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2005 DIGILAW 741 (AP)

Y. Anjaneyulu v. Andhra Bank, Hyderabad

2005-08-09

P.LAKSHMANA REDDY, T.MEENA KUMARI

body2005
JUDGMENT : P. LAKSHMANA REDDY, J.: 1. The unsuccessful writ petitioner filed the present appeal challenging the orders of learned Single Judge dated 29-12-1997 passed in WP No. 27066 of 1997. 2. The relevant facts in brief are as follows. The appellant/writ petitioner is working as officer in Andhra Bank. The appellant who is a graduate filed an application for appointment to the Banking Service Recruitment Board on 8-5-1980. He was duly selected by the selection board for banking service and he was allotted to Andhra Bank in Andhra Pradesh and after selection he submitted his bio-date on 1-2-1981 to the banking service board and also an application to the Andhra Bank on 13-6-1981. He also submitted medical examination report on 2-9-1981 to Andhra Bank at the time of his joining service. In all the said applications, the appellant declared his date of birth as 15-7-1953. But, subsequently on 2-9-1987 he submitted a representation to the General Manager of Andhra Bank with a request to correct the date of birth from 15-7-1953 to 2-12-1957 in the service records stating that his real date of birth was declared by the competent Civil Court as 2-12-1957 in O.S. No. 383 of 1979 on the file of the District Munsif, Chirala which was later transferred and renumbered as OS No. 479 of 1980 on the file of the Principal District Munsif, Addanki. On 16-9-1987 the appellant was asked to produce a copy of the S.S.C. certificate with the changed date of birth for being forwarded to the central office for consideration. Thereafter, he got the original S.S.C. register after correction of date of birth by the Head Master, Chilkaluripet on 24-2-1994. On 2-3-1994 the appellant forwarded the said corrected S.S.C. register to the zonal office which in turn forwarded the same to the central office on 5-3-1994 for consideration. The central office rejected the request of the appellant and the same was communicated to the appellant on 24-6-1994 on the ground that the Civil Court decree for which the bank is not a party is not binding on the bank and that no steps were taken to implead the bank as a party to the suit and the representation submitted by the appellant is highly belated. 3. 3. Aggrieved by the refusal about the correction of date of birth in the service register, the appellant filed the WP No. 27066 of 1997 seeking writ of mandamus directing the Andhra Bank to take into account the corrected entries relating to the date of birth in the S.S.C. certificate and incorporate the corrected date of birth as 2-12-1957 in the service register in the place of existing entry namely 15-7-1953 and to accord all the consequential benefits such as retention in service till he attains the normal age of superannuation reckoned on the basis of corrected date of birth. 4. In the affidavit filed in support of the writ petition, the appellant pleaded that he hails from a scheduled caste and his parents are illiterate and he was brought up in the house of his maternal grand parents and at the time of getting him admitted into primary school, his date of birth was wrongly noted as 15-7-1953 in the school records and he passed S.S.C. in the year 1973 and while he was studying B.Com. Lecturer had an occasion to suspect that his date of birth could not be 1953 as his classmates were all born in the years 1956, 1957 and 1958 and it made him to verify the records relating to his birth at his maternal grand parents' place in Kolalapudi Village and he realized that his date of birth was reported to the Registrar of Births and the same was also recorded in the registers maintained in the taluka office and as per those records he was born on 2-12-1957 and then he obtained the extract of the birth register and instituted a suit in O.S. No. 383 of 1979 on the file of the District Munsif, Chirala impleading the State of Andhra Pradesh and Director of School Education as parties and the relief claimed in the suit being essentially for securing the correction of his date of birth as was recorded in his S.S.C. register. The State and the Director of School Education contested the said suit. After due trial, the Court decreed the suit after due appreciation of the evidence and after hearing both sides declared his date of birth as 2-12-1957 and the mandatory direction was also issued to the Director of School Education to carry out the necessary corrections in the S.S.C. register and other school records. After due trial, the Court decreed the suit after due appreciation of the evidence and after hearing both sides declared his date of birth as 2-12-1957 and the mandatory direction was also issued to the Director of School Education to carry out the necessary corrections in the S.S.C. register and other school records. Though the suit was decreed on 14-2-1986, the procedural wrangles took lot of time to get the date of birth corrected in the S.S.C. register and only on 23-4-1994 the Head Master of Zilla Praja Parishad High School, Chilakaluripeta communicated his S.S.C. certificate duly correcting his date of birth. Immediately, he forwarded the same to the respondent-bank for necessary correction in the service register. But, the bank refused to carry out the correction of