IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE THIRTIETH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE N.V. RAMANA WRIT PETITION NO : 27084 of 2008 Between: Mohd. Hussain S/o. S.K. Ali E.No.105262 Falaknuma Depot, Hyderabad. ..... PETITIONER AND 1 The A.P. State Road Transport Corporation, rep. by its Managing Director, Bus Bhavan, RTC 'X' Roads, Musheerabad, Hyderabad. 2 The Executive Director, APSRTC, Musheerabad, Hyderabad. 3 The Depot Manager, APSRTC, Falaknuma Depot, 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 or order or direction especially one in the nature of Writ of Mandamus i. declare the action of the respondents in proposing to retire the petitioner from service w.e.f. 31.12.2008 as illegal, arbitrary and set a side the proceedings No.E2/756(7)/08-FM dt. 02.12.2008 issued by the 2nd respondent. ii. consequently direct the respondent to continue the petitioner in service upto 31.12.2011. Counsel for the Petitioner: MR.S.A.RAZAK Counsel for the Respondents: K.MADHAVA REDDY(SC FOR APSRTC) The Court made the following: ORDER The petitioner, who is working as a driver in the respondent – A.P.State Road Transport Corporation (APSRTC) has filed this writ petition seeking a mandamus to declare the action of the respondents in proposing to retire him from service with effect from 31.12.2008 as arbitrary and illegal and to set aside the proceedings No.E2/756(7) /08-FM dated 2.12.2008 issued by the 2nd respondent – Executive Director, APSRTC, Musheerabad, Hyderabad directing him to submit the documents to settle his terminal benefits. He has also sought for a consequential direction to the respondents to continue him in service up to 31.12.2011. The case of the petitioner is that he was appointed as a driver in the 1st respondent Corporation in the year 1984. At the time of selection, since he was not having any certificate in proof of his age, he was directed to produce any certificate from the Doctor in proof of his age and accordingly he produced the same as per which, as on 27.11.1983, his age was 29 years. However, the selection committee having not satisfied with the said certificate, again directed him to appear before the Medical Officer, APSRTC Hospital, Tarnaka, Hyderabad for ascertaining his age for appointment as driver. Accordingly, he appeared before the Medical Officer on 12.12.1983 who after examining him, confirmed his age as 30 years as on that date. As per the said certificate, his date of birth would be 12.12.1953. However, ignoring this aspect, his age was wrongly shown as 12.12.1950 in the appointment order. Therefore, he made a representation to the respondents to rectify the mistake that had crept in recording his date of birth as 12.12.1950 in the service record, pursuant to which the date of birth was corrected in accordance with MC No.05045 dated 12.12.1983 and his date of retirement was also corrected as 31.12.2011 in the place of 31.12.2008. Thereafter, at no point of time, the respondents have intimated him anything about further changes that have been made in regard to his date of birth and ultimately he was issued with a letter by the respondents intimating his date of retirement as 31.12.2008. Immediately, after receiving the letter, he made a representation informing the authorities that as per the medical certificate issued by the Civil Assistant Surgeon, APSRTC Tarnaka Hospital, his date of birth is 12.12.1953 and not 12.12.1950 which was subsequently corrected and hence his date of retirement is 31.12.2011 and not 31.12.2008. By not considering the said representation, the impugned letter is issued to him directing him to submit necessary papers to settle his terminal benefits. Hence this writ petition. Learned counsel for the petitioner contends that as per Regulation 19(3) of the A.P.S.R.T.C.Regulations, once the date of birth is entered in the service register, it is binding and no alteration of such date shall be permitted subsequently and only the Chairman and Managing Director of the Corporation is entitled to make necessary corrections when he is of the opinion that the employee had falsely stated the date of birth to obtain any advantage otherwise and in the case of illiterate staff, when he is satisfied that a clerical error has occurred. Therefore, the subsequent correction made by the Divisional Manager changing the date of birth again from 12.12.1953 to 12.12.1950 is bad and the same is liable to be set aside especially when the same has been done without any notice to the petitioner. The learned counsel further contends that in the instant case, the date of birth of the petitioner is certified by the doctor of the Corporation itself as 30 years as on 12.12.1983, which indicates that his date of birth is 12.12.1950 but ignoring the same, by mistake, it has been entered in the register as 12.12.1950 which was subsequently corrected on the representation of the petitioner as 12.12.1953. Therefore, the impugned order is liable to be set aside and the petitioner may be permitted to retire on 31.12.2011 and not on 31.12.2008 as directed by the respondents. On 12.12.2008 while issuing notice before admission, though this Court directed the respondents to file counter affidavit within ten days, the respondents have not chosen to file any counter affidavit