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Andhra High Court · body

2014 DIGILAW 1318 (AP)

R. Sudhakar v. APSRTC

2014-10-28

R.KANTHA RAO

body2014
ORDER : R. Kantha Rao, J. 1. This writ petition is filed seeking a direction to the respondents in the nature of Mandamus declaring the impugned Proc. No. LC1/785/WP (56)12-RM. MB dated 18.06.2014 and consequential retirement Notification No. P3/56(1) 2014-ACPT dated 26.06.2014 in making the petitioner to retire from service with effect from 30.06.2014 prematurely, as illegal and arbitrary. 2. It is submitted by the petitioner that he joined in the respondents-Andhra Pradesh State Road Transport Corporation (for short 'Corporation') as casual cleaner on 12.01.1982 and was posted at 4th respondent-Depot. His services were regularised with effect from 24.09.1985. Subsequently, he was promoted to the post of Mechanic in the month of June, 2012 and on the date of filing of the writ petition, he is working as Mechanic under the control of the 4th respondent. ii. According to the petitioner, he applied for house building loan with the APSRTC Employees Credit Society and in response to the said application, it was informed to him that he was not eligible because he was due to retire on 30.06.2014, as his date of birth was 15.06.1956. The petitioner, who was under the impression that his date of birth was 15.06.1966, made a representation to the 4th respondent stating that he was born on 15.06.1966 and in proof thereof, he submitted school leaving certificate to the 4th respondent issued by the School Authorities. He submits that in turn, the 4th respondent entered the above date of birth in the service record as well as in other records i.e., Provident Fund Forms and SRBS, SBT etc. It is his version that in all the records such as pay slip and provident fund nomination form etc., his date of birth has been shown as 15.06.1966 and that it was certified by the 4th respondent while admitting him under the Provident Fund Act. As his representation to correct the date of birth as 15.06.1966 was not considered, the petitioner filed WP No. 28222 of 2012 before this Court, which was disposed of on 04.12.2012 directing the Corporation to consider the representation. It is further stated that the 3rd respondent kept the matter for more than 1 1/2 years and passed the impugned order dated 18.06.2014, which was served on the petitioner along with impugned notification of retirement dated 26.06.2014, informing that he would be retiring from service on 30.06.2014. It is further stated that the 3rd respondent kept the matter for more than 1 1/2 years and passed the impugned order dated 18.06.2014, which was served on the petitioner along with impugned notification of retirement dated 26.06.2014, informing that he would be retiring from service on 30.06.2014. Aggrieved by the same, he filed the present writ petition. iii. It is submitted by the petitioner that at the time of his initial appointment in the year 1982, he was aged 16 years. At the time when he was working as cleaner on daily wage basis, the then Depot Manager of the 4th respondent Depot, asked him to produce age proof certificate and accordingly, he produced the transfer certificate issued by the School Authorities, which shows that he studied up to 4th class and discontinued 5th class at Kollapur, wherein his date of birth was recorded as 15.06.1966 and the same was recorded in the service record and also reflected in the aforesaid documents. Therefore, he claims that he is entitled to continue till 30.06.2024 on which date he would be completing 58 years of age. iv. His version is that when he was examined by the Medical Officer on 11.06.1986, he was informed by the Medical Officer that he only assessed his fitness to the post of cleaner and found him to be fit. The said certificate, according to the petitioner, does not relate to determination of age, as his age has already been recorded in the service register. v. Nextly, it is submitted by the petitioner that the Corporation never informed him that his date of birth was recorded as 15.06.1956 nor furnished the promotion order as well as the seniority list. It is further submitted that as per the Rules in vogue, retirement notification has to be served on the employee prior to six months of his retirement but in his case, the 4th respondent served the retirement notification only three days prior to his retirement. The petitioner submits that this was done only to hide the facts and deprive him an opportunity to continue in service as per the actual date of birth. vi. It is further submitted that his father R. Shivaiah, worked as driver in the 4th respondent-Depot and retired from service on 30.09.2003 on the ground that he was born on 25.09.1945. The petitioner submits that this was done only to hide the facts and deprive him an opportunity to continue in service as per the actual date of birth. vi. It is further submitted that his father R. Shivaiah, worked as driver in the 4th respondent-Depot and retired from service on 30.09.2003 on the ground that he was born on 25.09.1945. He says that if really, his date of birth as alleged by the Corporation is 15.06.1956, he would have been blessed to his father at the age of 10 years. Therefore, he says that the action of the respondents is highly illegal and arbitrary and he claims that even basing on the school record as well as the service record, his date of birth is 15.06.1966 and therefore, the impugned proceedings dated 18.06.2014 and the retirement notification dated 26.06.2014 have to be set aside and he shall be permitted to continue in service till 30.06.2024. 