addressed to the High Court (for selfsame purpose).
(11) Copy of the order of A.P. High Court in WP No. 17882 of 1989 dated 13-4-1993 allowing my writ.
(12) Copy of the G.O.Ms. No. 484, dated 30-10-1993 issued by the Government of A.P. (ordering alteration of my date of birth in the Service Register as 15-8-1949).
(13) Copy of the Order of the A.P. High Court in WA No.1262 of 1993 dated 17-12-1993 (directing the High Court to consider and dispose of my requests) (14) Letter in ROC No. 63/SC/94, dated 2-2-1994 addressed by me to the Registrar (Admn), High Court of A.P. requesting to comply with the directions of the A.P. High Court in WA No. 1262 of 1993, dated 17-12-1993.
Thus, I had placed overwhelming and authenticated documentary evidence in establishing my correct date of birth as 15-8-1949 and also proved that the different dates of birth as entered in the school registers were imaginary."
The High Court in the counter filed by it has not denied the averments made in para (13). Be that as it may, the same documents listed in para (13) of the affidavit are also produced before us. Though the petitioner has produced large number of documents in support of his claim, in the impugned order there is absolutely no reference to, much less consideration of, any of those documents. Although the High Court has chosen to reject the application of the petitioner and others on the ground that the materials and the decrees of civil Courts produced by them do not inspire confidence, no reason is stated in the impugned order for the formation of that opinion. It is trite that when an administrative or statutory authority makes an adverse order against a person which action is liable to be reviewed by Constitutional Courts, it becomes imperative for such authority to states reasons in support of the Order. In Administrative Law by HWR Wade and CF Forsyth, 7th Edition, at pages 541 and 542, the learned Authors have stated:
"The principles of natural justice have not in the past included any general rule that reasons should be given for decisions. There appears to be no such rule even in the Courts of law themselves and it has not been thought suitable to create one for administrative bodies. Nevertheless there is a strong case to be made for the giving of reasons as an essential element of administrative justice. The need for it has been sharply exposed by the expanding law of judicial review, now that so many decisions are liable to be quashed or appealed against on grounds of improper purpose, irrelevant considerations and errors of law of various kinds. Unless the citizen can discover the reasoning behind the decision, he may be unable to tell whether it is reviewable or not, and so he may be deprived of the protection of the law. A right to reasons is therefore an indispensable part of a sound system of judicial review. Natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man's sense of justice. It is also a healthy discipline for all who exercise power over others. 'No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions."
It is now well settled law that where an authority makes an order in exercise of a quasi-judicial function or an order which has the effect of affecting civil rights of a person and which action is liable to be reviewed by Constitutional Courts, it must record its reasons in support of the order it makes. In Siemens Engineering and Manufacturing Company of India Limited v. UOI, , the Supreme Court held that the rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirements of law. To the same effect is the opinion of the Supreme Court in Union of India v. K.L. Kapoor, , Woolcombers of India Limited v. Woolcombers Workers Union, , Maneka Gandhi v. UOI, . It hardly requires any emphasis that compulsion of disclosure of reasons guarantees consideration. The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the other party against whom the order is made; and it also enables an appellate or supervisory or reviewing Court to keep the Tribunals and authorities within bounds. Therefore, a reasoned order is always a desirable condition of judicial disposal or a disposal or which is required to be done judiciously. If the Tribunals and authorities can make orders without giving reasons, it is trite, the said power in the hands of unscrupulous or dishonest officers may turn out to be a potent weapon for abuse of power, but if reasons for an order are to be given, it will be an effective restraint on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. In M.P. Industries Limited v. Union of India, , the Supreme Court has pointed out that a speaking order will at its best be a reasonable and at its worst be at least a plausible one and the public should not be deprived of this only safeguard. The order made by the High Courts on administrative side are amenable to judicial review under Article 226 of the Constitution of India and the appellate powers of the Supreme Court under Article 136. Therefore, it goes without saying that both the High Courts and the Supreme Court are placed under a great disadvantage if no reasons are given. It is well settled position in law by reason of the judgments of the Supreme Court in State of M.P. v. Narsinghdas, AIR 1969 SC 115, State of Gujarat v. Patel Raghav Nath, AIR 1964 SC 1297, Travancore Rayons Limited v. UOI, 1978 ELT (378) (SC), that if no reasons are given in the order, the order will be regarded as void. A Constitution Bench of the Supreme Court in S.N. Mukherjee v. Union of India, , dealing with the question whether there is any general principle of law which requires an administrative authority to record the reasons for its decision was pleased to hold:
(35) The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from generally standpoint of policy and expediency.
36. xxx
37. xxx (38) A similar trend is discernible in the decisions of English Courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value. (See : R.V. Deputy Industrial Injuries Commissioner ex P. Moore, Mahon v. Air New Zealand Limited (39) The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action". As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the Legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making a express provision to that effect as those contained in the Administrative Procedure Act, 1946 of USA and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject-matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweigh the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.
10. In the light of the above noticed well settled principles governing speaking orders or reasoned decisions, the impugned order passed by the High Court should be held as a non-speaking order because it does not disclose any reasons in support of its conclusion and decision. However, the learned Standing Counsel for the High Court would contend that though the impugned order does not disclose reasons in support of the opinion formed by it, the relevant records of the High Court show the existence of reasons in support of the conclusion arrived at by the High Court. The learned Counsel would contend that simply because the impugned order itself does not disclose reasons, it cannot be condemned as illegal and void if the reasons and grounds exist in the records. There cannot be any quarrel with the principle stated by the learned Standing Counsel for the High Court. In certain circumstances, reasons need not be stated in the order itself, but they should exist in the record, may be in the form of notes and endorsements. The Supreme Court in Union of India v. E.G. Nambudiri, , has opined that if a representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons in the order of rejection. It held:
10. There is no dispute that there is no rule or administrative order for recording reasons in rejecting a representation. In the absence of any statutory rule or statutory instructions requiring the competent authority to record reasons in rejecting a representation made by a Government servant against the adverse entries the competent authority is not under any obligation to record reasons. But the competent authority has no licence to act arbitrarily, he must act in a fair and just manner. He is required to consider the questions raised by the Government servant and examine the same, in the light of the comments made by the officer awarding the adverse entries and the officer countersigning the same. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory or administrative provision requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. No order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex facie and it is not open to the Court to interfere with such orders merely on the ground of absence of any reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same. In Governmental functioning before any order is issued the matter is generally considered at various levels and the reasons and opinions are contained in the notes on the file. The reasons contained in the file enable the competent authority to formulate its opinion. If the order as communicated to the Government servant rejecting the representation does not contain any reasons, the order cannot be held to be bad in law. If such an order is challenged in a Court of law it is always open to the competent authority to place the reasons before the Court which may have led to the rejection of the representation. It is always open to an administrative authority to produce evidence aliunde before the Court to justify its action."