date of birth in the service register on untenable grounds. The appellant further pleaded in the writ petition that he filed the suit in the year 1979 long prior to his application for job in the bank and therefore the question of impleading the bank as party to the suit does not arise and that at the time of his selection itself he informed the selection board that he filed the original S.S.C. certificate in the Court along with the suit seeking correction of his date of birth and that he will produce the same after disposal of the suit. Even the bank also fully aware about his filing of the suit regarding the correction of date of birth and therefore if at all the bank was interested to contest, it ought to have made an application to implead them as parties and having failed to get them impleaded in the suit, it is not open to the bank to say that the decree passed by the Civil Court is not binding on the bank for the reason that the bank was not impleaded as party. 5. 5. The respondents filed counter-affidavit contending that the writ petitioner himself declared his date of birth as 15-7-1953 and also produced documents in support of his date of birth and only on the basis of that age given by the writ petitioner himself he was selected and that the writ petitioner did not take any steps to make the respondents as parties to the suit though admittedly the suit was pending by the date of his entering into service and therefore the Civil Court decree is not binding on the respondents and that there are laches on the part of the writ petitioner and hence there are no merits in the writ petition and is liable to be dismissed. 6. The learned Single Judge considered the contentions of both sides and observed that the Supreme Court unemphatically declared that normally once a date of birth is recorded in the service record of an employee it should not be changed and that no rules pertaining to the change of date of birth were disclosed by the writ petitioner and in the absence of rules, the Supreme Court in Union of India v. C. Ramaswamy, (1997) 4 SCC 647 : AIR 1997 SC 2055 , held that “the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth.” The learned Single Judge further found that the respondents are not bound to consider the case of the writ petitioner for change of date of birth because once the date of birth is entered into the service record, the petitioner has no right to get it reopened. With the said observation, the learned Single Judge dismissed the writ petition. 7. Aggrieved by the same, the writ petitioner filed this appeal contending that the learned Single Judge has not correctly appreciated the fact that the appellant has realized the incorrectness of the entry in his school records relating to his date of birth and therefore initiated necessary action for its correction much before he took up employment with Andhra Bank and therefore the question of impleading the bank in the suit does not arise. The learned Single Judge failed to appreciate that after the suit was decreed, the Andhra Bank has taken the stand on 16-9-1987 that the claim of the appellant will be considered after the entry in the school records were corrected by the education department and subsequently the Andhra Bank cannot resile from such a position and take a hostile stand. The learned Single Judge failed to appreciate that the appellant has made it clear that at the inception of his service about the pendency of the suit and therefore he cannot be bound by the incorrect entry in the school record about the date of birth. The learned Single Judge has not correctly appreciated the social background of the parents of the appellant. It is further pleaded in the grounds of appeal that the learned Single Judge improperly applied the rationale behind the judgment rendered by the Supreme Court in Union of India v. C. Ramaswamy (supra) and the said ratio is not applicable to the facts of this case and that the learned Single Judge failed to examined the correctness of the stand taken by the Andhra Bank in this case and the bank has no right in pleading about the delay in the claim made by the appellant and that the said delay is not attributable to the appellant, but it is the education department that took lot of time to correct the entry. It is further pleaded that the learned Single Judge erred in holding that the petitioner has no right to get an erroneous date of birth recorded earlier corrected. 8. During the course of hearing of the appeal, the learned Counsel for the appellant reiterated the contentions raised in the grounds of appeal. He vehemently contended that there are no mala fides on the part of the appellant and that the movement it came to his knowledge that his date of birth was wrongly recorded in his school records and that his birth was registered in the office of Registrar of Births and Deaths, he took necessary steps to get corrected by filing the suit long before his entry into the service of the respondents. He further submitted that in the interview before the selection board, he informed the board to the effect that his original S.S.C. certificate is filed in the Court seeking correction of date of birth and that as and when the suit is disposed of, he will produce the S.S.C. certificate and that the same was informed to the respondents also at the time of joining in service and in spite