THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH W.P.NO.17395 OF 2011 O R D E R (Per the Hon’ble Sri Justice Ghulam Mohammed) Heard both the counsel. 2. Aggrieved by the order dated 29.4.2011 passed by the Central Administrative Tribunal, Hyderabad, in O.A.No.847/2010, in setting aside the impugned memo No.80826/Ser.1(2)/2004-2 dated 24.3.2006, issued by the 2nd petitioner – Government of A.P., represented by its Special Chief Secretary to Government, in rejecting the claim of the 1st respondent – applicant, from changing his date of birth from 5.7.1951 to 31.5.1953; and thereby directing the petitioners herein to correct the date of birth of the applicant as 31.5.1953 instead of 5.7.1951 in service records, the Government filed the present writ petition. 3. The 1st respondent herein in the applicant before the Tribunal. He joined in service as a Junior Lecturer of Chemistry in Government Junior College, Banswada, Nizamabad District A.P. on 16.7.1979 and at that time, based on his school records, his date of birth was recorded as 5.7.1951. Later, he was selected as Lecturer in Chemistry by Andhra Pradesh Public Service Commission and he joined duty on 12.4.1984. Subsequently, he was recruited as Deputy Collector through Andhra Pradesh Public Service Commission (APPSC), in the year 1990 and during the course of his service, was inducted into India Administrative Service (I.A.S.) during the year 2002 and was allotted the year of 1998. 4. The case of the applicant is that his date of birth was recorded as 5.7.1951 in the school records. During the year 1990, he came to know that his date of birth was wrongly entered in the school records and on enquiry, he obtained his birth certificate from St. Ann’s Maternity Hospital, Jaggaiahpet, where he was born. The said certificate shows that he his date of birth was 31.5.1953. Thereupon, when he was undergoing training as Probationary Deputy Collector, he made an application on 23.2.1991 to the Chief Commissioner of Land Administration, seeking for correction of date of birth from 5.7.1951 to 31.5.1953. The said application was forwarded to the District Collector, Krishna for enquiry. During the course of enquiry, the then Mandal Revenue Officer, Jaggaiahpet enquired into the matter and vide his proceedings dated 24.11.1991, required the 1st respondent to submit certain documents and accordingly he submitted the documents. Eventually, the Mandal Revenue Officer submitted his report to the District Collector, Krishna through Sub Collector, Vijayawada vide proceedings in Rc.No.1753/91 dated 30.12.1991, holding that the date of birth of the applicant as 31.5.1953. Accordingly, the District Collector, Krishna submitted his report on 17.2.1994 observing that the request for the correction of date of birth of the applicant is genuine. But the Special Chief Secretary to Government vide memo dated 3.2.1997, rejected the claim of the applicant on the ground that his date of birth was already recorded in the service register as 5.7.1951 while he was working as Junior Lecturer, Government Junior College, Jagadevpur, Medak District. Aggrieved by the same, he preferred revision on 16.6.1997 to the 2nd petitioner on the grounds that his case was recommended by the District Collector on enquiry and that date of birth was allowed to be altered in respect of others who are similarly situated like him in other departments. By the impugned memo dated 24.3.2006, the 2nd petitioner rejected the claim of the applicant on the ground that his date of birth was already recorded in his service register as 5.7.1951 based on the educational certificates furnished by him and that the birth extract submitted by him cannot be admitted for changing the date of birth as per rules and that the date of birth recorded in the service register shall be treated as final in view of Rule 4 of A.P. Public Employment (Recording and alteration of Date of Birth) Rules, 1984 issued vide G.O.Ms.No.165, Fin. & Plg.(FW) Department dated 21.4.1984 and also, as no bona fide clerical error has been established in that regard. Aggrieved by the same, the applicant preferred O.A. before the Central Administrative Tribunal, Hyderabad Bench at Hyderabad. The Tribunal, on appreciation of the material available on record held that there is no material on record to show that date of birth of the applicant was recorded in the service register in accordance with the rules applicable as required under Rule 4 of 1984 Rules in connection with alteration of date of birth in past cases who joined before enforcement of 1984 rules and further though the applicant has placed un- impeccable material to show that his date of birth is 31.5.1953 and not 5.7.1951, the same has not been considered by the 2nd petitioner before rejecting his case. Hence, the Tribunal by setting aside the impugned memo dated 24.3.2006, directed for altering the date of birth. Aggrieved by the same, the Government filed the present writ petition. 