Bangalore District Court
Sri.N.Narayanaswamy vs ) The Principal Secretary on 5 October, 2020
Govt.of Karnataka TITLE SHEET FOR JUDGMENT IN SUITS
Form No.9(Civil)
Title Sheet for
Judgment in suits
(R.P.91)
IN THE COURT OF THE VI ADDL. CITY CIVIL & SESSIONS JUDGE
AT BENGALURU CITY : (CCCH.11)
Dated this the 5th day of October, 2020
PRESENT: Sri. Rama Naik, B.Com., LL.B.,
(Name of the Presiding Judge)
O.S.NO:3426/2019
PLAINTIFF SRI.N.NARAYANASWAMY,
S/o.Sri.R.Nareppa,
Aged about 57 years,
R/at No.1100, HBR Layout I Stage,
5th Block, Bengaluru -560 043.
Occ: Working as Assistant Engineer Grade-2,
Karnataka Rural Infrastructure Development
Limited,
A Goverment of Karnataka Undertaking
Grameenabhivruddhi Bhavana,
4th and 5th Floor, Ananda Rao Circle,
Bengaluru -560 009.
[By Pleader Sri.H.K.Kenchegowda ]
/ Vs /
DEFENDANTS 1) The Principal Secretary,
Department of RDPR-Karnataka Rural
Infrastructure Development Limited,
A Govtnment of Karnataka Undertaking,
3rd Floor, M.S.Building,
Bengaluru -560 001.
OS.3426/2019
2
2) The Principal Secretary,
Department of Education,
M.S.Building,
Dr.Ambedkar Veedhi, Bengaluru -560 001.
3) The Commissioner,
Department of Public Instructions,
Nrupathunga Road,
New Public Office, Bengaluru -560 001.
[By Pleader III Addl.Dist.Govt.Pleader]
4) The Managing Director,
Karnataka Rural Infrastructure
Development Limited (erstwhile Karnataka
Land Army Corporation Limited),
A Goverment of Karnataka Undertaking
Grameenabhivruddhi Bhavana,
Bengaluru (Urban) Sub-Division,
4th and 5th Floor, Ananda Rao Circle,
Bengaluru -560 009.
[By Pleader Sri.GJ ]
5) The Director/Secretary,
Directorate of Technical Education,
Seshadri Road, Palace Road,
Bengaluru -560 001.
[Exparte]
6) The Secretary,
Karnataka Secondary Education
Examination Board,
Sampige Road, Malleshwaram,
Bengaluru -560 003.
[By Pleader III Addl.Dist.Govt.Pleader ]
7) The Deputy Director of Public
Instructions
Kolar, Kolar District,
Pincode - 563 101.
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3
8) The Block Education Officer,
Srinivasapura Taluk, Kolar District,
Pincode - 563 135.
9) The Principal,
Government Polytechnic,
Chintamani, Chintamani Taluk,
Kolar District - 563 125.
10) The Principal,
Government Junior College,
Srinivasapura Taluk,
Kolar District -563 135.
11) The Head Master,
Government Higher Primary School,
Maniganahally, Srinivasapura Taluk,
Kolar District - 563 135.
[By Pleader III Addl.Dist.Govt.Pleader ]
Date of Institution of the suit : 02.05.2019
Nature of the Suit : Declaration
Date of commencement of recording
of evidence : 11.10.2019
Date on which the Judgment was
pronounced : 05.10.2020
Year/s Month/s Day/s
Total Duration : 01 05 03
(RAMA NAIK)
VI ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY.
OS.3426/2019
4
JUDGMENT
This suit is filed by Plaintiff for declaring his date of birth as 20.07.1962 as against the one mentioned in his Secondary School Leaving Certificate [SSLC] and his Service Book maintained by 4th Defendant and consequent direction to make necessary correction in educational records and Service Book. Further for direction to Defendants No.1 and 4 to extend his service benefits as per his correct date of birth.
2) Plaintiff's case, in brief, is that, he born on 20.07.1962. He studied 1st standard to 7th standard during the year 1967-68 to 1973-74 in Defendant No.11 Institution and studied 8th standard to 10th standard in Defendant No.10 Institution. He passed SSLC examination in April, 1977 conducted by 6 th Defendant and Diploma in Civil Engineering in 1980 in Defendant No.9 Institution.
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3) It is stated that, in the month of August, 1985, Plaintiff joined Defendant No.4 to the post of Assistant Task Force Commander [ATFC] and his service was regularized on 08.05.1987. Now, he is working as Assistant Engineer, Grade-2 in Defendant No.4-Institution.
