High Court Of A.P vs N. Sanyasi Rao

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 6964 OF 2004

HIGH COURT OF A.P. ... APPELLANT(s)

Versus

N. SANYASI RAO . RESPONDENT(s)

J U D G M E N T

R.M. LODHA, J.

The High Court of Andhra Pradesh, on the administrative

side, through its Registrar (Administration) is in appeal,

by special leave, aggrieved by the judgment and order dated

February 6,2002 whereby the Division Bench of that Court

allowed the Writ Petition filed by the respondent herein and

held that he was entitled to get entered March 29, 1953 as

his date of birth in the service record.

2. The respondent - N. Sanyasi Rao (hereinafter referred to

as the " Judicial Officer") - was selected in the judicial

service of the State of Andhra Pradesh and was given an

order of appointment as District Munsif. In pursuance

thereof, he joined the service on October 7, 1985.

3. In the application for recruitment to the Andhra Pradesh

Judicial Service for the post of District Munsif made by the

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Judicial Officer, he mentioned his date of birth as July 1,

1949. That date of birth was given by him on the basis of

the Secondary School Leaving Certificate.

4. In 1983, before the application for recruitment to the

Judicial service was made by the Judicial Officer, he had

filed a suit (O.S. No. 61 of 1983) seeking declaration that

his date of birth is March 29, 1953 and not July 1, 1949

and for direction to the concerned authorities to make

necessary alterations in the school, college and University

records. After conclusion of the trial in the suit and on

hearing the parties, the Principal District Munsif at

Chodavaram decreed the suit and held that the Judicial

Officer was entitled to the declaration of his date of birth

as March 29, 1953.

5. Thus, when the Judicial Officer joined the service on

October 7, 1985, he referred to the decree dated February

28, 1985 (for short "decree") and declared his date of birth

as March 29, 1953. The District Judge, Visakhapatnam, after

the Judicial Officer had joined the service on October 7,

1985, opened his service register on December 30, 1985 and

recorded his date of birth as March 29, 1953 based on the

decree and also showed his date of birth as July 1, 1949

based on the Secondary School Leaving Certificate.

6. In 1989, after the alteration was made in the education

certificates in compliance of the decree, the Judicial

Officer made a representation to the Registrar, High Court

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for the correct recording of his date of birth. The

representation was sent through concerned District Judge.

The representation made by the Judicial Officer was kept

pending for years together. On October 15, 1997, the High

Court on the administrative side passed a Resolution

(hereinafter referred to as the "Resolution) rejecting the

representation made by the Judicial Officer and he was

communicated of the Resolution on December 11, 1997. The

Judicial Officer sought review of the decision taken by the

High Court on the administrative side and that, we are

informed, has never been disposed of till today. Since the

decision on Judicial Officer's request for review of the

Resolution was not taken within reasonable time, the

Judicial Officer moved the High Court on the judicial side

by filing a Writ Petition challenging the Resolution.

7. As noticed above, the Writ Petition filed by the Judicial

Officer was allowed by the High Court on February 6, 2002.

8. Mr. T.V. Ratnam, learned counsel for the appellant

submits that the direction given by the High Court in the

impugned order is contrary to Rule 2-A of the Andhra Pradesh

Public Employment (Recording and Alteration of Date of

Birth) Rules, 1984 (for short "1984 Rules"). He further

submits that the decree obtained by the Judicial Officer

declaring his date of birth to be March 29, 1953 is of no

help and cannot be taken into consideration in regard to the

alteration of date of birth. With reference to Rule 2(4) of

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1984 Rules, he submits that the date of birth entered in

the service record of the employee is final and binding and

the employee is estopped from disputing the correctness of

the date of birth so recorded.

9. Mr. K. Ramamoorthy, learned senior counsel for the

Judicial Officer supported the judgment of the High Court

and heavily relied upon the decision of this Court in the

case of High Court of A.P. vs. M. Vijaya Bhaskara Reddy -

Civil Appeal No. 4993 of 2002 decided on July 22, 2010. He

would also submit that the decision of the Full Bench in G.

Krishna Mohan Rao vs. Registrar, Andhra Pradesh

Administrative Tribunal, Hyderabad and others 2004 (3) ALD

449(FB) was not a good law, particularly in view of the

decision of this Court in M. Vijaya Bhaskara Reddy (supra).

10. The Judicial Officer has been very candid,

forthright and honest in disclosing the true and correct

facts about his date of birth while making the application

for recruitment to the Andhra Pradesh State Judicial

Service and also while making the declaration on joining

the service. He mentioned his date of birth in the

application as July 1, 1949; obviously based on his date of

birth shown in the Secondary School Leaving Certificate.

