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2020 DIGILAW 114 (AP)

Velimicherla Rajeswari v. APSPDCL

2020-02-12

D.V.S.S.SOMAYAJULU

body2020
JUDGMENT : D.V.S.S Somayajulu, J. This Writ Petition is filed by the petitioner seeking an order in the nature of writ of Mandamus declaring the action of the respondents in retiring the petitioner from services with effect from 31.12.2018 is incorrect, illegal, violative of articles 14 and 21 of Constitution of India and consequently to direct the respondents to reinstate the petitioner into service with continuity, backwages etc., along with interest at the rate of 12% p.a. 2. Arguments for the petitioners were advanced by Sri M. Pitchaiah, while the learned Standing Counsel for APSPDCL appeared and argued on behalf of the respondents. 3. The case of the petitioner is that she was appointed on compassionate ground on 21.08.2008 in the 1st respondent organisation. She was retired on 31.12.2018 as she has attained the age of superannuation. It is her contention that at the time of entering her name in the Service Register, when she joined services, her age was shown as 48 years by the year 2006 (i.e., she was treated as borne in 1958), but the certificate issued by the doctor shown her age as 48 years in 2008. Therefore, it is her contention that she was actually born in 1960 and that therefore she should not be retired till she attains the age of superannuation in terms of the certificate issued by the doctor. 4. Learned counsel for the petitioner relying upon Rule 10 (d) of the APSEB Service Regulations states that the certificate from the Medical Officer, approved by the Board, specifying the approximate year should be accepted for the purpose of fixing the age. He also relies upon the interdepartmental correspondence, which is filed as material papers to show that on 28.01.1987 itself the medical certificates were directed to be accepted as the date of birth. Apart from that he also relies upon the case of the petitioner and draws the attention of this Court to the letter dated 23.02.2019 by which a clarification was sought about this particular case of the petitioner. The reply dated 25.03.2019 is also filed wherein the department reiterated that there is a discrepancy but the same was not cleared. Therefore, as the petitioner had retired in the intermediate period the Writ Petition was filed. The reply dated 25.03.2019 is also filed wherein the department reiterated that there is a discrepancy but the same was not cleared. Therefore, as the petitioner had retired in the intermediate period the Writ Petition was filed. Learned counsel for the petitioner very strongly relies upon the medical certificate filed along with the Writ Petition and the declaration given by the MRO of the family members of the deceased employee. In both these documents it is asserted that the petitioner was aged determined as 48 years in the year 2008. Therefore, learned counsel for the petitioner contends that in terms of Rule 10 (d) of APSEB regulations as there is no other authentic proof, the certificate given by a Medical Officer should be accepted as correct and the age of the petitioner should be treated as 48 years as in July, 2008. In view of this learned counsel argues that the petitioner is entitled to the relief as prayed for. 5. In reply to this, the standing counsel for the respondent Sri Y. Nagireddy argues that once the date is entered into the Service Register it cannot be altered and that the petitioner who has had the benefit of service on the basis of the submitted date of birth cannot now seek to change, particularly two years after she has retired from service. He also points out that prior to the retirement the petitioner was given a notice of one year in December, 2017 itself stating that she would be retiring on attaining the superannuation on 31.12.2018. Learned counsel points out that she has received retirement notice but did not raise any protest whatsoever about the alleged discrepancy in the date of birth. He also points out that the petitioner has submitted a representation seeking for payment of her benefits in March, 2019 and in this also learned counsel submits that she did not raise any issue about the alleged discrepancy in the date of birth. As far as the letter relied upon by the learned counsel for the petitioner specifically to the petitioner's case, which is dated 23.02.2019, learned counsel for the petitioner urged that there is no firm decision on the same. Remarks were called for from the Senior Accounts Officer and instructions were issued on the basis of the available documents. As far as the letter relied upon by the learned counsel for the petitioner specifically to the petitioner's case, which is dated 23.02.2019, learned counsel for the petitioner urged that there is no firm decision on the same. Remarks were called for from the Senior Accounts Officer and instructions were issued on the basis of the available documents. Therefore, the Superintendent Engineer by his letter dated 23.02.2019 clarified the actual position and sought for a decision. 