HIGH COURT OF A.P.versusN. SANYASI RAO

               [2011] 13 (ADDL.) S.C.R. 403

                    HIGH COURT OF A.P.                             A
                               v.
                      N. SANYASI RAO
              (Civil Appeal No. 6964 of 2004)
                    DECEMBER 01, 2011
                                                                   B
         [R.M. LODHA AND H. L. GOKHALE, JJ.]

     Andhra Pradesh Public Employment (Recording and
Alteration of Date of Birth) Rules, 1984 - rr. 2, 2-A, 2(4) -
Judicial officer - Date of birth - Correction of, in the service   C
record - Respondent in the application for recruitment to the
post of District Munsif mentioned his date of birth as July 1,
 1949 on basis of his Secondary School Leaving Certificate
- Meanwhile, decree passed in his favour (ieclaring his date
of birth as March 29, 1953 - Subsequently respondent was           o
selected and at the time of joining, stated his date of birth as
March 29, 1953 - In the service register two date of birth
recorded, one on basis of the decree and other on basis of
the School Leaving Certificate - Representation by the
Judicial Officer to the Registrar, High Court for the correct      E
recording of his date of birth - After eight years, resolution
passed by the High Court on the administrative side rejecting
the representation - Writ petition by the Judicial Officer,
allowed by the High Court - On appeal, held: No
determination of the Judicial Officer's date of birth was made     F
as contemplated and required in r. 2 - Nothing was shown
about the firm date of birth recorded in the service record of
the Judicial Officer - Judicial officer had not asked for any
alteration in the date of birth but his prayer had been for
recording correct date of birth in the relevant service record     G
- High Court on the administrative side, sat over the
representation made by the Judicial Officer for about nine
years - Resolution rejecting the representation was a non-
speaking order - High Court on the administrative side to
                             403                                   H
    404    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A objectively determine the Judicial Officer's date of birth in
    accordance with the statutory provisions after giving an
    opportunity to the Judicial Officer - Impugned order is
    modified.

         Respondent moved an application for recruitment to
8
    the State Judicial Service for the post of District Munsif
    and mentioned his date of birth as July 1, 1949 on basis
    of his date of birth shown in the Secondary School
    Leaving Certificate. Thereafter, he was selected and the
    appointment letter was issued. Meanwhile the respondent
C   obtained a decree in his favour declaring his date of birth
    as March 29, 1953. Therefore, at the time of joining the
    service on October 7, 1985, he referred to the decree and
    stated his date of birth as March 29, 1953. The District
    Judge opened his service register and his date of birth
D   was recorded as March 29, 1953 based on the decree and
    also showed his date of bi'1:h as July 1, 1949 based on
    the Secondary School Leaving Certificate. In 1989 the
    alteration was made in the education certificates in
    compliance of the decree. Thereafter the Judicial Officer
E   made a representation to the Registrar, High Court for the
    correct recording of his date of birth. After eight years,
    the High Court on the administrative side passed a
    Resolution rejecting the representation made by the
    Judicial Officer and communicated him the same. The
F   Judicial Officer sought review of the decision which has
    not been disposed of till date. The respondent-Judicial
    Officer filed a writ petition challenging the Resolution. The
    High Court allowed the same holding that he was entitled
    to get March 29, 1953 entered as his date of birth in the
G   service record. Therefore, the appellant-High Court of
    A.P. filed the instant appeal.

          Disposing of the appeal, the Court

     HELD: 1.1 Rule 2 of the Andhra Pradesh Public
H Employment (Recording and Alteration of Date of Birth)
      HIGH COURT OF A.P. v. N. SANYASI RAO              405


Rules, 1984 requires a Government employee to make a A
declaration in respect of his date of birth within one
month from the date of his joining duty. The Judicial
Officer joined his duty as District Munsif on October 7,
1985 and made a declaration that his date of birth was
March 29, 1953. As per Rule 2, on receipt of the B
declaration, the Head of Office or any other officer who
maintains the service records in respect of such
employee, after making necessary enquiry, as may be
thought fit with regard to the declaration so made by the
employee and after taking into consideration the relevant c
evidence adduced in respect of such declaration is
required to make an order within four months from the
date on which the employee joins service determining
the date of his birth. [Para 13] [412-G-H; 413-A-B]

