(1) The petitioner joined the services of h. E. H the nizem state rell way in the year 1946 as a driver trainse in the department of road transport. As a result of the political changes that had taken place in the country, the native state of the nizam dominions had disappeared and jts'territory has become part of the territory of the indian union, censtituing part - b state of hyderabad. By the subsequent re - organisation of the states, part - b state of hyderabad was disintegrated. As a result, those working in the road transport department of former nizam state railway were absorbed in the andhra pradesh state road transport corporation (for short, 'the corporation'.) the petitioner has thus become, from the year 1956 onwards, an employes of the corporation.

(2) On 7 - 3 - 1979 the district manager, a p s r t c kurnool, wrote the petitioner informing him that he would attain age of superannuation on september 30th, 1979 and would be retired with effect from that date. This letter of the district manager was based upon the petitioner's date of birth as given by him and his service register at the time the petitioner joined the services of the nizam state railway in the year 1946. At the time when the petitioner joined the nizam state railway, his date of birth was shown as 18 - 9 - 1924. This date of birth was furnished by the peutioner on the support of his school register obtained from the wesley high school, secunderabad. The petitioner was recruited on the basis of his application made to the h. E. H. , the nizam state railway wherein he described himself as 'battula gabriel son of battula samuel' and claimed to have been born on 18 - 9 - 1924. The petitioner was called for an interview and was askedto produce the school certificate in support of his age and the h. E. H the nizam state railway acting upon that date of birth selected the petitioneras a driver - trainee and appointed him on 8 - 2 - 1946. Later on, the petitioner earned several promotions and at the time of the impugned notice he was working as a trafic inspector of the corporation.

(3) That the petitioner's date of superannuation would be 18 9 - 1979 if his correct date of birth is taken to be 18 - 9 - 1924 is not in dispute. But the petitioner says that 18 - 9 - 1924 is not his correct date of birth. The petitioner now claims that his correct date of birth is 8 - 12 - 1929. On that basis, he has filed this present writ petition seeking a writ of manmus from this court to direct the district manager a. P. S. R. T. C, kurnool to rescind the notice issued by the letter on 7 - 3 - 1979 and to continue the petitioner in the services of the corporation till 8 - 12 - 1984 by altering his date of birth in the service register as 8 - 12 - 1929,

(4) The petitioner's case is that the entry relating to his date of birth in the school register is the result of a mistake committed by his illiterate mother. The petitioner says that that mistake occurred by the unfortunate circumstance of the death of his father while he was six - months old and his illiterate mother giving a wrong date of birth to the school authorities. The petitioner says that he is now informed by his relatives that he was born in the year 1929 and not in the year 1924. In order to lend - some colour of credibility to this somewhat hard - to - believe story of the petitioner, the petitioner produced an extract of birth certificate from the dhone taluk office, kurnool district claiming the same as belonging to him. That extract exhibits 8 - 12 - 1929 as the date of birth. But that birth extract now produced from the dhone taluke office, relates to the birth of one "madige maddigadu of cherukulapadu village of dhone taluk kurnool district. " it also mentions the name of the mother of maddigadu as ayyamma. Prime facie, it does not relate to the petitioner the school register which the petitioner produced in the year 1946 at the time of his joining the services of the nizam state railway was obtained from the wesley high school, secunderabad. That school register mentions the petitioner's name as "battula gabriel son of samuel. " the corporation contends that the present certificate which the petitioner has produced does not relate to the petitioner at all the corporation also contends that in any case the petitioner having given his date of birth as 18 9 - 1924 has no legal right to seek its alteration so as to bind the corporation. Two simple questions one of which is of ovarwhelming legal and practical importance arise for consideration in this writ petition. The first question is whether the petitioner's correct date of birth is 18 - 9 - 1924 as entered in his service register or is it 8 - 12 - 1929 as now claimed by the petitioner? the second question that arises in this case is whether this court or any other court in the country has the power or authority or jurisdiction to compel through judicial process the corporation to continue the petitioner in its service on the basis of the date of birth now claimed to be the correct date of birth by the petitioner but which is contrary to an important term of the contract of empoyment. The second question is the one which i consider to be of paramount legal and practical importance, because in many jurisdictions courts by their declaratory decrees as to the correct date of birth are compelling the public employer to continue their employees in service far beyond the original date of superannuation arrived at on the basis of the contract of employment.