3. The respondents-Corporation filed counter-affidavit contending as follows: The petitioner initially joined in the Corporation on 12.01.1982 on daily wages and later on his services were regularised with effect from 24.09.1986 as Man Mazdoor. At the time of joining the Corporation, the petitioner did not submit any certificate from his school in proof of his age or date of birth and accordingly, he was subjected to medical examination. The Chief Medical Officer, APSRTC, Tarnaka, Hyderabad, vide medical certificate No. 52981 dated 11.06.1986, determined the age of the petitioner as 30 years and recorded his date of birth as 15.06.1956. At that point of time, the petitioner did not protest or raise any dispute regarding the date of birth mentioned at the time of regularisation of his services. The version of the Corporation is that in the service record, the date of birth of the petitioner was recorded as 15.06.1956 basing on the medical certificate. It is further submitted that the petitioner was promoted to the post of Helper in the year 1989 vide Office Order dated 30.12.1989, wherein his date of birth was shown as 15.06.1956, for which, the petitioner did not raise any objection. It is further submitted that the petitioner was promoted to the post of Helper in the year 1989 vide Office Order dated 30.12.1989, wherein his date of birth was shown as 15.06.1956, for which, the petitioner did not raise any objection. The contention of the Corporation is having accepted the date of birth as 15.06.1956 right from the year 1986 and again in 1989, now the petitioner cannot be allowed to raise a dispute that his date of birth was incorrectly entered and now that it should be corrected as 15.06.1966 instead of 15.06.1956. ii. It is further submitted that the petitioner filed two writ petitions before this Court for correction of his date of birth. The first writ petition i.e., WP No. 19535 of 2011 was disposed of on 13.07.2011 directing the Corporation to consider the representation dated 06.06.2011 made by the petitioner according to the Regulations governing the service conditions of the petitioner within a period of eight weeks. The Corporation after duly considering the Regulations and Record, passed proceedings dated 29.08.2011 rejecting the case of the petitioner on the ground that the date of birth cannot be corrected after a lapse of 24 years and the correction of date of birth at the belated stage is prohibited under Regulation 19 of the APSRTC Employees Service Regulations 1964. iii. It is further submitted that the petitioner filed second writ petition i.e., WP No. 28222 of 2012 against the proceedings dated 29.08.2011 seeking direction to correct the date of birth as 15.06.1966 instead of 15.06.1956. The said writ petition was also disposed of on 04.12.2012 on the submission of the standing counsel of the Corporation that steps are being taken to correct the date of birth of the petitioner. In pursuance of the order dated 04.12.2012 passed in the said writ petition, the Corporation has passed a detailed order rejecting the request of the petitioner for correction of date of birth vide proceedings dated 18.06.2014. It is contended by the Corporation that if the date of birth of the petitioner is considered as 15.06.1966 instead of 15.06.1956, his age would have been only 15 years 5 months at the time of engagement of his services on daily wage, which is under age and the said engagement would lead to violation of Recruitment Regulations of APSRTC. iv. iv. It is further submitted that even in the APSRTC Staff Retirement Benefit Scheme, the petitioner has entered his date of birth as 15.06.1956 and then altered it to 15.06.1966, which is evident from the over writing. It is also submitted that the petitioner has deliberately avoided entering his correct date of birth in the nomination forms required for APSRTC Staff Benevolent cum Thrift fund and APSRTC Employees Provident Fund Trust, which goes to show that he is unsure of his date of birth as to whether it is 15.06.1956 or 15.06.1966. v. According to the Corporation, the petitioner did not submit any document in support of his date of birth at the time of joining into Corporation to establish his date of birth and hence, he was sent for medical examination and the Chief Medical Officer, vide medical certificate No. 52981 dated 11.06.1986, determined the age of the petitioner as 30 years, to which the petitioner had not raised any objection and accepted the same, which had become final. vi. The version of the Corporation is that the date of birth mentioned in the monthly pay slips was the result of typographical error and that cannot be the basis for deciding the correct date of birth. It is further contended that as per the Regulations 1963, the date of birth recorded in the Employees Service Record is final and binding on the petitioner. In respect of the nomination forms relied upon by the petitioner submitted to the Provident Fund Authorities, there is no mention of the date of birth, as the petitioner himself was not sure of his date of birth. As regards to the forms submitted to the Staff Benevolent Fund, the petitioner has interpolated the date of birth and mentioned it as 15.06.1966, which is evident from the record. It is further submitted by the Corporation that the petitioner intentionally avoided to receive the retirement notification dated 01.01.2014. Eventually, the 4th respondent issued office order dated 30.06.2014 retiring the petitioner from service on 30.06.2014 on attaining the age of superannuation. Contending as above, the respondents-Corporation sought to dismiss the writ petition. 