4) It is stated that, on 02.11.2017, his elder brother, Sri.N.Sreerama Reddy handed over all his original school records to get the xerox copies to submit the same to his employer. When he went through the said documents. At that time, he observed that his brother's date of birth has been recorded as 10.08.1959. When he compared it to his date of birth as recorded in SSLC marks card, he came to know that, his date of birth has been wrongly entered therein.
5) It is further stated that, immediately, he approached 11th Defendant and requested to show the school records, where he found that, he born on OS.3426/2019 6 20.07.1962 and then, he realized that, his date of birth has been wrongly entered in the records of Defendants No.1 to 10.
6) It is further stated that, after knowing his actual date of birth, he got issued legal notice dated 19.12.2017 to Defendants for making necessary correction in school records and service book. On receipt of the notice, Defendant No.7 communicated the Government Order, which requires to obtain decree from the Civil Court. Even after receipt of the notice, Defendants failed to rectify the mistake of his date of birth.
7) It is also stated that, after coming to know of the mistake of his date of birth, he made an application to 4th Defendant for necessary changes of his date of birth in service book. As Defendant No.4 failed to take any action, he approached the Hon'ble High Court by filing WP No.12633/2019(S) for necessary direction, wherein, 4th Defendant was OS.3426/2019 7 directed to consider the representation made by Plaintiff.
8) It is stated that, if his date of birth is not corrected to his actual date of birth, same would affect his promotional prospects in 4th Defendant, Hence, prays for decree.
9) On service of summons, 3rd Addl. District Govt. Pleader [3rd ADGP] entered appearance for Defendants No.1 to 3 and 6 to 11 and filed written statement of Defendant No.8. 4th Defendant marked appearance through its Counsel and filed its elaborate written statement. Despite service of summons, 5th Defendant remained absent, hence, 5th Defendant has been placed ex-parte.
10) Defendants No.1 to 3 and 6 to 11, in their written statement, state that, as per Circular issued by Commissioner of Education Department, there is no provision to change the date of birth in school records. Suit is barred by law of limitation, as the OS.3426/2019 8 same is filed after considerable delay. There is no cause of action to file this suit, hence pray for dismissal of the suit.
11) Defendant No.4, in its written statement, states that, suit is not maintainable in view of the Karnataka State Servants (Determination of Age) Act, 1974. Plaintiff, while submitting application to 4th Defendant on 05.08.1983, has categorically stated that, he was born on 02.04.1959. His application was supported by SSLC marks card. He became the permanent employee of 4th Defendant on 20.05.1987. His service records have been maintained as per the information furnished by him. Hence, prays for dismissal of the suit.
12) Heard learned Counsels for Plaintiff and Defendant No.4 and learned 3rd ADGP for Defendants No.1 to 3 and 6 to 11. Perused the records.
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13) Following Issues have been framed for adjudication :
1) Whether Plaintiff is entitled to the relief as prayed for in the plaint?
2) If so, whether Plaintiff proves that his correct date of birth is 20.07.1962 instead of 02.04.1959?
3) Whether Defendant No.4 proves that suit of Plaintiff is not maintainable under law?
4) Whether suit is barred by limitation?
5) Whether Plaintiff has no cause of action to file this suit?
6) What Order or Decree?
14) In this case, Plaintiff has been examined as PW.1 and got marked Exs.P.1 to P.25 on his behalf.
Defendants No.1 to 4 and 6 to 11 have not chosen to lead their oral evidence. Exs.D.1 to D.6 got marked through PW.1 on behalf of Defendant No.4.
15) My findings to above Issues are :
Issue No.1 : Partly in Affirmative;
Issue No.2 : In the Affirmative;
Issue No.3 : In the Negative;
OS.3426/2019 10 Issue No.4 : In the Negative;
Issue No.5 : In the Negative;
Issue No.6 : As per final Order, for the following :
REASONS
16) ISSUES NO.2 AND 3 : By this suit, Plaintiff seeks declaration declaring his date of birth as 20.07.1962 and consequent correction in his School Records and Service Book maintained by Defendant No.4, contending that, he born on
20.07.1962.
17) It is contended that, he was admitted to 1 st standard in the year 1967-68 and studied 1 st standard to 7th standard between 1967-68 and 1973-74 in Defendant No.11 Institution.
18) It is further contended that, he was admitted to 8th standard in the year 1974-75; studied 8 th standard to 10th standard in Defendant No.10 OS.3426/2019 11 Institution and passed 10th standard examination conducted by Defendant No.6 in the month of April,1977.
