Andhra Pradesh High Court - Amravati
M.Saifulla Baig vs The State Of Andhra Pradesh, Rep.By Its ... on 6 January, 2025
1
(RNT,J & CGR,J
W.P.NO.8398 OF 2011)
APHC010218222011
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3509]
(Special Original Jurisdiction)
MONDAY ,THE SIXTH DAY OF JANUARY
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
WRIT PETITION NO: 8398/2011
Between:
M.saifulla Baig ...PETITIONER
AND
The State Of Andhra Pradesh Rep By Its Secretary ...RESPONDENT(S)
and Others
Counsel for the Petitioner:
1. K ASAD AHAMED
Counsel for the Respondent(S):
1. GP FOR FINANCE & PLANNING
The Court made the following:
ORDER:(per Hon'ble Sri Justice Ravi Nath Tilhari ) Heard Sri K.Asad Ahamed, learned counsel representing M.S.P.Reddy, learned counsel for the petitioner and Sri R.S.Manidhar Pingali, the learned Assistant Government Pleader for Services-I representing the learned Government Pleader for Finance and Planning for respondents 1 to 3. 2
(RNT,J & CGR,J W.P.NO.8398 OF 2011)
2. The petitioner is the applicant in O.A.No.4525 of 2005 before the Andhra Pradesh Administrative Tribunal at Hyderabad (in short „the Tribunal).
3. The petitioner entered into service initially as Junior Assistant in the year 1978, consequent to the selection by the competent authority. He was promoted as Senior Assistant in December-2002. In the service Register, his date of birth was recorded as 4.3.1948, based on the school certificate (Ex.P15), furnished by the petitioner.
4. The case of the petitioner is that his actual date of birth is 4.1.1951. He filed representation for correction of his date of birth. The 1st representation was filed on 23.07.1981 (Ex.P5). In support of his claim, he filed extract of the Birth Register of Nandyal Municipality, Nandyal, issued in the year 1968 (Ex.P3).
5. Being aggrieved from the inaction of the authorities, he preferred the OA., The Tribunal dismissed the OA., by the order under challenge, dated 27.08.2009.
6. Learned counsel for the petitioner submits that the petitioner‟s correct date of birth is 4.1.1951, as based on the birth certificate. The birth certificate is to be given precedence over the entry in the school records. The authorities ought to have decided the representation favourably and, the 3 (RNT,J & CGR,J W.P.NO.8398 OF 2011) Tribunal erred in dismissing the OA., He placed reliance in the case of C.Thimmaiah V. State of Andhra Pradesh and others1.
7. Learned Assistant Government Pleader submits that the date of birth of the petitioner was recorded in the Service Register, based on the school certificate produced by the petitioner himself before the authorities. He further submits that the representation was filed in the year 1981, but even if there was inaction on the part of the respondent-authorities, the petitioner ought to have taken the recourse under law immediately. But, he filed the OA., in the year 2005, at the fag end of his service career. The Tribunal rightly dismissed the O.A.,
8. We have considered the aforesaid submissions and perused the material on record.
9. The date of birth entered in the Service Register is based on the document of the petitioner‟s school certificate produced by him. The birth certificate was not produced before the authorities. The date of the birth certificate as annexed is of the year 1968. The petitioner entered into service in 1978. So, at that time, the birth certificate was available to be produced. But, he placed reliance on the school certificate to record date of birth. Further, the petitioner filed the representation, after three (03) years of entering into service and kept silence for more than 20 years. He approached the Tribunal in the year 2005 for correction, at the fag end of his service. 1 2010 (4) ALD 16 (DB) 4 (RNT,J & CGR,J W.P.NO.8398 OF 2011)
10. It is well settled in law that in the matters of correction of the date of birth in the Service Register, the employee has to take steps immediately and cannot wait till the fag end of his service career.
11. In Karnataka Rural Infrastructure Development Limited vs. T.P. Nataraja and others 2 , the Hon‟ble Apex Court reiterated, that the application for change of date of birth can only be as per the relevant provisions/regulations applicable and even if there is cogent evidence, the same cannot be claimed as a matter of right. Application can be rejected on the ground of delay and laches also, more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.
12. Paragraphs 10 to 12 of Karnataka Rural Infrastructure Development Limited (supra) are reproduced as under:
10. Even otherwise and assuming that the reasoning given by the High Court for the sake of convenience is accepted in that case also even respondent No.1 - employee was not entitled to any relief or change of date of birth on the ground of delay and laches as the request for change of date of birth was made after lapse of 24 years since he joined the service. At this stage, few decisions of this court on the issue of correction of the date of birth are required to be referred to.