In that view of the matter, in order to satisfy ourselves that there existed reasons in the record in support of the opinion formed by the High Court and recorded in the impugned order, we directed the learned Standing Counsel to produce the relevant records. Accordingly, the learned Standing Counsel placed before us the original records. As already noticed above, the High Court rejected the applications and representations of as many as 25 officers by a common resolution. We have perused the original records placed before us. The subject of consideration of applications/representations of the 25 judicial officers for change of their date of birth was included in Item No. 1 of the Agenda of the Meeting of the Administrative Committee of the Hon'ble Judges of the High Court held on 15-10-1997. The Registry has placed a note prepared by it in respect of each of the 25 officers. The following is the office note prepared and placed before the Administrative Committee by the Registry as regards the petitioner herein:
"1. District and Sessions Judges:
1. It is respectfully submitted that Sri M. Vijayabhaskara Reddy, District Judge has submitted an application requesting the High Court to alter his date of birth as 15-8-1949 from 15-6-1948. The officer has also stated that he got issued a notice under Section SO CPC, to the Government, subsequently he filed suit OS No. 302 of 1981 on the file of the District Munsif, Nandyal and obtained a decree for alteration of his date of birth, that he submitted a representation for implementing the decree of the Court, that the said request of the officer was refused by the Government that thereafter the Officer has filed WP No. 1156 of 1983 on the file of the High Court and the same was disposed on 3-9-1987, with a direction to consider the representation stated to have been submitted to the Registrar, that the officer has filed another WP No. 17882 of 1987, for implementing the decree of the Lower Court for correction of his date of his birth. Against the said judgment the High Court has preferred WA 1262 of 1993, and the same was also allowed by directing the High Court to consider the representation of the officer and dispose of the same on the material available and in accordance with law, that the matter has been placed before the first Committee of the Hon'ble Judges held on 13-4-1994, that the subject was differed to the next meeting and in the meanwhile directed to circulate the matter to the Hon'ble Sri Justice M.N. Rao.
Submitted".
After placing similar notes in respect of each of the 25 officers, the Registry placed the following common note in respect of all 25 officers:
"In this connection it is submitted that recently in WA No. 1689 of 1995, on the file of the High Court, filed by Sri M.E.N Patrudu, District and Sessions Judge, now Chairman, Industrial Tribunal II, Hyderabad, for alteration of his date of birth as 3-9-1951 instead of 15-2-1950, while allowing the said WA the Division Bench consisting of the Hon'ble the Chief Justice, Sri P.S. Mishra and Sri M.H.S. Ansari, J., observed as follows:
xxxxxx xxxxxxx xxx xxxxxx xxxxxxx xxx
5. We have good reasons to hold that any rule framed by the State Government in exercise of the power under Article 234 of the Constitution of India will not embrace the services of the District Judges and any rule framed under the proviso to Article 309 of the Constitution of India will obviously remain confined to other categories of the employees of the State Government and not apply to the District Judges or other category of Judicial Officers. The scheme as to appointment and control upon the services of the Judicial Officers in Chapter VI of Part VI of the Constitution of India is separate and independent of the scheme as to the Services under the Union and the States in Chapter-I of Part XIV of the Constitution of India. The superior Judicial Service i.e., the service of the District Judges, is not to be at par for the extent of the control of the State Government with the services of other category of Judicial Officers. The control, however, of the High Court is completed under Article 235 of the Constitution without any ambiguity, and excludes interference of the Government of the State in the affairs of the services of the judicial officers except in matters for which conditions of service prescribed under law required affirmation by the Government such as in the case of dismissals, discharge or reduation in rank of an officer and otherwise in some circumstances, but in such cases also the Court's recommendation binds the State. It cannot take any view independent of the advise or the recommendation of the Court.
6. We avoid, however, any opinion on the application of the rules aforementioned to the case of the writ petitioner-respondent as in our opinion the representation which he made has not yet been brought to the Court. The State Government having received the representation could do nothing other than forwarding the representation to the High Court, since the High Court in exercise of its power under Article 235 of the Constitution alone is competent to deal with it.
In view of the above judgment in WA No. 1689 of 1995, it is respectfully submitted for your Lordships Orders for further steps to be taken on the representations of the Officers."