19) It is also contended that, he studied Diploma in Civil Engineering in Defendant No.9 Institution and completed the same in April-May,1980.
20) Plaintiff's specific contention is that, on 02.11.2017, his elder brother Sri.N.Sreerama Reddy handed over his original school records to bring the xerox copies to produce the same to his employer. After going through the said school records, it came to his knowledge that his brother's date of birth has been recorded as 10.08.1959 and when he compared the same with his date of birth as recorded in SSLC marks card and Service Book, he realized that his date of birth has been wrongly entered in SSLC marks card as 02.04.1959.
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21) In the backdrop of the contentions of Plaintiff, documents produced by Plaintiff, as well as Defendant No.4 have to be assailed. Ex.P.3 is SSLC Marks Card issued by Defendant No.6, wherein, Plaintiff's date of birth has been recorded as 02.04.1959. In application dated 05.08.1983 at Ex.D.1 submitted to Defendant No.4 by Plaintiff for the post of Assistant Task Force Commander [ATFC], Plaintiff's date of birth is shown as 02.04.1959. Plaintiff's Service Book produced by Defendant No.4 has been marked as Ex.D.2, wherein, his date of birth has been recorded as 02.04.1959, which has been marked as Ex.D.2(a). Seniority List produced by Defendant No.4 is at Ex.D3, in which, Plaintiff's date of birth is shown as 02.04.1959. Notice dated 01.12.2018 published by Defendant No.4 is at Ex.D4, which indicates Plaintiff's date of birth as 02.04.1959 and his retirement date is shown as 30.04.2019. Ex.D.2, Service Book indicates that, OS.3426/2019 13 Plaintiff's date of birth has been recorded as per SSLC Marks Card.
22) It is the contention of 4th Defendant that, based on the date of birth mentioned in SSLC Marks Card, Plaintiff's date of birth has been recorded in Service Book at Ex.D.2. Defendant No.4 has cross- examined Plaintiff to the effect that, Plaintiff's date of birth has been entered in the Service Book based on the date of birth mentioned in SSLC Marks Card. Plaintiff has not disputed the said aspect of the matter.
23) Plaintiff's contention is that, he had an opportunity to see the date of birth of his elder brother, Sri.N.Sreerama Reddy on 02.11.2017, who had handed over his original school records for the purpose of bringing xerox copies, wherein, Plaintiff found his brother's date of birth as 10.08.1959 and after comparing it with his date of birth mentioned in SSLC marks card, he came to know that the date OS.3426/2019 14 of birth mentioned in his SSLC marks card is not correct. It is further contended that, immediately thereafter, he approached Defendant No.11 and requested to show the admission register of himself and his brother and after verifying the records, he came to know that, his date of birth has been wrongly entered in SSLC marks card.
24) In order to substantiate his contention, he has produced Certificates issued by Defendant No.11. Certificate dated 22.11.2017 is at Ex.P.2 indicates that Plaintiff studied 1st standard to 7th standard in Defendant No.11 Institution between 1967-68 to 1973-74 and further indicates that his date of birth as 20.07.1962 as against the one mentioned in SSLC marks Card at Ex.P.3. Further, Plaintiff has produced Certificate at Ex.P6 issued by Defendant No.11 in order to substantiate the fact that his elder brother, Sri.N.Sreerama Reddy studied in Defendant No.11 Institution. Ex.P.6 reveals the Plaintiff's elder brother's date of birth OS.3426/2019 15 as 10.08.1959. In support of Ex.P.6, Plaintiff has also produced SSLC true copy of marks card of his elder brother at Ex.P.7, which discloses his elder brother's date of birth as 10.08.1959 as the one mentioned in Ex.P.6.
