1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1 ST DAY OF JULY, 2016 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA REGULAR FIRST APPEAL NO.1473 OF 2015 BETWEEN: SRI B. S. MAHESHA S/O. M. C. SHEKAR @ M. CHANDRASHEKARIAH), AGED ABOUT 58 YEARS, NO.35, GROUND FLOOR, DODDAKRISHNAPPA LAYOUT, NEAR SUNRISE SCHOOL, 5 TH MAIN, NTI LAYOUT, NAGASHETTIHALLI, RMV 2 ND STAGE, BENGALURU-560094. ... APPELLANT (BY SRI P. N. NANJA REDDY, ADV.) AND: 1. THE SECRETARY KARNATAKA SECONDARY EDUCATION EXAMINATION BOARD, 1 ST FLOOR, 6 TH CROSS, MALLESHWARAM, BENGALURU-560003. 2. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS KEMPE GOWDA ROAD, BENGALURU NORTH DISTRICT, OPP: TO CAUVERY BHAVAN, BENGALURU-560002. R
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1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JULY, 2016
BEFORE
THE HON’BLE MR. JUSTICE B. VEERAPPA
REGULAR FIRST APPEAL NO.1473 OF 2015
BETWEEN:
SRI B. S. MAHESHA S/O. M. C. SHEKAR @ M. CHANDRASHEKARIAH), AGED ABOUT 58 YEARS, NO.35, GROUND FLOOR, DODDAKRISHNAPPA LAYOUT, NEAR SUNRISE SCHOOL, 5TH MAIN, NTI LAYOUT, NAGASHETTIHALLI, RMV 2ND STAGE, BENGALURU-560094.
2. THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS KEMPE GOWDA ROAD, BENGALURU NORTH DISTRICT, OPP: TO CAUVERY BHAVAN, BENGALURU-560002.
R
2
3. HEAD MASTER/MISTRESS
H.M.T. SECONDARY HIGH SCHOOL, JALAHALLY POST, BENGALURU-560013.
4. THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY, VIDHANA SOUDHA, AMBEDKAR VEEDHI, BENGALURU-560001.
... RESPONDENTS (BY SRI DILDAR SHIRALLI, H.C.G.P.)
* * *
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF THE CODE OF THE CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 3-10-2015 PASSED IN O.S NO.25197 OF 2013 ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, MAYOHALL UNIT, BENGALURU, DISMISSING THE SUIT FOR DECLARATION. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
J U D G M E N T
The unsuccessful plaintiff, who is working as Deputy
General Manager in Tata Consulting Engineers Limited,
filed suit for declaration against the defendants -
Government to declare his date of birth as 29-9-1959 and
to correct his date of birth in his School records and issue
S.S.L.C. marks card by entering his correct date of birth
3
as 29-9-1959 instead of 21-9-1956 at the fag end of his
service.
2. The appellant – plaintiff filed O.S. No.25197 of
2013 before the trial Court for declaring his date of birth
as 29-9-1959 instead of 21-9-1956 contending that he
was born on 29-9-1959 at Nelamangala, Bengaluru Rural
District. His parents are Smt. R. Susheelamma and Sri
M. Shekar @ M. Chandshekaraiah. The plaintiff studied
up to S.S.L.C. in defendant No.3, i.e. H.M.T. Secondary
High School, Jalahalli Post, Bengaluru, and has passed
S.S.L.C. on 7-6-1974. In his S.S.L.C. marks card, his date
of birth is wrongly mentioned as 21-9-1956 instead of
29-9-1959. The plaintiff studied further without noticing
his wrong date of birth. He has completed his engineering
and thereafter he did M.B.A. during the year 1990. His
father and mother died on 30-9-1996 and 18-8-2000
respectively. The plaintiff came to know about his correct
date of birth during the year 2008 when his parents died
4
leaving behind him, his brothers and his sister. It is
further case of the plaintiff that partition suit was pending
between his father and his uncle in O.S. No.3744 of 1985
before the City Civil Court, Bengaluru. After the death of
his father, plaintiff was impleaded as a party in the appeal
pending before this Court and he came to know that his
parents got married on 21-6-1956 as per the marriage
invitation card. The plaintiff applied for copy of the Birth
Certificate in the Office of the Registrar of Births and
Deaths, Nelamangala. In the said document, his date of
birth is shown as 29-9-1959. Mistake was crept in while
entering his correct date of birth in the School records.