     1.2 In the instant case, no determination of the          D
Judicial Officer's date of birth was made as contemplated
and required in Rule 2 of the 1984 Rules. The District
Judge, Vishakhapatnam on opening the service register
of the Judicial Officer mentioned both the dates namely;
March 29, 1953 based on the decree and also July 1, 1949       E
based on the Secondary School Leaving Certificate.
Nothing has been shown about the firm date of birth
recorded in the service record of the Judicial Officer. As
a matter of fact, there has been no determination of the
date of birth of the Judicial Officer at all and, therefore,   F
the Division Bench, in the impugned order rightly
observed that the judicial officer had not asked for any
alteration in the date of birth but his prayer had been for
recording correct date of birth in the relevant service
record. Curiously, the Judicial Officer placed on record       G
two half yearly lists of the members of the Andhra Pradesh
Higher Judicial Service, corrected up to July 1, 2003 and
July 1, 2004. The Judicial Officer had already become
member of the Higher Judicial Service by that time and
in both these lists published by the High Court of Andhra      H
    406    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A Pradesh, the Judicial Officer's date of birth was shown
  as March 29, 1953. In the impugned resolution rejecting
  the representation of the Judicial Officer, no reasons have
  been stated. It is a non-speaking order on its face. For
  about nine years, the High Court on the administrative
8 side, sat over the representation made by the Judicial
  Officer. Treating the Judicial Officer's date of birth as July
  1, 1949, the High Court on the administrative side issued
  an order on June 8, 2009 that the Judicial Officer would
  retire from the service on attaining the age of
C superannuation of 60 years on June 30, 2009 and,
  accordingly, the Judicial Officer was made to retire on
  that date. [Para 14] [413-C·H; 414-A-B]

          1.3 The Resolution in respect of the Judicial Officer
   also suffers from infirmities. However, having regard to
D the peculiar facts and circumstances of the instant case,
    it is appropriate that the High Court must determine on
   the administrative side the Judicial Officer's date of birth.
    This has become unavoidable as nothing has been
    shown that there has been determination of the Judicial
E Officer's date of birth as contemplated and required in
    Rule 2(2) of the 1984 Rules. Certain materials have been
  . placed on record by the High Court on the administrative
    side in the instant appeal. One of such materials is that
    the Judicial Officer got admitted in 6th standard in 1961 •
F 62 and it was not possible that somebody born on March
    29, 1953 would be in 6th standard in 1961-62 as at that
    time, he would hardly be 8-9 years old. It is strongly felt
    that the High Court on the administrative side must
    objectively determine the Judicial Officer's age in
G accordance with the statutory provisions which is not
    shown to have been done at any point of time, after giving
    an opportunity to the Judicial Officer. [Paras 20 and 21]
    [415-G-H; 416-A·D]

          1.4 The impugned order is modified. The High Court
H
      HIGH COURT OF A.P. v. N. SANYASI RAO                 407


 on the administrative side shall determine the Judicial          A
'Officer's date of birth in accord with Rule 2 of the 1984
 Rules within the stipulated; and in case the Judicial
 Officer's date of birth is determined as March 29, 1953, an
 appropriate order for his re-instatement with all
 consequential benefits shall be issued as early as may           B
 be possible. [Para 22 and 23] [416-0-G]

    High Courl of A. P. v. M. Vijaya Bhaskara Heddy Civil
Apeal No. 4993 of 2002; G. Krishna Mohan Rao v. Registrar,
Andhra Pradesh Administrative Tribunal, Hyderabad and Ors.        C
2004 (3) ALO 449 (FB) - referred to

                     Case Law Reference:
     2004 (3) ALO 449 (FB) Referred to. Para 9

  · CIVIL APPELLATE JURISDICTION : Civil Appeal No.               D
6964 of 2004.

     From the Judgment and Order dated 06.02.2002 of the
High Court of Andhra Pradesh at Hyderabad in W.P. No. 930
of 2002.                                                          E
     T.V. Ratnam for the Appellant.