4. Thereafter, the petitioner filed reply affidavit making the following submissions. At the time of joining into service, he was never asked to produce the age proof certificate and also at the time of regularization of service. Contending as above, the respondents-Corporation sought to dismiss the writ petition. 4. Thereafter, the petitioner filed reply affidavit making the following submissions. At the time of joining into service, he was never asked to produce the age proof certificate and also at the time of regularization of service. He submits that he was sent to the medical examination only to examine whether he was fit and suitable to the post of Man Mazdoor for regularizing his services, but not to determine his date of birth. According to him, at that time the Medical Officer had only examined his physical fitness as to the suitability to the post of Man Mazdoor, but had not conducted any tests to determine his age. He further submits that the age mentioned in the fitness certificate was also not informed to him, except informing that he was physically fit for the post of Man Mazdoor. 5. It is further submitted that when he came to know that his date of birth was wrongly recorded, he submitted his transfer certificate dated 14.07.1976 showing his date of birth as 15.06.1966 to the respondents and accordingly, his age was entered in the service record, but subsequently, it was rounded up. Before rounding up of the same, no opportunity was given to him to submit his version. It is further submitted by him that he was never informed by the authorities of the Corporation that his date of birth was recorded as 15.06.1956 and therefore, there was no occasion for him to raise an objection. It is also submitted that when he produced the transfer certificate showing his date of birth, the authorities of the Corporation accepted the same as 15.06.1966 and entered the same in the concerned records. Therefore, he says that now the Corporation cannot turn round and contend that the date of birth is 15.06.1956. The petitioner did not accept the contention of the respondents that he approached the High Court after lapse of 24 years and is not entitled for the reliefs prayed for in the writ petition. Therefore, he says that now the Corporation cannot turn round and contend that the date of birth is 15.06.1956. The petitioner did not accept the contention of the respondents that he approached the High Court after lapse of 24 years and is not entitled for the reliefs prayed for in the writ petition. He reiterated that if his date of birth is taken as 11.06.1956 as alleged by the respondents, the difference between the age of his father and his age is only 10 years, 8 months and 26 days, as his father was born on 25.09.1945 and retired from service on 30.09.2003 on attaining the age of superannuation of 58 years. It is further submitted that after he produced the transfer certificate, the then Depot Manager of the 4th respondent entered his date of birth as 15.06.1966 and the same was accordingly entered in provident fund papers as well as in the pay slips. The respondents-Corporation did not file any service record and this fact shows that they are hiding the actual facts. 6. It is further submitted by the petitioner that he received the impugned order only on 27.06.2014 and therefore, he was forced to rush to this Court and that he was not served with retirement notification dated 01.01.2014. 7. Heard Sri V. Narsimha Goud, the learned counsel appearing for the petitioner and Sri N. Vasudeva Reddy, learned Standing counsel for the respondents-APSRTC. 8. It is the contention of the petitioner that till receiving information from the respondents that he was not eligible for the house building loan, as he was due to retire from service on 30.06.2014, he was not aware that his date of birth was recorded as 15.06.1956, therefore he says that there was no occasion for him to make any representation for correction of the date of birth. It is also his submission that he was not asked by the authorities of the respondents either at the time of initial appointment or subsequently, to produce any documentary evidence showing the date of birth. Therefore, he did not submit the transfer certificate initially. The petitioner also contends that in the records, such as pay slips and provident fund forms, his date of birth was recorded as 15.06.1966, which is well within the knowledge of the officials of the respondents. Therefore, he did not submit the transfer certificate initially. The petitioner also contends that in the records, such as pay slips and provident fund forms, his date of birth was recorded as 15.06.1966, which is well within the knowledge of the officials of the respondents. On the other hand, it is the contention of the respondents that the petitioner applied for correction of his date of birth only after rendering 24 years of service and on account of inordinate delay, he is not entitled for correction of the date of birth and the writ petition is not maintainable. Further, it is also the version of the respondents that in the service record of the petitioner, his date of birth was mentioned as 19.06.1956. 9. The crucial aspect, which requires to be considered in the instant case is that the respondents have not produced any record showing the date of birth of the petitioner, which was recorded at the time of initial appointment of the petitioner. If really, the petitioner was asked to produce any documentary evidence showing the date of birth, the respondents ought to have produced some correspondence/material in support of their contention. Admittedly, there is no such material filed by the respondents nor did they produce any document in support of their version. 