(5) Now the petitioner claims that the extract of birth certificate which he obtained from dhone taluk office of kurnool district, relates to his date of birth and the date of birth which was entered in the school register is wrong and is the result of a mistake committed by his illiterate mother. This claim of the petitioner, resisted by the corporation, can neither be accepted nor rejected without ascertaining a lot more of relevant facts. To do that, this court requires a good deal of evidence documentary and oral to be spread on record and to be tested and purified by cross - examination. As that complicated procedure is not normally possible to be followed in these writ proceedings such questions as these are generally left to be decided by the civil courts and are relegated to regular suits. But, however, in view of my proposed answer to the second question, i would not take that usual alternative and leave this question open to be decide by a civil court in a suit. I am therefore assuming for the purpose of this case on the first question in favour of the petitioner by holding that the petitioner's correct date of birth is 8 - 12 - 1929.

(6) That leads me to the consideration of the second question. The second question, as i have formulated above, raises a question of jurisdiction of this court. Has this court got jurisdiction to direct the corporation, the employer of the petitioner, not to retire the petitioner on the basis of the date of birth which was entered in the service register of the petitioner at the time of his recruitment in the year 1946? in other words has this court got jurisdiction to direct the corporation to continue the petitioner in service till he reaches his date of superannuation calculated on the basis of his presently claimed date of birth which i am accepting to be true and correct for the purpose of this writ petition?

(7) It should be made clear that granting of the relief of continuance to the petitioner can only be done by the court by going against the terms of the petitioner's contract of employment. The|petitioner joined the nizam state railway on the basis of an offer made by him to and accepted by the nizam state railway. The offer made by the petitioner primarily consisted of his willingnessto work under the nizam state railway. Regarding his suitability he made a representation that he possesed certain educational qualifications for appointment and that he was born on 18 - 9 - 1924. These representations contained in the petitioners offer were accepted by the nizam state railways. Thus a contract binding on both the parties was concluded. The nizam state railway on that basis appointed the petitioner to its services. In law, this emphatically means that the petitioner's initial entry into the services of the nizam state railway is the result of an agreement entered into between the petitioner on one hand and the nizam state railway on the other on the basis of the terms and conditions mutually agreed to. One of the vital terms of that agreement concluded between the petitioner and the nizam state railway related to the petitioner's date of birth. According to that term of the contract, the corporation is committing no illegality in superannuating the petitioner on 18 - 9 - 1979. In fact, the corporation is acting according to the contract now it is well known that in a free society such as ours, every initial appointment in public or private service can only be made subject to any relevant law on the basis of and in accordance with an agreement mutually entered into between a willing employer and a willing employee. In other words, a contract of employment between the employer and the - employee is the source of public or private employment. The theoretically conceivable alternative source of employment would be unthinkable in a democratic society, because that could only be slavery or serfdom or even worse. The question whether 'a' should work in the employment of 'b' and subject to what terms can therefore never be initially decided otherwise than by mutual consent of 'a' and 'b'. Even now after so much of statutory intervention in the domain of freedom of contract, the initial appointment can only be on the basis of mutual agreement between the employer and his employee. In nokes v. Doncastar amalgamated collieries. Limited (1) 1940 ac. 1014 and 1026 lord atkin noted the profound significance of this legal requirement for a democratic society in the following words: -

"i had fancied that ingrained in the personal status of a citizen under our laws was the right to choose for himself whom he would serve; and that this right of choice cons tituted the main difference between a servant and a serf."

A constitution bench of our supreme court observed in roshanlal v union of india (2) 1968 (1) scr 185, 195

"that the origin of government service is contractual. There is offer and acceptance in every case, (emphasis added.)"

Roshan lal case, no doubt, further laid down that,

"but once appointed to his post or office the government servant acquires a status and his rights and obligations are no longer determined by consent of both parties, but by statute or statutory rules which may be framed and altered unilaterally by the government."