Although the note placed before the Administrative Committee relating to the petitioner's case states that in the meeting of the Administrative Committee held on 13-4-1994, the subject was deferred directing the Registry "to circulate the matter to the Hon'ble Sri Justice M.N. Rao", from the original records placed before us, we do not find any notes or opinion recorded by M.N. Rao, J., or for that matter any other Hon'ble Judges who constituted the Administrative Committee during the relevant point of time, on the claim of the petitioner. Therefore, the resultant position is that the only material placed before and available to the Administrative Committee in its meeting held on 15-10-1997 was the office note prepared by the Registry which is extracted above. The office note prepared does not deal with the merits of the claim of the petitioner at all and in fact Registry understandably and quite rightly has not recorded any opinion on merit. The Registry's note does not even refer to many relevant documents produced by the petitioner. We do not find any other note or endorsement made by the Registry officials or by the learned Judges of the Administrative Committee touching the merits of the matter. It will be wrong to assume that in considering the legality of an administrative order, the Court should only consider the formal grounds or considerations mentioned by the concerned authority in the order, and ignore completely the background facts and grounds lying behind the decision. If this were to be so, the scope of judicial review would indeed be very restrictive. Although the Courts do not consider the sufficiency or adequacy of the facts, yet they may examine the facts with a view to find out the relevance to, or whether it was possible to draw the inference from those facts in support of, the grounds or conclusions mentioned in the order in question. This position is well settled by the Apex Court in Barium Chemicals Limited v. Company Law Board, , A. Rohtas Industries Limited v. S.D. Agarwal, , and State of Gujarat v. Jamma Das, . Therefore, we do not find any merit in the contention of the learned Standing Counsel that the reasons and grounds for recording the conclusion as reflected in the impugned order exist in the records, though they are not disclosed in the impugned order. Therefore, we hold that no grounds or reasons exist in the original records placed before us to support the impugned order. The impugned order is a non-speaking order and it cannot be sustained in law because reasons do not exist even in the record.
11. Since the High Court was expected to consider the representation of the petitioner for change of date of birth judiciously, fairly and reasonably, it was incumbent on the High Court to apply its mind to the relevant facts and to satisfy itself whether the claim of the petitioner for change of date of birth in the service record is justified and supported by necessary proof. It is well settled law that non-application of mind on the part of the authority vitiates the order.
12. It is trite when discretion has been conferred on an authority, it must itself exercise the discretion after considering all the relevant facts and circumstances of the case before it, and come to its own decision thereon. The authority cannot divest itself of the power given to it; if it does so, its action will be invalid. In such a situation, the authority is deemed to have failed to exercise its discretion. As pointed out supra, although the petitioner with his representations enclosed as many as 14 documents, some of which such as extract from the Register of Births and Deaths, Certificates issued by the elementary and High School authorities, Judgment of the civil Court, there is absolutely no reference to or consideration of those documents in the impugned order. In other words, the impugned order does not reflect application of mind to the facts and circumstances of the case. The claims of as many as 25 officers in diverse fact-situations relating to their request for change of dates of birth in the Service Register have been disposed of by the High Court in a most casual and mechanical way by a few line common resolution. As pointed out supra, there is nothing even on record to support the conclusion reached by the High Court. The resolution preceding the impugned order is passed by the Administrative Committee of the High Court in a most casual manner without taking due care and caution and considering the merits of individual cases of 25 officers. The impugned order passed by the High Court could be a text-book example of non-application of mind as well as leaving out relevant considerations from the decision-making. Although the civil Court decree is not binding on the High Court as held by the Division Bench of this Court, it cannot be said that the civil Court decree is irrelevant consideration for decision-making. Similarly public documents like extracts from Register of Births and Deaths, Certificates issued by the school authorities cannot be said to be irrelevant consideration in the decision-making. Therefore, I am constrained to hold that the impugned order of the High Court suffers from the vices of being a non-speaking order, non-application of mind and leaving out relevant considerations and is totally arbitrary and unreasonable.
Point No. IV
13. The learned Standing Counsel for the High Court placing reliance on the judgment of the Supreme Court in C. Rama Swamy's case (supra) would contend that since the date of birth of the petitioner is recorded in the service register on the basis of the declaration made by the petitioner himself and the proof produced by him at that time, he is estopped from seeking alteration of date of birth at this distance of time under any circumstance. In order to appreciate this contention of the learned Standing Counsel for the High Court, it becomes necessary to closely examine the ratio decidendi of the judgment of the Supreme Court in C. Rama Swamy's case (supra). In that case, a question arose whether the respondent therein was entitled to ask for an alteration of the date of birth as entered in his service record, which entry had been made at the time when he had joined service. In that case, the respondent was selected as a direct recruit to the Indian Police Service (IPS) of 1968 batch. In his service-book his date of birth was entered as 17-6-1939. This entry was made on the basis of his date of birth as recorded in the senior school leaving certificate and also in his application for appearing for Civil Services Examination of the year 1967 in which he was selected. When the matter stood thus, nearly fourteen years after the respondent had joined service, he submitted a representation dated 4-9-1982 to the A.P. State Government, the cadre to which he has been assigned, for changing his date of birth to 15-6-1941. In the said application it was, inter alia, stated that after the demise of his mother, while going through various papers in his house, he found from his horoscope that his date of birth which was written in Tamil corresponded to 15-6-1941. He also stated that he had obtained extracts from the record of birth from Sub-Registrar's Office which indicated that his date of birth was 15-6-1941. Accordingly, he requested that his date of birth be altered from 17-6-1939 to 15-6-194l. That request was rejected by the State Government. Thereafterwards, the petitioner made a representation to the Central Government for correcting his date of birth, through proper channel. That representation was also rejected by the Central Government