10.1 In Home Deptt. v. R.Kirubakaran (1994 Supp (1) SCC 155) , it is observed and held as under:
"7. An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, 2 (2021) 12 SCC 27 5 (RNT,J & CGR,J W.P.NO.8398 OF 2011) inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever..."
10.2 In State of M.P. v. Premlal Shrivas (2011) 9 SCC 664) in paragraph 8 and 12, it is observed and held as under:
"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 :
1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).
12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the timelimit within which an 6 (RNT,J & CGR,J W.P.NO.8398 OF 2011) application is to be filed, the appellants were dutybound to correct the clerical error in recording of his date of birth in the service book."
10.3 In Life Insurance Corporation of India & others v. R.Basavaraju (2016) 15 SCC 781), it is observed as under:
"5. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same cannot be changed. Not only that, this Court has also held that a claim for change in date of birth cannot be entertained at the fag end of retirement"
10.4 In Bharat Coking Coal Limited and Ors. v. Shyam Kishore Singh [(2020) 3 SCC 411] of which one of us (Justice A.S. Bopanna) was a party to the bench has observed and held in paragraph 9 & 10 as under:
"9. This Court has consistently held that the request for change of the date of birth in the service records at the fag end of service is not sustainable. The learned Additional Solicitor General has in that regard relied on the decision in the case of State of Maharastra and Anr. v. Gorakhnath Sitaram Kamble (2010)14 SCC 423 wherein a series of the earlier decisions of this Court were taken note and was held as hereunder:
"16. The learned counsel for the appellant has placed reliance on the judgment of this Court in U.P.Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri [(2005) 11 SCC465: 2006 SCC (L&S) 96]. In this case, this Court has considered a number of judgments of this Court and observed that the grievance as to the date of birth in the service record should not be permitted at the fag end of the service career.
17. In another judgment in State of Uttaranchal v. Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106] relief was denied to the government employee on the ground that he sought correction in the service record after nearly 30 years of service. While setting aside the judgment of the High Court, this Court observed that the High Court ought not to have interfered with the decision after almost three decades.
*** 7 (RNT,J & CGR,J W.P.NO.8398 OF 2011)
19. These decisions lead to a different dimension of the case that correction at the fag end would be at the cost of a large number of employees, therefore, any correction at the fag end must be discouraged by the court. The relevant portion of the judgment in Home Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 :1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as under: (SCC pp. 158 59, para 7) "7. An application for correction of the date of birth [by a public servant cannot be entertained at the fag end of his service]. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotion forever. ... According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. ... the onus is on the applicant to prove the wrong recording of his date of birth, in his service book."
10. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. v. Premlal Shrivas, [(2011) 9 SCC 664] it is held as hereunder:
"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any 8 (RNT,J & CGR,J W.P.NO.8398 OF 2011) government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleepover their rights"
(see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).
***
12. Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the timelimit within which an application is to be filed, the appellants were dutybound to correct the clerical error in recording of his date of birth in the service book."
11. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under:
(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;
(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;9
(RNT,J & CGR,J W.P.NO.8398 OF 2011)
(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation.
12. Therefore, applying the law laid down by this court in the aforesaid decisions, the application of the respondent for change of date of birth was liable to be rejected on the ground of delay and laches also and therefore as such respondent employee was not entitled to the decree of declaration and therefore the impugned judgment and order passed by the High Court is unsustainable and not tenable at law."
13. In the General Manager, Barsua Iron Ore Mines V. The Vice President, United Mines Mazdoor Union and Others 3 the Hon‟ble Apex Court has reiterated that there was much delayed disclosure of the date of birth by the respondent therein. It was coupled with his initial declaration and the admitted position that based on such initial declaration, he had received employment. The Hon‟ble Apex Court reiterated the principles of law as laid down in Bharat Coking Coal Ltd., V. Shib Kumar Dushad 4 and observed further that the principles of estoppel would come into play in the facts of that case.
14. Paragraphs 18, 19 & 21 of the General Manager, Barsua Iron Ore Mines (supra) are reproduced as under :
"18. Undoubtedly, a decision on the issue of date of birth is as important for the employer as it is for the employee. Reference in this regard can be made to Bharat Coking Coal Ltd. v. Shib Kumar Dushad, MANU/SC/0662/2000: (2000) 8 SCC 696. A: MANU/SC/0492/1997 expressed in Union of India v. C. Rama Swamy, 1997:INSC:394: (1997) 3 MANU/SC/0270/2024 4 MANU/SC/0662/2000 10 (RNT,J & CGR,J W.P.NO.8398 OF 2011) 4 SCC 647, "... 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......