and the learned standing counsel sought some more time to file the counter affidavit. But, the learned counsel for the petitioner submitted that as per the impugned order, the petitioner is going to be retired on 31.12.2008 and, therefore, there is urgency in the matter and requested to hear the matter on merits, for which the learned standing counsel also agreed. The relevant record pertaining to the petitioner is also produced before the court. The learned standing counsel submits that the certificate said to have been issued by the Doctor of APSRTC Hospital, Tarnaka dated 12.12.1983, which is relied on by the petitioner to say that his date of birth is 12.12.1953, in fact, is not a certificate given determining the age of the petitioner and that it is only a fitness certificate issued by the Doctor certifying the fitness of the petitioner to join duty and, therefore, the same cannot be made basis for determining the age of the petitioner. It is also submitted by the learned standing counsel that the Assistant Manager (Personal) has made corrections with regard to the date of birth of the petitioner as 12.12.1953 in the service record without any order on the basis of the medical certificate dated 12.12.1983 and after noticing the same, the date of birth was again reviewed by the Regional Manager on the ground that the Assistant Manager (Personal) has made corrections in the service record without passing any order by the Divisional Manager. Since the corrections have been made by the Assistant Manager (Personal) without following any procedure, the same is bad and cannot be relied on. Even though his date of birth was recorded in the appointment order as 12.12.1950, the petitioner has not raised any dispute and has raised the dispute at the fag end of his service basing on the unauthorized corrections made by the Assistant Manager (Personal). Heard the learned counsel for the petitioner as well as the learned standing counsel for the respondent Corporation and perused the file produced before the court. The record produced before the court reveals that the petitioner was appointed as a Driver on contract basis on 16.3.1984 on the pay of Rs.470/- per month in the respondent Corporation. In the appointment order given to him, his date of birth was recorded as 12.12.1950. In the office order dated 26.3.1984 issued by the Depot Manager appointing the temporary drivers on contract basis as HMV drivers on contract basis also shows the date of birth of the petitioner as 12.12.1950. Even the office order dated 10.12.1985 regularising the services of the drivers, at serial No.26, the date of birth of the petitioner was shown as 12.12.1950. In the fitness certificate issued by the Civil Assistant Surgeon, APSRTC Hospital, Tarnaka, Hyderabad on 12.12.1983 the age of the petitioner is shown as 30 years. However, in another certificate issued by the Civil Assistant Surgeon, APSRTC Hospital, Tarnaka, on 12.3.1986, the age of the petitioner was shown as 35 years. The said certificate is also a fitness certificate issued by the Doctor considering him fit for doing service in Class.A1. The said certificates are meant only for certifying the fitness of the petitioner to join duty and the same are not based on any physical examination conducted by the doctors to find out the age of the petitioner. In the declaration submitted by the petitioner to the Andhra Pradesh State Road Transport Corporation, wherein the petitioner has kept his thumb impression, his date of birth is shown as 15.10.1954. However, the said declaration does not contain the date of giving such declaration. In the option-cum-nomination form submitted by the petitioner, he declared his date of birth as 15.10.1954. In the declaration and nomination form submitted by the petitioner on 17.10.1990 under the Employees Provident Fund Scheme, 1952, his date of birth is shown as 12.12.1950. Further, in the seniority list of the drivers of Hyderabad City Region, his date of birth is shown as 12.12.1950. While the things stood thus, on 23.9.2005, the petitioner made an application to the Depot Manger, APSRTC, Falaknuma Depot, Hyderabad requesting him to furnish the entry pertaining to his date of birth in ‘P’ case. In the said representation, he stated that at the time of his appointment, the Doctors of Tarnaka Hospital have examined him as he was uneducated and could not produce any certificate which can indicate his date of birth, and that he is not aware of the date of birth entry and, therefore, he sought for furnishing the documents/certificate which could found the basis for entering his date of birth in his service register. He has also enclosed the Community, Nativity and Date of Birth Certificate issued by the Mandal Revenue Officer, Charminar certifying his date of birth as 15.5.1952. The said certificate was issued by the Mandal Revenue Officer on 16.8.2002. In the representation submitted by him to the Divisional Manager, APSRTC, Koti, the petitioner stated that his actual date of birth is 15.5.1952 and the authorities erroneously entered his date of birth as 12.12.1950 without any documentary proof ignoring the date of birth recorded in the driving licence. It is also stated that he studied upto 3rd class in a private village school but he could not produce any record as the