6. The learned standing counsel submits that these letters cannot be treated as an admission. Even in answer to the submissions of the learned counsel about the medical certificate. He submits that certificate that is issued does not refer to any scientific basis of arriving at a conclusion that the petitioner's date of birth is 48 years. He points out that the certificate in question is more in the nature of a physical fitness certificate rather than an age determination certificate. He relies upon the counter wherein this aspect was decided and he states that basing on the statement of the petitioner and the physical appearance of petitioner alone without conducting any tests the certificate was issued. Lastly, it is his contention that the petitioner voluntarily joined her services on the basis of her age as declared. She accepted the same throughout the period of her service and even upto to the date of retirement and thereafter the present Writ Petition is filed. He also points out that the date of birth was entered into the service record on the basis of declaration given by the petitioner alone. For all these reasons he prays that the writ petition should be dismissed with costs. 7. This Court after hearing the arguments of both the parties notices that in the counter affidavit it is very clearly specified that the medical certificate cannot be accepted as proof, because the medical certificate did not state that it is issued after following scientific methods of testing. The normal test that is prescribed for determining is the ossification test which determines the density of the bones, but this is also not held to be an accurate method. The certificate on the basis of which the petitioner seeks an alteration does not state that any tests were actually done. In fact, a heading of the certificates is only about the medical / physical fitness certificate. The certificate on the basis of which the petitioner seeks an alteration does not state that any tests were actually done. In fact, a heading of the certificates is only about the medical / physical fitness certificate. The doctor discusses whether she has any physical deformity, blindness of eyes etc. The age is determined on the basis of her own statement and also by appearance. The conclusion in paragraph-6 is that she is fit for the work. Therefore, as rightly pointed out by the learned standing counsel for respondents this certificate by itself cannot be taken as an authentic certificate for "determining" the age of the petitioner. It merely refers to a physical examination for deformities. Nothing more or nothing less can be read into this certificate. Apart from this the petitioner has also declared her age as 48 years on 20.12.2016. A notice dated 01.12.2017 was served on the petitioner on 07.12.2017 informing her that she is due to retirement on 31.12.2018. The letter is called as one year retirement notice. This was followed by another notice dated 01.11.2018 informing the petitioner that she would be retiring on 31.12.2018. There is no protest to either of the two letters which were served on the petitioner. She did not raise an issue that her Date of Birth was wrongly written and that therefore she cannot be retired. Letters referred to by the counsel for the petitioner, including the letter dated 23.05.2019 bearing letter No.472/2019,were also answered on 01.06.2019, wherein the department came to a conclusion that date of retirement of the petitioner is found to be true. Also as rightly pointed out by the learned counsel for the petitioner even as on 13.02.2019 the petitioner was only complaining about the delay in settlement of her dues. She did not raise any issue about the date of birth or the retirement age. Apart from that Rule 10 (2) (e) of the APSEB service regulations states that the date of birth determent and entered into the service records shall be final and no subsequent variation of the date of birth is possible except in case of bona fide clerical error. Counsel for the petitioner states that this is a clear case of bonafide error made by an illiterate woman, but the respondent argues that this is not an error at all. Counsel for the petitioner states that this is a clear case of bonafide error made by an illiterate woman, but the respondent argues that this is not an error at all. A bona fide clerical error, in the opinion of this Court, would arise when the petitioner gave entered a wrong digit or a number in a date of birth for example, if she is born on 28.06.1958 and she gives a wrong declaration as 28.06.1957 it could be treated as a bona fide clerical error. In the case on hand the question is whether in the absence of authentic proof the certificate, dated 18.07.2008, given by doctor should be adopted as furnishing of a date of birth. This Court does not find any reason to prefer or rely on the doctor's certificate. This is a case of a disputed question of fact and not a case of bonafide clerical error. 8. For all the reasons stated above viz., (a) that the certificate relied upon by the petitioner is not based on any proven scientific method for assessment of the date of birth; (b) it is more in the nature of fitness certificate rather than a certificate to determine the year or month of the birth; (c) the entry in the service record has not been questioned till after her superannuation; (d) the conduct of the petitioner and the rule quoted operate as estoppel, it is held that the petitioner is not entitled to any relief. 9. Accordingly, the Writ Petition is dismissed but in the circumstances no order as to costs. 10. Miscellaneous petitions, if any, pending shall also stand dismissed.