By the time, he was selected and appointment letter came to

be issued, he had a decree in his favour declaring his date

of birth as March 29, 1953 and, therefore, at the time of

joining the service, he referred to the decree and stated

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his date of birth as March 29, 1953. The District Judge,

Vishakhapatnama, at the time of opening the service register

pertaining to the Judicial Officer recorded his date of

birth as March 29, 1953 based on the decree and also entered

his date of birth as July 1, 1949 as per the Secondary

School Leaving Certificate. With the above endorsement, the

District Judge, Vishakhapatnam forwarded the service

register of the Judicial Officer to the High Court. The

exact endorsement made by the District Judge, Vishakhapatnam

on December 30, 1985 is follows:

"Date of birth of Christian Era and wherever possible is sake Era (both in words and figures as determined by the competent authority)

29.3.1953 as per decree at 28.2.1985 in O.S. 61/1983 on the file of Principal District Munsif

1.7.1949 as per H.S.L.C. Registrar."

11. Learned senior counsel for the Judicial Officer

and learned counsel for the appellant are ad idem that 1984

Rules are applicable to judicial officers for recording and

alteration of date of birth. The 1984 Rules became

effective from April 21, 1984. Rule 2 thereof deals with

the recording of the date of birth of every Government

employee. It reads as follows:

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"2: 1) Every Government employee shall, within one month from the date on which he joins duty, makes a declaration as to his date of birth.

2) On receipt of the declaration made under sub rule (1), the Head of Office or any other officer who maintains the service records in respect of such Government employee shall, after making such enquiry as may be deemed fit, with regard to the declaration and after taking into consideration such evidence, if any, as may be adduced in respect of the said declaration, make an order within four months from the date on which the Government employee joins service, determining the date of his birth.

Provided that in cases where the date of birth as determined under this sub-rule is different from the one declared by the Government employee concerned under sub-rule (1), he shall be given an opportunity of making a representation, before a final order is made.

3) Where a Government employee fails to make a declaration within the time specified in Sub-Rule (1), the Head of Office or the officer who maintains the service records shall, after taking into consideration such evidence as may be available and after giving an opportunity of making a representation to the Government employee concerned, determine the date of birth of the employee within six months from the date on which the Government employee joins service.

4) The date of birth determined under this rule shall be entered in the service record of the employees concerned duly attested by the Head of the Office or the officer who maintains the service records and date of birth so entered shall be final and binding and the Government employee shall be estopped from disputing the correctness of such date of birth.

5) The date of birth as determined and entered in the service record shall not be altered except in case of bona fide clerical error, under the orders of Government."

12. 1984 Rules were amended subsequently. By G.O. Ms.

No. 383, Fin. & Plg., dated November 16, 1993, Rule 2-A was

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inserted with effect from April 21, 1984. By this provision,

it has been provided that the decree of a Civil Court in

regard to alteration of date of birth in the school or

university record shall not be taken into consideration in

derogation of these Rules. We reproduce Rule 2-A as it is:

"2-A: "Civil Courts" Decree not be taken into consideration:- In any proceedings before the Government or any Court, Tribunal, or other authority for the alteration of date of birth in the service records, the decree of a Civil Court in regard to alteration of the date of birth in the School or the University records or the contents in the Judgment leading to such decree, or the effect of its implementation shall not be taken into consideration in derogation to these rules and it is hereby declared that these rules shall have effect notwithstanding any thing contained in any judgment, Decree or Order of a Civil Court in regard to the alteration of date of birth in the School or the University records whether or not the Government is a party to such Proceedings."

13. Rule 2 requires a Government employee to make a

declaration in respect of his date of birth within one month

from the date of his joining duty. The Judicial Officer

joined his duty as District Munsif on October 7, 1985 and

made a declaration that his date of birth was March 29,

1953. As per Rule 2, on receipt of the declaration, the

Head of Office or any other officer who maintains the

service records in respect of such employee, after making

necessary enquiry, as may be thought fit with regard to the

declaration so made by the employee and after taking into

consideration the relevant evidence adduced in respect of

such declaration is required to make an order within four

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months from the date on which the employee joins service

determining the date of his birth.

14. Strangely, in the present case, no determination

of the Judicial Officer's date of birth was made as

contemplated and required in Rule 2 of the 1984 Rules. The

District Judge, Vishakhapatnam on opening the service

register of the Judicial Officer mentioned both the dates

namely; March 29, 1953 based on the decree and also July 1,

1949 based on the Secondary School Leaving Certificate.

Nothing has been shown to us by the learned counsel for the

appellant about the firm date of birth recorded in the

service record of the Judicial Officer. As a matter of

fact, there has been no determination of the date of birth

of the Judicial Officer at all and, therefore, the Division

Bench, in the impugned order observed and, in our view

rightly, that the judicial officer had not asked for any

alteration in the date of birth but his prayer had been for

recording correct date of birth in the relevant service

record. Curiously, the Judicial Officer has placed on

record two half yearly lists of the members of the Andhra

Pradesh Higher Judicial Service, corrected up to July 1,

2003 and July 1, 2004. The Judicial Officer had already

become member of the Higher Judicial Service by that time

and in both these lists published by the High Court of

Andhra Pradesh, the Judicial Officer's date of birth has

been shown as March 29, 1953. In the impugned resolution

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rejecting the representation of the Judicial Officer, no

reasons have been stated. It is a non-speaking order on its

face. For about nine years, the High Court on the

administrative side, sat over the representation made by the

Judicial Officer. Treating the Judicial Officer's date of

birth as July 1, 1949, the High Court on the administrative

side issued an order on June 8, 2009 that the Judicial

Officer would retire from the service on attaining the age

of superannuation of 60 years on June 30, 2009 and,

accordingly, the Judicial Officer has been made to retire

on that date.