Therefore, the plaintiff has issued notice to the defendants
to correct his date of birth. The defendants refused to
correct his date of birth. Therefore, he was constrained to
file a suit for declaration.
3. Defendants No.1 and 2 was represented by the
learned Additional District Government Pleader and
5
defendants No.3 and 4 failed to put their appearance.
Therefore, they were placed ex-parte. In spite of the
opportunity provided, defendants No.1 and 2 failed to file
their written statement.
4. The trial Court based on the plaint averments
framed the following issues:
1. Whether the plaintiff proves that his correct
date of birth is 29.9.1959?
2. Whether the plaintiff proves that his date of
birth is wrongly shown as 21.9.1956?
3. Whether the plaintiff is entitled to the decree
as prayed for?
4. What order or decree?”
5. In order to substantiate his case, the plaintiff
examined himself as P.W.1 and got marked eight
documents as Exs.P-1 to 8. The defendants did not
produce any document, nor examined any document.
6
6. The trial Court, after considering the material on
record, has recorded a finding that the plaintiff failed to
prove that his correct date of birth as 29-9-1959 and he
further failed to prove that his date of birth is wrongly
shown as 21-9-1956. Therefore, plaintiff is not entitled
for the relief. Accordingly, the trial Court by the
impugned judgment and decree dated 3-10-2015
dismissed the suit. Hence, the present regular first appeal
is filed.
7. I have heard the learned counsel for the parties
to the lis.
8. Mr. P.N. Nanjareddy, learned counsel for the
appellant, vehemently contended that the trial Court
proceeded to dismiss the suit without considering the
material documents produced before the Court, specially
Ex.P4 – Marriage invitation card. It clearly depicts that
the marriage of the appellant parents was held on
21-6-1956. Therefore, he could not have born on
7
21-9-1956 within three months. The said aspect has not
been considered by the trial Court at all. He further
contended that the concerned Municipality which is the
jurisdictional authority has also issued Ex.P5 – Birth
Certificate, which clearly indicates that his date of birth as
29-9-1959 and not 21-9-1956. Though the defendants
have appeared, no written statement has been filed, nor
denied the plaint averments. The trial Court ought to
have decreed the suit in view of the provisions of Order
VIII Rule 10 of the Code of Civil Procedure. In support of
his contentions, learned counsel for the appellant sought
reliance on the following judgments of the Hon’ble
Supreme Court:
i. CIDCO v. VASUDHA GORAKHNATH MANDEVLEKAR
(2009) 7 SCC 283; ii. MOHD. YUNUS KHAN v. U.P. POWER CORPORATION LIMITED AND OTHERS (2009) 1 SCC 80; iii. R.K. JANGRA v. STATE OF PUNJAB AND OTHERS
(2009) 5 SCC 703; and iv. NARINDER KAUR v. PUNJAB AND HARYANA HIGH COURT AND OTHERS (2011) 11 SCC 553
8
9. Per contra, Sri Dildar Shiralli, the learned High
Court Government Pleader, sought to justify the impugned
judgment and decree of the Court below and contended
that the very suit filed by the plaintiff after lapse of more
than twenty-five years for declaration to change the date
of birth is not maintainable and he placed reliance on the
following judgments of the Hon’ble Supreme Court in the
case of GOVERNMENT OF ANDHRA PRADESH AND
ANOTHER v. M. HAYAGREEV SARMA [(1990) 2 SCC 682]
and STATE OF MAHARASHTRA AND ANOTHER v.
GORAKHNATH SITARAM KAMBLE AND OTHERS [2010 (14)
SCC 423].
10. I have given my thoughtful consideration to the
arguments advanced by the learned counsel for the
appellant and the learned High Court Government Pleader
and perused the entire materials on record carefully.
