ivil Appeal No 915 of 1987
From the Judgment and Order dated 18101985 of the Andhra Pradesh Administrative Tribunal Hyderabad in RP No 786 of 1984
AS Nambiar and TVSN Chari with him for the Appellants
Respondent In person
The Judgment of the Court was delivered by SINGH J
This appeal is directed against the judgment and 368 order of the Andhra Pradesh Administrative Tribunal Hydera bad dated October 18 1985 declaring Rule 5 of the Andhra Pradesh Public Employment Recording and alteration of date of birth Rules 1984 hereinafter referred to as 1984 Rules  void and directing the appellants to consider the respondent s application for alteration of his date of birth in the service records in accordance with the extracts from birth register maintained under the 
The respondent was appointed as Audit Clerk in the Department of Examiner of Accounts Local Fund Accounts through a competitive examination held in the year 1956
After his selection and appointment he commenced his train ing with effect from 1211
On completion of his training he was posted as Audit Clerk on 261
Subse quently he was promoted to the post of District Inspector of LoCal fund Accounts
At the time of his joining service 93
1932 was recorded as his date of birth in the service book on the basis of SSLC Certificate
He made an appli cation on 51 1962 for alteration of his date of birth as entered in his service book on the ground that his date of birth as recorded in his service book was apparently wrong and incorrect in view of his eider brothers  date of birth who was also in Government service recorded as 29 1931
The respondent urged that the entry with regard to his date of birth in the service book should be altered and the date 93
1932 should be substituted by 278
1933 which accord ing to him was the correct date of his birth
The authori ties advised the respondent to submit a revised application in terms of the instructions contained in the Government Order No 1263 dated 65
The respondent thereupon submitted a revised application on 249
1964 for alteration of his date of birth that application was forwarded to the Head Master of the School in which the respondent had last studied for verification
After obtaining the views of all authorities including the Head Master of the School the respondent s case was placed before the Director of Treas uries and Accounts the Head of Department for necessary orders
The Director of Treasuries and Accounts after con sidering all relevant documents relied upon by the respond ent and also the comments of officers rejected the re spondent s prayer for alteration of his date of birth by his Order No 699 181209Admn66 7 dated 511968 on the ground that the correctness of respondent s eider brother s date of birth was not established
The respondent did not take any further action in the matter for alteration of his date of birth between 1968 to 1983
On 104
1983 the Governor of Andhra Pradesh promulgated 369 Andhra Pradesh Public Employment Regulation of Conditions of Service Ordinance No 5 of 1983 providing for declara tion and alteration of date of birth of State Government employees
The Ordinance laid down that every Government employee should make a declaration regarding his date of birth within one month of joining service and on the receipt of such declaration the appropriate authority was required to make necessary enquiries determining the date of birth of the employee
It further provided that if no such declara tion was made by the employee the Head of the Office should determine the date of birth of the employee in accordance with the records as may be available to him after giving opportunity to the employee within six months from the date on which the employee joins service
The Ordinance further provided that the provisions contained therein will not apply to those who failed to apply for the alteration of date of birth in accordance with law applicable to them prior to the commencement of the Ordinance or if such an application had been made and rejected
Thus the Ordinance clearly laid down that the opportunity for correction of date of birth as provided by the Ordinance shall not ensure to the benefit of the employees whose entry relating to date of birth may have become final and binding under the law in force prior to the commencement of the Ordinance
The Ordi nance was replaced by Andhra Pradesh Public Employment Recording and alteration of date of birth Rules 1984 framed under the Proviso to article 309 of the Constitution
Thereupon the respondent made yet another attempt by making application on 2711984 for the alteration of his date of birth placing reliance on the extracts of entry in the register of births and deaths
The Director of Local Fund Audit rejected his application by his order dated 2831984 on the ground that the application had been made beyond the period prescribed for the purpose
The respondent filed a petition before the Andhra Pradesh Tribunal challenging the rejection of his application and also the constitutional validity of Rules 4 and 5 of the 1984 Rules
The Tribunal held that the respondent s application for alteration of his date of birth was wrongly rejected by the Director of Local Fund Audit on the ground of limitation
The Tribunal held that the Head of Department should have forwarded the respondent s application to the State Govern ment for passing appropriate order as he had no authority to reject the same
The Tribunal further held that Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the 