    K. Ramamoorthy and R.V. Kameshwaran for the
Respondent.
                                                                  F
     The Judgment of the Court was delivered by

     R.M. LOOHA, J. 1. The High Court of Andhra Pradesh,
on the administrative side, through its Registrar
(Administration) is in appeal, by special leave, aggrieved by
the judgment and order dated February 6,2002 whereby the          G
Division Bench of that Court allowed the Writ Petition filed by
the respondent herein and held that he was entitled to get
entered March 29, 1953 as his date of birth in the service
record.
                                                                  H
    408 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.

A        2. The respondent - N. Sanyasi Rao (hereinafter referred
    to as the " Judicial Officer") - was selected in the judicial
    service of the State of Andhra Pradesh and was given an order
    of appointment as District Munsif. In pursuance thereof, he
    joined the service on October 7, 1985.
B
       3. In the application for recruitment to the Andhra Pradesh
  Judicial Service for the post of District Munsif made by the
  Judicial Officer, he mentioned his date of birth as July 1, 1949.
  That date of birth was given by him on the basis of the
C Secondary School Leaving Certificate.

        4. In 1983, before the application for recruitment to the
  Judicial service was made by the Judicial Officer, he had filed
  a suit (O.S. No. 61 of 1983) seeking declaration that his date
  of birth is March 29, 1953 and not July 1, 1949 and for direction
D to the concerned authorities to make necessary alterations in
  the school, college and Universiiy records. After conclusion of
  the trial in the suit and on hearing the parties, the Principal
  District Munsif at Chodavaram decreed the suit and held that
  the Judicial Officer was entitled to the declaration of his date
E of birth as March 29, 1953.

       5. Thus, when the Judicial Officer joined the service on
  October 7, 1985, he referred to the decree dated February 28,
  1985 (for short "decree") and declared his date of birth as
  March 29, 1953. The District Judge, Visakhapatnam, after the
F Judicial Officer had joined the service on October 7, 1985,
  opened his service register on December 30, 1985 and
  recorded his date of birth as March 29, 1953 based on the
  decree and also showed his date of birth as July 1, 1949 based
  on the Secondary School Leaving Certificate.
G
        6. In 1989, after the alteration was made in the education
  certificates in compliance of the decree, the Judicial Officer
  made a representation to the Registrar, High Court for the
  correct recording of his date of birth. The representation was
H sent through concerned District Judge. The representation
       HIGH COURT OF A.P v. N. SANYASI RAO                       409
                [RM. LODHA, J.]
made by the Judicial Officer was kept pending for years                 A
together. On October 15, 1997, the High Court on the
administrative side passed a Resolution (hereinafter referred
to as the "Resolution) rejecting the representation made by the
Judicial Officer and he was communicated of the Resolution
on December 11, 1997. The Judicial Officer sought review of             B
the decision taken by the High Court on the administrative side
and that, we are informed, has never been disposed of 'ill today.
Since the decision on Judicial Officer's request for review of
the Resolution was not taken within reasonable time, the
Judicial Officer moved the High Court on the judicial side by           c
filing a Writ Petition challenging the Resolution.

     7. As noticed above, the Writ Petition filed by the Judicial
Officer was allowed by the High Court on February 6, 2002.

      8. Mr. T.V. Ratnam, learned counsel for the appellant             D
 submits that the direction given by the High Court in the
impugned order is contrary to Rule 2-A of the Andhra Pradesh
Public Employment (Recording and Alteration of Date of Birth)
Rules, 1984 (for short."1984 Rules"). He further submits that the
decree obtained by the Judicial Officer declaring his date of           E
birth to be March 29, 1953 is of no help and cannot be taken
into consideration in regard to the alteration of date of birth. With
reference to Rule 2(4) of 1984 Rules, he submits that the date
of birth entered in the service record of the employee is final
and binding and the employee is estopped from disputing the             F
correctness of the date of birth so recorded.

