THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.198 OF 2004 DATED 5TH NOVEMBER, 2009. BETWEEN Dr.K.Laxman Rao … Petitioner and State of Andhra Pradesh rep. by its Principle Secretary, Higher Education Department, Secretariat, Saifabad, Hyderabad. And Others. … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.198 OF 2004 ORDER: The Principal of Kotikalapudi Govind Rao Luthran College, Bhimavaram, West Godavari District, the fourth respondent, (for brevity, ‘the College’) filed this writ petition aggrieved by the proceedings dated 18.09.2003 issued by the Director of Collegiate Education, Hyderabad, the second respondent, refusing the request of the College to effect correction of the date of birth of the petitioner in his service register in accordance with the Judgment and Decree dated 04.04.1994 in O.S.No.103 of 1990 on the file of the Principal District Munsif, Bhimavaram. He sought a declaration that he was entitled to continue in service as the Principal as per his actual date of birth, 20.03.1948, instead of the incorrect date of birth 08.01.1946, entered in the service record of the College and a further consequential direction to the respondents to carry out the correction of his date of birth in the service register. The petitioner entered in the service of the College as a Lecturer in Economics in the year 1975. The post in which he was working was admitted to grant-in-aid in the year 1981. He was promoted as the Principal of the College in the year 1994. He was awarded Ph.D. Degree by the Andhra University during the year 1996. It is his case that he was born on 20.03.1948 at Bhimavaram. When he was admitted in the 6th standard in SJGM High School, Bhimavaram, his date of birth was erroneously entered as 08.01.1946. He however claims to have noticed this error only when he was recruited as a Lecturer in the College in the year 1975. He requested the College to make a correction in his service record but owing to the rejection of this request by the College, he filed a suit in O.S.No.103 of 1990 before the Principal District Munsif, Bhimavaram, seeking a declaration that his correct date of birth was 20.03.1948 and not 08.01.1946 as entered in his school record and sought a consequential mandatory injunction to the defendants in the suit to make necessary corrections in his SSLC register and other relevant records. The Director of Collegiate Education, Hyderabad, the Director of Secondary Education, Hyderabad and the Registrar of Andhra University were all arrayed as defendants in the said suit. By Judgment and Decree dated 04.04.1994, the trial Court granted the declaration that the petitioner’s date of birth was 20.03.1948 and not 08.01.1946 as reflected in his school records. A consequential direction was also issued to the defendants to make necessary corrections in the relevant records. The inaction on the part of the defendants in the suit in this regard constrained the petitioner to seek execution of the said decree by filing E.P.No.48 of 1997. Thereupon, the Director of School Education made necessary corrections in the SSLC register and G.O.Ms.No.462, Education (SCR.IV) Department, dated 07.08.2002 was issued, relaxing Rule 46 of the A.P. (Integrated) Education Rules, 1966 condoning the shortage of 1 year, 6 months and 20 days for validating the appearance of the petitioner at the SSLC Examination in March, 1962. The University authorities also made necessary corrections in the University records reflecting the correct date of birth of the petitioner. Seeking similar correction in the service record, the petitioner made representation dated 08.04.2003 to the College. The College in turn requested permission from the Director of Collegiate Education, Hyderabad, the second respondent, to carry out the necessary correction of the petitioner’s date of birth. This resulted in the impugned proceedings dated 18.09.2003 issued by the Director of Collegiate Education, Hyderabad, refusing the permission sought by the College. Hence, this writ petition. A reading of the impugned proceedings dated 18.09.2003 reflects that the second respondent relied upon the Andhra Pradesh Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 (for brevity, ‘the Rules of 1984’) and stated that a subsequent variation of the date of birth in the school records shall not be relevant for the purpose of altering the date of birth entered in the service record unless it is a case of bona fide clerical error. Further, as per the said Rules, 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 the date of birth by any Court, Tribunal or other authority. Drawing support from the above rule, the second respondent asserted that the request of the College for effecting correction of the date of birth of the petitioner in the service record was not feasible of compliance and hence rejected the same. In the counter filed on behalf of the official respondents, the Joint Director, O/o the Director of Collegiate Education, stated that as the petitioner was drawing salary from the grant-in-aid funds and as the pay-scales, leave salary, pension benefits, etc. applicable to State Government employees were extended to such aided employees working in the private Colleges, it was not open to the petitioner to state that the Rules of 1984 have no application to him. It is stated that the contention of the petitioner that his post has no connection with the affairs of the State of Andhra Pradesh is far from the truth. Reliance was placed on the subsequent amendments to the Rules of 1984 to support the action of the Director of Collegiate Education, as reflected in the impugned proceedings. Accordingly, the entitlement of the petitioner for correction of his date of birth in the service record was denied. Taking the date of birth of the petitioner as 20.03.1948, he would be entitled to continue in service till March, 2006 whereas he would be liable for retirement in January, 2004 if his date of birth is reckoned as 08.01.1946. The petitioner therefore approached this Court in January, 2004 by way of this writ petition and by order dated 06.01.2004 this Court granted suspension of the proceedings impugned in the writ petition and permitted the petitioner to be continued in service. It is now stated that the petitioner, pursuant to the above interim order, continued in service till March, 2006 and thereafter retired. However, the complaint now advanced is that he was denied the salary for the period of service rendered by him from January, 2004 and the said service was also not taken into consideration for reckoning his pensionary and retirement benefits. The issue that falls for consideration in this writ petition is whether the petitioner can be said to be a person appointed to a public service or to a post in connection with the affairs of the State of Andhra Pradesh so as to bring him under the Rules of 1984? The learned counsel for the petitioner submitted that Rule 1(2) of the Rules of 1984 clearly states that the said rules apply only to persons