vide its Order dated 23rd May, 1990. Then he filed a suit in the Court of the District Munsif, Sholinghur, impleading the Director of School Education, Madras; District Educational Officer, Vellore and his eldest sister Kamla as the defendants for a decree of mandatory injunction for directing Defendants 1 and 2 to alter his date of birth from 17-6-1939 to 15-6-1941 in his SSLC book. The suit was decreed on 28th October, 1992 and a mandatory injunction was granted directing that the date of birth of the respondent should be corrected in the SSLC book so as to reflect the respondent's date of birth as being that of 15th June, 1941 instead of 17th June, 1939. The respondent armed with the said decree and consequent correction effected in the senior school leaving certificate, once again made a representation to the Central Government for altering his date of birth to 15-6-1941. The Central Government vide its order dated 15-11-1993, passed in exercise of its powers conferred by Rule 16-A of the All India Services (DCRB) Rules, 1958. The respondent then made another representation on 4th January, 1994 to the Secretary, Department of Personnel, Government of India, Ministry of Home Affirms. That representation was also rejected. When the matter stood thus, the respondents filed OA No. 383 of 1994 before the Hyderabad Bench of the Central Administrative Tribunal praying it to direct the alteration of his date of birth to 15-6-1941. On behalf of the Union of India and other appellants, apart from contending that no case has been made out for agreeing to the change in the date of birth, reliance was also placed on Rule 16-A which had been amended vide notification dated 7th June, 1978 and it was contended that the date of birth as recorded in the service book had to be accepted as final and correct. The Tribunal came to the conclusion that Sub-rules (4) and (5) of the 1971 Amendment Rules continued to apply to pre 1971 direct recruits even after the promulgation of the new Rule 16-A in 1978 and under the 1971 Rules no determination with regard to the date of birth of the respondent had taken place. The tribunal accordingly directed the appellants therein to determine his date of birth after giving the respondent an opportunity to place the necessary material available with him. It was further directed that in case it was found that the date of birth of the respondent herein had to be altered from 17-6-1939 then necessary correction had to be made in his service-register and the same had to be taken as the basis for determination of the age of superannuation of the respondent. The Union of India being aggrieved by the said direction of the Tribunal filed an appeal before the Supreme Court. The Supreme Court on consideration of the provisions of Rule 16-A as inserted by the Notification dated 7th July, 1978 which substituted the earlier rule as inserted vide notification dated 4th December, 1971 came to the conclusion that 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. It was contended in that case on behalf of the Government of India that the respondent therein was estopped from pleading a different date of birth when the entry in that regard in his service record had been entered on his representation at the time when he entered service inasmuch as it could not be said that the entry was made out of a bona fide clerical mistake. In the context of the above contention placed on behalf of the Government of India, the Supreme Court held:
"(25) In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability.
(26) 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 incorrect because the candidate concerned had represented a different date of birth to be taken into consideration obviously with a view that that would be to his advantage. Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel would clearly be applicable and relief of change of date of birth can be legitimately denied. To that extent the decision in Manak Chand case does not lay down the correct law."
14. From the above judgment of the Apex Court, two things clearly emerge: The first is that the Supreme Court was called upon to decide the claim of the respondent officer therein in terms of the statutory rules, in other words, within the parameters of the statutory rules defining the circumstances under which alteration of date of birth could be permitted. In the instant case, there are no statutory rules governing alteration of date of birth of a judicial officer. As held by the Division Bench in Writ Appeal Nos. 1262 of 1993 and 1127 of 1993, the High Court is not bound by Government orders issued in that regard and it is for the High Court in its discretion to grant and refuse alteration of date of birth of a judicial officer having regard to the facts and circumstances of each case in exercise of its power of control under Article 235 of the Constitution of India. The second thing which emerges from the judgment is that it cannot be said as a statement of law that under no circumstance, an official or officer can be permitted to seek alteration or change of date of birth in his service record if the date of birth is already recorded in the service record is based on his own declaration and proof furnished by him at the time of entry into service and he would be bound by principle of estoppel. The above statement of law would apply only if it is established that the officer who seeks change of date of birth in his service record had wrongly given his date of birth at the time of entry into service with a motive or intention to draw an obvious advantage to himself or by furnishing such incorrect date of birth, the officer derived some advantage to himself, therefore, what is to be seen in the instant case is whether the petitioner gave his date of birth 15-6-1948 at the time of entry with an intention to draw an advantage or whether the petitioner drew any advantage by declaring his date of birth as 15-6-1948 at the time of entry into service. If the answer is in the negative, estoppel rule is not applicable and the representation of the petitioner for change of date of birth is maintainable.
15. The above contention raised by the learned Standing Counsel for the High Court is not a pure question of law and it is a mixed question of fact and law. I opine so because the answer to the question would depend upon the finding on the question whether the petitioner by representing an incorrect date of birth at the time of entry into service gained any advantage to himself or not. Therefore, if the High Court were to put forth this plea of estoppel, it would have pleaded that fact and adduced evidence to prove that the petitioner by stating his date of birth as 15-6-1948 at the time of entry into service, as a matter of fact, gained some advantage or benefit to himself. Such a plea was never taken at any stage of the proceedings on the administrative side or in the writ proceedings culminating in Writ Appeal No. 1262 of 1993 dated 17-12-1993. Further, even in the counter filed by the High Court in this writ petition, this factual plea is not taken. The plea of estoppel is also not raised as a ground of opposition to the writ petition. Therefore, it is not permissible for the learned Standing Counsel for the High Court to raise such new plea without any factual matrix and pleading. Bose, J., in Commissioner of Police, Bombay v. Gordhan Das Bhanji, AIR 1952 SC 60, observed:
"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to hum they are addressed and must be construed objectively with reference to the language used in the order itself."