5. The case of the Government, as stated in the writ affidavit and as contended by the learned Government Pleader, is that the petitioner joined in Government service as Junior Lecturer on 16.9.1978 and his date of birth was recorded on 9.10.1979 as ‘5.7.1951’ and thus it is clear that the applicant entered into service, much earlier to the commencement of orders in G.O.Ms.No.165, Finance and Planning Department dated 21.4.1984 and hence the rules which are in vogue prior to the G.O.Ms.No.165, have to be followed and G.O.Ms.No.18 Finance and Planning (FW) Department dated 9.1.1978, was in force at the relevant period and per Note 5 under Rule 6 of subsidiary rules made under Fundamental Rules 74(a)(iv) as incorporated through G.O.Ms.No.18, the Government Servant shall make a declaration within one month of the date on which he joins the service, as to the date of birth and on receipt of such declaration and after enquiry, the Government shall pass an order determining the date of birth of the concerned Government servant and if no such declaration has been received from the Government servant within the stipulated time, the Government shall, after taking into account such evidence as may be available to them and after giving a reasonable opportunity of being heard, make an order determining the date of birth of such Government Servant and that when once the date of birth is determined in the prescribed manner, it shall not be altered by any process and it shall be final and binding. In the present case, admittedly as per the case of the applicant, he did not file his declaration with regard to his date of birth within one month. Therefore, the procedure laid down under Note 5 under Rule 8 of subsidiary rules made under Fundamental Rule 74 (G)(iv) incorporation through G.O.Ms.No.18, Finance & Planning (FW) Department dated 19.1.1978, for correction of date of birth, does not attract to his case. Further, under Rule 5 of A. P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 issued vide G.O.ms.No.165, Finance and Planning (FW) Department dated 21.4.1984, the correction of date of birth can be made if there is a bona fide clerical error. In the present case, no such clerical error has been established. Further, the petitioner was inducted into IAS in the year 2002 and as per Rule 16 A ( 4) of the AIS (Death-cum-Retirement Benefits) Rules, 1958, the date of birth in the service records of an IAS officer shall not be allowed, unless there is a bona fide clerical mistake in accepting the date of birth as per sub rule (2) and (3) of Rule 16 A of AIS (DCRB) Rules, 1958. It is further contended that the date of birth cannot be allowed to be altered at the fag end of service. With these contentions, the impugned order of the Tribunal, is sought to be set aside. 6. The learned counsel appearing for the 1st respondent – applicant supporting the impugned order of the Tribunal, sought for dismissal of the writ petition. 7. There is no dispute with regard to the facts. The applicant was initially appointed as Lecturer in Government Junior College, Banswada, Nizamabad District, A.P. on 16.9.1979 and as per his school records, his date of birth was entered in his service register as 5.7.1951 and subsequently, he was appointed as Deputy Collector through the Andhra Pradesh Public Service Commission in the year 1990 and on 23.2.1991, he made an application seeking for correction of his date of birth in the service register as 31.5.1953 instead of 5.7.1951. The said application was forwarded to the District Collector, Krishna, who on enquiry submitted report on 17.2.1994 holding that the request of the applicant for correction of date of birth is genuine. However, the request of the applicant was rejected by the 2nd petitioner by memo dated 3.2.1997 and the further revision also ended in rejection by the impugned memo dated 24.3.2006. 8. For better appreciation, the relevant portion in the impugned memo is extracted as under: “The attention of Sri B.Ramaiah, IAS, formerly Special Grade Deputy Collector, presently working as Joint Collector, Nellore is invited to his Revision Petition 8th cited. It is observed that Sri B.Ramaiah, has earlier requested the Government for alteration of Date of Birth from 05.07.1951 to 31.05.1953. This request was earlier examined and was negatived as per Rule 4 of the G.O.Ms.No.165, Fin. & Plg. (FR.I) Dept., dated 21.04.1984 as his date of birth has already been recorded, while he worked as Junior Lecturer, Government Junior College, Jaydevpur, Medak District vide Govt. Memo No.37130/Ser.1(1)96, dated 03.02.1997. 2. Sri B.Ramaiah has now filed a Revision Petition before the Government to alter his Date of Birth on the following grounds:- i) He produced copies of Hospital/Municipal records. ii) This case is recommended by the Collector, Krishna. iii) Date of Birth was allowed in some other Departments like, Home Department etc. 3. The above Revision is examined with reference to the A.P.Public Employment (Recording and Altering of Date of Birth) Rules, 1984 issued vide G.O.Ms.No.165, Fin. & Plg. (FW) Department, dated 21.4.1984 as amended from time to time. As per Rule 4 of the above rules no Government employee, in service before the commencement of these rules:- ( c ) whose date of birth has been recorded in the Service Register in accordance with the rules applicable to him; OR (d) 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. 4. The constitutional and legal validity of the above rules has been upheld by the Supreme Court of India in Government of Andhra Pradesh Vs. Heyagreeva Sarma (1990(2)SCC 682) and therein it has also been held by the Supreme Court of India that subsequent claim for alteration after the commencement of the rules even on the basis of Birth extracts maintained under the Birth, Deaths and Marriage Registration Act, 1886 is not open. 5. The Date of Birth was already recorded in his Service Register as 05.07.1951 based on the Educational Certificates furnished by him. The Birth extract submitted subsequently by the individual cannot be admitted for changing the date of birth as per rules. So the date of birth recorded in the Service Register shall be treated as final, as no bona fide clerical error has been established in this regard. 