WP/27084/2008 of Mohd. Hussain Vs The A.P. State Road Transport Corporation, on 30 December 2008

ORDER

The petitioner, who is working as a driver in the respondent –A.P.State Road Transport Corporation (APSRTC) has filed this writ petitionseeking 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 andto set aside the proceedings No.E2/756(7) /08-FM dated 2.12.2008 issuedby the 2[nd] respondent – Executive Director, APSRTC, Musheerabad,Hyderabad directing him to submit the documents to settle his terminalbenefits. He has also sought for a consequential direction to the respondentsto continue him in service up to 31.12.2011.

The case of the petitioner is that he was appointed as a driver in the1[st] respondent Corporation in the year 1984. At the time of selection, sincehe was not having any certificate in proof of his age, he was directed toproduce any certificate from the Doctor in proof of his age and accordingly heproduced the same as per which, as on 27.11.1983, his age was 29 years. However, the selection committee having not satisfied with the saidcertificate, again directed him to appear before the Medical Officer, APSRTCHospital, Tarnaka, Hyderabad for ascertaining his age for appointment asdriver. Accordingly, he appeared before the Medical Officer on 12.12.1983who after examining him, confirmed his age as 30 years as on that date. Asper 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 theappointment order. Therefore, he made a representation to the respondentsto rectify the mistake that had crept in recording his date of birth as12.12.1950 in the service record, pursuant to which the date of birth wascorrected in accordance with MC No.05045 dated 12.12.1983 and his date ofretirement 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 anythingabout further changes that have been made in regard to his date of birth andultimately he was issued with a letter by the respondents intimating his dateof retirement as 31.12.2008. Immediately, after receiving the letter, he madea representation informing the authorities that as per the medical certificateissued by the Civil Assistant Surgeon, APSRTC Tarnaka Hospital, his date ofbirth is 12.12.1953 and not 12.12.1950 which was subsequently correctedand hence his date of retirement is 31.12.2011 and not 31.12.2008. By notconsidering the said representation, the impugned letter is issued to him

Arguments

directing him to submit necessary papers to settle his terminal benefits. Hence this writ petition.

Learned counsel for the petitioner contends that as per Regulation19(3) of the A.P.S.R.T.C.Regulations, once the date of birth is entered in theservice register, it is binding and no alteration of such date shall be permittedsubsequently and only the Chairman and Managing Director of theCorporation is entitled to make necessary corrections when he is of theopinion that the employee had falsely stated the date of birth to obtain anyadvantage otherwise and in the case of illiterate staff, when he is satisfiedthat a clerical error has occurred. Therefore, the subsequent correction madeby the Divisional Manager changing the date of birth again from 12.12.1953to 12.12.1950 is bad and the same is liable to be set aside especially whenthe same has been done without any notice to the petitioner.

The learned counsel further contends that in the instant case, the dateof birth of the petitioner is certified by the doctor of the Corporation itself as 30years as on 12.12.1983, which indicates that his date of birth is 12.12.1950but ignoring the same, by mistake, it has been entered in the register as12.12.1950 which was subsequently corrected on the representation of thepetitioner as 12.12.1953. Therefore, the impugned order is liable to be setaside and the petitioner may be permitted to retire on 31.12.2011 and not on31.12.2008 as directed by the respondents.

On 12.12.2008 while issuing notice before admission, though thisCourt directed the respondents to file counter affidavit within ten days, therespondents have not chosen to file any counter affidavit and the learnedstanding counsel sought some more time to file the counter affidavit. But, thelearned 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 isurgency in the matter and requested to hear the matter on merits, for whichthe learned standing counsel also agreed. The relevant record pertaining tothe 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 thatit is only a fitness certificate issued by the Doctor certifying the fitness of thepetitioner to join duty and, therefore, the same cannot be made basis fordetermining the age of the petitioner. It is also submitted by the learnedstanding counsel that the Assistant Manager (Personal) has madecorrections with regard to the date of birth of the petitioner as 12.12.1953 inthe service record without any order on the basis of the medical certificatedated 12.12.1983 and after noticing the same, the date of birth was againreviewed by the Regional Manager on the ground that the Assistant Manager(Personal) has made corrections in the service record without passing anyorder by the Divisional Manager. Since the corrections have been made bythe Assistant Manager (Personal) without following any procedure, the sameis bad and cannot be relied on. Even though his date of birth was recorded inthe appointment order as 12.12.1950, the petitioner has not raised anydispute and has raised the dispute at the fag end of his service basing on theunauthorized corrections made by the Assistant Manager (Personal).

Heard the learned counsel for the petitioner as well as the learnedstanding counsel for the respondent Corporation and perused the fileproduced before the court.