9
11. It is an undisputed fact that the appellant –
plaintiff filed a suit for declaration to declare his date of
birth as 29-9-1959 instead of 21-9-1956 after lapse of
forty-seven years and after completion of twenty-five years
of service, after joining as Deputy General Manager in Tata
Consulting Engineers Limited. The sole basis for the
plaintiff to file the suit is that he came to know in the year
2008 in another suit filed for partition that his correct
date of birth is 29-9-1959 as his parents were married on
21-6-1956. He relied upon Ex.P4, the marriage invitation
card of his parents and Ex.P5, the Birth Certificate issued
by the Registrar of Births and Deaths, Town Municipal
Council, Nelamangala, Bengaluru Rural District, to show
that his date of birth is 29-9-1959. The trial Court
considering the entire materials on record came to the
conclusion that the plaintiff filed suit at the age of fifty-six
years and he passed S.S.L.C. during 1974 and has
studied engineering as well as M.B.A. and he also joined
the services of Tata Consulting Engineers Limited and
10
served more than twenty-five years. Now, he wants to
correct his date of birth on the ground that he came to
know his correct date of birth in the year 2008 and filed
suit for declaration on 31-1-2013. The very suit filed by
the plaintiff is liable to be dismissed on the ground that
suit is barred by limitation in view of Article 58 of the
Limitation Act, 1963. The trial Court recorded a finding of
fact that according to the plaintiff, he was born on
29-9-1959, but he has not examined any witness in
respect of his statement, he has not produced any
material documents to prove the fact that he was born on
29-9-1959 and he has not examined any of his relatives or
other witnesses to show his correct date of birth is
29-9-1959 and his parents got married on 21-6-1956. In
the absence of specific material or eye-witnesses of the
marriage of his parents, it is not possible to consider his
date of birth as 29-9-1959. The trial Court also recorded
a finding that at the time of admission of the plaintiff to
the School, his date of birth was mentioned by his father.
11
When his father filled his date of birth as 21-9-1956 in the
admission form, the plaintiff could not have kept quite for
twenty-five years of his service in the post held by him and
raise that his date of birth is 29-9-1959. Accordingly, the
trial Court dismissed the suit.
12. Admitted facts are that the plaintiff has not
examined any of his relatives or other eye-witnesses to the
marriage of his parents that the plaintiff was born on
29-9-1959 and marriage of his parents was held on
21-6-1956. It is also not in dispute that the plaintiff has
not made his employer as a party in the suit. It is also not
in dispute that after completion of twenty-five years of
service as Deputy General Manager in Tata Consulting
Engineers Limited, the suit is filed on the basis of the
marriage invitation card printed without any basis and no
other material is produced before the Court to prove his
date of birth as alleged. So far as the contention of the
learned counsel for the appellant that the Municipality
12
has given Certificate showing the date of birth as
29-9-1959, but the shara column in Ex.P5 dated
30-1-2012 clearly indicates that the Municipality issued
certificate on the basis of the order dated 12-8-2008
passed in C.Mis. No.150 of 2008. No material is
produced before this Court as to whether the Government
and the appellant are parties to the said C.Mis and what is
the power of the Magistrate Court to declare the date of
birth of the plaintiff is not forthcoming. In the absence of
any material to prove the fact that the date of birth
declared by the competent Court as 29-9-1959, it is not
possible to rely on Ex.P5 – Birth Certificate issued after
lapse of forty-six years from the date of his birth to file the
suit on 31-1-2013 after inordinate delay of forty-seven
years.
13. The contention of the learned counsel for the
appellant that the trial Court ought to have decreed the
suit as prayed for in view of the provisions of Order VIII
13
Rule 10 of the Code of the Civil Procedure in the absence
of any written statement filed by the defendants cannot be
accepted. It is settled principle that in a case where
written statement is not filed, the Court cannot pass an
ex-parte decree without satisfying itself that the averments
made in the plaint are established. Order VIII Rule 10 of
the Code of the Civil Procedure does not postulate that in
case of failure of the defendants to file written statement
within the prescribed time, judgment should be
pronounced and decree be passed automatically and
mechanically. The judgment pronounced under Order VIII
Rule 10 of the Code of the Civil Procedure should indicate
that the Court has applied its mind to the merits of the
case before decreeing the suit and that the judgment
satisfied the requirements of Section 2(9) of the Code of
the Civil Procedure.
14. The contention of the learned counsel for the
appellant with regard to reliance placed in the case of
14
CIDCO (supra) that it was a case where the entry in
Municipal Births and Deaths Register, Certificate issued
by predecessor of municipality i.e. Grama Panchayat held
that the said entry prevails over entry in school register,
particularly in the absence of any proof that the same was
recorded at the instance of employee’s guardian and
further held that the certificate issued by municipality
could not be discarded on the ground that employee’s
birth took place prior to creation of municipality as the
certificate was issued on the basis of records maintained
by predecessor body. In the present case, the date of birth
given at the time of admission by the father of the
appellant was 21-9-1956. Therefore, the facts of the said
case and the facts of the present case are entirely
different. Therefore, the law declared in the said case is
not applicable to the facts and circumstances of the
present case.
