IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SIXTH DAY OF FEBRUARY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE Mr. JUSTICE C.V.RAMULU WRIT PETITION No. 13169 of 2005 Between: K.B.G. Joshi S/o.Viswanatham R/o.302, Surendra Towers Pratibha Niketan Road, Machavaram Vijayawada, Krishna District. ..... PETITIONER AND 1 State of Andhra Pradesh rep by its Principal Secretary to Government Higher Education Dept., Secretariat, Hyderabad. 2 The Commissioner of Collegiate Education, Andhra Pradesh, Hyderabad. 3 The Commissioner of Intermediate Education, A.P., Hyderabad 4 Sarada College rep by its Secretary and Correspondent, Gandhi Nagar Vijayawada-3 5 The Regional Joint Director of Higher Education, Government Arts College Campus, Rajahmundry. 6 S.R.R. and C.V.R Government College rep by its Prl. Machavaram Vijayawada. .....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 an appropriate writ or order or direction more particularly one in the nature of writ of Mandamus declaring as illegal and arbitrary the action of the respondents 1 and 2 in not incorporating the date of birth of the petitioner recorded in the Service Register and flyleaf issued by the 3rd respondent i.e., 25.5.1949 in the 1st flyleaf/annual supplementary statement as Lecturer in the Degree College and issue a consequential direction to incorporate the date of birth contained in the Annual Salary Statement approved by the Director of Intermediate Education in the flyleaf of the Degree College as regards petitioner and pass such other or further order or orders. Counsel for the Petitioner: Mr. D.V.SITARAMAMURTHY Counsel for the Respondent : GP FOR HIGHER EDUCATION The Court made the following : THE HON’BLE SRI JUSTICE C.V. RAMULU W.P.No.13169 of 2005 ORAL ORDER: This Writ Petition is filed seeking a Mandamus declaring the action of respondents 1 and 2 in not incorporating date of birth of the petitioner recorded in Service Register and fly leaf issued by the 3rd respondent i.e. as 25-5-1949 in the first fly/annual supplementary statement as Lecturer in the Degree College as arbitrary and illegal and consequently to direct respondents to incorporate Date of Birth contained in the annual salary statement approved by the Director of Intermediate Education in the fly leaf of the Degree College as regards the petitioner. According to the petitioner, he joined as Junior Lecturer in Y.V.C.R.C.S.P. Junior College, Karamchedu, Prakasam District. His Date of Birth was recorded as 4-6-1947 instead of 25-5-1949 as contained in the birth extract. Therefore, he had instituted a suit in O.S.No.202 of 1984 on the file of learned Additional Junior Civil Judge, Vijayawada for correction of Date of Birth from 4-6-1947 to 25-5-1949 on the basis of the birth extract. The suit was decreed as prayed for on 17- 8-1987. Further, the State Government had issued G.O.Rt.No.415, Education, dated 30-3-1988 permitting correction of Date of Birth of the petitioner in the SSLC Register and all other records. Thereafter, the Director of School Education, Andhra Pradesh, Hyderabad addressed a letter dated 29-4-1988 to the Secretary to Government Examinations, Andhra Pradesh, Hyderabad to change Date of Birth of the petitioner from 4-6-1947 to 25-5-1949 in all the records. Accordingly, the Commissioner of Government Examinations corrected his Date of Birth in the first page of SSLC Register as 25-5-1949 vide Endorsement dated 2-1-1989. While that being so, petitioner was promoted as Lecturer in Sarada Degree College on 29-5-2000. As the Junior and Degree Colleges were under the same management, such promotion was permissible under Governmental Orders. However, the Degree College comes under the administrative control of Commissioner of Collegiate Education. Therefore, it had become necessary to get a fresh annual salary statement. It appears, by mistake, the Department had entered Date of Birth of the petitioner as 4-6-1947 in the flyleaf. Further, when an audit was conducted in the Degree College, the Departmental Auditor brought the discrepancy to the notice of the petitioner. It appears, Date of Birth of the petitioner was corrected in the third volume of his Service Register at Sarada Junior College, Vijayawada. However, correspondingly, correction was not made in volumes 1 and 2 of the Service Register opened at V.B.M. Junior College, Vijayawada, where the petitioner worked earlier. The Office of the Commissioner of Collegiate Education recorded the incorrect Date of Birth in the flyleaf on the basis of volume No.1 of Service Register. However, on coming to know of the same, petitioner represented to the Management of the institution for rectification in the annual salary statement in January,2005. The Management, in turn, addressed a letter dated 19-1- 2005 to the Commissioner of Collegiate Education stating that while the petitioner