6. After careful consideration of the above facts, the Revision Petition filed by Sri B.Ramaiah, former SGDC, presently IAS Officer, Joint Collector, Nellore, for alteration of Date of Birth from 05.07.1951 to 31.05.1953 is hereby rejected.” 9. The case of the applicant is that during the year 1990, he came to know that his date of birth was wrongly entered in the school records and on enquiry, he obtained birth certificate from St.Ann’s Maternity Hospital, Jaggaiahpet, where he was born and it shows that his date of birth as 31.5.1953 and therefore, he made application and the District Collector on enquiry submitted report on 17.2.1994 stating that his claim for correction of date of birth, is genuine. But while passing the impugned order, the report of the District Collector, Krishna was not considered. The specific case of the applicant is that his date of birth was not determined by the authority, as per rules, when he joined the service. The applicant also quoted instances, where similar requests were considered and date of birth was allowed to be altered after rendering sufficient number of years of service. 10. On the other hand, the vehement contention of the petitioners/Government is that the date of birth of the applicant, as entered in the school records, was recorded in his service register at the time of joining service and the birth certificate produced by the applicant cannot be admitted for changing the date of birth as per rules and there is also no bona fide clerical error. 11. The applicant entered in the Government service in the year 1978 i.e., prior to the rules made under G.O.Ms.No.165, Finance and Planning (FW) Department dated 21.4.1985. As per the averments made in the writ affidavit, note 5 under Rule 6 of subsidiary rule made under Fundamental Rule 74(a)(iv), as incorporated through G.O.Ms.No.18, Finance and Planning (FW) Department dated 9.1.1978, are applicable to the applicant and as per the said rules, the Government Servant shall make a declaration within one month of the date on which he joins the service, as to the date of birth, and on receipt of such declaration and after enquiry, the Government shall pass an order determining the date of birth of the concerned Government servant and if no such declaration has been received from the Government servant within the stipulated time, the Government shall, after taking into account such evidence as may be available to them and after giving a reasonable opportunity of being heard, make an order determining the date of birth of such Government servant and when once the date of birth is determined in the prescribed manner, it shall not be altered by any process and it shall be final and binding. Note 5 of Rule 6 of G.O.Ms.No.18 Finance and Planning (Fin.Wing-F.R-I) dated 9.1.1978 is extracted as under: Note 5: The procedure for recording, the date of birth in the service records of all categories of Government servant who are appointed to Government service, shall be as follows: (i) Every such Government servant shall, within one month of the date on which he joins the service, take a declaration as to the date of his birth. (ii) . . . (iii) Where a declaration as contemplated in clause (i) has not been received in the time prescribed, the Head of the office who maintains service records, in respect of Non-Gazetted Officers, or the Government in respect of Gazetted Officers shall after taking into account such evidence as may be available to it and after giving such Government servant a reasonable opportunity of being heard make an order determining the date of birth of such Government servant. (iv) When once the date of birth is determined in the manner set out in clauses (i), (ii) and (iii) above, it shall not be altered by any process and it shall be final and binding.” 12. The above note 5 of Rule 6 under G.O.Ms.No.18, is akin to Rule 2 of A.P. Public Employment (Recording & Alteration of Date of Birth) Rules, 1984 made in G.O.Ms.No.165, Fin & Plg. Dept. dated 21.4.1984 and Rule 4 of 1984 Rules deals with alteration of date of birth in past cases. The relevant sub rules under Rule 2 and Rule 4 are extracted as under for better appreciation: 2. Recording of the date of birth: (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). . . (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 records of the employee concerned duly attested by the Head of the office or the officer who maintains the service records and the 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. 4. Alteration of date of birth in past cases:- (1) No Government employee in service, before the commencement 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. (2) No subsequent variation of the date of birth in the school records shall be relevant for the purpose of service nor shall such variation be a valid ground for ordering an alteration of date of birth by any Court, Tribunal or other authority. 13. From a reading of the above provisions, it is clear that the Government employee in service shall make declaration with regard to his date of birth within one month from the date of his joining service and if no such declaration is made within the time stipulated, the Head of Office or the officer who maintains records, shall, after considering the evidence as may be available and after giving an opportunity of making representation to the Government employee, determine the date of birth and such determined date of birth, shall be final and binding and the Government employee is estopped from disputing the correctness of such date of birth. Under Rule 4 of 1984 Rules, in respect of alteration of date of birth in past cases, the date of birth of a Government employee, recorded in the service register in accordance with the rules applicable to him, is final and binding. 