15
15. In so far as the reliance placed in the case of
Mohd. Yunus Khan (supra) that no material is placed in
regard to existence of a statutory rule fixing a timeframe
for filing an application for correction of the date of birth
in the service record. Even, if there was such a provision,
the same would not be of much significance as the
respondents had not shown that the mistake in the matter
of recording of date of birth in the service record was
known to the appellant at any earlier point of time. The
appellant filed representation immediately after he came
to know the mistake. An employee can take such action
as is permissible in law only after coming to know that a
mistake has been committed by the employer.
In that case, the actual date of birth of the appellant
was 1-7-1948, he joined the service on 1-7-1968, but by
mistake it was recorded in the service book as 27-2-1934.
He came to know about the said mistake in April 1988. In
those circumstances, the Hon’ble Supreme Court held
16
that mistake can be corrected. Therefore, the facts of the
said case and the facts of the present case are entirely
different, since in the present case it is not the mistake
committed by any of the Authority, though he was born on
a particular date. Therefore, the law declared in the said
case is not applicable to the facts and circumstances of
the present case.
16. In so far as R.K. Jangra’s (supra), it was a case
where correction of entry in service records were changed
first in Matriculation Certificate. The Additional District
Registrar, Births and Deaths, showing his date of birth as
3-1-1953 instead of 4-1-1952. Therefore, the appellant’s
office, however, insisting that the entry be first got
changed in matriculation certificate. In those
circumstances, the Hon’ble Supreme Court observed that
the representation submitted by the appellant along with
the material in support of his claim that his actual date of
birth was 3-1-1953 has to be considered by the competent
17
Authority by applying mind to the material furnished by
the appellant. The facts of the said case and the facts of
the present case are entirely different. Therefore, the said
case has no application to the present case.
17. The reliance placed in the case of Narinder Kaur
(supra) where the appellant’s date of birth was wrongly
recorded in birth certificate as 26-1-1971 instead of
9-1-1972, the Hon’ble Supreme Court has directed to
correct the date of birth and make necessary corrections
in the service records. In the present case, the appellant
filed a suit for declaration that his date of birth is
mentioned as 21-9-1956 instead of 29-9-1959 and the
said fact came to know, after a lapse of twenty-five years
of service working as Deputy General Manager in Tata
Consulting Engineers Limited that the marriage of his
parents took place on 21-6-1956. In absence of material
documents, it cannot be accepted. Thus, the facts of the
18
present case and facts of the said case are entirely
different and has no application to case on hand.
18. The Hon’ble Supreme Court while considering
the alteration of the date of birth in the case of
M. Hayagreev Sarma 1 (supra) held as under:
“7. The object underlying Rule 4 is to avoid
repeated applications by a Government
employee for the correction of his date of
birth and with that end in view it provides
that a Government servant whose date of
birth may have been recorded in the
service register in accordance with the
rules applicable to him and if that entry
had become final under the rules prior to
the commencement of 1984 Rules, he will
not be entitled for alteration of his date of
birth. Rule 4 laid down a salutary principle
to prohibit reopening of the question of
correction of date of birth which may have
become final prior to the enforcement of
1984 Rules. Since the question of
alteration of the respondent's date of birth
1 (1990) 2 SCC 682
19
had been made on the basis of the School
Certificate and his application for
alteration had already been rejected in
1968, he was not entitled to claim
alteration of his date of birth after the
enforcement of 1984 Rules. It was not
open to the respondent to claim alteration
of his date of birth, even on the basis of
extracts of the entry contained in births
and deaths register maintained under the
Births, Deaths and Marriages Registration
Act, 1886 as the question of correction of
his date of birth had already been finally
decided in 1968.