25) However, Defendant No.4 has vehemently denied the admissibility of Exs.P2 and P.6, contending that, they are fabricated documents. Of course, 4th Defendant put a suggestion to PW.1 in his cross-examination that, Exs.P.2 and P.6 are fabricated documents. Said suggestion has been denied by PW.1. It is to be noted that, mere suggestion to the effect that Exs.P.2 and P.6 are fabricated documents does not take away the character of their admissibility in evidence, unless it has been explicitly manifested from the records that said documents are fabricated documents. Be that as it may. Certificate at Ex.P.6 supported by Ex.P.7, SSLC Marks Card, clearly indicates that Plaintiff's elder brother Sri.N. Sreerama Reddy's date of birth OS.3426/2019 16 as 10.08.1959, which is similar to the one mentioned in Ex.P.6. Veracity of Ex.P.7 cannot be denied by Defendant No.4. Even Defendant No.4 has not denied Ex.P.7. However, Defendant No.4, in the cross-examination of PW.1, has asked question to say the date of birth of Plaintiff's other brothers and sisters shown in Ex.P.1, Affidavit sworn in by Plaintiff regarding the pedigree of his family. PW.1 has deposed that, he cannot say their respective date of births. Merely because, PW.1 is unable to say his other brothers' and sisters' date of birth, it cannot be presumed that the date of birth of his immediate elder brother sought to be proved by Exs.P.6 and P.7 is fabricated one. It is to be noted that, having placed reliance on Exs.P.6 and P.7, Plaintiff has asserted that, his immediate elder brother born on 10.08.1959. When Plaintiff has proved the date of birth of his immediate elder brother by placing Exs.P.6 and P.7, there would be no necessity to consider the date of birth of other OS.3426/2019 17 siblings of Plaintiff. Nothing can be decided in this case based on other siblings' date of birth. In that circumstance, Plaintiff's ignorance regarding the date of birth of his other siblings mentioned in Ex.P.1 is not fatal to the case put-forth by Plaintiff.
26) 4th Defendant's submission is that, Plaintiff has not examined the author of Exs.P.2 and P.6 and without examining the author of documents, same cannot be relied upon. There is no pith and substance in the submission of 4th Defendant. First of all, secondary evidence of public document is very much admissible under Section 62 of the Evidence Act, 1872. More important is that, Defendant No.11, being a party to this suit, has been represented by its Counsel. It nevertheless denied the documents at Exs.P.2 and P.6 issued by it. Had Defendant No.11 denied Exs.P.2 and P.6, then the matter would have been different and under such circumstance, it would be relevant to examine the author of the documents to prove its OS.3426/2019 18 veracity. In this case, no such occasion ever arises. Be that as it may. Ex.P.6 is further supported by Ex.P.7, SSLC Marks Card, which has not been denied by Defendant No.4. Once there exists basis to rely upon Ex.P.6, there is no impediment to rely upon Ex.P.2, which is also issued by Defendant No.11.
27) It is to be noted that both Exs.P.2 and P.6 are the extracts of admission register of Defendant No.11, wherein, Plaintiff's Admission Number is shown as 6/67-68 and his elder brother's as 14/65- 66 respectively.
28) In Ex.P.2 , Plaintiff's date of birth is shown as 20.07.1962. In Ex.P.3, SSLC marks card, Plaintiff's date of birth has been recorded as 02.04.1959. Plaintiff's elder brother's date of birth is shown as 10.08.1959 in Exs.P.6 and P.7. Ex.P.6 discloses that Plaintiff's elder brother was admitted to Defendant No.11 in the year 1965-66. Ex.P.2 makes it clear that, Plaintiff got admitted to 1st standard in OS.3426/2019 19 Defendant No.11 in the year 1967-68. Plaintiff completed SSLC in April, 1977. If Ex.P.2 is taken into consideration, it is clear that, Plaintiff studied 1 st to 7th standards between 1967-68 to 1973-74 and completed his SSLC in Defendant No.11 in the month of April, 1977.
29) At any stretch of imagination, having placed reliance on SSLC marks card of Plaintiff, it cannot be said that, Plaintiff born on 02.04.1959, because, it has been established that Plaintiff's elder brother, N.Sreerama Reddy born on 10.08.1959. On the other hand, Ex.P.2 clearly establishes that, Plaintiff born on 20.07.1962 and he studied 1 st standard to 7th standard during the year 1967-68 to 1973-74. Ex.P.3 discloses that he completed SSLC in the year 1977. Regard being had to the date of birth mentioned in Ex.P.2, it is clear that, Plaintiff got admitted to 1st standard at the age of 5 years and completed his SSLC at the age of 15 years.
OS.3426/2019 20
30) Defendant No.4 submits that, there would be no occasion to admit to the school at the age of 5 years. There exists Rule to complete 5 years 10 months to seek the admission to 1st standard and in that event, it is highly improbable that Plaintiff got admission to 1st standard at the age of 5 years. It is to be noted that, in those days, it not uncommon to admit the child to the school at the age of 5 or 6 years. First of all, whether Rule which Defendant No.4 rely upon was actually applicable to those days, when Plaintiff was admitted to 1 st standard? No such document has been placed by Defendant No.4 regarding said aspect of the matter. More important is that, 11th Defendant, who issued Ex.P.2, never denied contents mentioned in Ex.P.2. Under such circumstance, there is no reason to hold that, no admission was allowed to 1 st standard at the age of 5 years at the time of Plaintiff's admission to school. Ground urged by Defendant No.4 is not at all considerable as the same is flimsy.
