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.

... APPELLANT (BY SRI P. N. NANJA REDDY, ADV.)

AND:

1. THE SECRETARY

KARNATAKA SECONDARY EDUCATION EXAMINATION BOARD, 1ST FLOOR, 6TH 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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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

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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

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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

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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.

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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

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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

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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.

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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

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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.

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.

Sd/-

JUDGE

kvk