The Supreme Court in Mohinder Singh v. Chief Election Commissioner, , has opined that when a statutory functionary or authority makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. The Court was pleased to further observe that otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. Further, the Supreme Court in Bharat Singh v. State of Haryana, , held that a party raising a point must plead not only relevant facts but also state facts by way of evidence in proof of facts pleaded. Therefore, we cannot permit this new plea put forth by the learned Standing Counsel at the time of argument. It is also very relevant to notice that even at the time of argument, it is not the contention of the learned Standing Counsel for the High Court that the petitioner by stating his date of birth as 15-6-1948 at the time of entry into service has gained any perceivable advantage to himself. On the other hand, the learned Counsel for the petitioner submitted that the petitioner, as a matter of fact, did not derive any advantage nor can it be said that he is deemed to have derived any benefit or advantage to himself inasmuch as, as many as five officers who were appointed as District Munsif along with the petitioner in 1976 batch are younger to the petitioner. Therefore, the situation contemplated by the Supreme Court in para (25) of the judgment in C. Rama Swamy's case (supra) relating to derival of an advantage in the matter of age of the applicant for the post did not exist in the case of the petitioner at the time of entry into service. Therefore, looking from that angle also, there is no scope to apply the ratio of the judgment of the Supreme Court in C. Rama Swamy's case (supra). Thirdly, the plea now raised by the learned Standing Counsel for the first time cannot be entertained because in my considered opinion that plea is hit by doctrine of constructive res judicata. It is well settled by the judgments of the Supreme Court in Daryao v. State of U.P., , Amalgamated Coal Fields Limited v. Janapada Sabha, , and Kunwar Ram Nath v. Municipal Board, , that both res judicata and constructive res judicata apply to writ proceedings also. In the instant case, the above contention based on estoppel rule was never raised by the High Court either in WP No. 17882 of 1989 dated 13-4-1993 or in the Writ Appeal No. 1262 of 1993 filed by it. In fact, at no point of time, the High Court took the plea that the petitioner derived any benefit or advantage to himself by stating his date of birth as 15-6-1948 at the time of entry into service. Although the High Court chose to file WA No.1262 of 1993 against the order made by the learned single Judge in WP No. 17882 of 1989 dated 13-4-1993, it did not raise that plea even before the Division Bench. The Division Bench in its judgment delivered in WA No.1262 of 1993, has set out points raised in the appeal by the High Court. They are the following:
"1. On a combined reading of Articles 233, 234 and 235 of the Constitution of India, the word "control" clearly indicates that though the appointing authority for the post of District Munsifs in the Andhra Pradesh State Judicial Service is the first respondent, the competent authority either to record the date of birth in the service register or after the date of birth which was already entered in the service register in respect of District Munsifs in the High Court which admittedly maintains the Service Registers and the High Court, not being a party to the suit, is not bound by the same. Merely because the decree is binding on the first respondent, it doesn't mean that it is binding on the High Court as well.
2. The decree obtained by the petitioner is only a piece of evidence in support of his claim. The High Court, having considered all aspects exhaustively, rejected the same and in any event there being some evidence or reasons in support of the conclusion, this Court cannot interfere with the same exercising jurisdiction under Article 226 of the Constitution of India.
3. The dates and events right from the issuance of notice under Section 80 of the Code of Civil Procedure by the writ petitioner till the claim for alteration of date of birth in the Service Register, clearly indicate that filing of the suit, obtaining a decree etc., is nothing but a part of a strategy of the writ petitioner on the even if the recruitment to the post of District Munsif to obtain eligibility for consideration for recruitment to the said post."
No plea based on estoppel was raised. For all these reasons, I am of the considered opinion that in the first place, the High Court cannot be permitted to take this plea firstly because it is hit by doctrine of constructive res judicata and secondly and alternatively we are also of the considered opinion that the High Court has utterly failed to place any materials before us to satisfy that the petitioner by stating his date of birth as 15-6-1948 at the time of entry into service gained any advantage or benefit to himself. Therefore, there is no scope to apply the ratio of the judgment of the Supreme Court in C. Rama Swamy's case (supra) to the facts of this present case. Therefore, I answer the Point No. IV in the negative and in favour of the petitioner.
Point No. V:
16. In recent times, the Apex Court in several pronouncements has defined parameters and scope of judicial review of the actions of the public employers in permitting their employees to change their dates of birth. Therefore, it is appropriate for the Court to notice those pronouncements which would aid in the decision-making in the instant case. In Director of Technical Education v. K. Sitadevi, , the respondent therein was a lady Engineer in the service of the State of Andhra Pradesh and she entered into service in 1955. The Matriculation Certificate which she had then produced while entering into service indicated her date of birth to be 19-10-1929. It appears that she filed OS No. 309 of 1979 in the civil Court for alteration of date of birth from 19-10-1929 to 21-8-1933 impleading the Andhra University as defendant and obtained the decree on 21-10-1980. Pursuant to the decree of the civil Court, the Andhra University issued a fresh matriculation certificate to her in which her date of birth was shown as 21-8-1933. On the basis of this new certificate, respondent applied to the appropriate authority for changing her date of birth from 19-10-1929 to 21-8-1933 in the service record. That application was rejected by the Government on 23-6-1983. Thereafter, the respondent filed Original Application before the Andhra Pradesh Administrative Tribunal and the same was allowed by the Tribunal. Being aggrieved by the Order of the Administrative Tribunal, The Director of Technical Education and another preferred Civil Appeal to the Apex Court. The Apex Court while dismissing the civil Appeal held that what exactly is the date of birth of a person is undoubtedly a question of fact. Answering the contention of the State Government that a decree passed by the civil Court is not being on it, because it was not made a party to the same, the Supreme Court held that a decree without the State being a party is not binding on the State Government in the matter of determination of the date of birth, but, the Tribunal, on the basis of the materials placed before it, apart form the decree of the civil Court, had come to its own conclusion on the question of fact and therefore the finding recorded by the Tribunal on question of fact could not be interfered within the appeal before the Supreme Court. The Supreme Court in Secretary and Commissioner, Home Department v. R. Kirubakaran, , has opined that unless prima facie evidence of unimpeachable character is produced by the applicant, alteration of date of birth should not be accepted. In Burn Standard Company Limited v. Dinabandhu Majumdar, , a three Judge Bench of the Supreme Court has opined that the special law or rules governing the service of an employee if forbid correction of such date of birth of an employee after acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee becomes impermissible. The Supreme Court further held:
No doubt, there may be special law or rules which permit a person appointed in the service of the Government or its instrumentality to seek correction of his date of birth which might have been accepted by the Government or its instrumentality, as the case may be, as correct at the time of his appointment. But, the special law or rules governing the service of an employee if forbid correction of such date of birth of employee after its acceptance by the Government or its instrumentality, its subsequent correction at the instance of such employee becomes impermissible. However, in the absence of such special law or rules it may be open to the employee concerned to seek correction from the Government or its instrumentality, of the date of birth declared by him and accepted by the Government. Even where such correction is sought, the Government or its instrumentality, as the case may be, would be entitled to refuse to correct the date of birth of its employee if the facts in the given case do not warrant such correction. If that be the legal position, can it be said that it is open to a High Court in exercise of its extraordinary writ jurisdiction to entertain a writ application of an employee of the Government or its instrumentality, as the case may be, for correction of his date of birth entered in his "Service and Leave Record" at the time of his appointment and direct the Government or its instrumentality concerned to correct such date of his birth in his "Service and Leave Record" and continue him in service beyond the date of his normal retirement, is the question. It is true that the High Court in exercise of its discretionary jurisdiction under Article 226 of the Constitution can even enter upon disputed questions of fact, if the case in which the extraordinary jurisdiction is invoked warrants adoption of such inevitable course and decide upon the same for giving relief to the parry concerned. But, the question is that if an employee of the Government or its instrumentality, who is at the fag end of his service and due for retirement from his service shortly, according to his date of birth found in his "Service and Leave Record" files a writ application before the High Court and invokes its writ jurisdiction for correction of such date of birth with a view to continue in service beyond the normal period of his retirement, will it be appropriate for the High Court to entertain such application to enquire into disputed facts pertaining to his date of birth for correcting it and extend his period of service?