OS.3426/2019 21
31) Thus, it has been clear that, date of birth mentioned in Ex.P.3 has no basis to rely upon. Date of birth mentioned in primary school records ought to have been shown in Ex.P.3. However, it recites different date of birth other than the one mentioned in primary school records. In that view of the matter, it has been established that date of birth mentioned in Ex.P.3 is not the correct date of birth of Plaintiff and date of birth mentioned in pursuance of Ex.P.3 in school records and Service Book have been proved to be the wrong date of birth.
32) Main crux of the matter is that, whether the Karnataka State Servants (Determination of Age) Act, 1974, bars Plaintiff to seek correction of his date of birth in his Service Book maintained by 4 th Defendant ?
33) 4th Defendant's specific contention is that, Plaintiff is an employee of Defendant No.4. Provisions of Karnataka State Servants OS.3426/2019 22 (Determination of Age) Act, 1974, are applicable to him. As per Section 5(2) of the Act, he has not filed or claimed or applied for correction of his date of birth within three years from the date on which his age and date of birth is accepted and recorded in the service register and hence, suit is not maintainable. In support of its contention, it has placed mainly two judgments of the Hon'ble Supreme Court, namely, Life Insurance Corporation of India vs. R.Basavaraju alias Basappa, [(2016) 15 SCC 781] and Bharat Coking Coal Ltd. & Ors. vs. Shyam Kishore Singh, [Civil Appeal No.1009/2020, Decided on 05-02-2020].
34) In Life Insurance Corporation of India (supra), the Hon'ble Supreme Court, in para-7, was pleased to hold as follows :
"7. The law with regard to correction of date of birth has been time and again discussed by this Court and held that once the date of birth is entered in the service record, as per the educational certificates and accepted by the employee, the same OS.3426/2019 23 cannot be changed. Not only that, this Court has also held that a claim for change in the date of birth cannot be entertained at the fag end of retirement."
35) Similarly, in Bharat Coking Coal Ltd. & Ors. vs. Shyam Kishore Singh (supra), the Hon'ble Supreme Court after elucidating the law laid down in State of M.P. vs. Premlal Shrivas, [(2011) 9 SCC 664], in para-9, was pleased to hold that, even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. It is worthwhile to read para-9 of the judgment (supra). It reads thus :
"9. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. Vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as hereunder : "
36) At this stage, it is relevant to extract Section 5 of the Karnataka State Servants (Determination of Age) Act, 1974. Section 5 reads thus :
OS.3426/2019 24 "5. Alteration of age or date of birth of State servants.- (1) Subject to sub-
section (2), the State Government may, at any time, after an inquiry, alter the age and date of birth of a State servant as recorded or deemed to have been recorded in the service register or book or any other record of service:
Provided that no such alteration shall be made if the age and date of birth of a state servant has been accepted and recorded or deemed to have been accepted and recorded in the service register or book or any other record of service in pursuance of a decree of a civil court obtained by the State servant [after he became such servant] against the State Government :
1. Inserted by Act 22 of 1977 w.e.f. 29.7.1977 Provided further that no such alteration shall be made without giving the State servant concerned a reasonable opportunity of being heard.
(2) No such alteration to the advantage of a State servant shall be made unless he has made an application for the purpose within three years from the date on which his age and date of birth is accepted and recorded in the service register or book or any other record of service or within one year from the date of commencement of this Act, whichever is later.
(3) The State Government may by notification in the official Gazette appoint such officer as it deems fit for the purpose of making an inquiry under this section :
Provided that the powers of the State Government under sub-section (1) and this sub-section shall in respect of the OS.3426/2019 25 alteration of the age or date of birth of a State servant who,-
(i) is subject to the control of the High Court under Article 235 of the Constitution, be exercisable, by the High Court; and
(ii) is an officer and servant of the High Court, be exercisable by the Chief Justice or such other Judge or officer of the High Court as he may direct.
(4) The officer appointed under sub-
section (3) shall have the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 (Central Act 5 of 1908) in respect of the following matters, namely:-
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on
affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses or documents.
(5) (a) The officer appointed under sub-
section (3) shall be deemed to be a civil court and when any offence as is described in section 175, section 178, section 179, section 180 or section 228, of the Indian Penal Code, 1860 (Central Act 45 of 1860) is committed in the view or presence of the said officer, the said officer, may after recording the facts OS.3426/2019 26 constituting the offence and the statement of the accused as provided for in the Code of the Criminal Procedure, 1973 (Central Act 2 of 1974), forward the case to the Magistrate having jurisdiction to try the same and the Magistrate to whom any such case is forwarded shall proceed to hear the complaint against the accused as if the case had been forwarded to him under section 346 of the Code of Criminal Procedure, 1973.