10. Even if there is no documentary evidence relating to the date of birth of the petitioner at the time of his initial appointment, the normal course of the respondents is to refer the petitioner for medical examination for the purpose of determination of his age. Learned standing counsel for the respondents-Corporation contended that as the petitioner failed to produce any proof in respect of his age, he was referred to the Medical Officer, who tested and assessed the age of the petitioner as 30 years. But according to the petitioner, at the time of regularisation of the service, he was referred to the Medical Officer for examination whether he was fit for appointment as Mazdoor or not and the Chief Medical Officer after examining the petitioner issued a certificate on 11.06.1986. In the said certificate, it is mentioned that the petitioner was referred by his name and his age was shown as 30 years. In the said certificate, it is mentioned that the petitioner was referred by his name and his age was shown as 30 years. It is pertinent to note that in the certificate it is clearly stated that the form of certificate to be used when a candidate is medically examined for fitness for appointment. From the contents of the certificate, it cannot be said that the certificate relates to determination of age of the petitioner, but it only relates to determination of fitness of the petitioner for the post to which he was regularised. Merely because in the body of the certificate, the age of the petitioner was mentioned as 30 years, it cannot be said that the petitioner was aged about 30 years as on 11.06.1986 and this was so determined by the Medical Officer. Therefore, the contention of the learned standing counsel appearing for the respondents that under the aforesaid certificate, the petitioner's age was determined by the Medical Officer, cannot be accepted. 11. The respondents also filed nomination cum authorisation form relating to the retirement benefit scheme, in which the petitioner's date of birth is mentioned as 11.04.1966'. As regards the said date of birth, the contention of the learned standing counsel for the respondents-Corporation is that there is over-writing on the figures 1966' and 1956' was made to appear as 1966'. But a perusal of the said document, shows that there is no over writing. Even otherwise, if there is any such correction, the Corporation ought to have taken notice of the same and ought to have recorded the correct date of birth of the petitioner. The said document contains the signature of the Depot Manager. Therefore, the presumption is that the document has been fully verified by the Depot Manager and the contents therein have been affirmed to be correct. Further, the pay slip filed by the petitioner, which was also issued by the Corporation clearly indicates that the date of birth of the petitioner is 15.06.1966. The contention of the respondents is that by misstate the date of birth of the petitioner was mentioned so in the pay slip and basing on that the petitioner cannot claim that his age has to be corrected. Here it is necessary to mention that the respondents have not filed any document showing that the petitioner's date of birth was 15.06.1956. Here it is necessary to mention that the respondents have not filed any document showing that the petitioner's date of birth was 15.06.1956. Therefore, the contention of the respondents that mentioning of date of birth in the pay slip issued to the petitioner as 15.06.1966 is on account of mistake is untenable. 12. The petitioner filed beneficiary identity card relating to the petitioner's father R. Shivaiah issued under APSRTC Staff Retirement Benefit Scheme (1989). In the said document, the date of birth of the petitioner's father was mentioned as 25.09.1945 and he retired on 30.09.2003. As rightly contended by the learned counsel appearing for the petitioner that if really, the petitioner's date of birth is taken as 15.06.1956, the petitioner ought to have been born to his father when his father was aged about 10 years, 8 months, which is improbable. 13. In this context it would be relevant to refer the judgment rendered by the Supreme Court in 'Iswarlal Mohanlal Thakkar vs. Paschim Gujarat VIJ Company Ltd. (2014) 6 SCC 434 '. In the said case basing on the certificate of birth given by the school authorities for the brother of the appellant was sought to be relied upon by the Management. The Supreme Court found that if the date of birth as recorded in the said certificate issued by the school is to be taken into consideration, the difference of age between two brothers is only five months, which is impossible and therefore, the management cannot place reliance on the said document in support of its contention. Similarly, in the instant case, the date of birth of the petitioner relied upon by the Corporation cannot be looked into basing on the admitted date of birth of the father of the petitioner and such acceptance would lead to improbability, which is to the effect that the petitioner was born to his father when his father was aged about 10 years. 14. 