The record produced before the court reveals that the petitioner wasappointed 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 tohim, his date of birth was recorded as 12.12.1950. In the office order dated26.3.1984 issued by the Depot Manager appointing the temporary drivers oncontract basis as HMV drivers on contract basis also shows the date of birthof the petitioner as 12.12.1950. Even the office order dated 10.12.1985regularising the services of the drivers, at serial No.26, the date of birth of thepetitioner was shown as 12.12.1950. In the fitness certificate issued by theCivil Assistant Surgeon, APSRTC Hospital, Tarnaka, Hyderabad on12.12.1983 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. Thesaid certificate is also a fitness certificate issued by the Doctor consideringhim fit for doing service in Class.A1. The said certificates are meant only forcertifying the fitness of the petitioner to join duty and the same are not basedon any physical examination conducted by the doctors to find out the age ofthe petitioner. In the declaration submitted by the petitioner to the AndhraPradesh State Road Transport Corporation, wherein the petitioner has kepthis thumb impression, his date of birth is shown as 15.10.1954. However, thesaid declaration does not contain the date of giving such declaration. In theoption-cum-nomination form submitted by the petitioner, he declared his dateof birth as 15.10.1954. In the declaration and nomination form submitted bythe 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 ofthe drivers of Hyderabad City Region, his date of birth is shown as12.12.1950. While the things stood thus, on 23.9.2005, the petitioner made anapplication to the Depot Manger, APSRTC, Falaknuma Depot, Hyderabadrequesting him to furnish the entry pertaining to his date of birth in ‘P’ case. Inthe said representation, he stated that at the time of his appointment, theDoctors of Tarnaka Hospital have examined him as he was uneducated andcould not produce any certificate which can indicate his date of birth, and thathe is not aware of the date of birth entry and, therefore, he sought forfurnishing the documents/certificate which could found the basis for enteringhis 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 wasissued by the Mandal Revenue Officer on 16.8.2002. In the representationsubmitted by him to the Divisional Manager, APSRTC, Koti, the petitionerstated that his actual date of birth is 15.5.1952 and the authorities erroneouslyentered his date of birth as 12.12.1950 without any documentary proofignoring the date of birth recorded in the driving licence. It is also stated thathe studied upto 3[rd] class in a private village school but he could not produce

any record as the school has been closed after the death of thecorrespondent of the school and the records are not available. The recordalso discloses that the Depot Manager, Falaknuma has addressed theMandal Revenue Officer, Charminar to arrange to supply the copies ofdeclaration or certificates submitted by the petitioner basing on which heissued the Community, Nativity and Date of Birth Certificate showing his dateof birth as 15.5.1952. But the record does not contain any reply having beenreceived to such letter. The representation made by the petitioner to theDivisional Manger seeking change of date of birth was rejected vide orderdated 26.2.2007 on the ground that the employee did not raise any objectionwith regard to his date of birth entered in the service record for nearly morethan two decades and when he is supposed to retire on 31.12.2008, and atthe fag end of his service, he raised such an objection.

The above contents in the service record clearly goes to show that thepetitioner is not certain about his date of birth. At one point of time, he statesthat he is not aware of his date of birth and since he was not having anyevidence in proof of his age, he was sent to the Doctors of the Corporation todetermine his age who certified that he is aged 30 years as on 12.12.1983and, therefore, his date of birth is 12.12.1953. However, he himself made arepresentation to the authorities stating that his date of birth is 15.5.1952 andthe same is recorded in his driving licence and he is having the said licenceat the time of joining the corporation itself and ignoring the said fact, his dateof birth was recorded as 12.12.1950. In support of his case, he has alsoproduced the certificate issued by the Mandal Revenue Officer, Charminarissued in the year 2002. If that is so, why he has not produced the same atthe time of his initial appointment is not explained. He himself says that thedate of birth recorded as 12.12.1953 shall not be altered to 12.12.1950 as thesame is recorded in the service register. The medical certificates relied on bythe petitioner are only fitness certificates and they are not date of birthdetermining certificates and the age shown in the said certificates also do notcorroborate with each other. At one place, he is shown as aged 35 years andat another place he was shown as 30 years.

Further, form ‘A’ supposed to have been obtained at the time ofappointment wherein the employee has to declare his educationalqualifications and age is not available in the record and in the personal datasheet of SR, the educational qualifications column is kept blank. The date ofbirth was altered from 12.12.1950 to 12.12.1953 in the personal data of theservice record which was attested by the Assistant Manager (Personal) ofMehdipatnam Depot but there are no orders passed by any authoritypermitting such change in the personal record. Even though the petitionerwas appointed in the year 1984, he has not raised any dispute with regard tohis date of birth for nearly two decades and only when he was reaching hisend of service, he raised the dispute and made representations seekingcorrection of his date of birth.

Initially, the case of the petitioner is that the Civil Assistant Surgeon ofthe APSRTC Hospital, Tarnaka has certified his age as on 12.12.1984 as 30years and hence his date of birth should be recorded as 12.12.1953 and thathas been done by the Assistant Manager (Personal) on his oralrepresentation and the subsequent correction of the date of birth from12.12.1953 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 ofinitial appointment itself, he is having necessary documents in support of hisdate of birth.

Conclusion

Regulation 19 of the APSRTC Regulations clearly envisage that everyperson on entering the service of the Corporation shall declare his date ofbirth which shall not differ from any declaration, express or implied, made byhim 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 adoptedwithout any modification. In the instant case the date of birth of the petitioneris entered in the service register as 12.12.1950 and the same has remainedunchallenged by the petitioner for nearly two decades. Even though the saidentry has been corrected by the Assistant Manager (Personal) without anyauthority, the same has been rectified and again his date of birth has beenshown 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 hisage and subsequently stating that even though he is having driving licenceand nativity certificate showing his date of birth as 15.5.1952, the authoritieshave erroneously entered the same wrongly in the service register appears tohave been raised only for the purpose of his case and does not stand toscrutiny.

For the foregoing reasons, I am of the considered opinion that thepetitioner has failed to prove his case that his date of birth is not 12.12.1950as entered in the service register. The writ petition fails and it is accordinglydismissed.

30.12.2008Note: Issue CC by tomorrow. (b/o) MSV

N.V.RAMANA,J