of it, the respondents did not choose to get themselves impleaded in the suit to contest the same and therefore the respondents are estopped from contending that the Civil Court decree obtained by the appellant is not binding on them. He further submitted that the suit was decreed after full contest by the respondents and that it is not a case of any collusive decree and hence the respondents have to give effect to the corrected date of birth in the S.S.C. certificate and to carry out the correction in the service record also. The learned Counsel for the appellant relied upon a decision of Division Bench of this Court in K. Madhadeva Sastry v. Director, Post Graduate Centre, Anantapur, AIR 1982 AP 176 , wherein it was held that the employer public authority cannot ignore decree on the ground of absence of direction for rectification of service record. 9. Per contra, the learned Counsel for the respondents submitted that though the suit was admittedly pending by the date of the appellant entering into the service of the respondents, the appellant did not choose to implead the respondents as defendants in that suit to enable the respondents to oppose the correction of the date of birth and for obvious reasons the appellant did not choose to implead the respondents herein as defendants in the suit and that the appellant never informed the respondents about his alleged real date of birth at the time of selection or at the time of joining into service. But, on the other hand, the appellant himself gave a declaration to the effect that his date of birth is 15-7-1953 and that the appellant never stated anywhere that his real date of birth is 2-12-1957 and he took steps to get the date of birth recorded in the S.S.C. certificate corrected. But, on the other hand, the appellant himself gave a declaration to the effect that his date of birth is 15-7-1953 and that the appellant never stated anywhere that his real date of birth is 2-12-1957 and he took steps to get the date of birth recorded in the S.S.C. certificate corrected. Therefore, the appellant is estopped to contend that the date of birth entered into service register is not the correct date of birth and it is to be corrected from 15-7-1953 to 2-12-1957. 10. The learned Counsel for the respondents invited our attention to a decision of the Supreme Court in Union of India v. C. Ramaswamy (supra) wherein it was held that except in cases where a clerical error has occurred, does not entitle an officer to ask for change in the date of birth which is once recorded in his application and in the service book and the bona fide clerical error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded. 11. Basing on the said observation of the Supreme Court, the learned Counsel for the respondents submitted that in the instant case, there is no such clerical error while recording the date of entry in the service register and that the date of birth recorded in the service register was only on the basis of the declaration given by the appellant himself in his application and in the other documents filed at the time of employment. Therefore, the appellant is estopped from seeking correction of his date of birth. The learned Counsel further submitted that the appellant gained advantage by mentioning the date of birth as 15-7-1953 at the time of his selection and therefore after selection he cannot turn down and state that the date of birth given at the time of selection is not correct date of birth. The learned Counsel further submitted that the appellant gained advantage by mentioning the date of birth as 15-7-1953 at the time of his selection and therefore after selection he cannot turn down and state that the date of birth given at the time of selection is not correct date of birth. In this regard he invited our specific attention to the observations of the Supreme Court in the above cited decision to the effect that in matters relating to the appointment to service various factors are taken into consideration before making a selection for an appointment and one of the relevant circumstances is the age of the person who is sought to be appointed and it may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated, but it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office and in fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and therefore, more suitable and in such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage, and it would be against public policy to permit such a change to enable longer benefit to the person concerned. 12. The points that arise for consideration are: (i) Whether the respondents are bound to correct the date of birth from 15-7-1953 to 2-12-1957 in the service register of the appellant? (ii) Whether the impugned order of the learned Single Judge is sustainable in law? Points (i) & (ii): 13. 