(b) Any proceeding before the said officer shall be deemed to be a judicial proceeding within the meaning of section 193 and 228 of the Indian Penal Code, 1860 (Central Act 45 of 1860)."
37) A bare reading of Section 5(1), it is, thus, clear that, no alteration shall be made in pursuance of a decree of a civil court in service register of State servant once date of birth has been accepted and recorded in the service register. However, Section 5(2) confers a right to State servant to make an application for the purpose of alteration of his age or date of birth in service register within three years from the date on which his age and date of birth is accepted and recorded in service register or within one year from the date of commencement of the Act.
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38) As contended by Defendant No.4, Plaintiff became a permanent employee of Defendant No.4 on 20.05.1987 and accordingly, his service register was opened. As per date of birth mentioned in his service register, he attained superannuation on 30.04.2019 as per Notice dated 01.12.2018 published by 4th Defendant at Ex.D.4. Ex.D.5, proceedings of the Managing Director, KRIDL [Defendant No.4], makes it clear that, on 21.12.2017, Plaintiff made an application to 4 th Defendant requesting the change of his date of birth. In view of order dated 22.04.2019 at Ex.P.23 passed by the Hon'ble High Court of Karnataka in WP No.12633/2018 filed by Plaintiff for not considering his application dated 21.12.2017, he made a representation to 4th Defendant on 25.04.2019 to consider his application dated 21.12.2017 for alteration of his date of birth. However, 4th Defendant, having placed reliance on the provisions of the Karnataka State Servants OS.3426/2019 28 (Determination of Age) Act, 1974 and judgment of Hon'ble Supreme Court in Life Insurance Corporation of India (supra), rejected the application dated 21.12.2017 and representation dated 25.04.2019 and issued endorsement as per Ex.D.6 on 29.04.2019. Thereafter, this suit came to be filed by Plaintiff on 02.05.2019.
39) Admittedly, Plaintiff's date of birth has been accepted and recorded in service register on 20.05.1987, the date on which he became the permanent employee of 4th Defendant. Under such circumstance, there is no scope to alter the date of birth after lapse of three years from the date of its acceptance. Said principle of law has been laid down in the above judgments. On considering Section 5(2) of the Act and principle of law laid down by the Hon'ble Supreme Court, it has been clear that, there is no scope for State servant to change his date of birth once same is accepted and recorded in service register.
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40) However, Plaintiff has relied upon the judgment passed by the Hon'ble High Court of Karnataka passed in RFA No.1674/2013 on 11.03.2019, which came to be filed by one Sri.T.P.Nataraj, who is one of the employee of 4 th Defendant, against Sate of Karnataka and others including 4th Defendant [5th Respondent in RFA] challenging the judgment and decree dated 20.07.2013 passed by City Civil Court, Bangalore in OS.No.9212/2007, in which, said Sri.T.P.Nataraj sought for declaration as to his date of birth. The Hon'ble High Court of Karnataka was pleased to allow the RFA filed by said Sri.T.P.Nataraja and set aside the judgment and decree passed in O.S.No.9121/2007. The Hon'ble High Court, while allowing the appeal, was pleased to hold that when appellant entered into service of 5th Respondent, Karnataka Civil Services Rules were not applicable to 5th Respondent. Para-8 of the judgment reads thus :
OS.3426/2019 30 "8. Going by Ex.P1 it becomes clear that the date of birth of the appellant is 24.1.1961. The question is whether after joining the services of the fifth defendant, should the plaintiff have sought for rectification in the concerned registers with regard to his date of birth? The trial court has given a reason that the appellant should have sought rectification in accordance with the Act. I do not think that this finding of the trial court is correct.
There is no dispute that the appellant joined services of the fifth defendant in the year 1983. At that time Karnataka Civil Services Rules were not applicable to the fifth defendant-corporation. It was only in the year 1991, as has been submitted by the counsel for the fifth respondent, a resolution was passed by the fifth respondent adopting Karnataka Civil Services Rules. It is very pertinent to mention here that none of the defendants contested the suit and only for the first time in this appeal such a contention is being put forward. Be that as it may. When the Karnataka Civil Services Rules were not applicable to the fifth defendant- corporation when the appellant entered into service, it is highly impossible to accept the argument that the appellant should have availed remedy within three years from the date of joining the service."