8. As regards validity of Rule 5 is
concerned, the view taken by the Tribunal
is wholly misconceived. Rule 5 lays down
that where application of a Government
employee for alteration of his date of birth
was pending on the date of the
commencement of 1984 Rules the same
will be dealt with on the basis of date of
birth recorded in the School and College
records at the time of the entry of the
20
employee into service. In substance Rule 5
lays down that the pending applications of
the employees for alteration of their date of
birth shall be decided on the basis of the
age as recorded in the School and College
records. Thus if on the date of entry into
service the date of birth of an employee
was recorded in his service book on the
basis of his age as recorded in the School
and College Certificate in that event the
date so recorded shall be treated to be
correct date of birth. However, if the date
of birth recorded in the service book at the
time of the entry of an employee is not
based on School or College records the
Rule 5 does not operate as a bar to
consideration of other relevant materials in
determining the date of birth of the
employee. In the instant case as already
noted the respondent's date of birth had
been recorded in his service book on the
basis of his S.S.L.C. Certificate, at the time
of his entry into service, therefore, that
entry had become final and he was not
entitled to reopen the correctness of that
21
entry on the basis of extract of birth
register. Moreover, since the respondent's
application for alteration of his date of
birth had already been decided prior to
enforcement of Rule 5 he was not entitled
to maintain application for any alteration
of his date of birth. In either case
respondent was not entitled to claim
alteration of his date of birth, his
application was rightly rejected although
on different grounds.
9. The Tribunal's view that Rule 5 was
repugnant to Section 9 of Births, Deaths
and Marriages Registration Act, 1886 is
wholly misconceived. Under Article 245
read with Entry 41, List II of Seventh
Schedule, which relates to State Public
Services, the State has exclusive power to
legislate in respect of State Public Services.
Proviso to Article 309 also confers
exclusive power on the Governor and the
State Legislature to frame rules laying
down the terms and conditions of the State
employees, such rules may regulate the
22
entry of date of birth of an employee its
alteration, correction and all other allied
matters. The 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 regulate 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 Seventh 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 Seventh Schedule. Rule 5 and
Section 9 of the Act operate in different
areas and there is no question of conflict in
23
the two provisions. We are informed that a
Full Bench of the Andhra Pradesh
Administrative Tribunal has taken similar
view in Lingerker Vaidyanath v.
Government of Andhra Pradesh (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.”
19. The Hon’ble Supreme Court in the case of
Gorakhnath Sitaram Kamble 2 (Supra) while considering
the correction of the date of birth at the fag end of the
career held as impermissible, which reads as under:
“10. The spirit and the intention of this Rule is
reflected in a series of judgments of this Court.
After the rules, a notification has been issued
by the Government of Maharashtra. The
relevant part of the Notification dated 24th
December, 2008 issued by the Finance
2 (2010) 14 SCC 423
24
Department, Government of Maharashtra, is
set out as under:
xxx xxx xxx
11. According to the notification, from
16.08.1981 the date of birth of Government
servants cannot be changed after five years
from 16.08.1981. Assuming this notification is
applicable only for employees who joined after
16.08.1981, even then according to 'Instruction
(1)' of the Maharashtra Rules, 1981 no
application for alteration of entry regarding
date of birth should be entertained after a
period of five years. The said instruction is
reproduced as under:
xxx xxx xxx
12. Apart from the notification and the said
instruction this Court in a series of cases have
categorically laid down that the employees
should not be permitted to change the date of
birth at the fag end of his service career. In the
instant case the application of alteration has
25
been filed at the fag end of his service career
after a lapse of twenty-eight years.
xxx xxx xxx
19. These decisions lead to a different
dimension of the case that correction at the fag
end would be at the cost of large number of
employees, therefore, any correction at the fag
end must be discouraged by the Court. The
relevant portion of the judgment in Secretary
and Commissioner, Home Department & Ors.
vs. R. Kirubakaran, reads as under: (SCC
pp.158-59, para 7)
“7. An application for correction of
the date of birth by a public servant
cannot be entertained at the fag end
of his service. It need not be pointed
out that any such direction for
correction of the date of birth of the
public servant concerned has a chain
reaction, inasmuch as others waiting
for years, below him for their
respective promotions are affected in
26
this process. Some are likely to suffer
irreparable injury, inasmuch as,
because of the correction of the date
of birth, the officer concerned,
continues in office, in some cases for
years, within which time many
officers who are below him in
seniority waiting for their promotion,
may lose the promotion forever.
According to us, this is an important
aspect, which cannot be lost sight of
by the court or the tribunal while
examining the grievance of a public
servant in respect of correction of his
date of birth. As such, unless a clear
case on the basis of materials which
can be held to be conclusive in
nature, is made out by the
respondent, the court or the tribunal
should not issue a direction, on the
basis of materials which make such
claim only plausible. Before any
such direction is issued, the court
must be fully satisfied that there has
been real injustice to the person
27
concerned and his claim for
correction of date of birth has been
made in accordance with the
procedure prescribed, and within
time fixed by any rule or order. The
onus is on the applicant to prove the
wrong recording of his date of birth
in his service book."