15. In M. Vijaya Bhaskara Reddy (supra), this Court

was concerned with a case where the Judicial Officer-M.

Vijaya Bhaskara Reddy was appointed as District Munsif on

August 16, 1976. He made a declaration that his date of

birth was June 15, 1948. M. Vijaya Bhaskara Reddy then

applied for change of his date of birth to August 15, 1949.

When nothing was done after giving the notice under Section

80 of the Code of Civil Procedure, 1908, he filed a suit

which was decreed on March 31, 1982. He then made a

representation for implementation of the decree. His

representation came to be rejected which was challenged by

him in a Writ Petition. The High Court by an order dated

September 3,1987 directed the State Government to consider

the representation made by him and when nothing was done

within a reasonable time, he filed yet another Writ Petition

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before the High Court. That Writ Petition was allowed by

the Single Judge of the High Court vide order dated April

13, 1993 and a direction was given that the decree of the

Court has got to be honoured and entries in the service

register of M. Vijaya Bhaskara Reddy have got to be made

accordingly.

16. Against the judgment of the Order of the Single

Judge, Writ Appeal was filed by the High Court on the

administrative side. The Division Bench allowed the Writ

Appeal and set-aside the order of the Single Judge passed on

April 13, 1993. It was held that it was not competent for

the State Government to take a decision in the matter and

the High Court on the administrative side alone was the

competent authority either to enter the date of birth or

after the date of birth was recorded in the service register

of the members of the Andhra Pradesh State Judicial Service,

to change the same.

17. The Division Bench, accordingly, requested the

High Court on the administrative side to consider and

dispose of M. Vijaya Bhaskara Reddy's representation.

Pursuant thereto, the High Court on the administrative side

took up the representation of M. Vijaya Bhaskara Reddy along

with the representations of 24 other Judicial Officers

(including the representation of the present Judicial

Officer) and passed the Resolution on October 15, 1997

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rejecting the representations made by M.Vijaya Bhaskara

Reddy and the present Judicial Officer.

18. M. Vijaya Bhaskara Reddy then filed a Writ

Petition challenging the Resolution dated October 15, 1997

(same resolution which was challenged by the present

respondent in the Writ Petition in which the impugned order

came to be passed). The Division Bench of that Court in the

Writ Petition filed by M. Vijaya Bhaskara Reddy, on hearing

the parties, set-aside the Resolution giving three reasons

in support thereof namely; (1) The Resolution was not in a

speaking order; (2) 22 years' time was already spent in

consideration of the representation and (3) nothing was

stated by the High Court against the authenticity, relevancy

and admissibility of the evidence produced by the Judicial

Officer.

19. Dealing with the appeal arising from that order,

this Court found no justification in interfering with the

order of the Division Bench and the appeal preferred by the

Andhra Pradesh High Court on the administrative side was

dismissed by this Court on July 22, 2010.

20. In our view, the Resolution in respect of the

present Judicial Officer also suffers from all the three

fundamental infirmities which have been noticed by this

Court in M. Vijaya Bhaskara Reddy.

21. However, having regard to the peculiar facts and

circumstances of the present case, we feel it appropriate

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that the High Court must determine on the administrative

side the Judicial Officer's date of birth. This has become

unavoidable as nothing has been shown to us that there has

been determination of the Judicial Officer's date of birth

as contemplated and required in Rule 2(2) of the 1984

Rules. Certain materials have been placed on record by the

High Court on the administrative side in this appeal. One

of such materials is that the Judicial Officer got admitted

in 6th standard in 1961-62 and it was not possible that

somebody born on March 29, 1953 would be in 6th standard in

1961-62 as at that time, he would hardly be 8-9 years old.

We do not want to comment on such material. However, we

strongly feel that the High Court on the administrative side

must objectively determine the Judicial Officer's age in

accordance with the statutory provisions which is not shown

to have been done at any point of time, after giving an

opportunity to the Judicial Officer.

22. We, accordingly, dispose of this appeal by the

following order:

a) The High Court on the administrative side shall

determine the Judicial Officer's date of birth in

accord with Rule 2 of the 1984 Rules.

b) The above exercise shall be completed within four

months from the date of communication of this order.

c) In case the Judicial Officer's date of birth is

determined as March 29, 1953, an appropriate order for

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his reinstatement with all consequential benefits shall

be issued as early as may be possible and in no case

later than two weeks from the date of such

determination.

23. The impugned order is modified as indicated above.

No order as to costs.

.....................J. (R.M. LODHA)

....................J. (H.L. GOKHALE)

NEW DELHI DECEMBER 1, 2011.