14. Learned counsel for the petitioner relied upon a judgment of this Court in WP No. 16974 of 2009, wherein learned single Judge of this Court dealing with the medical certificate, which was identical to one of the petitioner at the time of his regularization, took the view that the medical certificate does not relate to the determination of the age of the petitioner, but it only relates to the opinion of the Medical Officer as to the fitness of the candidate to be appointed to a particular post. In similar circumstances, the learned single Judge declared that the action of the respondents-Corporation in retiring the petitioner therein on the proposed date as illegal and arbitrary and set aside the said impugned order, directing reinstatement of the petitioner therein. The Corporation preferred an appeal against the said order in WA No. 1053 of 2011 and the Division Bench of this Court confirmed the order of the learned single Judge and it became final. 15. Learned standing counsel for the Respondents placed reliance on Regulation 19 of the APSRTC Employees Service Regulations, 1964. According to Clause (1) every person on entering the service of the Corporation shall declare the date of birth, which shall not differ from any declaration, express or implied, made by him for any public purpose before entering such service. For this purpose, the date of birth as recorded in a School or College certificate shall be adopted without any modification. Clause 2(b) further reads that where the person concerned is unable to furnish satisfactory evidence of his age, it should be assessed or the age as declared by the person, whichever is more, shall be accepted as final and the employee shall be assumed to have completed that age on the date of attestation by the Medical Officer. 16. The respondents-Corporation cannot improve its case basing on the aforestated Regulation. The petitioner's version is that at the time of his initial appointment, he was not asked to produce any documentary proof relating to his date of birth nor was he asked to submit any declaration. As rightly contended by the petitioner, if really he was asked to produce any certificate, he should have produced the transfer certificate or he would have made declaration. As rightly contended by the petitioner, if really he was asked to produce any certificate, he should have produced the transfer certificate or he would have made declaration. When there is no date of birth as recorded in the school or college certificate, the declaration made by the petitioner ought to have been taken into consideration. The Corporation is silent about any such declaration which was made by the petitioner at the time of his initial appointment. Therefore, this Court has to necessarily presume that the petitioner was never asked to make any such declaration at the time of his initial appointment. If really, the petitioner was asked to produce any documentary proof regarding his date of birth and he could not produce the same before recording the date of birth, he would have sent for medical examination as per Clause 19 (2)(b) of the Regulation and the date of birth as determined by the Medical Officer would have been mentioned by the officials of the Corporation in the service record at the time of initial appointment itself. But the respondents did not produce any record relating to the initial appointment of the petitioner. Therefore, the contention of the petitioner that there was no occasion for him to produce the transfer certificate before the authorities of the respondents has to be necessarily accepted. 17. In the present case for not producing any records relating to the initial appointment of the petitioner, adverse inference has to be drawn against the respondents-Corporation to the effect that if any such record available with them had been produced it would have shown the date of birth of the petitioner as 15.06.1966 as in the pay slips and provident fund forms issued to the petitioner instead of 15.06.1956. Further, these forms have been duly verified by the officials of the Corporation and therefore, the respondents-Corporation themselves cannot dispute the genuineness or authenticity of the said documents. The respondents have not established that prior to informing the petitioner that he was not eligible for house building loan as he was going to retire on 30.06.2014 he was informed of the said fact and that he was aware of his date of birth as 15.06.1956. Therefore, the contention of the petitioner that he had no occasion to produce his date of birth certificate before the authorities of the Corporation has to be accepted. Therefore, the contention of the petitioner that he had no occasion to produce his date of birth certificate before the authorities of the Corporation has to be accepted. Thus, it cannot be said that the petitioner raised the issue relating to his date of birth at the belated stage and the writ petition is liable to be dismissed on account of latches on the part of the petitioner. Further, soon after coming to know of about the incorrect date of birth recorded in the service record, the petitioner filed writ petition i.e., WP No. 28222 of 2012 and at the time of disposal of the said writ petition, the learned standing counsel for the respondents-Corporation under took before the Court that they would consider the transfer certificate of the petitioner and dispose of his representation. 18. For what all stated herein above, the impugned proceedings No. LC1/785/WP(56)/12-RM, MB, dated 18.06.2014 and consequential retirement Notification No. P3/56(1)/2014-ACPT dated 26.06.2014, being arbitrary and illegal and are liable to be set aside. 19. Accordingly, the writ petition is allowed setting aside the impugned proceedings and the respondents are directed to reinstate the petitioner into service with all back wages and benefits, within a period of one month from the date of receipt of a copy of this order. No order as to costs. Miscellaneous petitions pending if any in this writ petition shall stand closed.