20. In view of the consistent legal position, the
impugned judgment cannot be sustained and
even on a plain reading of the Notification and
the instructions set out in the preceding
paragraphs leads to the conclusion that no
application for alteration of date of birth after
five years should have been entertained.
21. The approach of the High Court in
rewriting the Rules cannot be approved or
sustained. Consequently, the appeal filed by
the State of Maharashtra is allowed and the
impugned judgment is set aside, leaving the
parties to bear their own costs.
28
20. The Hon’ble Supreme Court in the case of State
of Gujarat and Others v. Vali Mohd. Dosabhai Sindhi 3
(supra) while considering the alteration or correction of the
date of birth entered in service record, held as under:
8. It is to be noted that there are several rules
governing request to change the date of birth.
One of them is Rule 171 of the Bombay Civil
Services Rules, 1959 (in short the 'Rules'). This
Rule clearly provides that the request made for
alteration of date of birth should not be
entertained after the preparation of the service
book of the Government servant and in any
event not after the completion of the probation
period or after 5 years of continuous service
whichever was earlier. The said rule
categorically provides that once an entry of age
or date of birth has been made in the service
book, no alteration of the entry afterwards
should be allowed unless it is shown that the
entry was due to want of care on the part of
some person other than individual in question
or is an obvious clerical error.
3 (2006) 6 SCC 537
29
xxx xxx xxx
12. An application for correction of the date of
birth should not be dealt with by the Courts,
Tribunal or the High Court keeping in view only
the public servant concerned. It need not be
pointed out that any such direction for
correction of the date of birth of the public
servant concerned has a chain reaction,
inasmuch as others waiting for years, below
him for their respective promotions are affected
in this process. Some are likely to suffer
irreparable injury, inasmuch as, because of the
correction of the date of birth, the officer
concerned, continues in office, in some cases
for years, within which time many officers who
are below him in seniority waiting for their
promotion, may lose the promotion for ever.
Cases are not unknown when a person accepts
appointment keeping in view the date of
retirement of his immediate senior. This is
certainly an important and relevant aspect,
which cannot be lost sight of by the Court or
the Tribunal while examining the grievance of a
public servant in respect of correction of his
30
date of birth. As such, unless a clear case on
the basis of materials which can be held to be
conclusive in nature, is made out by the
respondent and that too within a reasonable
time as provided in the rules governing the
service, the Court or the Tribunal should not
issue a direction or make a declaration on the
basis of materials which make such claim only
plausible. Before any such direction is issued
or declaration made, the Court or the Tribunal
must be fully satisfied that there has been real
injustice to the person concerned and his claim
for correction of date of birth has been made in
accordance with the procedure prescribed, and
within the time fixed by any rule or order. If no
rule or order has been framed or made,
prescribing the period within which such
application has to be filed, then such
application must be within at least a
reasonable time. The applicant has to produce
the evidence in support of such claim, which
may amount to irrefutable proof relating to his
date of birth. Whenever any such question
arises, the onus is on the applicant, to prove
about the wrong recording of his date of birth,
31
in his service book. In many cases it is a part of
the strategy on the part of such public servants
to approach the Court or the Tribunal on the
eve of their retirement, questioning the
correctness of the entries in respect of their
date of birth in the service books. By this
process, it has come to the notice of this Court
that in many cases, even if ultimately their
applications are dismissed, by virtue of interim
orders, they continue for months, after the date
of superannuation. The Court or the Tribunal
must, therefore, be slow in granting an interim
relief or continuation in service, unless prima
facie evidence of unimpeachable character is
produced because if the public servant
succeeds, he can always be compensated, but
if he fails, he would have enjoyed undeserved
benefit of extended service and thereby caused
injustice to his immediate junior.”