41) Judgment passed in RFA No.1674/2013 has been marked as Ex.P.25 on behalf of Plaintiff. Plaintiff has been cross examined by Defendant No.4 regarding Ex.P.25 to the effect that Ex.P.25 is no way related to Plaintiff. Be that as it may. It is to be noted that, Appellant in RFA was the employee OS.3426/2019 31 of 4th Defendant. 4th Defendant has been made as Respondent No.5 in the said RFA. Subject matter of the said RFA was for declaration of date of birth of said Sri.T.P.Nataraj. 4th Defendant contested the matter and took the similar contention as contended in this suit. However, the Hon'ble High Court was pleased to take notice that when said Sri.T.P.Nataraj joined the service of 4 th Defendant, Karnataka Civil Service Rules were not applicable to 4th Defendant. In the instant case, Plaintiff is also an employee of 4th Defendant and similar relief has been sought for by Plaintiff seeking declaration of his date of birth. Mere suit being filed by another employee of 4th Defendant other than the appellant mentioned in RFA, principles laid down in the judgment passed in RFA cannot be said to be not applicable to Plaintiff. Principles of law laid down in the Judgment remains applicable as it is to 4 th Defendant.
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42) In the instant case, as averred by Defendant No.4 in para-11 of written statement, Plaintiff made an application to 4th Defendant on 05.08.1983. Defendant No.4 has produced application submitted by Plaintiff at Ex.D.1, which substantiates the fact that Plaintiff applied for employment in 4 th Defendant on 05.08.1983. As contended in written statement para-4, Plaintiff became a permanent employee of Defendant No.4 on 20.05.1987. Ex.D.3 produced by Defendant No.4 establishes the said fact. Ex.P.25, judgment in RFA makes it clear that, in 1991, 4th Defendant passed the resolution in adopting the Karnataka Civil Service Rules. Thus, it has been clear that, when Plaintiff entered into service of 4th Defendant, the Karnataka Civil Service Rules were not applicable to 4th Defendant. In this circumstance, the question of making application to change of date of birth in service records of 4th Defendant within three years as contemplated in Section 5(2) of the Karnataka State Servants OS.3426/2019 33 (Determination of Age) Act, 1974 does not arise at all. When such being the fact, it cannot be said that Plaintiff's suit is not maintainable. In that view, having regard to establishing of actual date of birth and non-application of Karnataka Civil Service Rules to 4th Defendant at the time of Plaintiff's joining to 4th Defendant, this Court holds that, Plaintiff has proved his actual date of birth and suit filed by him is very much maintainable; accordingly, Issue No.2 is answered in the affirmative and Issue No.3 in the negative.
43) Issue No.4 : Defendants No.1 to 4 and 6 to 11 have taken plea that suit filed by Plaintiff is barred by limitation. Plaintiff has been cross examined by learned 3rd ADGP to the said effect. In the cross examination, Plaintiff deposes that, on 02.11.2017, he came to know that his date of birth has been wrongly recorded as 02.04.1959, when he had come across the education record of his OS.3426/2019 34 brother, Sri.N.Sreerama Reddy. Nothing has been elucidated in cross examination of PW1, except suggestion to the effect that, in the beginning itself, Plaintiff had knowledge of his wrong date of birth. To substantiate the fact that Plaintiff had the knowledge of his wrong date of birth, no evidence has been adduced and no documents have been produced by Defendants No.1 to 4 and 6 to 11. Except bare plea, absolutely there is no evidence on the side of Defendants.
44) On the other hand, Plaintiff has taken specific plea that, after going through the education records of his elder brother, Sri.N.Sreerama Reddy, on 02.11.2017, he came to know that his date of birth has been wrongly recorded in SSLC marks card and service records. It is to be noted that, immediately, Plaintiff got issued statutory notice as per Ex.P.8, as required under Section 80 of CPC to Defendants on 19.12.2017 requesting to make necessary correction in his date of birth.
OS.3426/2019 35 Simultaneously, he gave representation to Defendant No.4 on 21.12.2017 for alteration of his date of birth in service register. Thereafter, he filed writ petition in WP No.12633/2018, in which, the Hon'ble High Court of Karnataka was pleased to direct the Defendant No.4 to consider the representation of Plaintiff. As per the direction, again, Plaintiff made representation to 4 th Defendant on 25.04.2019, which has been rejected by 4th Defendant on 29.04.2019, as per Exs.D.5 and D.6. On rejection of his request, he has filed this suit on 02.05.2019. In this background, the contention of limitation raised by Defendants is to be viewed.