Earlier however, another constitution bench of our supreme court pointed out in parshotam lal dhingra v. Union of india (3) 1958 scr 828,841 different facet of this basic legal phenomenon of government service by observing that,

"the conditions of service of a government servant appointed to a post, permanent or temporary, are regulated by the terms of the contract of employment, express or implied, and subject thereto, by the rules applicable to the members of the particular service"

The last lines quoted above from the judgmant of the supreme court in roshanlal's case appear to go against the suggestion of preponderance given in dhingra's case to the terms of the contract of employment even over the conditions of service laid down by law. It still appears to me that the observations in dhingra's case may be supported by assigning the ultimate efficacy to the rules unilaterally made by the government to the consent of the willing employee to continue in service by abiding by the new service rules. In other words, it is legally possible to hold that there is a fresh contract of employment entered into between the employer and the state on the basis of the new service rules or new terms of contract. Be that as it may the basic proposition of service law that the source of the initial employment is to be found in contract remains well accepted and unchallenged.

(8) Applying to the facts or this case the above legal principles that govein both the contracts of private as well as public employment, it must be held that the legal basis of the petitioner's appointment in 19 46 by the nizam state railway as a driver - cum - trainee is his contract entered into by him with the nizam state railway. Now one of the vital terms of the contract of empolyment that relates to the petitioner's suitability is that the petitioner was born on 18 - 9 - 24. That date of birth given by the petitioner and accepted by the nizam state railway had settled the date of superannuation of the petitioner which is 18 - 9 - 1979. In those circumstances, even assuming that the petitioner's correct date of birth is 8 - 12 - 1929 and that 18 - 9 - 1924 was entered into his service register as a result of the broughtforward mistake of his illiterate mother the question that still re mains is whether any court can compel the petitioner's employer the a. P. S. R. T. C to continue him in service till he reaches the age of his superannuation on that basis. I fully agree that the old theory that contract of personal service should not be specifically enforced is no longer adequate nor relevant to our contemporary society. But that would only mean that court may enforce a contract of employment. But, what the court is being asked to do by the petitioner is not to enforce any contract of employment already entered into between him and his employer, but make a new contract between him and his unwilling employer on the basis of his so - called correct date of birth. In fact, according to the contract of employment already entered into in 1946, the court cannot grant the relief of continuance to the petitioner. The question then is whether the court has power to make such a contract?

(9) The power of the court is a part of the sovereign power of the state. It can readily be conceded that this coercive power of the stafe can be used by the court to declare the correct date of birth of the petitioner because such a declaration protects and enforces the petitioner's civil rights. The use of the state coercive power for the protection of civil rights through the medium of judicial process is well accepted mode of the exercise of state power. But while the sovereign power ef the court extends to declare the correct date of birth of the petitioner, it does not extend to compel positively any person to enter into a contract with the petitioner on that basis of date of birth or any other. Courts can only enforce rights and obligations arising under a contract or law. But they cannot create rights and obligations without reference to the contract or even against its terms. By compelling the petitioner's employer to accept a new date of birth and to continue him in former's service on that basis, the court would be mekirg a new contract for the old one and forcing it on the employer. This would be in total violation of the freedom of contract which the law guarantees to every employer at least initially. It requires no great showing that the court cannot make such a new contract for the parties and that its power is limited only to enforce a contract already entered into by the parties. The very foundation of contract is the consent of the parties. "freedom of contract means the freedom to select and enter contracts. The freedom to decide whether to contract or not". (see - "an introduction to comparative law, vol. 11, p. 9 by konard zweigort and hein kotz. ')