21. The Hon’ble Supreme Court in the case of
Secretary and Commissioner, Home Department & Others
v. R. Kirubakaran 4 (supra) while considering the
application for correction date of birth, held as under:
4 1994 SUPP. (1) SCC 155
32
8. So far the facts of the present case are
concerned, admittedly the respondent entered
into the service of State Government as early
as in the year 1958. He never questioned the
entry in respect of his date of birth in his
service register, till August, 1991, when he
filed an application before the Tribunal for
alteration of his date of birth from 9.8.1934 to
9.8.1936. This application was filed only about
a year before his date of superannuation,
mentioned in his service register. On 9.9.1992,
an interim order was passed by the Tribunal,
when the respondent had already
superannuated with reference to the date of
birth mentioned in the service register and
ultimately by the impugned order, the Tribunal
directed the appellants to alter his date of birth
as 9.8.1936. While issuing such a direction, the
Tribunal has taken into consideration, as to
how many brothers the respondent has and
what were the dates of their birth. Although the
Tribunal has observed that the different dates
of birth of the brothers of the respondent,
indicate that "there is a great deal of confusion
33
and incongruities regarding dates of birth of
the various members of the applicant's family,"
still on basis of a report of the Revenue
Divisional Officer, submitted after oral enquiry
made from different persons, including the
mother of the respondent, the Tribunal has
come to the conclusion, that the date of birth of
the respondent was 9.8.1936 instead of
9.8.1934. The Commissioner for Revenue
Administration, had rejected the said report
submitted by the Revenue Divisional Officer,
but the Tribunal has accepted the said report
for correction of date of birth of the respondent.
If the date of birth of a public servant, is
corrected only on basis of a report submitted by
a Revenue Officer after holding an enquiry,
according to us, it will introduce uncertainty, in
public services. This Court has repeatedly
pointed out that correction of the date of birth of
public servant is permissible, but that should
not be done in a casual manner. Any such
order must be passed on materials produced
by the public servant from which the irresistible
conclusion follows that the date of birth
recorded in the service book was incorrect.
34
While disposing of any such application, the
Court or the Tribunal, has first to examine,
whether the application has been made within
the prescribed period under some rule or
administrative order. If there is no rule or order
prescribing any period, then the Court or
Tribunal has to examine, why such application
was not made within a reasonable time after
joining the service.
9. The Tamil Nadu Service Manual contains
Rules 49 and 49-A. which are the provision in
respect of alteration and correction of the date
of birth. Whenever any application is filed, by
persons governed by those service rules,
procedures prescribed therein have to be
strictly followed, including the time limit
prescribed for making such an application.
Clause (b) of the aforesaid Rule 49 provides
that after person had entered in service, an
application to alter the date of his birth as
entered in the official records "shall be
entertained only if such an application is made
within five years of such entry in service….”. It
need not be pointed out that if an application is
35
made for correction of the date of birth
mentioned in the service records at an early
date or within the time prescribed, the
authorities are in much better position to verify
the same. Normally, in most of the services, the
date of birth is recorded in the service records
on the eve of the appointment with reference to
the date of birth mentioned if the Matriculation
Certificate, Higher Secondary Education Board
Certificate or any other certificate of similar
nature produced by the applicant concerned at
the time of making application for his
appointment. As such whenever an application
for alteration of the date of birth is made on the
eve of superannuation or near about that time,
the Court or the Tribunal concerned should be
more cautious because of the growing tendency
amongst a section of public servants, to raise
such a dispute, without explaining as to why
this question was not raised earlier. In the
facts and circumstances of the case, it is not
possible to uphold the finding recorded by the
Tribunal.”
36
22. Admittedly, the appellant – plaintiff filed the suit
for declaration to change his date of birth, after a lapse of
forty-seven years and after completion of twenty-five years
of service while he was working as Deputy General
Manager in Tata Consulting Engineers Limited, stating
that he came to known in the year 2008 in another suit
filed for partition that his correct date of birth is
29-9-1959 and the suit for declaration was filed on
31-1-2013, i.e. after a lapse of more than four to five
years. The suit is not maintainable in view of the
provisions of Article 58 of the Indian Limitation Act, 1963.
Article 58 of the Limitation Act provides three years
limitation to file a suit for any declaration from the date
when the right to sue first accrues. The appellant has not
adduced any oral evidence, nor produced any
documentary evidence to prove his date of birth as
29-9-1959 that too at the fag end of his service as Deputy
General Manager stated supra.
37
23. The Trial Court after considering the entire
materials on record, both oral and documentary evidence,
has recorded a finding of fact that the plaintiff failed to
prove his date of birth as 29-9-1959 and his date of birth
is wrongly shown as 21-9-1956. Based on sound legal
evidence on record, the appellant has not made out any
case to interfere with the well crafted judgment and decree
impugned under appellate powers of this Court under
Section 96 of the Code of Civil Procedure, 1908.
Accordingly the regular first appeal is dismissed.