school has been closed after the death of the correspondent of the school and the records are not available. The record also discloses that the Depot Manager, Falaknuma has addressed the Mandal Revenue Officer, Charminar to arrange to supply the copies of declaration or certificates submitted by the petitioner basing on which he issued the Community, Nativity and Date of Birth Certificate showing his date of birth as 15.5.1952. But the record does not contain any reply having been received to such letter. The representation made by the petitioner to the Divisional Manger seeking change of date of birth was rejected vide order dated 26.2.2007 on the ground that the employee did not raise any objection with regard to his date of birth entered in the service record for nearly more than two decades and when he is supposed to retire on 31.12.2008, and at the fag end of his service, he raised such an objection. The above contents in the service record clearly goes to show that the petitioner is not certain about his date of birth. At one point of time, he states that he is not aware of his date of birth and since he was not having any evidence in proof of his age, he was sent to the Doctors of the Corporation to determine his age who certified that he is aged 30 years as on 12.12.1983 and, therefore, his date of birth is 12.12.1953. However, he himself made a representation to the authorities stating that his date of birth is 15.5.1952 and the same is recorded in his driving licence and he is having the said licence at the time of joining the corporation itself and ignoring the said fact, his date of birth was recorded as 12.12.1950. In support of his case, he has also produced the certificate issued by the Mandal Revenue Officer, Charminar issued in the year 2002. If that is so, why he has not produced the same at the time of his initial appointment is not explained. He himself says that the date of birth recorded as 12.12.1953 shall not be altered to 12.12.1950 as the same is recorded in the service register. The medical certificates relied on by the petitioner are only fitness certificates and they are not date of birth determining certificates and the age shown in the said certificates also do not corroborate with each other. At one place, he is shown as aged 35 years and at another place he was shown as 30 years. Further, form ‘A’ supposed to have been obtained at the time of appointment wherein the employee has to declare his educational qualifications and age is not available in the record and in the personal data sheet of SR, the educational qualifications column is kept blank. The date of birth was altered from 12.12.1950 to 12.12.1953 in the personal data of the service record which was attested by the Assistant Manager (Personal) of Mehdipatnam Depot but there are no orders passed by any authority permitting such change in the personal record. Even though the petitioner was appointed in the year 1984, he has not raised any dispute with regard to his date of birth for nearly two decades and only when he was reaching his end of service, he raised the dispute and made representations seeking correction of his date of birth. Initially, the case of the petitioner is that the Civil Assistant Surgeon of the APSRTC Hospital, Tarnaka has certified his age as on 12.12.1984 as 30 years and hence his date of birth should be recorded as 12.12.1953 and that has been done by the Assistant Manager (Personal) on his oral representation and the subsequent correction of the date of birth from 12.12.1953 to 12.12.1950 has not been intimated to him at any point of time. Subsequently, he changed his version and submitted that from the date of initial appointment itself, he is having necessary documents in support of his date of birth. Regulation 19 of the APSRTC Regulations clearly envisage that every person on entering the service of the Corporation shall declare his date of birth which shall not differ from any declaration, express or implied, made by him for any public purpose before entering such service and for this purpose, the date of birth as recorded in a school or college certificate shall be adopted without any modification. In the instant case the date of birth of the petitioner is entered in the service register as 12.12.1950 and the same has remained unchallenged by the petitioner for nearly two decades. Even though the said entry has been corrected by the Assistant Manager (Personal) without any authority, the same has been rectified and again his date of birth has been shown as 12.12.1950. The various versions given by the petitioner at different places viz., initially that he is not having any certificate in proof of his age and subsequently stating that even though he is having driving licence and nativity certificate showing his date of birth as 15.5.1952, the authorities have erroneously entered the same wrongly in the service register appears to have been raised only for the purpose of his case and does not stand to scrutiny. For the foregoing reasons, I am of the considered opinion that the petitioner has failed to prove his case that his date of birth is not 12.12.1950 as entered in the service register. The writ petition fails and it is accordingly dismissed. N.V.RAMANA,J 30.12.2008 Note: Issue CC by tomorrow. (b/o) MSV