IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 557 of 2009 Between: Gujjerlapudi Soundarya Rao S/o. Immaniel R/o. 7th Ward, Christianpet, Sattenapalli (PO) Guntur District. ..... PETITIONER AND 1 APSRTC, Rep. by its Vice Chairman and Managing Director, Bus Bhavan, Musheerabad, Hyderabad. 2 The Regional Manager, APSRTC, Guntur, Guntur District. 3 The Depot Manager, APSRTC, Sattenapalli Depot, Sattenapalli, Guntur District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue any order direction or writ more particularly one in the nature of writ of Mandamus declaring the notification bearing No. P1/693(11)/2008-SAP dt. 1-9-2008 of the Office of the 3rd Respondent proposing to retire the petitioner from service with effect from 28-2-2009 as illegal, and arbitrary under Art. 14 and 21 of the Constitution of India and consequently direct the Respondents to continue the petitioners in Service Upto 31-5-2015 and pass such other order or orders Counsel for the Petitioner: MR.M.PITCHAIAH Counsel for the Respondent No.: MR.C.PRAKASH REDDY(SC FOR APSRTC) The Court made the following : O R D E R: 1. The petitioner-Gujjerlapudi Soundarya Rao joined in the respondent- APSRTC as a casual driver in the year 1989. His services were regularized w.e.f. 1.8.1991. He worked as a driver in Macherla Depot of the respondent-Corporation upto 6.4.1995. He retired from service as driver on medical grounds on 6.4.1995. Subsequently he was appointed as a cleaner in the year 2000. He has been working as a cleaner in Satenapalli Depot. According to him, his correct date of birth is 23.5.1957, but the respondents had wrongly shown his age as on the date of his joining the service in the year 1989 as 38 years. R3 taking into consideration the age of the petitioner as entered in the service register as 38 years in the year 1989 issued a notification dated 1.9.1998 notifying his date of retirement as 22.2.2009 in terms of clause 1 (a) of Reg.6 of APSRTC Employees (Service) Regulations, 1964 (for short Regulations). He filed the writ petition with a prayer to issue a writ of mandamus declaring the notification dated 1.9.2008 of R3 as illegal and arbitrary. 2. For better understanding of the grievance of the petitioner, I deem it appropriate to refer para 4 and 5 of the writ affidavit, which reads as under: “ 4. I submit that as per the regulations of APSRTC, a person belonging to Scheduled Caste community is eligible to be appointed as driver in APSRTC if he possesses valid driving licence. I do not possess any educational qualifications. I was having valid driving license at the time of my employment either as casual driver in 1989 or as regular driver in 1991. I did not produce any educational certificate containing my date of birth as 23.3.1951. Since I am not much literate, I was not aware as to how APSRTC authorities recorded my date of birth in my service record or personal case. The fact remains is that APSRTC authorities did neither communicate to me about their recording of my date of birth as 23.2.1951 in my service register or personal case nor did they call for objection from me on that count. So the action of the APSRTC authorities in recording my date of birth as 23.2.1951 in their records without asking me to produce any proof of my age or date of birth and without giving me an opportunity of hearing to place on record my age is arbitrary, illegal and violative of principles of natural justice. For the first time I was shocked to know after receiving the superannuation notification dated 1.9.2008 of R3 that my date of birth was recorded as 23.2.1951 in the P.Case of APSRTC. I was totally in darkness as regards to my very important service condition i.e., date of birth. I could not recover from shock for some time. After recovering from the same I verified some of the papers available with me. The account book issued by APSRTC Employees Thrift and Credit Cooperative Society in the year 1992 shows my date of birth as 23.5.1957. Loan and MRDF Balance slip for the year 2003-04 issued by the same society mentions my date of birth as 25.3.1957. It is necessary to submit that as per the rules of the said society which was managed by APSRTC and APSRTC Employees, no loan would be granted to an employee if he is having less than 3 years of service. The fact that I was granted loan in 2006 by the said society would prove the correctness of my case. To find out my age I got myself examined by Medical officer, Government Ayurvedic Dispensary, Primary Health Centre, Thullur on 5.1.2009 and the said officer issued a certificate stating that I am aged 52 years. As such all these documents would prove that I was born in the year 1957. 