GOVERNMENT OF ANDHRA PRADESH AND ANR. v. M. HAYAGREEV SARMA

Citation: [1990] 2 S.C.R. 366

Court: Supreme Court of India

Bench: K.N. SINGH, N.M. KASLIWAL

Case summary

He further submitted that there was no question of repugnancy between Rule 5 and Section 9 of the Births, Deaths and Marriages Registration Act, 1886 and the Tribunal committed error....

Judgment text

The Judgment of the Court was delivered by SINGH, J. This appeal is directed against the judgment and order of the Andhra Pradesh Administrative Tribunal, Hyderabad dated October 18, 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 respondent's application for alteration of his date of birth in the service records in accordance with the extracts from birth register maintained under the Births, Deaths and Marriages Registration Act, 1886. The respondent was appointed. as Audit Clerk in the Department of Examiner of Accounts, Local Fund Accounts, through a competitive examination held in the year 1956. After his selection and appointment he commenced his training with effect from 12. 11. 1956. On completion of his training he was posted as Audit Clerk on 26. 1. 1957.

Subsequently, he was promoted to the post of District Inspector of Local fund Accounts. At the time of his joining service 9. 3. 1932 was - ">.. _ recorded as his date of birth in the service book on the basis of S. S. L. C. Certiticate. He made an application on 5. 1. 1962 for alteration of his date of birth as entered in his service book, on the ground that his date of birth as recorded in his service book was apparently wrong and incorrect in view of his el. der brothers' date of birth, who was also in Government service, recorded as 2. 9. 1931. The respondent urged that the entry with regard to his date of birth in the service book should be altered and the date 9. 3. 1932 should be substituted by 27. 8. 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. 5. 1961.

The respondent thereupon submitted a revised application on 24. 9. 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 views of all ·authorities including the Head Master of the School, the respondent's 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 respondent'• prayer for alteration of his date of birth by his Order No. 69918/1209/Admn/66-7 dated 5. 1. 1%8 on the ground that the correctness of respondent's elder brother's 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. On 10. 4.

1983 the Governor of Andhra Pradesh promulgated Andhra Pradesh Public Employment (Regulation of Conditions of Service) Ordinance No. 5 of 1983 providing for declaration and alteration of date of birth of State Government employees. The Ordinance ':rlaid 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 m•y be avail- " able to him after giving opportunity to the emplyee within six months 'y 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 Art. 309 of the Constitution. Thereupon the respondent made yet another attempt by _,/ making application on 27. 1. 1984 for the alteration of his date of birth, placing reliance on the extracts of entry in the register of births and deaths.

The Director of Local. Fund Audit rejected his application by his order dated 28. 3. 1984 on the ground that the application had been made beyond the period prescribed for the purpose. The respondent filed . ; petition before the Andhra Pradesh Tribunal challenging the rejection of his application and also the constitutional validity of Rules ' 4 and 5 of the 1984 Rules. J. : The Tribunal held that the respondent's application for alteration of his date of birth was wrongly rejected by the Director of Local Fund Audit on the ground of limitation. The Tribunal held that the Head of Department should have forwarded the respondent's applica- G. tion to the State Government for passing appropriate order as he had no authority to reject the same. The Tribunal further held that Rule 5 of the 1984 Rules was void as it was repugnant to Section 9 of the Births, Deaths and Marriages Registration Act, 1886.

On these find- "" ings the Tribunal directed the appellants to consider the respondent's application again for the altei;ation of his date of birth n the basis of GOVT. OF A. P. v. M. H. SARMA [SINGH, J. l 371 the extracts of the entry in the births and deaths register. Aggrieved the appellants have preferred this appeal by special leave. Learned counsel for the appellants urged that since the respondent's 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 Section 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 respondent's· application for alteration of his date of birth could validly be considered only by the State Government. The question which arises for consideration is whether the alteration of respondent's date of birth was permissible after the enforcement of the 1984 Rules. The 1984 Rules apply to all persons appointed to Public Services and posts in connection with the affairs of the State. These Rules prescribe conditions of service of State employees, having statutory force. being framed under the legislative power conferred on the Governor under the Proviso to Article 309 of the Constitution. Rules 4 and 5 are as under: "4.

No Government employee, in service before the commencement of these rules- (a) whose date of birth has been recorded in the service register in accordance with the mies applicable to him; or (b) whose entry relating to date of birth became final and binding under the rules in force prior to the commencement of these rules. shall be entitled to claim alteration of his date of birth. 5. The case in which Government employees have alrea -- Births, Deaths and Marriages Registration Act, 1886 is a central law which is referable to Union List. Section 9 of the Act merely lays down that copies of entries. of the registers relating to births and deaths maintained under the Act shall be admissible in evidence for the purpose of proving the births and deaths. It merely relates to admissibility of documents, it does not seek to regμlate conditions of service of a State employee. There is, therefore, no question of repugnancy between Rule 5 and Section 9. It is well settled that question of ,.

___ ' repugnancy can not arise if the State makes law in exercise of its legislative powers in respect of an entry specified in List II of Vllth Schedule, even though it may incidentally trench upon a law made by the Union in respect of a matter referable to an entry in Union List of the Vllth Schdule. Rule 5 and Section 9 of the Act operate in different areas and there is no question of conflict in the two provisions. We are • informed that a Full Bench of the Andhra Pradesh Administrative Tribunal has taken similar view in Lingerker Vaidyanath v. Govern- )I, ment of Andhra Pradesh and Anr. , (Andhra Pradesh Administrative Tribunal's Judgment dated 2. 9. 1987) in holding that Rule 5 is neither repugnant to Section 9 of the aforesaid Act nor void. In this view the Tribunal's order dated October 18, 1985 is not sustainable in law. In the result we allow the appeal and set aside the order of the Andhra Pradesh Administrative Tribunal. There will be no order as to costs. T. N. A.

Appeal allowed. "'