was working as Junior Lecturer, on the basis of Governmental Orders, his Date of Birth was shown as 25-5-1949 in the annual salary statement of the Junior College and when the first fly leaf was sent to the Degree College in June,2000 it was shown as 25-5-1949 as per the approved flyleaf of the Junior College. To the said letter, original SSLC register, Service Registers (3 volumes), copies of annual salary statements approved by the Director of Intermediate Education from 1991-92 to 1999-2000, decree of the civil court, letter of Commissioner of School Education to the Commissioner of Government Examinations, Hyderabad and the first fly leaf sent to the Commissioner of Collegiate Education in the degree college were enclosed. But, while approving the first fly leaf of the Degree College, the Commissionerate entered Date of Birth of the petitioner as 4-6-1947 based on the first volume of Service Register, which was not correct, after issuance of the G.O. and endorsement of the Commissioner of Government Examinations in the original SSLC register. Therefore, the Commissionerate did not incorporate correct Date of Birth in the flyleaf and annual salary statement, which was noticed by the petitioner recently. While that being so, the Management gave a notice of retirement requiring the petitioner to retire on 30-6-2005. However, it appears, Commissioner of Collegiate Education addressed a letter on 25-4-2005 to the Principal Secretary to Government, Higher Education Department, Hyderabad stating that on the basis of the orders issued by the State Government in G.O.Rt.No.415, Education dated 30-3-1988 for correction of Date of Birth in the SSLC register of the petitioner, the Commissioner of Government of Examinations altered Date of Birth from 3-6-1947 to 25-5-1949 in the SSLC register and the Director of Intermediate Education, A.P., Hyderabad corrected Date of Birth in the Service Register. On promotion, while joining as Lecturer on 2-5-2000, the said corrections have not been carried out by the Commissionerate. Further, it was stated as per G.O.Ms.No.94, Finance and Planning Department, dated 15-3-1994, the change of Date of Birth as per the Orders of the Court or any other authority may be considered for any other purpose other than the purpose of Service Register. Thus, the Commissioner of Collegiate Education was of the view that Date of Birth of the petitioner is 4-6-1947 and 1st respondent endorsed this view, but was not inclined to rectify the mistake. The stand taken by respondents 1 and 2 is incorrect for the reason that Date of Birth has already been corrected in the Service Register of the petitioner and incorporated in the fly leaf long prior to the issuance of G.O.Ms.No.94, dated 15-3-1994. Only on promotion, the Commissioner of Collegiate Education failed to incorporate it, which is only a mistake. Therefore, the amendment issued in G.O.Ms.No.94, dated 15-3-1994 has no application to the case of the petitioner. Thus, the rejection of the case of the petitioner for correction of his Date of Birth by the Commissioner of Collegiate Education is arbitrary and illegal. On behalf of the 2nd respondent-Commissioner of Collegiate Education, a detailed counter affidavit has been filed denying the allegations made by the petitioner. Though the facts are not in dispute, it is stated that the petitioner had raised an objection as to recording of his incorrect Date of Birth only in 2005, just before 5 months prior to his retirement, which is not permissible as per the Andhra Pradesh Public Employment (Recording and Alteration of Date of Birth) Rules. Further, the failure to enter his altered Date of Birth on his promotion in 2000 by Commissioner of Collegiate Education it is not a clerical mistake as alleged by the petitioner that. In fact, Government issued G.O. way back in the year 1961 vide G.O.Ms.No.1263, Education Department, dated 6- 5-1961 framing Rules for correction of Date of Birth in Secondary School Leaving Certificate and Higher Secondary (Multi Purpose) Certificate. These rules would clearly go to show that application should be made to the Government through the Director of Public Instruction to the Head of the School along with extract from Birth Register, sworn declaration from parents or guardian and a sworn declaration indicating the total number of children along with their family particulars. Further, this was to be attested by a Gazetted Officer. On receipt of such application, detailed enquiry would be caused through the District Collector and only after ascertaining that there was a clerical mistake etc., while entering Date of Birth in the certificate, corrections will be carried out. No application shall be entertained for correction of entries, unless the entries are clerical mistake committed in the school or in the Department. Government issued