12. The points that arise for consideration are: (i) Whether the respondents are bound to correct the date of birth from 15-7-1953 to 2-12-1957 in the service register of the appellant? (ii) Whether the impugned order of the learned Single Judge is sustainable in law? Points (i) & (ii): 13. As seen from the application submitted by the appellant to the Banking Service Recruitment Board, Madras on 5-8-1980 he has declared his date of birth as 15-7-1953 and also declared that all the statements made in the application are true, complete and correct to the best of his knowledge and belief and that in the event of any information is being found false or incorrect, his candidature for the post are liable to be cancelled or rejected. The appellant did not choose to state in the said application that his real date of birth is not 15-7-1953 and it is 2-12-1957 and hence he filed a suit for correction of his date of birth and the suit is pending for correction of the date of birth in the school records. When he was sure that his real date of birth is 2-12-1957, he ought to have declared that date of birth in the application form and not the date of birth, which according to him is incorrect. In the application submitted to the Andhra Bank Limited on 1-2-1981 also he declared his date of birth as 15-7-1953. As per the instructions in the said printed application the candidate should furnish the certified true copy of an extract from the birth register or of a certificate from the Head Master or Principal of School or College where the candidate has studied or of an extract from the matriculation or High School Certificate. So in order to prove his date of birth a certified true copy of extract of a birth register also suffice, yet, he did not choose to submit the extract of the birth register though he was fully aware that his birth was registered and he obtained extract of the birth register wherein his date of birth was shown as 2-12-1957. So obviously the appellant did not want to disclose his real date of birth to the respondents-bank. So obviously the appellant did not want to disclose his real date of birth to the respondents-bank. Further, at the time of his joining in the bank, the appellant produced the medical examination report on 2-9-1981 and in that certificate the medical officer certified that he examined the appellant, a candidate for employment in Andhra Bank and his age according to his own statement as 27 years and appearance about 27 years and he is not suffering from any disease or infirmity. So it is clear that even before the Medical Officer also his age was given as 27 years and the doctor certified that his appearance also shows that he was aged 27 years. Thus, it is clear that the appellant made the authorities to believe his real date of birth as 15-7-1953 at the time of his selection and also at the time of his joining into service. The version of the appellant that he orally informed the banking recruitment board at the time of selection and also informed the respondents bank at the time of his joining into service about the pendency of the suit cannot be believed. This version is belied by the application submitted to the banking service recruitment board, application submitted to the Andhra Bank and also the medical certificate furnished by the appellant to the respondent bank. Further, there is also no material to show that the appellant made any protest at the time of recording his date of birth as 15-7-1953 in his service register. In the seniority list circulated by respondents, his date of birth is shown as 15-7-1953. It is also not the case of the appellant that there are any service regulations applicable to the respondents, which provide for correction of date of birth in the service record. In the absence of any such regulation, the principle of estoppel would apply as held by the Supreme Court in Union of India v. C. Ramaswamy (supra). It is also not the case of the appellant that there are any service regulations applicable to the respondents, which provide for correction of date of birth in the service record. In the absence of any such regulation, the principle of estoppel would apply as held by the Supreme Court in Union of India v. C. Ramaswamy (supra). Though, admittedly the suit filed by the appellant was pending by the date of his entry into service of the respondents, the suit was decreed only on 14-2-1986; whereas the appellant joined in the service of the respondents in the year 1981, yet, the appellant did not choose to implead the respondents as parties to the suit for the obvious reasons though the Director of School Education and the District Collector were made as parties to the suit. No oral evidence adduced in the suit other than the self serving testimony of the appellant who is not competent to speak about his own date of birth. The only document filed to prove the date of birth in the suit is the certified copy of the birth extract issued by the Taluka Office, Narsaraopet and it was dated 25-3-1979. No persons from the said taluka office were examined. The birth extract to be proved either by examining the informant or by examining a person who recorded the date of birth in the register of births and deaths maintained in the Taluka Office. However, as the suit is decreed and the decree has become final, it may not be open for this Court to hold that the real date of birth of the appellant is not 2-12-1957 as held by the Civil Court. But, as the respondents had no opportunity to contest the suit, the said declaration of date of birth is not binding on the respondents. Even if it is assumed that the real date of birth of the appellant is 2-12-1957, the respondents are not bound to correct the date of birth entered in the service register. 