On these findings the Tribunal directed the appellants to consider the respondent s application again for the altera tion of his date of birth on the basis of 370 the extracts of the entry in the births and deaths register
Aggrieved the appellants have preferred this appeal by special leave
Learned counsel for the appellants urged that since the respondent s application for making alteration of his date of birth as recorded in service book had been rejected in 1968 he was not entitled to maintain any fresh application for the alteration of his date of birth
He further submit ted that there was no question of repugnancy between Rule 5 and Section 9 of the Births Deaths and Marriages Registra tion Act 1886 and the Tribunal committed error in striking down the aforesaid Rule 5
The respondent appeared in person before this Court he submitted his written submissions
According to the respondent the Director of Local Fund Audit had no authority in law to reject his application for the alteration of his date of birth as the State Government was the competent authority under the rules to deal with the matter
Even after enforcement of the 1984 Rules the re spondent s application for alteration of his date of birth could validly be considered only by the State Government
The question which arises for consideration is whether the alteration of respondent s date of birth was permissible after the enforcement of the 1984 Rules
The 1984 Rules apply to all persons appointed to Public Services and posts in connection with the affairs of the State
These Rules prescribe conditions of service of State employees having statutory force being framed under the legislative power conferred on the Governor under the Proviso to Article 309 of the Constitution
Rules 4 and 5 are as under 4
No Government employee in service before the commence ment of these rules a whose date of birth has been recorded in the service register in accordance with the rules applicable to him or b whose entry relating to date of birth became final and binding under the rules in force prior to the commencement of these rules
shall be entitled to claim alteration of his date of birth
The case in which Government employees have already applied for alteration of their date of birth and which are pending on the date of commencement of these rules
shall 371 be dealt with on the basis of recorded age in school and college records at the time of entry into service
 The object underlying Rule 4 is to avoid repeated appli cations by a Government employee for the correction of his date of birth and with that end in view it provides that a Government servant whose date of birth may have been record ed in the service register in accordance with the rules applicable to him and if that entry had become final under the rules prior to the commencement of 1984 Rules he will not be entitled for alteration of his date of birth
Rule 4 laid down a salutory principle to prohibit reopening of the question of correction of date of birth which may have become final prior to the enforcement of 1984 Rules
Since the question of alteration of the respondent s date of birth had been made on the basis of the School Certificate and his application for alteration had already been rejected in 1968 he was not entitled to claim alteration of his date of birth after the enforcement of 1984 Rules
It was not open to the respondent to claim alteration of his date of birth even on the basis of extracts of the entry contained in births and deaths register maintained under the as the question of correction of his date of birth had already been finally decided in 1968
As regards validity of Rule 5 is concerned the view taken by the Tribunal is wholly misconceived
Rule 5 lays down that where application of a Government employee for alteration of his date of birth was pending on the date of the commencement of 1984 Rules the same will be dealt with on the basis of date of birth recorded in the School and College records at the time of the entry of the employee into service
In substance Rule 5 lays down that the pending applications of the employees for alteration of their date of birth shall be decided on the basis of the age as record ed in the School and College records
Thus if on the date of entry into service the date of birth of an employee was recorded in his service book on the basis of his age as recorded in the School and College Certificate in that event the date so recorded shall be treated to be correct date of birth
However if the date of birth recorded in the service book at the time of the entry of an employee is not based on School or College records the Rule 5 does not operate as a bar to consideration of other relevant materials in deter mining the date of birth of the employee
In the instant case as already noted the respondent s date of birth had been recorded in his service book on the basis of his SSLC Certificate at the time of his entry into service therefore that entry had become final and he was not enti tled to reopen the correctness of that entry on the basis of extract of birth 372 register
Moreover since the respondent s application for alteration of his date of birth had already been decided prior to enforcement of Rule 5 he was not entitled to main tain application for any alteration of his date of birth
In either case respondent was not entitled to claim alteration of his date of birth his application was rightly rejected although on different grounds