A.P. Public Employment (Recording and Alteration of Date of Birth) Rules,1984, in which it was clearly stated that the claims for correction of Date of Birth should be examined strictly in accordance with the Rules relating to recording or alteration of Date of Birth and uninfluenced by the decrees of the civil court in regard to alteration of Date of Birth in school records. As per G.O.Ms.No.383, Finance and Planning Department, dated 16-11-1993 an amendment was ordered to A.P. Public Employment (Recording and Alteration of Date of Birth) Rules,1984 that in any proceedings before the Government or in any Court, Tribunal or other authority for alteration of Date of Birth in service records, the judgment, decree or order of a civil court in regard to the alteration of Date of Birth in service records is not binding on the Government, whether or not the Government is a party to such proceedings. Therefore, the decree passed by the civil court or any authority cannot be taken into consideration for the purpose of altering Date of Birth of the petitioner as 25-5-1949 instead of 4-6-1947. The correction of Date of Birth cannot be permitted at the belated stage when the employee is at the verge of retirement. A decree passed by the civil court cannot be the basis for entries in the service register and the authenticated document on the basis of which the entry in the service record has to be made is only the original Secondary School Leaving Certificate. Sri D.V. Sitaram Murthy, learned counsel for the petitioner, stated that the facts are not at all disputed by the respondents, but the only plea taken by them is that the SSLC register cannot be corrected at a belated stage and the first and second volumes of the Service Register of the petitioner reflected Date of Birth as 4-6-1947; therefore, it cannot be corrected as 25-5-1949 in view of A.P. Public Employment (Recording and Alteration of Date of Birth) Rules,1984 and the Governmental Orders issued from time to time. This plea is no more available to the respondents, since the fact as to correction of Date of Birth in the SSLC register and the entry at volume No.3 of the Service Register is not in dispute. Only when the petitioner was promoted as Lecturer of the Degree College, it appears, Commissioner of Collegiate Education, on the basis of entries in volumes 1 and 2 of the service register, the old (incorrect) Date of Birth of the petitioner was noted. In fact, Date of Birth of the petitioner was already corrected in the SSLC register long ago and Government also issued a G.O. to that effect. Therefore, rejection of the case of the petitioner for correcting his Date of Birth as 25-5-1949 instead of 4-6-1947 is arbitrary and illegal and as such, it is liable to be set aside. Learned Government Pleader appearing for the respondents reiterated the same stand as was taken in the counter and submitted that as per law, petitioner is not entitled for correction of his Date of Birth. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the material made available on record. The simple question that arises for consideration, in this Writ Petition, is whether the case of the petitioner could have been negatived on the ground that at the belated stage, particularly, at the verge of his retirement, Date of Birth of the petitioner could not be allowed to be corrected. In fact, on the ground that, at the belated stage, SSLC could not have been corrected, the case of the petitioner was negatived. It is unfortunate that the respondents have taken such a stand. The suit (O.S.No.202 of 1984) was filed in the year 1984. The Commissioner for School Education, Andhra Pradesh and the Head Master, C.V.R. Municipal High School, Vijayawada were parties to the suit. Suit was decreed as prayed for on 17-8-1987 declaring Date of Birth of the petitioner as 25-5-1949 and not 4-6-1947. In pursuance of the Judgment and Decree in O.S.No.202 of 1984, Government issued G.O.Rt.No.415, Education, dated 30-3-1988 permitting correction of Date of Birth of petitioner in the SSLC register and all other records. Further, Director of School Education, Hyderabad addressed a letter dated 29-4-1988 to the Secretary to Government Examinations, Hyderabad to change Date of Birth from 4-6-1947 to 25-5-1949 in all the records. Further, the Commissioner for Government of Examinations corrected Date of Birth in the first page of SSLC register as 25-5-1949 vide endorsement dated 2-1-1989. These facts are not in dispute. In fact, correction in the first page of SSLC register was made with reference to file D.Dis.1206/NEP6-3/84, dated 29-4- 1988 of the Director of School Education, A.P., Hyderabad as per G.O.Rt.No.415, Education (EE.3) Department, dated 30-3-1988. The entry in the Service Register at volume No.3 correcting Date of Birth of the petitioner as 25-5-1949 is also not in dispute. The