     9. Mr. K. Ramamoorthy, learned senior counsel for the
Judicial Officer supported the judgment of the High Court and
heavily relied upon the decision of this Court in the case of High      G
Court of AP. vs. M. Vijaya Bhaskara Reddy - Civil Appeal No.
4993 of 2002 decided on July 22, 2010. He would also submit
that the decision of the Full Bench in G. Krishna Mohan Rao
vs. Registrar, Andhra Pradesh Administrative Tribunal,
Hyderabad and others 2004 (3) ALD 449(FB) was not a good
                                                                        H
    410    SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A law, particularly in view of the decision of this Court in M. Vijaya
  Bhaskara Reddy (supra).

        HY.The Judicial Officer has been very candid, forthright and
  honest in disclosing the true and correct facts about his date
  of birth while making the application for recruitment to the
8
  t>.ndhra Pradesh State Judicial Service and also while making
  the declaration on joining the service. He mentioned his date
  of birth in the application as July 1, 1949; obviously based on
  his date of birth shown in the Secondary School Leaving
C Certificate. By the time, he was selected and appointment letter
  came to be issued, he had a decree in his favour declaring his
  date of birth as March 29, 1953 and, therefore, at the time of
  joining the service, he referred to the decree and stated his
  date of birth as March 29, 1953. The District Judge,
  Vishakhapatnama, at the time of opening the service register
D pertaining to the Judicial Officer recorded his date of birth as
   March 29, 1953 based on the decree and also entered his date
   of birth as July 1, 1949 as per the Secondary School Leaving
   Certificate. With the above endorsement, the District Judge,
   Vishakhapatnam forwarded the service register of the Judicial
E Officer to the High Court. The exact endorsement made by the
   District Judge, Vishakhapatnam on December 30, 1985 is
   follows:
          "Date of birth of Christian
          Era and wherever possible
F         is sake Era (both in words
          and figures as determined
          by the competent authority)
                                      29.3.1953 as per decree
                                      at 28.2.1985 in O.S. 61/1983
G                                     on the file of Principal District
                                      Munsif
                                      1.7.1949 as per H.S.L.C.
                                      Registrar."
H         11. Learned senior counsel for the Judicial Officer and
      HIGH COURT OF A.P. v. N. SANYASI RAO                  411
               [R.M. LODHA, J.]
learned counsel for the appellant are ad idem that 1984 Rules      A
are applicable to judicial officers for recording and alteration
of date of birth. The 1984 Rules became effective from April
21, 1984. Rule 2 thereof deals with the recording of the date
of birth of every Government employee. It reads as follows:
                                                                   B
    "2: 1) Every Government employee shall, within one month
    from the date on which he joins duty, makes a declaration
    as to his date of birth.

    2) On receipt of the declaration made under sub rule (1),
    the Head of Office or any other officer who maintains the      C
    service records in respect of such Government employee
    shall, after making such enquiry as may be deemed fit,
    with regard to the declaration and after taking into
    consideration such evidence, if any, as may be adduced
    in respect of the said declaration, make an order within       D
    four months from the date on which the Government
    employee joins service, determining the date of his birth.

          Provided that in cases where the date of birth as
    determined under this sub-rule is different from the one       E
    declared by the Government employee concerned under
    sub-rule (1 ), he shall be given an opportunity of making a
    representation, before a final order is made.

    3) Where a Government employee fails to make a
    declaration within the time specified in Sub-Rule (1 ), the    F
    Head of Office or the officer who maintains the service
    records shall, after taking into consideration such evidence
    as may be available and after giving an opportunity of
    making a representation to the Government employee
    concerned, determine the date of birth of the employee         G
    within six months from the date on which the Government
    employee joins service.

    4) The date of birth determined under this rule shall be
    entered in the service record of the employees concerned       H
    412 SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.

A       duly attested by the Head of the Office or the officer who
        maintains the service records and date of birth so entered
        shall be final and binding and the Government employee
        shall be estopped from disputing the correctness of such
        date of birth.
B
        5) The date of birth as determined and entered in the
        service record shall not be altered except in case of bona
        fide clerical error, under the orders of Government."