14. In the present case, the admitted case on record is that the applicant did not make declaration as to his date of birth as required under the above rules within one month from the date of his initial joining into service. In such circumstance, the authorities are under obligation to determine the date of birth of the applicant as per the above rules, but there is no material on record to show that authorities have recorded the date of birth in accordance with the rules applicable to him. In these circumstances, the finding in the impugned memo that the date of birth of the applicant has been recorded in the service register as per rules, cannot be sustained. 15. Further it is to be noticed that the claim of the applicant for changing the date of birth from 5.7.1951 to 31.5.1953, is based on the birth certificate obtained by him from St. Ann’s Maternity Hospital, Jaggaiahpeta, Krishna District, where the applicant claimed to have born. Further his application was forwarded to the District Collector, Krishna for enquiry and the Mandal Revenue Officer, Jaggaiahpet after enquiry submitted report to the District Collector, Krishna through Sub Collector, Vijayawada vide proceedings in Rc.No.1753/91 dated 30.12.1991 holding that the applicant’s date of birth is 31.5.1953 and thereafter the District Collector submitted report on 17.2.1994, observing that the request of the applicant for correction of date of birth, is genuine. 16. The applicant in the revision petition has brought to the notice of the 2nd petitioner, the report of the District Collector, Krishna dated 17.2.1994. A perusal of the impugned order shows that this aspect was not at all considered while rejecting the claim of the applicant. 17. The applicant relied on the certificate of birth issued under Section 17 of the Registration of Births and Deaths Act, 1969 and as noticed above, the District Collector, Krishna has submitted report dated 17.2.1994 holding that the date of birth of the application is 31.5.1953 and that his claim is genuine. With regard to the entries made in deaths and births register, the Apex Court in CIDCO vs. VASUDHA GORAKHANATH MANDEVLEKAR[1] held as under: “20. The deaths and births register maintained by the statutory authorities raises a presumption of correctness. Such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act. It would prevail over an entry made in the school register, particularly, in absence of any proof that same was recorded at the instance of the guardian of the respondent. 21. Certificate issued by municipality could not be discarded on the ground that the employee’s birth took place prior to creation of municipality as the certificate was issued on the basis of records maintained by predecessor body viz., Grampanchayat.” 18. The quintessence of the above judgment of the Apex Court is that the certificate issued by the statutory authority, which maintains the deaths and births register, raises a presumption of correctness. In the present case, at the cost of repetition, it is noticed that on enquiry, the Collector Krishna by his report dated 17.2.1994 has found that the claim of the applicant as to his date of birth as 31.5.1953, as correct and genuine. These aspects have not been considered by the 2nd petitioner while rejecting the request of the applicant. 19. The Tribunal has also considered another circumstance with regard to the eligibility of the applicant to appear for SSC examination or to enter into Government service, in case his date of birth is changed from 5.7.1951 to 31.5.1953. It is found that the applicant would be within the age limit of 15 years and thus eligible to appear for SSC examination and also would be entitled to entry into the Government Service. 20. The other contention of the writ petitioners is that the applicant was inducted into IAS in the year 2002 and thus has become member of IAS when he filed application before the Tribunal and that the issue of change of date of birth of a member of All India Service, is governed by Rule 16 A of AIS (Death-cum- Retirement Benefits) Rules, 1958 and as per sub rule (4) of Rule 16(A), the change of date of birth in service records of an IAS officer shall not be allowed unless there is a bona fide clerical mistake and as there is no bona fide clerical error, no change of date of birth can be effected. This contention cannot be countenanced for the reason that the applicant was conferred with IAS during the year of 2002 and that since 1991, the applicant has been agitating with regard to change of date of birth and hence, as rightly found by the Tribunal, acceptance of date of birth of the applicant as 5.7.1951 does not arise and the provision contemplated under Rule 16(A) cannot be made applicable to the applicant. 21. The vehement contention of the counsel for the writ petitioners is that the correction of date of birth or alteration cannot be allowed at the fag end of service and it affects the service conditions of other officers including the juniors of the applicant. This contention also cannot be countenanced for the reason that the applicant has been agitating with regard to alteration of his date of birth for the past twenty years, i.e., since 1991, immediately after he was recruited as Deputy Collector through APPSC. After enquiry by the District Collector, Krishna, it was found to be genuine and there is no denial or dispute to this aspect and while rejecting the claim of the applicant, the report of the District Collector, Krishna dated 17.2.1994, was not at all considered. The Tribunal by rightly considering these