(10) Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so far the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of their juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Court under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly-found material. The tact mar an employee of Government or its instrumentality who has been in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag and of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employees, who had grievance as to his date of birth in his "Service and Leave Record" could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts, should not, in exercise of their discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his "Service and Leave Record" or Service Register with the avowed object of continuing in service beyond the normal period of his retirement.
17. The Supreme Court in Union of India v. Harnam Singh, , had an occasion to deal with a case where an application by an employee for correction of date of birth was made only after being notified about his date of superannuation and not within the period of five years from the date of coming into force of the Government of India's notification dated 30-11-1979. In that case entry into the Government service was in 1956 and the application for correction of date of birth was made in 1991. The Supreme Court observed that inaction of the employee for a period of about 35 years from the date of joining service precluded him from showing that entry of his date of birth in service record was not correct and that Central Administrative Tribunal committed an error in issuing the direction to correct his date of birth. In the context of that case, the Supreme Court observed:
".....It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. In the absence of any provision in the rules for correction of date of birth, the general principle of refusing relief on grounds of laches or State claims, is generally applied by the Courts and tribunals. It is nonetheless competent for the Government to fix a time-limit, in the service rules, after which no application for correction of date of birth of a Government servant can be entertained. A Government servant who makes an application for correction of date of birth beyond the time, so fixed, therefore, 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. The law of limitation may operate harshly but it has to be applied with all its rigour and the Courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. Unless altered, his date of birth as recorded would determine his date of superannuation even if it amounts to abridging his right to continue in service on the basis of his actual age...."
18. In Visakhapatnam Dock Labour Board v. E. Atchanna, , the reason given by the respondents for alteration of their dates of birth was that their age was recorded in the service books only on the basis of their physical appearance and they are illiterate and had affixed thumb impressions in the service records. The alteration of their dates of birth was sought after a lapse of 26 to 34 years after entry into service. While rejecting the claim of the respondent-employees for change of their dates of birth, the Supreme Court held:
".....Entry of the respondents in the service was between 1961 and 1969. After remaining in service for more than 25 years they applied for alteration of their birth dates and that too after they received notices regarding their superannuation. The reason given by the respondents for alteration of their dates of birth was that their ages were recorded in the service books only on the basis of their physical appearance. That may be so; but it was not their case that they were not recorded in their presence. Merely because they are illiterate and had affixed their thumb impressions in the service records it is not possible to believe that they did not know what was recorded therein with respect to their dates of birth. Moreover, the appellant had issued a circular dated 10-7-1987 and it was intimated to all concerned after Government of India had issued the notification dated 30-11-1979 prescribing the procedure to be followed for change of date of birth. It is not in dispute that the appellant is a Central Government Undertaking and that the said notification which is incorporated as Note 5 to Fundamental Rule 56 (m) applies to the respondents. Therefore, for alteration of their dates of birth the respondents were required to take steps within 5 years from the date of coming into force of the said notification. Even after the circular was issued by the appellant, the respondents did not approach the appellant within reasonable time....."
19. What emerges from the discussion of the judgments of the Apex Court noticed above, can be summarised. They are as follows:
(1) It is open to a civil servant to claim correction of his date of birth as held in the case of Harnam Singh (supra).
(2) Such claim of the employee can be allowed only if he is in possession of irrefutable proof relating to his date of birth as different from the one earlier recorded and that he produces prima facie evidence of unimpeachable character in support of the proof for change of date of birth as held in Harnam Singh's case (supra) and R. Kirubakaran's case (supra).
(3) Even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay and if a Government servant approaches the employer at a belated stage or at the fag end of the service, the general principle of refusing relief on grounds of laches or stale claims is generally applied by the Courts and the Tribunals as could be discerned from the judgments in K. Sitadevi's case (supra), Harnam Singh (supra), Bum Standard Company Limited case (supra), Visakhapatnam Dock Labour Board (supra) and C. Rama Swamy's case (supra).
(4) An employee is estopped from seeking alteration of date of birth if he has gained or derived some perceivable benefit or advantage to himself by representing an incorrect date of birth at the stage of entry into service as held in C. Rama Swamy's case (supra).