(10) Ii follows from the above that the judicial power cannot be used to compel an employer not to retire and superannuate his employee on the basis of contract of employment. It is clear that the courts "enjoy no such power, because it is not the court's jurisdiction to make contracts for parties. It is however surprising that many of those who are in public and private service are frequenting courts for their continuance in service beyond the date of superannuation as settled by their contract of employment. It is even amazing that among them are some high judicial officers of the state resorting to this dubious, though popular, method for their continuance of service by filing suits in the subordinate courts, it is sad that whenever the courts are decreeing those suits without asking the question whether they have jurisdiction to do so, the state authorities are blindly giving extended lease of life to those public servants. In order to dispel this wide spread and pernicious practice, i think it proper to declare that no employer would in law be ever bound to continue his or its employee in service except in accordance with the terms of contract voluntarily entered into by him or by the terms of applicable law. Looking superficially, it may be argued in this case that what the petitioner is asking the court to do is only to enforce the rule of superannuation according to which he should retire on reaching fifty - five years and not to make a new contract. The obverse of this argument is that the petitioner is only asking that he should not be superannuated before he reaches the age of fifty five years and that therefore, he is merely asking the court for the enforcement of rule of superannuation. There is a fallacy in his argument. The petitioner's date of superannuation as well as his date of birth for the purpose of the employment were all fixed by mutual agreement entered into between the petitioner and his employer at the time of the petitioner joining the service. In retiring the petitioner on the basis of that agreed date of brith the employer is not violating any rule relating to the age of superannuation. Age of superannuation fixed by law generally is wholly different from the specific date of superannuation. The latter depends on an antecedent evant of date of birth. The former is merely a pioposition of law that has nothing to do with any fact. Rule relating to superannuation is only an assurance not to retire before the employee reaches the age of superannuation calculated on the basis of the contract of employment. In other words, a rule relating to superannuation can only operate on a concluded contract of employment. Now the petitioner has been taken into the employer's service on the basis that he was born on 18 - 9 - 1924. That being a part of the contract of employment, the employer would not be committing any error in superannuating him on that basis. On the other hand, by compelling the petitioner's employer to accept a new date as the con act date of birth of the petitioner and continue him in the former's service on that basis, the court would be making and forcing a new contract on the employer by embodying a new term relating to the petitioner's date of birth. In doing so, the court is not enforcing any rule of superannuation which undoubtedly it has power, to do.

(11) In exceptional situations such as those to be found in industrial employment and connected services we come across statutory provisions denying the freedom of the employer to superannuate his employees except according to the statute. Those cases fall under the rule of status mentioned in roshanlal case (supra) which is extracted at the beginning of this judgment. In those situations, it would clearly be open for the court to continue the employee in appropriate cases in service by going even against the contract of employment, because the court would have the support of statute. That is so, because the relevant law provides for such a continuance without reference to the consent of the employer. But where there are no such exceptional 'aws governing and over - riding the contract of employment the courts would be acting without jurisdiction to direct the continuance of the employees contrary to the terms of the original contract of employment. No such statutory provisions on which the petitioner can rely upon is placed before me. I am aware that the state government had issued administrative directions affording an opportunity to apply to the government to correct an entry in the service register relatirg to the employees date of birth. Yet in my opinion, such a provision would not give this ccurt or a civil court jurisdiction to issue orders of continuance on the basis of the claimed date of birth. As it has been held above the question of correct date of birth is a matter relating to one's civil rights. No authority other than a civil court has jurisdiction to declare the civil rights. The above - mentioned administrative directions cannot, therefore, be treated as conferring powers on the government to declare the correct date of birth of its employees. They must therefore be regarded merely as offers made to the government employees to enter into fresh contracts of service on the basis of the altered date of birth. Nor, such administrative directions can confer any jurisdiction on the civil couit to order continuance of the government employees. In fact. Government may be acting illegally in continuing any of its employees on the basis of any such court decree alone paying the decree holder's salary on that basis from the public exchequer. Where law made by the legislature does not modify or displace the contract, the court cannot make a new contract and enforce the same. It appears to me that the courts are not making a distinction between their right to declare the correct date of birth to do which they have undoubted jurisdiction and their right to direct the employer to continue in service on that basis to do which they can get jurisdicticn only under a provision of law or under the terms of a fresh contract. Selection is competitive and relative. Many are called but few are chosen. It is, therefore, conceivable that the employer would never have selected and appointed a particular employee in preference to others on the basis of his now reduced age. The courts must be aware that they cannot force any employer to enter into a contract with any employee on the basis of a new date of birth.

(12) Man is born only once. He lives only once and however great a coward he might be, no dies only once. To this universal law of nature, those in public services shouid not try to constitute any exception.

(13) The petitioner in this case at the time of his appointment had given his date of birth as 18 - 9 - 1924. That date of birth was accepted by the employer and the very appointment of the petitioner was based on a contract of which that date is a term. The petitioner, cannot, now take the benefit of this contract of employment and repudiate the disadvantage of a term of that contract relating to his date of birth. In any case, the employer is not bound to keep him in service beyond the date of his super, annuation fixed by the contract of employment as there is neither contract nor law compelling the employer to do so. At all events, courts are without jurisdiction to compel the employer tc do so. As that is the relief for which this writ petition is filed, i have no option except to dismiss it. This writ petition, therefore, fails and is accordingly dismissed. But in the circumstances, there shall be no order as to costs.