19. Moreover, the principles of estoppel would come into play in the present case. The Respondent No. 3, having stated on 27.12.1972, that his date of birth was 27.12.1948, cannot be permitted to raise the claim of his date of birth being 12.03.1955, that too on 14.08.1982). 14.08.1982, i.e., almost after a decade (counting from 27.12.1972 Even the STC was submitted after the Appellant requested the Respondent No. 3 for documentary proof on 24.11.1998.
21. In view of the aforesaid, this Court finds that the much- delayed disclosure of the date of birth as 12.03.1955 by the Respondent No. 3, coupled with his initial declaration and the admitted position that based on such initial declaration, he had received employment, as otherwise based on 12.03.1955, he could not have been legally appointed due to being under-age, there is no manner of doubt that the Respondent No. 3, irrespective of his real date of birth, for the purpose of employment under the Appellant, cannot be allowed the purported rectification/correction of date of birth to 12.03.1955. He would have to, necessarily, be content with his service and benefits accounted taking his date of birth as 27.12.1948."
15. We find that the facts in the present case are almost similar.
16. In C.Thimmaiah (supra), it was laid down that the details in Deaths and birth register maintained by statutory authorities raise a presumption of correctness and such entries made in statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act, 1872, which would prevail over an entry made in the school register. 11
(RNT,J & CGR,J W.P.NO.8398 OF 2011) However, in the present case, we find that such evidence i.e., birth register copy was never produced before the authority to record his date of birth in the Service Register. What was produced was the school certificate, inspite of availability of copy of birth certificate. So, at this stage, the question of giving precedence does not arise. Here the question is of making correction in Service Register, in which the entry was made long back, and that too based on the document (school certificate) produced by the petitioner. We are of the view that based on C.Thimmaiah (supra), no benefit can be derived by the petitioner, for his claim of change in the date of birth in Service Register. His claim could be rejected even if there was cogent evidence as it could not be claimed as a matter of right, after long lapse of 20 years at the fag end of service.
17. The petitioner did not approach the authorities for correction immediately, after the joining into service and also did not approach the Court in time.
18. The Tribunal has further taken the view that under the G.O.Ms.No.165, dated 21.04.1984, the correction was permitted only in the cases, where clerical mistakes were in recording the date of birth. It concluded that there were no clerical mistakes, as the same was based on the evidence/documents placed before the authorities by the petitioner. 12
(RNT,J & CGR,J W.P.NO.8398 OF 2011)
19. No case for interference is made out.
20. The Writ Petition is devoid of merits, and is dismissed.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending, shall also stand closed.
____________________ RAVI NATH TILHARI, J _______________________ CHALLA GUNARANJAN,J Date : 06.01.2025.
Note :- L.R. Copy to be marked.
B/o RPD.
13
(RNT,J & CGR,J W.P.NO.8398 OF 2011) 182 THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN (DISMISSED) WRIT PETITION NO: 8398 OF 2011 Date: 06.01.2025 Note :- L.R. Copy to be marked.
B/o RPD.
14
(RNT,J & CGR,J W.P.NO.8398 OF 2011) *HON'BLE SRI JUSTICE RAVI NATH TILHARI AND * HONOURABLE SRI JUSTICE CHALLA GUNARANJAN +WRIT PETITION No.8398 OF 2011 % 06.01.2025 #1. M.Saifulla Baik ......Petitioner And:
$ The State of Andhra Pradesh and others.
....Respondents.
!Counsel for the petitioner : Sri K.Asad Ahamed ^Counsel for the respondent/(s) : Sri R.S.Manidhar Pingali (Assistant Government Pleader for Services-I Rep. Government Pleader for Finance & Planning) <Gist:
>Head Note:
? Cases referred:
1. 2010 (4) ALD 16 (DB)
2. (2021) 12 SCC 27
3. MANU/SC/0270/2024
4. MANU/SC/0662/2000 15 (RNT,J & CGR,J W.P.NO.8398 OF 2011) HON'BLE SRI JUSTICE RAVI NATH TILHARI AND HONOURABLE SRI JUSTICE CHALLA GUNARANJAN WRIT PETITION No.8398 OF 2011
1. M.Saifulla Baik ......Petitioner And:
1. The State of Andhra Pradesh and others.
....Respondents.
DATE OF JUDGMENT PRONOUNCED : 06.01.2025
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
AND
THE HONOURABLE SRI JUSTICE CHALLA GUNARANJAN
1. Whether Reporters of Local newspapers may be Allowed to see the judgments? Yes/No
2. Whether the copies of judgment may be marked to Law Reporters/Journals? Yes/No
3. Whether Your Lordships wish to see the fair Copy of the Judgment?
Yes/No ___________________ RAVI NATH TILHARI, J _______________________ CHALLA GUNARANJAN,J