5. It is submitted that under Regulation 19 of APSRTC Service Regulations when the person is unable to furnish satisfactory evidence of age it should be assessed by the Medical Officer of the Corporation and the age so assessed shall be accepted as final and in fact to my knowledge no medical officer of the Corporation assessed my age. Even otherwise under Regulation 19 Clause 3 (iii) of APSRTC Service Regulations, Managing Director has power to alter the date of birth if a clerical error occurred in case of illiterate staff. Even otherwise, Regulations may not be a complete code in determining the date of birth and principles of natural justice will certainly would occupy the field. So, the APSRTC authorities having recorded my date of birth in May, 1957 having allowed the same to be in force for quite a long time as is clear from the above documents thereby creating a legitimate expectation that I would be continued in service upto the year 2015 on the basis of which I have planned my life, finance and future of my children, are estopped from altering my date of birth without observing the principles of natural justice.” 3. Notice before admission came to be ordered on 21.1.2009. The respondents entered appearance through a counsel and filed counter affidavit. Sri.A.G.Satyanarayana Rao has sworn to the counter affidavit. It is stated in the counter affidavit that the petitioner had not produced any school or college certificate as proof of his date of birth as on the date of joining in service in the year 1989 and therefore his age was assessed by the Medical Officer, APSRTC Dispensary, Guntur vide Medical Certificate No.61382, dated 24.2.1989 as 38 years. Based on the said medical certificate, his date of birth was recorded as 23.2.1951 in the Service Record as per Regulation 19(3) of Regulations. It is further stated in the counter affidavit that at the time of appointment in the year 1989, the petitioner submitted Form A declaration wherein he entered his age as 38 years. He had also given nomination in respect of gratuity as well as Provident Fund amount in favour of his wife Smt.G.Marthamma, whose age was shown as 35 years in the year 1989. He retired from service on medical ground w.e.f. 6.4.1985 as driver. Subsequently he was considered for alternative appointment as Shramik and he was medically found fit for the post of Shramik vide office order dated 20.7.2000. A notification dated 1.9.2008 was issued by R3 intimating the date of retirement of the petitioner as 28.2.2009 afternoon. The petitioner is aware of the medical certificate and the fact that his age being assessed as 38 years as on 24.2.1989.He filled up the declaration form on 24.6.1989 and Form A showing his age as 38 years as per medical certificate. As per 19(2) of Regulations, the date of birth recorded at the time of entry into service shall be final and binding on the employee and the said date of birth cannot be altered. There is no provision in the Regulations to alter the date of birth recorded at the time of appointment and therefore subsequent medical certificate obtained by the petitioner is of no avail. 4. When the writ petition came up for admission hearing, with the consent of learned counsel for the parties, it is taken up for final disposal. 5. Heard learned counsel appearing for the petitioner and learned Standing Counsel appearing on behalf of the respondents. 6. Learned Counsel appearing for the petitioner submits that the petitioner’s date of birth has been recorded in the Accounts Book issued by APSRTC Employees’ Thrift and Credit Cooperative Society as 25.3.1957 and therefore the age of the petitioner as assessed by the Medical officer on the date of joining in the service i.e. in the year 1989 cannot be given any credence. A further submission has been made that even the records maintained by the respondent-Corporation indicate the date of birth of the petitioner as 25.3.1957 and therefore the proceedings impugned in the writ petition notifying the date of retirement of the petitioner as 28.2.2009 are liable to be quashed. He took me to the Photostat copy of the membership card issued by APSRTC Employees’ Thrift and Credit Cooperative Society to buttress his submissions that the date of birth of the petitioner is 25.3.1957. 