The Tribunal s view that Rule 5 was repugnant to Section 9 of is wholly misconceived
Under Article 245 read with Entry 41 List II of VIIth Schedule which relates to State Public Services the State has exclusive power to legislate in respect of State Public Services
Proviso to Article 309 also confers exclusive power on the Governor and the State Legislature to frame rules laying down the terms and condi tions of the State employees such rules may regulate the entry of date of birth of an employee its alteration cor rection and all other allied matters
The is a central law which is referable to Union List
Section 9 of the Act merely lays down that copies of entries of the registers relating to births and deaths maintained under the Act shall be admissi ble in evidence for the purpose of proving the births and deaths
It merely relates to admissibility of documents it does not seek to regulate conditions of service of a State employee
There is therefore no question of repugnancy between Rule 5 and Section 9
It is well settled that question of repugnancy can not arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of VIIth Schedule even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the VIIth Schedule
Rule 5 and Section 9 of the Act operate in differ ent areas and there is no question of conflict in the two provisions
We are informed that a Full Bench of the Andhra Pradesh Administrative Tribunal has taken similar view in Lingerker Vaidyanath vs Government of Andhra Pradesh and Anr Andhra Pradesh Administrative Tribunal s Judgment dated 29 1987 in holding that Rule 5 is neither repugnant to Section 9 of the aforesaid Act nor void
In this view the Tribunal s order dated October 18 1985 is not sustainable in law
In the result we allow the appeal and set aside the order of the Andhra Pradesh Administrative Tribunal
There will be no order as to costs
TNA Appeal allowed


Summary:
Rule 4 of the Bihar Engineering Service Rules 1939 provided for recruitment to the cadre of Executive Engineers in the Bihar Public Works Department by i direct recruit ment and ii promotion from Class II Service
The State Government by a memorandum dated February 18 1977 merged with the cadre of Executive Engineers of the Public Works Department the cadre of District Engineers functioning under the Rural Engineering Organisation
The latter cadre was constituted by the State in 1965 by integration of the Rural Engineering Ceil of the Public Works Department and the cadre of District Engineers created by the erstwhile District Boards under the Government District Engineers Service Rules 1957 framed under sections 36a to 361 of the Bihar and Orissa Local Self Government Act 1885
The appellants Assistant Engineers assailed the said merger before the High Court on the ground that it adversely affected their chances of promotion that the District Engineers  Service was constituted under the 1957 Rules framed under the 1885 Act whereas the cadre of Executive Engineers in the Public Works Department was created by the 1939 Rules and as such the two cadres having been created under their respective statutory rules the same could not be merged by an executive order and that since under rule 4i and 4ii of the 1939 Rules recruitment to the cadre of Executive Engineers could only be by direct recruitment and by way of promotion the merger of District Engineers  cadre with the Executive Engineers was contrary to the 1939 Rules
The High Court negatived their contentions
Dismissing the appeal the Court HELD 1
The appellants who were Assistant Engineers in the Bihar Engineering Service Class II were not affected adversely by the merger in any manner
The District Engi neers were merged in the 374 cadre of the Executive Engineers along with the permanent posts which they were holding on the date of merger
The cadre of the Executive Engineers was thus enlarged with the result that more vacancies would become available in future to be filled by way of promotion from the cadre of Assistant Engineers
The merger would thus operate to their advantage rather than disadvantage
378E F 2
The provincialised cadre of District Engineers under the District Boards was constituted by the 1957 Rules but in the year 1977 when merger took place the District Engineers constituted an entirely different cadre which was created in the year 1965 as a part of Rural Engineering Organisation
It did not have any statutory frame work
Since the cadre of District Engineers under the Rural Engineering Organisation was created by the State Government by an executive order the State Government could further merge the same with any other cadre by an executive fiat
The Executive Engineers were governed by the 1939 Rules which are statutory
Their statutory character has not been interfered with
The Dis trict Engineers were being merged with Executive Engineers and not the vice versa
378H 379B379D 3
Rule 4i and 4ii of the 1939 Rules do not come into picture at all
It was not a question of appointment of an individual to the Service
A group of persons similarly situated in respect of rank and pay scale was sought to be brought into the Service along with their posts
The State Government could always increase the number of posts in the cadre of Executive Engineers
The conditions of service of the existing members of Service are not being altered or affected to their prejudice in any manner
379E F 4
The merger order being a policy decision is in a way supplemental to the Rules and does not go contrary to any of the provisions of the Rules
379F G