14. The law is well settled that the service is based on contract between employer and employee and when the employee at the time of entering into service declared his age as of a particular age and the employer selected him on the basis of that age, both parties are bound by that contract of service. 15. 14. The law is well settled that the service is based on contract between employer and employee and when the employee at the time of entering into service declared his age as of a particular age and the employer selected him on the basis of that age, both parties are bound by that contract of service. 15. Further, in the instant case, the appellant for obvious reasons did not choose to disclose his real date of birth at the time of his selection or at the time of his joining in the respondents bank and he choose to disclose his incorrect date of birth obviously to gain advantage of securing employment. When a candidate, at the first instance, communicates a particular date of birth, it can be presumed that his intention that his age is calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office as observed by the Supreme Court in the decision Union of India v. C. Ramaswamy (supra). The Supreme Court further observed therein that where maturity is a relevant factor to assess suitability, an order person is ordinarily considered to be more mature and therefore, more suitable and in such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. 16. Here in the instant case, the post for which the appellant applied for is the clerk-cum-cashier in a financial institution viz., bank. Therefore, it can be safely said that it is the responsible office for which maturity is a relevant factor to assess the suitability of the candidate for such a responsible post. Therefore, it cannot be said that the appellant did not gain any advantage by giving incorrect date of birth at the time of his selection. We are of the considered view that the appellant took advantage by giving the date of birth as 15-7-1953 at the time of his selection and appointment and hence he is estopped from contending that his altered date of birth in the school records has to be taken into consideration for his service. We are of the considered view that the appellant took advantage by giving the date of birth as 15-7-1953 at the time of his selection and appointment and hence he is estopped from contending that his altered date of birth in the school records has to be taken into consideration for his service. Merely because his date of birth in the S.S.C. certificate is corrected by a Civil Court, it cannot be said that his conditions of service are also to be altered especially when the employer is not made as a party to the suit. 17. The decision of the Division Bench of this Court in K. Madhadeva Sastry v. Director, Post Graduate Centre, Anantapur, (supra) relied on by the learned Counsel for the appellant is not applicable to the facts of this case. In the cited case, the suit was filed for mere declaration of date of birth of the employee without seeking consequential direction to correct the date of birth entered into the service register. The said suit was filed against the employer and the point that arose for consideration therein was whether in the absence of consequential direction to correct the date of birth in the service record in the said decree, whether the employer is bound to correct the date of birth in the service register as per the date of birth declared by the Court in the said suit. The division bench of this Court held that as the employer was a party to the suit and the correct date of birth of the employee was declared by the Civil Court in the suit in which the employer was a party, the employer is bound to correct the date of birth in the service record. The said finding was given by the Division Bench on the ground that the employer was a party to the suit in which the correct date of birth was declared. Whereas, in the instant case, the employer is not a party to the suit and therefore the said decision is not applicable to the facts of this case. 18. The said finding was given by the Division Bench on the ground that the employer was a party to the suit in which the correct date of birth was declared. Whereas, in the instant case, the employer is not a party to the suit and therefore the said decision is not applicable to the facts of this case. 18. The contention of the learned Counsel for the appellant that the respondents ought to have impleaded themselves in the suit if they wanted to contest is not at all tenable for the reason that there is no material to show that the respondents were aware of the pendency of the suit and further it is not for the bank to get themselves impleaded in the suit and it is for the employee who wanted to bind the decree on the respondents, has to implead the bank, if at all he wanted to make the decree binding on the respondents. In our considered view, the learned Single Judge rightly held that the respondents are not bound to consider the case of the writ petitioner/appellant for change of date of birth and the writ petitioner/appellant had no right to get it reopened. Hence, we do not find any reason to interfere with the orders passed by the learned Single Judge and hence the writ appeal is liable to be dismissed. 19. In the result, the writ appeal is dismissed confirming the order dated 29-12-1997 passed by the learned Single Judge in WP No. 27066 of 1997. 20. There shall be no order as to costs.