GOVERNMENT OF ANDHRA PRADESH Vs. M HAYAGREEV SARMA

JUDGEMENT

(1.) This appeal is directed against the judgment and order of the Andhra Pradesh Administrative tribunal, Hyderabad dated 18/10/1985 declaring Rule 5 of the Andhra Pradesh Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 (hereinafter referred to as 1984 Rules') void and directing the appellants to consider the respondents application for alteration of his date of birth in the service records in accordance with the extracts from birth who was also in government service, recorded as 2/09/1931. The respondent urged that t entry with regard to his date of birth in the service book should be altered and the date 9/03/1932 should be substituted by 27/08/1933 which according to him was the correct date of his birth. The authorities advised the respondent to submit a revised application in terms of the instructions contained in the government Order No. 1263 dated 6/05/1961. The respondent thereupon submitted a revised application on 24/09/1964 for alteration of his date of birth, that application was forwarded to the Head Master of the school in which the respondent had last studied for verification. After obtaining the view of all authorities including the Head Master of the school, the respondents case was placed before the Director of Treasuries and Accounts, the Head of Department for necessary orders. The Director of Treasuries and Accounts after considering all relevant documents relied upon by the respondent, and also the comments of officers, rejected the respondents prayer for alteration of his date of birth by his Order No. 69918/1209/admn/66-7 dated 5/01/1968 on the ground that the correctness of respondents elder brothers date of birth was not established. The respondent did not take any further action in the matter for alteration of his date of birth between 1968 to 1983.

(2.) On 10/04/1983 the governor of Andhra Pradesh promulgated Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance 5 of 1983 providing for declaration and alteration of date of birth of State government employees. The Ordinance laid down that every government employee should make a declaration regarding his date of birth within one month of joining service and on the receipt of such declaration the appropriate authority was required to make necessary enquiries determining the date of birth of the employee. It further provided that if no such declaration was made by the employee the Head of the office, should determine the date of birth of the employee in accordance with the records as may be available to him after giving opportunity to the employee within six months from the date on which the employee joins service. The Ordinance further provided that the provisions contained therein will not apply to those who failed to apply for the alteration of date of birth in accordance with law applicable to them prior to the commencement of the Ordinance or if such an application had been made and rejected. Thus the Ordinance clearly laid down that the opportunity for correction of date of birth as provided by the Ordinance shall not enure to the benefit of the employees whose entry relating to date of birth may have become final and binding under the law in force prior to the commencement of the Ordinance. The Ordinance was replaced by Andhra Pradesh Public Employment (Recording and Alteration of Date of Birth) Rules, 1984 framed under the Proviso to Article 309 of the Constitution. Thereupon the respondent made yet another attempt by making the respondents application to the State government for passing appropriate order as be had no authority to reject the same. The tribunal further held that Rule 5 of the 1984 Rules was voias it was repugnant to S. 9 of the Births, Deaths and Marriages Registration Act, 1986. On these findings the tribunal directed the appellants to consider the respondents application again for the alteration of his date of birth on the basis of the extracts of the entry in the births and deaths register. Aggrieved the appellants have preferred this appeal by special leave.

(3.) Learned counsel for the appellants urged that since the respondents application for making alteration of his date of birth as recorded in service book: had been rejected in 1968, he was not entitled to maintain any fresh application for the alteration of his date of birth. He further submitted that there was no question of repugnancy between Rule 5 and S. 9 of the Births, Deaths and Marriages Registration Act, 1886 and the tribunal committed error in striking down the aforesaid Rule 5. The respondent appeared in person before this court, he submitted his written submissions. According to the respondent the Director of Local Fund Audit had no authority in law to reject his application for the alteration of his date of birth as the State government was the competent authority under the rules to deal with the matter. Even after enforcement of the 1984 Rules the respondents application for alteration of his date of birth could validly be considered only by the State government.