20. In the premise of the above noticed well-settled principles, when we look at the facts of this case, a distinguishing feature of this case can be seen. That is, the petitioner herein without any loss of time after he came to know his correct date of birth and even before his services as District Munsif were confirmed with effect from 22-1-1980, submitted a representation dated 1-8-1979 for alteration of his date of birth. It is relevant to notice that in all the above noticed cases decided by the Supreme Court, the concerned employees sought alteration of their dates of birth in the service records either after the expiry of the limitation prescribed under the relevant service rule for seeking such change or after notifying the date of superannuation of the concerned employee or after a long lapse of period from the date of entry into service ranging from fourteen (14) years to thirty six (36) years without any justifiable ground for inordinate delay. The Supreme Court, therefore, did not approve the alteration of dates of birth of the employees at the fag ends of their services. Secondly, it is also relevant to notice that in none of those judgments, the Supreme Court, as a statement of law, declared that under no circumstance an employee can be permitted to alter his date of birth in the service record, if date of birth already recorded in the service record is on the basis of the date of birth furnished by the employee himself. On the other hand, as already pointed out, the Supreme Court itself has opined that date of birth of an employee can be altered provided such employee produces prima facie evidence of unimpeachable character. Thirdly, rule of estoppel would apply only in a case where the employee concerned has gained some advantage or benefit by stating an incorrect date of birth at the time of entry into service. In other words, if the Court finds that in a given case, the employee concerned does not derive any benefit or advantage by stating an incorrect date of birth at the time of entry into service, the Court may not be justified in rejecting the claim of such employee on technical ground that the date of birth already recorded in the service register is on the basis of such employee's own declaration and proof produced by him and if the Court were to do so, it would result in miscarriage of justice. In the instant case, as already pointed out, the petitioner by stating his date of birth as 15-6-1948 at the time of entry into service has not derived any advantage or benefit on that count inasmuch as, as many as five others who were appointed as District Munsifs in 1976 batch are younger to the petitioner. Therefore, the ratio of the judgment in C. Rama Swamy's case (supra), is not applicable to the facts of this case. In the result, we declare that the impugned order of the High Court rejecting the application of the petitioner for change of his date of birth from 15-6-1948 to 15-8-1949 is totally illegal, arbitrary and unreasonable.
21. The High Court at no stage of the proceedings including the present proceeding has questioned the admissibility or authenticity of the evidence produced by the petitioner in support of his case. Although civil Court decree is not binding on the High Court as held by the Division Bench of this Court in Writ Appeal Nos. 1127 of 1993 and 1262 of 1993, dated 17-12-1993, as could be noticed form the same judgment, undoubtedly the civil Court decree is a piece of relevant evidence. In other words, the civil Court decree should go into the decision-making by the High Court as to whether the petitioner's claim should be allowed or rejected. Similarly, the public documents such as extracts from the register of births and deaths are also relevant admissible evidence. The High Court has not said even a word in any of the proceedings either on administrative side or in its pleadings in writ proceedings for doubting the integrity and acceptability of these relevant documents. Therefore, we may take it that the High Court has nothing to say against the evidence produced by the petitioner. The evidence produced by the petitioner clinchingly establishes that the correct date of birth of the petitioner is 15-8-1949 and not 15-6-1948. In that view of the matter, the observation of the High Court in the common resolution passed by it that the civil Court decrees and other materials produced by the officers do not inspire confidence, I am constrained to state, is based on subjective satisfaction of the learned Judges who constituted the Administrative Committee and not on objective consideration of relevant materials. The petitioner, as already pointed out supra, has been knocking the doors of justice, first, at the doors of the Government, the High Court on administrative side and subsequently before the civil Court and this Court on judicial side. But, he has been denied justice till date evenafter a lapse of long period of 22 years and more.
22. It is true that ordinarily when an administrative action in general and discretionary action in particular is set aside or quashed on any permissible ground of judicial review, the administration will be directed to reconsider the issue and pass appropriate order. In that view of the matter, since we found that the impugned order of the High Court cannot be sustained in law, we should have quashed the impugned order and left the matter to be decided de novo by the High Court on consideration of all relevant materials. However, the learned Counsel for the petitioner would persuade us to decide the issue finally to give a quietus. I am persuaded to see merit in the request of the learned Counsel for the petitioner, because of three reasons viz., firstly, 22 years of time has already been spent in consideration of the representation of the petitioner; secondly, the High Court has not said anything against the authenticity, relevancy and admissibility of the evidence produced by the petitioner. It is well settled that in appropriate cases and if there is any justification for doing so, this Court can exercise the very power which is available to the original authority itself instead of remanding the proceedings to the concerned authority. In taking this view, I am fortified by the opinions handed down by the Apex Court in Bhagat Ram v. State of Himachal Pardesh and Ors., , Prafulla Chandra Mohapatra v. State of Orissa, , Union of India and Ors. v. I.S. Singh, 1994 Supp. (2) SCC 518 and Gujarat Steel Tubes Limited and Ors. v. Gujarat Steel Tubes Mazdoor Sabha and Ors., , and of this Court in Subedar Kashmira Singh v. Government of India, , and thirdly, if the Court were to direct the High Court to reconsider the application of the petitioner for change of date of birth, it would result in further delay in deciding the claim of the petitioner, and such a course of action would not be in the interest of justice and fair-play in action. Therefore, I find resaonableness in the request of the learned Counsel for the petitioner to give a quietus to the dispute particularly having regard to the fact that the evidence produced by the petitioner in support of his claim for change of date of birth is not contested at all by the High Court and the evidence produced by the petitioner in support of his claim, in the words of the Apex Court, constitutes 'prima facie evidence of unimpeachable character'. After perusing the entire records and earlier proceedings, both on administrative side and judicial side, I find that at no point of time either the High Court or the Government took any objection to the admissibility or authenticity of the evidence produced by the petitioner in support of the proof of his actual date of birth. The claim of the petitioner was turned down mainly on technical ground that since the date of birth of the petitioner is recorded in the service record on the basis of the declaration made by him at the time of entry into service, he is not entitled to seek alteration of date of birth in the service record. In that view of the matter, I find justification to grant the relief as prayed for.
23. In the result and for the foregoing reasons, I allow the writ petition and quash the impugned Order in ROC No. 4518/95-B Section dated 13-11-1997 of the High Court. A direction shall issue to the High Court to change the date of birth of the petitioner from 15-6-1948 to 15-8-1949 in the Service Register of the petitioner. No costs. A month time is granted for compliance.
