IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.10507 of 2009 Between: N. Madan Mohan S/o. Rayappa (Date of Birth 20-5-1950) General Administration (V & E) Department, Secretariat, Hyderabad. ..... PETITIONER AND 1 Government of Andhra Pradesh Rep. by its Chief Secretary to Government General Administrtion (SC.C) Department, Secretariat, Hyderabad. 2 Government of Andhra Pradesh Rep. by its Principal Secretary General Administrtion (V&E) Department, Secretariat, Hyderabad. 3 Government of India Reptd. by its Secretary Ministry of Home Affairs, New Delhi. 4 The Director General of Police Andhra Pradesh Hyderabad. .....RESPONDENTS 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 issue a writ, order or direction more in the nature of Certiorari calling for the records relating to the orders of the Central Administrative Tribunal in O.A.No. 396 of 2009 dated 20-5-2009 and Memo. No. 244/SC-C/A2/2005-13, dated 2-5-2009 issued by the 1st respondent and its connected Government of India Lr.No. 1- 45013/02/2009-IPS-1, dated 23-4-2009 (not communicated to the petitioner) and set-aside the same and consequently hold that the petitioner is entitled to continue in service till he attains the age of superannuation on 31-5-2010 on the basis of correct date of birth 20-5- 1950 in terms of the Judgment in O.S.No. 293 of 1993 dated 7-4-1998 as confirmed by the Hon'ble Principal Senior Civil Judge, Tenali in A.S.No. 95 of 1999, dated 23-3-2004 and also by the Hon'ble High Court in S.A.No. 1173 of 2004, dated 28-3-2008 and interms of the orders issued in G.O.Ms.No. 592, Edn., dated 22-8-2008 with all consequential benefits. Counsel for the Petitioner: MR.V.VENKATARAMANA Counsel for the Respondent Nos.1,2&4: Mr.J.SUDHIR, Spl.GP Counsel for the Respondent No.3: Mr.PENJURI VENUGOPAL Addl.Standing Counsel The Court made the following: Form-NIC-OGS/WP{KBJ} THE HON'BLE MR JUSTICE V.ESWARAIAH & THE HON'BLE MR JUSTICE P.SWAROOP REDDY WRIT PETITION No.10507 of 2009 ORDER: (per Hon’ble Sri Justice V.Eswaraiah) Heard Sri Vedula Venkatarama, learned counsel appearing for the petitioner, Sri J.Sudhir, Spl.Govt.Pleader, appearing on behalf of Advocate General for Respondents Nos.1, 2 and 4, and Sri Penjuri Venugopal, Addl.Standing Counsel, appearing for the 3rd respondent, and with their consent the writ petition itself is taken up for disposal. 2. The petitioner, an IPS Officer, whose date of birth was entered in the school as well as service records as 20.05.1949, filed O.A.396/2009 on the file of the Central Administrative Tribunal, Hyderabad questioning the Memo issued by the State of Andhra Pradesh in Memo No.244/SCC/A2/2005-13, dated 02.05.2009 and its connected Government of India Letter No.1-45013/02/2009-IPS-1, dated 23.04.2009 and to quash the same entitling the petitioner to continue in service till he attains the age of superannuation on 31.05.2010 on the basis of correct date of birth 20.05.1950 in terms of the judgment in O.S.293/1993 dated 07.04.1998 on the file of the II Addl.Junior Civil Judge, Tenali, as confirmed by the Principal Senior Civil Judge,Tenali by judgment dated 23.03.2004 in A.S.95/1999 as well as by this Court in S.A.1173/2004, dated 28.03.2008 and also in terms of G.O.Ms.No.592, Education dated 22.08.2008 with all consequential benefits. 3. The petitioner also sought for an interim prayer in the said O.A. seeking a direction to the respondents to retain and continue him in service till he attains the age of superannuation on 31.05.2010 on the basis of correct date of birth 20.05.1950 by suspending the operation of the impugned memo issued by the State Government in Memorandum No.244/SC.C/A2/2005-13 and its connected Government of India Letter No.1-45013/02/2009-IPS-1, dated 23.04.2009. 4. The said O.A. was filed on 20.05.2009. As per the date of birth entered in the service records, the petitioner has to be retired on 31.05.2009. The Central Administrative Tribunal, Hyderabad Bench by order dated 20.05.2009 in O.A.396/1999, after hearing both the counsel appearing for the petitioner as well as the respondents, granted six weeks time for filing reply and the request for the interim relief was not accepted and directed the case to be listed after six weeks. The said order of the Tribunal has been questioned in this writ petition. 