appointed to public services and posts in connection with the affairs of the State of Andhra Pradesh. He also drew the attention of the Court to the preamble of the Rules which states that the said rules were made in supersession of all rules relating to recording and alteration of date of birth of Government employees. The learned counsel contended that the post of Principal in a private aided College held by the petitioner could not qualify as public service or as a post connected with the affairs of the State, so as to bring the Rules of 1984 into operation. He pointed out that the second respondent was himself a party to the suit instituted by the petitioner and had suffered the decree therein. The learned counsel therefore contended that it was not open to the second respondent to disobey the Judgment of the competent Civil Court. The learned counsel placed reliance on the Judgments of the Supreme Court in STATE OF ASSAM v. KANAK CHANDRA DUTTA[1] and STATE OF GUJARAT v. RAMAN LAL KESHAV LAL SONI[2]. I n KANAK CHANDRA DUTTA, a Constitution Bench of the Supreme Court was dealing with the issue as to whether a Mauzadar of Assam Valley could be held to be in the civil service of the State or holding a civil post under the State, thereby making him a Government servant. The observations of the Supreme Court in this regard are apposite: “The question is whether a Mauzadar is a person holding a civil post under the State within Article 311 of the Constitution. There is no formal definition of “post” and “civil post”. The sense in which they are used in the Services Chapter of Part XIV of the Constitution is indicated by their context and setting. A civil post is distinguished in Article 310 from a post connected with defence; it is a post on the civil as distinguished from the defence side of the administration, an employment in a civil capacity under the Union or a State. See marginal note to of Article 311. In Article 311, a member of a civil service of the Union or an all-India service or a civil service of a State is mentioned separately, and a civil post means a post not connected with defence outside the regular civil services. A post is a service or employment. A person holding a post under a State is a person serving or employed under the State. See the marginal notes to Articles 309, 310 and 311. The heading and the sub-heading of Part XIV and Chapter I emphasise the element of service. There is a relationship of master and servant between the State and a person holding a post under it. The existence of this relationship is indicated by the State’s right to select and appoint the holder of the post, its right to suspend and dismiss him, its right to control the manner and method of his doing the work and the payment by it of his wages or remuneration. A relationship of master and servant may be established by the presence of all or some of these indicia, in conjunction with other circumstances and it is a question of fact in each case whether there is such a relation between the State and the alleged holder of a post.” Thereafter, in RAMAN LAL KESHAV LAL SONI, the Supreme Court once again dealt with this issue and observed as under: “We do not propose and indeed it is neither politic nor possible to lay down any definitive test to determine when a person may be said to hold a civil post under the Government. Several factors may indicate the relationship of master and servant. None may be conclusive. On the other hand, no single factor may be considered absolutely essential. The presence of all or some of the factors, such as, the right to select for appointment, the right to appoint, the right to terminate the employment, the right to take other disciplinary action, the right to prescribe the conditions of service, the nature of the duties performed by the employee, the right to control the employee’s manner and method of the work, the right to issue directions and the right to determine and the source from which wages or salary are paid and a host of such circumstances, may have to be considered to determine the existence of the relationship of master and servant. In each case, it is a question of fact whether a person is a servant of the State or not.” In the present case, the stand of the official respondents is that merely because the petitioner drew his salary from the grant-in-aid funds his post must be categorized as being associated with the affairs of the State. This contention has far reaching consequences which have obviously not been considered by the respondents while adopting such a stance. Such an interpretation would mean that every grant-in-aid Lecturer/ Teacher would be a Government servant for all practical purposes! However, this Court is not required to deliberate upon this issue in the light of the Judgment of the Supreme Court in INDRASEN JAIN v. RAMESHWAR DAS[3]. Therein, a retired teacher of a private aided school, who was receiving pension from State funds sought to claim benefits reserved for Government servants. The Court was therefore called upon to determine whether such a claim was tenable. The Supreme Court, having considered the matter, was of the opinion that Teachers in aided posts in a private school who received pension after retirement cannot claim to be Government servants merely for that reason. In the light of the above Judgment, the stand of the official respondents that merely because the petitioner drew his salary from grant-in-aid funds, he would qualify as a Government servant so as to make applicable to him the Rules of 1984, does not stand to reason. Once the Rules of 1984 are held to be inapplicable, it is not open to the second respondent, being a party to the suit, O.S.No.103 of 1990, to disobey the decree dated 04.04.1994 directing the correction of the petitioner’s date of birth in all relevant records. Relevant records, for this purpose, would include not only education records but also the service record of the petitioner. The request of the fourth respondent-College for permission to do so therefore ought not to have been rejected by the second respondent, who is equally bound by the decree of the competent Civil Court. The writ petition is therefore allowed setting aside the proceedings of the second respondent in Rc.No.967/Admn.III-1/2003 dated 18.09.2003 and consequently directing the respondents to treat the petitioner’s date of birth as 20.03.1948 and not 08.01.1946 for all purposes. The respondents shall pay the salary and other benefits due to the petitioner for the service rendered by him upto March, 2006 and shall also take into account such service for the purpose of reckoning his pensionary and retirement benefits. The amount due to the petitioner pursuant to this order shall be remitted within a period of three months from the date of receipt of a copy of this order. In the circumstances of the case, there shall be no order as to costs. ____________________ SANJAY KUMAR, J. ________ November, 2009. VGSR [1] AIR 1967 SC 884 [2] (1983) 2 SCC 33 [3] (2005) 9 SCC 225