S. Ananda Reddy, J.
I have had the benefit of going through the judgment proposed by my learned brother S.R. Nayak, J. I am unable to agree with the conclusion reached on the facts of the matter.
2. The petitioner is a post-graduate and completed Law degree and got enrolled as an Advocate. He was not aware of the correctness of his date of birth till 1979, when he was about 30 years by that time. He joined the Judicial Service in the year 1976. According to him, he obtained his birth extract (recently i.e., 12-7-1979) before making representation to the Government on 1-8-1979 and found the exact date of birth as 15-8-1949 and also came to know from his father that his date of birth was wrongly given by his grandfather, who was an illiterate man, at the time of admission into school. Therefore, his date of birth was wrongly entered as 1-7-1948 by the elementary school authorities and as 15-6-1948 by the high school authorities. There is no explanation in what connection he had obtained his birth extract before making the representation to the State Government. According to the petitioner, his father knows about the wrong entry but he did not inform the petitioner about it, as according to him, there is nothing serious about it. It is not the case of the petitioner that his father is an illiterate. While issuing notice under Section 80 CPC to the Government, it was stated on behalf of the petitioner as under:-
"My Client entertained a doubt about the correctness of his date of birth as entered in the Service Register and SSLC register recently and obtained his birth extract."
In the writ petition he stated that some of his colleagues, who are seniors to him in the college were found to be young to him. Therefore, he obtained his birth extract.
3. The petitioner filed a suit and obtained a declaratory decree as to his correct date of birth making only the State Government as party. Thereafter he made a representation to the Government for correction of his date of birth in the Service Register, which was rejected by the Government by proceedings dated 10-6-1982. Thereafter, the petitioner filed a writ in WP No. 1156 of 1983, which was disposed of by his Court on 3-9-1987 with a direction to the respondent-Registrar of the High Court, to consider the representation as expeditiously as possible. The respondent, however, informed the petitioner that no representation was pending before it by proceedings dated 31-8-1989. Thereafter, the petitioner again filed a writ in WP No. 17882 of 1989 alleging the inaction on the part of the respondent, impleading both the Government and the High Court, without assailing the communication dated 31-8-1989 of the High Court. The above writ petition was allowed by a learned single Judge of this Court on 13-4-1993 and later the same was appealed by the respondent in WA No. 1262 of 1993. The said writ appeal was allowed, but, however, the respondent was directed to consider the representation submitted by the petitioner. Though, for the respondent one of the contentions that were advanced in the writ appeal was that the writ petitioner has no right to make representation for alteration of his date of birth, in view of the rules issued in G.O.Ms. No. 165 viz., Andhra Pradesh Public Employment (Recording and Alteration of Date of Birth) Rules, the Bench declines to go into that issue.
4. The High Court, the respondent herein, as per the directions issued in WA No. 1262 of 1993 dated 17-11-1993 considered the representation of the petitioner, but, however, declined to accept the claim of the petitioner for alteration of his date of birth as entered in his Service Register, by proceedings dated 13-11-1997 and the said proceedings are assailed in the present writ petition. In fact, the decision of the High Court on the administration side was in respect of about 25 Judicial Officers, including the petitioner, who have sought for alteration of the entry relating to the date of birth in the Service Register. It appears that except the petitioner herein, none of the other Judicial Officers have assailed the decision of the High Court. No doubt the decision of the High Court communicated to the petitioner and others do not contain any reasons or grounds for such rejection. But by that, it could not infer that the High Court on administration side did not apply its mind. The usual practice in all these matters is to circulate the material in advance relating to any issue on the agenda and after due deliberations by the Members of the Administrative Committee, who are senior most Judges of the High Court, including the Chief Justice, the Committee decides the issue one way or the other. Therefore, it would not be proper to hold that the High Court did not apply its mind. However, if the Court on the judicial side feels it necessary that the matter requires to be considered once again, the same can be sent back for consideration once again.
5. With reference to the advantage, if any, said to have been enjoyed by the petitioner, as per his date of birth as entered in the SSLC Register and therefore, the benefit referred in the case of C. Rama Swamy (supra) decided by the Apex Court, the benefit or advantage, which was enjoyed by one of the selected candidate basing on his date of birth, is not apparently visible. It is only the selection committee that knows whether any of the selected candidates had enjoyed the benefit of the age. It is also common knowledge that if two candidates, who appeared for the selection are equal on merit, then preference would be given to the elder in age by considering him to be more matured. Therefore, it would not possible to plead and prove the advantage on this count enjoyed by any of the candidate selected for appointment. Apart from the above, the petitioner did not disclose the educational particulars relating to period during which he studied various classes anywhere in the proceedings for the correction of date of birth, including in the suit, where the petitioner obtained a declaratory decree. Under the Education Rules a student has to complete 16 years by the time he or she appears for the Secondary School Leaving Certificate (SSLC) examination. If the petitioner had enjoyed the benefit of appearing for SSLC examination by virtue of his date of birth as registered in the School Register, he is not entitled to get the same corrected later after enjoying such benefit. This fact was not at all considered at any stage of the proceedings. The petitioner is the fifth issue to their parents and the particulars of other children were also not furnished by the petitioner at any stage of the proceedings. These particulars which are also necessary to find out the veracity of the claim of the petitioner. The material also shows that even original register of births and deaths from which the petitioner obtained the certified extract relating to his date of birth and filed, was not called for and verified even in the suit. No doubt, these issues were not raised by the learned Standing Counsel for the High Court, but still it is the duty of this Court to consider all necessary factors before granting the relief prayed in the writ petition by exercising the discretionary jurisdiction vested in it.
6. Therefore, without going into the merits of the material placed before this Court, I am of the view that in the interest of justice, it is proper to remit the matter for fresh consideration once again, if necessary, after calling for further material from the petitioner.
7. Accordingly, the impugned order dated 13-11-1997 is quashed and the matter is remitted to the High Court on administration side for fresh consideration. No costs.