       12. 1984 Rules were amended subsequently. By G.O. Ms.
C No. 383, Fin. & Pig., dated November 16, 1993, Rule 2-A was
  inserted with effect from April 21, 1984. By this provision, it has
  been provided that the decree of a Civil Court in' regard to
  alteration of date of birth in the school or university record shall
  not be taken into consideration in derogation of these Rules.
D We reproduce Rule 2-A as it is:

        "2-A: "Civil Courts" Decree not be taken into
        consideration:- In any proceedings before the Government
        or any Court, Tribunal, or other authority for the alteration
        of date of birth in the service records, the decree of a Civil
E
        Court in regard to alteration of the date of birth in the
        School or the University records or the contents in the
        Judgment leading to such decree, or the effect of its
        implementation shall not be taken into consideration in
        derogation to these rules and it is hereby declared that
F       these rules shall have effect notwithstanding any thing
        contained in any judgment, Decree or Order of a Civil
        Court in regard to the alteration of date of birth in the
        School or the University records whether or not the
        Government is a party to such Proceedings."
G
         13. Rule 2 requires a Government employee to make a
    declaration in respect of his date of birth within one month from
    the date of his joining duty. The Judicial Officer joined his duty
    as District Munsif on October 7, 1985 and made a declaration
H
       HIGH COURT OF A.P. v. N. SANYASI RAO                   413
                [R.M. LODHA, J.]

that his date of birth was March 29, 1953. As per Rule 2, on          A
receipt of the declaration, the Head of Office or any other officer
who maintains the service records in respect of such employee,
after making necessary enquiry, as may be thought fit with
regard to the declaration so made by the employee and after
taking into consideration the relevant evidence adduced in            B
respect of such declaration is required to make an order within
four months from the date on which the employee joins service
determining the date of his birth.

      14. Strangely, in the present case, no determination of the     C
Judicial Officer's date of birth was made as contemplated and
required in Rule 2 of the 1984 Rules. The District Judge,
Vishakhapatnam on opening the service register of the Judicial
Officer mentioned both the dates namely; March 29, 1953
based on the decree and also July 1, 1949 based on the
Secondary School Leaving Certificate. Nothing has been                D
shown to us by the learned counsel for the appellant about the
firm date of birth recorded in the service record of the Judicial
Officer. As a matter of fact, there has been no determination
of the date of birth of the Judicial Officer at all and, therefore,
the Division Bench, in the impugned order observed and, in our        E
view rightly, that the judicial officer had not asked for any
alteration in the date of birth but his prayer had been for
recording correct date of birth in the relevant service record.
Curiously, the Judicial Officer has placed on record two half
yearly lists of the members of the Andhra Pradesh Higher              F
Judicial Service, corrected up to July 1, 2003 and July 1, 2004.
The Judicial Officer had already become member of the Higher
Judicial Service by that time and in both these lists published
by the High Court of Andhra Pradesh, the Judicial Officer's date
of birth has been shown as March 29, 1953. In the impugned            G
resolution rejecting the representation of the Judicial Officer, no
reasons have been stated. It is a non-speaking order on its
face. For about nine years, the High Court on the administrative
side, sat over the representation made by the Judicial Officer.
Treating the Judicial Officer's date of birth as July 1, 1949, the    H
    414   SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A High Court on the administrative side issued an order on June
  8, 2009 that the Judicial Officer would retire from the service
  on attaining the age of superannuation of 60 years on June 30,
  2009 and, accordingly, the Judicial Officer has been made to
  retire on that date.
B
        15. In M. Vijaya Bhaskara Reddy (supra), this Court was
  concerned with a case where the Judicial Officer-M. Vijaya
  Bhaskara Reddy was appointed as District Munsif on August
  16, 1976. He made a declaration that his date of birth was June
C 15, 1948. M. Vijaya Bhaskara Reddy then applied for change
  of his date of birth to August 15, 1949. When nothing was done
  after giving the notice under Section 80 of the Code of Civil
  Procedure, 1908, he filed a suit which was decreed on March
  31, 1982. He then made a representation for implementation
  of the decree. His representation came to be rejected which
D was challenged by him in a Writ Petition. The High Court by
  an order dated September 3, 1987 directed the State
  Government to consider the representation made by him and
  when nothing was done within a rea~ nnable time, he filed yet
  another Writ Petition before the High Court. That Writ Petition
E was allowed by the Single Judge of the High Court vide order
  dated April 13, 1993 and a direction was given that the decree
  of the Court has got to be honoured and entries in the service
  register of M. Vijaya Bhaskara Reddy have got to be made
  accordingly.
F
       16. Against the judgment of the Order of the Single Judge,
  Writ Appeal was filed by the High Court on the administrative
  side. The Division Bench allowed the Writ Appeal and set-
  aside the order of the Single Judge passed on April 13, 1993.
G It was held that it was not competent for the State Government
  to take a decision in the matter and the High Court on the
  administrative side alone was the competent authority either to
  enter the date of birth or after the date of birth was recorded in
  the service register of the members of the Andhra Pradesh
H State Judicial Service, to change the same.
      HIGH COURT OF A.P. v. N. SANYASI RAO                  415
               [R.M. LODHA, J.]
     17. The Division Bench, accordingly, requested the High        A
Court on the administrative side to consider and dispose of M.
Vijaya Bhaskara Reddy's representation. Pursuant thereto, the
High Court on the administrative side took up the
representation of M. Vijaya Bhaskara Reddy along with the
representations of 24 other Judicial Officers (including the        B
representation of the present Judicial Officer) and passed the
Resolution on October 15, 1997 rejecting the representations
made by M.Vijaya Bhaskara Reddy and the present Judicial
Officer.