7. Learned Standing Counsel appearing for the respondents submits that the petitioner did not produce any document as proof of date of birth at the time of joining in the service in the year 1989 and therefore he was subjected to medical examination and the doctor who medically examined him assessed his age as 38 years and the same has been entered in the service register. Such is the situation, the petitioner cannot be permitted to dispute the age assessed by the Medical Officer as on the date of his entry into service. He would also contend that the petitioner stated his age as 38 years and the age of his wife as 35 years in the nomination form given in the year 1989 in respect of gratuity as well as Provident Fund and in which case the age of the petitioner as mentioned in the service register is to be treated as correct. A further submission has been made by him that the petitioner has not placed any proof to show that his date of birth is 25.3.1957 and in the absence of any certificate the age of the petitioner as assessed by the Medical Officer as on the date of his appointment in the year 1989 as 38 years cannot be altered at the fag end of his service. 8. The issue that calls for adjudication is – whether the age of the petitioner as assessed by the Medical Officer in the year 1989 can be altered at the fag end of his service? 9. In matters relating to appointment to service, various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstance 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 it 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 the post he applied for. 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. 10. In COMMISSIONER OF COLLEGIATE EDUCATION, HYD v. V.N.REDDY[1], a Division Bench of this Court held that applicants seeking correction of entries relating to date of birth have no vested right. Delay defeats discretion and loss of limitation destroys the remedy itself. Delay amounting to laches results in benefit of discretionary power being denied on the principles of equity. Loss of limitation resulting in deprivation of the remedy is a principle based on public policy and utility and not equity alone. 11. It is settled law that at the fag end of the career, an employee cannot be allowed to raise a dispute regarding his date of birth. Courts or Tribunals at a belated stage should not entertain a claim for correction of date of birth entered in the Service Register. While disposing of application seeking alteration of date of birth, the Court or the Tribunal has first to examine whether the application has been made within the prescribed period under some Rule or administrative order. If there is no Rule or order prescribing any period, then the Court or Tribunal has to examine why such an application was not made after joining into service. 12. Regulation 19(3) reads as under: “ (3) The date of birth as determined by the appropriate provisions of the preceding clauses shall be recorded in the service register. The date so recorded shall be held to be binding and no alteration of such date shall be permitted subsequently. It shall however, be open to the Corporation in the case of a Class 1 employee, and to the Managing Director in the case of any other employee under his administrative control, to cause the date of birth to be altered – (i) where in his opinion it had been falsely stated by the employee to obtain and advantage otherwise inadmissible, provided that such alteration shall not result in the employee being retained in service longer than if the alteration had not been made; or (ii) where in the case of illiterate staff, the Managing Director is satisfied that a clerical error has occurred.” A plain reading of the above Regulation indicates that the Managing Director is competent to make a correction with regard to a clerical error in respect of date of birth. 13. Indisputably, the petitioner did not place on record any proof as to his date of birth at the time of his joining in the service in the year 1989. He was subjected to Medical Examination and the doctor who examined him assessed his age as 38 years as on 24.2.1989. Accordingly, his age was recorded as 38 years as on the date of his entry into service. It is the plea of the petitioner that his date of birth is 25.3.1957 and therefore age as recorded in the Service Register as 38 years is to be modified accordingly. When his assertion is not based on any material and where as the age recorded in the SR is based on medical assessment, the request of the petitioner for correction of his date of birth cannot be acceded. The respondents are justified in issuing the proceedings impugned in the writ petition notifying the date of retirement of the petitioner as 28.2.2008. Therefore, I do not see any illegality or irregularity or arbitrariness on the part of the respondents in issuing the proceedings impugned in this writ petition. 14. In view of the above, this writ petition fails and the same is dismissed at the admission stage. NO costs. 25th February, 2009. (B.Seshasayana Reddy,J) cc by one week. tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1) 2 CD copies Form-NIC-OGS/WP{VSMI} THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 557 of 2009 [1] 2006(5) ALD 492 (DB)