5. This Court by order dated 28.05.2009 granted interim order in WPMP.13494/2009 in W.P.10507/2009 directing the respondents to retain and continue the petitioner in service till he attains the age of superannuation on 31.05.2010 on the basis of correct date of birth by suspending the operation of the impugned memo of the Government dated 02.05.2009 and its connected Government of India’s letter dated 23.04.2009 including the orders of the Central Administrative Tribunal in O.A.396/2009 dated 20.05.2009. Thus, by virtue of the interim order of this Court, the petitioner is continued in service from 01.06.2009. The Government of Andhra Pradesh filed an application to vacate the said interim order and at the interlocutory stage, with the consent of the learned counsel appearing for the respective parties, the writ petition itself is taken up for hearing and final disposal. 6. The undisputed facts are that the date of birth of the petitioner was entered in the school records as 20.05.1949 and the same was carried out in the school leaving certificates as well as the service records. The petitioner appeared for the Group-I service and he was appointed as Deputy Superintendent of Police on 26.01.1977. At the time of joining the service his date of birth was entered in the service records as 20.05.1949. He was promoted to the IPS on 20.01.1992. The date of birth entered as in the service records was forwarded to the Central Government after promotion to IPS and his date of birth was also entered in the Central Government Service records as 20.05.1949. After completion of 16 years of service, the petitioner filed suit in O.S.293/1993 on the file of the II Addl.Junior Civil Judge, Tenali against the Director of School Education, Government of Andhra Pradesh and the District Educational Officer, Guntur District and obtained a decree declaring that his date of birth was 20.05.1950 and the defendants therein were directed to carry out the rectification of date of birth in SSLC Register as 20.05.1950 instead of 20.05.1949. The said judgment and decree of the trial Court was confirmed by the first appellate Court in AS.95/1999 as well by this Court in S.A.1173/2004. While dismissing the second appeal, this Court observed as follows: “The learned counsel for the respondent-plaintiff submitted that the suit was filed only to correct the date of birth in the SSLC register and other relevant records of the Education Department. He never sought for any relief against his employer though he is working as a Superintendent of Police by the date of filing of the suit. He did not seek any relief against the Government or the Police Department to correct his date of birth in the service register. So long as the plaintiff did not seek for any relief against the employer, the defendants cannot plead that he failed to add the Government as a party to the proceedings.” 7. Thereafter the Director of School Education obtained permission under G.O.Rt.No.592, Education (SE-Examinations) Department dated 22.08.2008 to alter the date of birth of the petitioner in the SSLC Register from 20.05.1949 to 20.05.1950 and in the said order the Government specifically imposed a condition that the correction of the date of birth made in the school records shall not be claimed by the petitioner as the basis for correcting the same in his service register with employer at any time in the future. The petitioner did not challenge the said G.O. It appears that the petitioner made a representation on 14.03.2005 and thereafter on 24.11.2008 requesting the State Government to initiate necessary steps to alter his date of birth in the service register with all consequential benefits. On the said representations, the Chief Secretary, Government of Andhra Pradesh, GAD addressed a letter No.244/SC-C/A2/2005-12 dated 21.03.2009 while extracting the relevant portions of the judgment of this Court in the second appeal as well as the specific condition imposed by the Government and also the Government Circular Memo dated 13.10.2004 and Rule-2(5) of A.P.Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 wherein it stipulates that the rules do not permit for change of the date of birth entered in the service records and also Rule-16A(3) of the All India Service (Death-cum- Retirement Benefits) Rules 1958 which also does not permit the alteration of the date of birth once entered in the State as well as the Central Service Records. The Government vide its letter dated 23.04.1999 rejected the representation of the petitioner on the ground that the date of birth declared by the petitioner for the recruitment in the State Government Service was accepted by the Central Government as his date of birth and under Rules 16A(3) the date of birth recorded in the service book maintained by the concerned State Government shall be accepted by the Central Government as the date of birth of such person, and however, if there is any bona fide clerical mistake has been committed in accepting the date of birth and with regard to discrepancy in entering the date of birth in the Service records, such clerical mistake can be rectified, and as there is no any bona fide clerical mistake committed in the case of the petitioner, the date of birth of the petitioner cannot be changed in the service register. The said letter was communicated to the petitioner vide Memo dated 02.05.2009. 