      18. M. Vijaya Bhaskara Reddy then filed a Writ Petition
                                                                    c
challenging the Resolution dated October 15, 1997 (same
resolution which was challenged by the present respondent in
the Writ Petition in which the impugned order came to be
passed). The Division Bench of that Court in the Writ Petition
filed by M. Vijaya Bhaskara Reddy, on hearing the parties, set- D
aside the Resolution giving three reasons in support thereof
namely; (1) The Resolution was not in a speaking order; (2) 22
years' time was already spent in consideration of the
representation and (3) nothing was stated by the High Court .
against the authenticity, relevancy and admissibility of the E
evidence produced by the Judicial Officer.

     19. Dealing with the appeal arising from that order, this
Court found no justification in interfering with the order of the
Division Bench and the appeal preferred by the Andhra               F
Pradesh High Court on the administrative side was dismissed
by this Court on July 22, 2010.

      20. In our view, the Resolution in respect of the present
Judicial Officer also suffers from all the three fundamental
infirmities which have been noticed by this Court in M. Vijaya      G
Bhaskara Reddy.

     21. However, having regard to the peculiar facts and
circumstances of the present case, we feel it appropriate that
the High Court must determine on the administrative side the        H
    416      SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.

A Judicial Officer's date of birth. This has become unavoidable
  as nothing has been shown to us that there has been
  determination of the Judicial Officer's date of birth as
  contemplated and required in Rule 2(2) of the 1984 Rules.
  Certain materials have been placed on record by the High
B Court on the administrative side in this appeal. One of such
  materials is that the Judicial Officer got admitted in 6th standard
  in 1961-62 and it was not possible that somebody born on
  March 29, 1953 would be in 6th standard in 1961-62 as at that
  time, he would hardly be 8-9 years old. We do not want to
c comment on such material. However, we strongly feel that the
  High Court on the administrative side must objectively
  determine the Judicial Officer's age in accordance with the
  statutory provisions which is not shown to have been done at
  any point of time, after giving an opportunity to the Judicial
  Officer.
0
       22. We, accordingly, dispose of this appeal by the following
  order:

           (a) The High Court on the administrative side shall
E          determine the Judicial Officer's date of birth in accord with
           Rule 2 of the 1984 Rules.

           (b) The above exercise shall be completed within four
           months from the date of communication of this order.
F          (c) In case the Judicial Officer's date of birth is determined
           as March 29, 1953, an appropriate order for his
           reinstatement with all consequential benefits shall be
           issued as early as may be possible and in no case later
           than two weeks from the date of such determination.
G
        23. The impugned order is modified as indicated above.
    No order as to costs.

    N.J.                                          Appeal disposed of.

H