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REPORTABLE

       IN THE SUPREME COURT OF INDIA

  CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL No. 6964 OF 2004      

HIGH COURT OF A.P. ...   APPELLANT(s)

                     Versus

N. SANYASI RAO .   RESPONDENT(s)

J U D G M E N T

  R.M. LODHA, J.

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 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.

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.   

3. In the application for recruitment to the Andhra Pradesh  

Judicial Service for the post of District Munsif made by the

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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 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  to  the  concerned  authorities  to  make  

necessary alterations in the school, college and University  

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 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 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.

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

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for  the  correct  recording  of  his  date  of  birth.  The  

representation was sent through concerned District Judge.  

The representation  made by the Judicial Officer was kept  

pending for years 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 the decision taken by the  

High  Court  on  the  administrative  side  and  that,  we  are  

informed, has never been disposed of till 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 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  

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 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

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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 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 Court of A.P. 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 law, particularly in view of the  

decision of this Court in M. Vijaya Bhaskara Reddy (supra).

10. 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   Andhra  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  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

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his date of birth as March 29, 1953. The District Judge,  

Vishakhapatnama, at the time of opening the service register  

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 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 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  on  the  file  of  Principal District Munsif  

1.7.1949  as  per  H.S.L.C.  Registrar.”  

11. Learned senior counsel for the Judicial Officer  

and learned counsel for the appellant are ad idem that 1984  

Rules 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:

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“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  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  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 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  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 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 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.

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.  

No. 383, Fin. & Plg., dated November 16, 1993, Rule 2-A was

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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.  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  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  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.”

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 that his date of birth was March 29,  

1953.  As per Rule 2, on 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 respect of  

such declaration is required to make an order within four

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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  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 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  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 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 resolution

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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 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.

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 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 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 reasonable time, he filed yet another Writ Petition

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before the High Court.  That Writ Petition 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.

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.  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 State Judicial Service,  

to change the same.

17. The  Division  Bench,  accordingly,  requested  the  

High  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  representation  of  the  present  Judicial  

Officer)  and  passed  the  Resolution  on  October  15,  1997

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rejecting  the  representations  made  by  M.Vijaya  Bhaskara  

Reddy and the present  Judicial Officer.

18. M.  Vijaya  Bhaskara  Reddy  then  filed  a  Writ  

Petition 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-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 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 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 Bhaskara Reddy.  

21. However, having regard to the peculiar facts and  

circumstances of the present case, we feel it appropriate

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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 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 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 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.

22. We,  accordingly,  dispose  of  this  appeal  by  the  

following order:

a) The High Court on the administrative side shall  

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.

c) In case the Judicial Officer's  date of birth is  

determined as March 29, 1953, an appropriate order for

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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.

23. The impugned order is modified as indicated above.  

No order as to  costs.

                  .....................J.

                            (R.M. LODHA)

             ....................J.                          (H.L. GOKHALE)

  NEW DELHI    DECEMBER 1, 2011.