8. Sri Vedula Venkataramana, learned counsel appearing for the petitioner submits that the decree granted by the Civil Court was implemented by the concerned authorities by correcting the SSLC register by altering the date of birth from 20.05.1949 to 20.05.1950. It is stated that the said judgment is binding on the State Government as well as on the Central Government and therefore, the petitioner is entitled to get the benefit of the decree by altering his correct date of birth in the service records of the State as well as the Central Government. 9. On the other hand, Sri J.Sudhir, learned Special Government Pleader, appearing for the Advocate General submits that the suit was only filed against the Director of School Education and the District Educational Officer, but neither the State Government nor the Central Government was made a party to the said suit and no relief was claimed in the suit with regard to correction of the date of birth in the service records of the State Government as well as the Service Records of the Central Government. In fact, the case of the petitioner in the said suit as well as before this Court in the second appeal is that he was not seeking any other relief except seeking alternation of the date of birth in the school records and therefore, the representation of the petitioner to alter the date of birth in the service records was rightly rejected by the Central Government which was communicated to the petitioner vide the impugned memo. He further submits that the application filed for correction of the date of birth sought by a public servant at the fag-end of service shall not be entertained unless prima facie evidence of unimpeachable character is produced, because if the public servant succeeds he can always be compensated but if he fails, he would have enjoyed the benefits of extended service and thereby caused injustice to his immediate junior, as observed by the Supreme Court in Civil Appeal No.3043/2006 dated 19.07.2006 in the case of State of Gujarat and others vs. Vali Mohmed Dosabhai Sindhi. 10. The Tribunal while declining to consider the request of the petitioner to grant interim relief directed the respondents to file reply within six weeks. Six weeks time will be expired by the end of June. Admittedly, the petitioner has not taken any steps for rectification of the service records either of the State Government or of the Central Government. The suit was filed only for rectification of the date of birth in the SSLC register. In the suit neither the State Government nor the Central Government were the parties in the suit. However, the request of the petitioner to enter his correct date of birth in the service records has been rejected by the Central Government, which was also communicated to the petitioner by the State Government. We are of the opinion that unless the said letter of the Central Government and the communication made by the State Government are set aside, and unless the petitioner succeeds in the main O.A. pending before the Central Administrative Tribunal, he is not entitled for any interim relief. The interim relief sought for in the WPMP is for the positive direction to continue him in service even after his superannuation on 31.05.2009. We are of the opinion that the Central Administrative Tribunal has rightly declined to grant interim relief, as the petitioner is not entitled for the same pending disposal of the O.A. We do not see any infirmities legal or otherwise in the order passed by the Central Administrative Tribunal. 11. The Writ Petition is accordingly dismissed. The interim order granted on 28.05.2009 in WPMP.10507/2009 is hereby vacated. However, we direct the Central Administrative Tribunal to expedite the hearing of the O.A and dispose of the same without being influenced by any of the observations made in this order. No order as to costs. _____________________ V.ESWARAIAH,J ____________________________ P.SWAROOP REDDY,J Dated: 03.06.2009 Dsr Note: Communicate the order to the concerned immediately. B/o Dsr .... REGISTRAR // TRUE COPY // SECTION OFFICER To 1 Government of Andhra Pradesh Rep. by its Chief Secretary to Government General Administrtion (SC.C) Department, Secretariat, Hyderabad. 2 Government of Andhra Pradesh Rep. by its Principal Secretary General Administrtion (V&E) Department, Secretariat, Hyderabad. 3 Government of India Reptd. by its Secretary Ministry of Home Affairs, New Delhi. 4 The Director General of Police Andhra Pradesh Hyderabad. 5 2. 2CCs to 6. 2CD copies