* THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD +WRIT PETITION NO : 6364 of 2010 %08-04-2010 #C. Thimmaiah. ….petitioner Vs. $ The State of A.P., Panchayat Raj & Rural Development Department, rep., by its Principal Secretary, Secretariat, Hyderabad and others. …. Respondents !Counsel for the Appellants: Sri P.S.P. Suresh Kumar Counsel for the Respondents: G.P. for Services II <Gist : >Head Note: ? Cases referred: 1. 2004(3) ALT 647 2. (2009) 7 SCC 283 THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION NO : 6364 of 2010 Dated: 8.4.2010 Between: C. Thimmaiah ..PETITIONER And The State of A.P., Panchayat Raj & Rural Development Department, rep., by its Principal Secretary, Secretariat, Hyderabad and others ..RESPONDENTS This Court made the following: THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION NO :6364 of 2010 ORAL ORDER: (Per Hon’ble Sri. Justice Ghulam Mohammed) This writ petition is filed assailing the order, dated 14.12.2009 passed by the A.P. Administrative Tribunal in O.A.No.12381 of 2009. 2. The writ petitioner herein filed the above O.A. seeking to declare the action of the respondents in not altering his Date of Birth as 23.10.1953 instead of 10.1.1952 as illegal and arbitrary and contrary to the rules framed in G.O.Ms.No.165, dated 21.4.1984 and consequently, to direct the respondents to alter his Date of Birth as 23.10.1953. 3. It is the case of the petitioner-applicant that he joined in service as Village Administrative Officer on 31.1.1992. According to the certificate issued by the Mandal Revenue Officer, Roddam, his actual date of birth is 23.10.1953, but his date of birth was entered as 10.1.1952 in the school records as his parents, who were illiterates, had given wrong declaration at the time of admitting the petitioner in the primary school, Peddamanthur village, Roddam Mandal and the same date was entered in the service record. After joining in the service, he informed the same to the authorities and finally, he made a representation to the District Collector, Ananthapur on 2.10.2006 to alter his date of birth. But, no action was taken by the respondents. 4. The Tribunal having observed that as per G.O.Ms.No.165 dated 21.4.1984, the employee must give a declaration to the authorities about his date of birth, within one month from the date on which he joins duty and on such declaration, the authorities have to make an enquiry and decide within four months and in the present case, the applicant made a representation only on 2.10.2006 to the District Collector and the applicant failed to fulfill the conditions of G.O.Ms.No.165, dismissed the O.A. Feeling aggrieved by the same, the present writ petition has been filed. 5. Heard the learned Counsel for the petitioner-applicant as well as the learned Government Pleader. Perused the material available on record. 6. The learned Counsel for the petitioner-applicant contended that the parents of the petitioner-applicant were illiterates and at the time of admitting the petitioner in the school, his father had wrongly given the date of birth as 10.1.1952 and the said entry is not based on any records and that the school records reflected the said date of birth and accordingly, the same was entered in his service record also and on noticing the said mistake, he made a representation to the concerned authorities. But, the authorities did not take any action. It is also contended that if the certificate issued by the Mandal Revenue Officer, is not taken into consideration, the petitioner sustains irreparable loss and injury. 7. The learned Counsel for the petitioner has drawn the attention of this Court to the judgment of this Court in G. Krishna Mohan Rao Vs. Registrar, A.P. Administrative Tribunal, Hyderabad[1], wherein it is held that “Normally entry in service record relating to the date of birth made on the strength of the statement of an employee cannot be changed unilaterally unless the service conditions or the relevant rules permit the same and employer may in genuine and bonafide cases, consider such alteration in accordance with the procedure contemplated by the relevant rules and not otherwise.” The learned Counsel has also drawn the attention of this Court to the judgment of the Apex Court in CIDCO Vs. Vasudha Gorakhanath Mandevlekar[2] wherein it is held that “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. Certificate issued by municipality could not be discarded on the ground that 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.” Placing reliance on the above judgments, the learned Counsel for the petitioner contended that since there is a positive proof viz., certificate issued by the competent authority with regard to date of birth of the petitioner, the same shall be taken into consideration. 8. On the other hand, the learned Government Pleader contended that as per the Rules framed in terms of Article 309 of the Constitution of India and the Rules amended in 1993 by G.O.Ms.No.383, dated 16.11.1993, even the decree of the Civil Court cannot be binding on the employer. He further contended that once the date of birth has been entered in the service records on the basis of the school records, no other alterations or corrections are permissible. In support of his contention, he placed reliance on Rule 2 (5) of the A.P. Public Employment (Recording and Alteration of Date of Birth) Rules, 1984, which reads as under: “The date of birth as determined on the basis of the school records or any proof produced at the time of entering into service and entered in the service record, shall be final and no subsequent variation of the date of birth in the school records for any reason, shall be relevant for the purpose of service and on that basis the date of birth entered in the service records shall not be entered except in the case of bonafide clerical error, under the orders of the Government.” 9. It is the case of the petitioner that his parents being illiterates gave wrong declaration as to his date of birth as 10.1.1952 while admitting him in the school and the school records reflect the date of birth as 10.1.1952 and on the basis of school records, the date of birth was entered in the service register and on noticing the said mistake, he made a representation before the 3rd respondent-Collector. 10. We have gone through all the material available on record. In a case of this nature, it is pertinent to note that in case of bonafide mistake, though the same was not brought to the notice of the authorities in time, it does not disentitle any person to seek change of his date of birth. Admittedly, the representation made by the petitioner with regard to correction of his date of birth is pending before the 3rd respondent-Collector. 11. It is also apparent on the face of the record that the certificate of birth pertaining to the petitioner has been issued by the competent authority under the provisions of section 12/17 of the Registration of Births and Deaths Act 1969 read with Rule 8 of the A.P. Registration of Births and Deaths Rules, 1999. If that being the case, the deaths and births register maintained by the statutory authorities raises a presumption of correctness and such entries are admissible in evidence in terms of section 35 of the Evidence Act, as held by the Apex Court. 12. In view of the facts and circumstances of the case and in the light of the principles laid down by the Apex Court (citation-2 supra) to the effect that the deaths and births register maintained by the statutory authorities raises a presumption of correctness and such entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Evidence Act and it would prevail over an entry made in the school register, and in view of the pendency of the representation before the 3rd respondent-Collector, we feel it just and proper to direct the 3rd respondent to consider the representation of the petitioner and dispose of the same in accordance with law. 13. Accordingly, the 3rd respondent-Collector is directed to consider the representation of the petitioner and dispose of the same, in accordance with law, within a period of six weeks from the date of receipt of a copy of this order, and communicate his order to the petitioner. With the above observation, the writ petition is disposed of. No order as to costs. __________________________ Justice Ghulam Mohammed __________________________ Justice G. Bhavani Prasad Date: 08.4.2010 Note: LR copy is marked. Nn THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION NO : 6364 OF 2010 (Order delivered by Hon’ble Sri Justice Ghulam Mohammed) 08.04.2010 [1] 2004(3) ALT 647 [2] (2009) 7 SCC 283