dispute is as to the entries as available at volumes 1 and 2 of the Service Register of the petitioner. It appears, entries at volumes 1 and 2 were made when the petitioner was at Junior College level. After he was promoted as Lecturer of the Degree College, in the third volume, as per the decree and the Governmental Orders, Date of Birth of the petitioner was corrected as 25-5-1949 instead of 4-6-1947. Therefore, the contention of the respondents that no correction of Date of Birth as entered in the SSLC register can be made at this length of time seems to be unreasonable. The Date of Birth of the petitioner in the SSLC register was corrected as early as in 1989 i.e. immediately after the decree of the civil Court and the Commissioner of School Education has carried out the same and further, the Commissioner for Government Examinations also carried out corrections. Once this is so, the plea of the respondents that the SSLC register cannot be corrected at this length of time, particularly at the verge of retirement, though there is a decree of the civil Court, which attained finality, cannot be countenanced. Petitioner is not seeking correction of either the entries in the Service Register or in SSLC register at the verge of his retirement. The suit was filed way back in 1984 and was decreed in 1987 and the corrections were carried out in 1989. Had the petitioner not been promoted as Lecturer of the Degree College, probably, no such objection could have been taken. Only when the petitioner was promoted as a Lecturer of Degree College, he came under the administrative control of the Commissioner of Collegiate Education. When the petitioner sought for fresh annual salary statement, it appears, by mistake the Department had entered his Date of Birth as 4-6-1947 in the flyleaf. Therefore, the Commissioner of Collegiate Education found out that a wrong entry was made, i.e. Date of Birth was made as available at volumes 1 and 2 of the Service Register is 4-6-1947, which is obviously cannot be taken into consideration in view of G.O.Ms.No.415, dated 30-3-1988 and the endorsement of the Commissioner of Government Examinations dated 2-1-1989. This is not a case where the petitioner has started claiming alteration of Date of Birth at the fag end of his service. Further, SSLC register and all other records were corrected including volume No.3 of Service Register. Some clerical mistake here and there cannot be taken into consideration to say that the SSLC register is sought to be corrected at the verge of retirement. In view of the fact that SSLC register was already corrected and Government issued G.O.Ms.No.415, dated 30-3-1988, in this regard and the Commissioner of Government Examination has already made an endorsement as to the correction of Date of Birth of the petitioner in all the concerned records, the plea of the Government that in view of A.P. Public Employment (Recording and Alteration of Date of Birth) Rules,1984, Date of Birth of the petitioner cannot be corrected, cannot be countenanced at this length of time. It is nothing but reversing the process, which attained finality as early as on 2-11-1989. Based on the Proceedings dated 2-11-1989 of the Commissioner of Government Examinations, Director of Intermediate Education has corrected the entries in the third volume of service register. But, consequent on his joining as a Lecturer on 29-5-1998 in Degree College on promotion, the correction has not been carried out and the original entry in the Service Register has been retained, which seems to be not correct. SSLC register as well as the Service Register volume No.3 of the petitioner were corrected long long ago. The fact that Date of Birth of the petitioner in the SSLC register was altered has missed the attention of the respondents and, therefore, the claim of the petitioner to continue upto 2007 was just and proper. Therefore, rejection of the claim of the petitioner to correct Date of Birth as 25-5-1949 instead of 4-6-1947 is arbitrary and illegal. It is also brought to the notice of the Court that in view of the interim orders passed by this Court in W.P.M.P.No.16725 of 2005, dated 27-6-2005, petitioner was continued in service and ultimately, on attaining age of superannuation, retired from service with effect from 31-5-2007; thus, the petitioner worked till 31-5- 2007 as he was entitled to continue upto 31-5-2007 as a matter of right. In the result, the Writ Petition is allowed and it is declared that the petitioner is entitled to continue in service till he attains age of superannuation at 58 years taking his Date of Birth as 25-5-1949 and also entitled for all other benefits, as per law, including pensionary benefits. If the petitioner is not paid his salary from 2005 till the date of retirement, the same shall be paid forthwith. No order as to costs. 26-02-2008 prk