45) In Union of India and others Vs. West Coast Paper Mills Ltd., and another [AIR 2004 SC 1596], the Hon'ble Supreme Court was pleased to hold that :
"21. A distinction furthermore, which is required to be noticed is that whereas in terms of Article 58 the period of three years is to be counted from the date when 'the OS.3426/2019 36 right to sue first accrues'; in terms of Article 113 thereof, the period of limitation would be counted from the date 'when the right to sue accrues'. The distinction between Article 58 and Article 113 is, thus, apparent inasmuch as the right to sue may accrue to a suitor in a given case at different points of time and, thus whereas in terms of Article 58 the period of limitation would be reckoned from the date on which the cause of action arose first, whereas, in the latter the period of limitation would be differently computed depending upon the last day when the cause of action therefor arose."
46) In this background, relief sought for by Plaintiff is to be looked into. Plaintiff has sought for declaration of his date of birth and consequent correction in the school records and service register. Article 58 deals with declaration simpliciter without any consequential relief, which applies to declaratory suits only. At this stage, it is worthwhile to mention the judgment of the Hon'ble Sikkim High Court in Karma Doma Gyatso alias Babila Kazi Vs. Mrs.Kesang Choden & Ors., [AIR 2009 Sikkim 6], wherein, it has been held that :
"..... Thus, it is manifest that for the purpose of limitation the relevant Article that applies to the case of declaration with a consequential relief would be the residuary Article 113 and not Article 58 which applies to declaratory suits.
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18. It is thus obvious that Article 58 which applies to cases of declaration simpliciter would not be applicable in the present case. Instead, it is residuary Article 113 which is attracted in the case of the Plaintiff. However, the period of limitation prescribed under both the Articles being 3 years when the right to sue first accrues (under Article
58) and when the right to sue accrues (under Article 113), the question as to which of the two Articles applies would not be of much significance particularly in the light of the finding that the right to sue accrued only in the year 2005 and the suit has been filed in the year 2006, i.e. within one year of the right to sue accruing. ......."
47) Thus, it has been clear that, Plaintiff's suit being for declaration with consequential relief of direction to Defendants to make necessary correction in school records and service register, it squarely comes under Article 113, which states that, cause of action arises when right to sue accrues. Right to sue accrues to Plaintiff on 02.11.2107, the date on which he came to know that his date of birth has been wrongly recorded in SSLC marks card; on 19.12.2017, the date of issue of legal notice and subsequently, on 29.04.2019, the date on which Plaintiff's representation has OS.3426/2019 38 been rejected by Defendant No.4. Under such circumstances, if Section 58 is taken into consideration, right to sue first accrues to Plaintiff on 02.11.2017, whereas, Section 113 is taken into consideration, right to sue accrues to Plaintiff on various dates from 02.11.2017 till rejection of his request by Defendant No.4 on 29.04.2019. Prescribed period of limitation under both Articles being three years, the question as to which of the two Articles applies would be of no significance in the instant suit, particularly, suit has been filed within one and half years from the date of cause of action first accrues. In that view, it can be fairly said that, Plaintiff's relief of declaration is within the time; accordingly, I answer Issue No.4 in the negative.
48) Issues No. 1 and 5 : Defendants No.1 to 4 and 6 to 11 contend that, there is no cause of action for Plaintiff to file this suit. Fact being that, Plaintiff, being aggrieved of wrong entry of date of OS.3426/2019 39 birth in his school records and service register of Defendant No.4, has sought for declaration declaring his date of birth as 20.07.1962 based on his primary school records at Ex.P.2. He has specifically pleaded that, he came to know that his date of birth has been wrongly entered in SSLC marks card and service book only on 02.11.2017. He has adduced oral evidence regarding said aspect of the matter. He has been cross examined. Moreover, his plea has been substantiated by the school records of his elder brother at Exs.P.6 and P.7 and proved the same. He issued statutory notice as per Ex.P.8 to Defendants and made request to Defendant No.4 to make necessary changes in his date of birth. All his request have been denied, which cause him to file this suit by agitating his right. Hence, there is no basis to hold that Plaintiff has no cause of action to file this suit. Having regard to the factual matrix of Plaintiff's case and in view of proving his actual date of birth, there is no OS.3426/2019 40 impediment to declare the Plaintiff's correct date of birth as '20.07.1962' and consequent correction in school records and service book. Consequent correction of date of birth in school records and service book would make the Plaintiff to entitle the service benefits from 4th Defendant, which is being inherent in the employment. Hence, question of declaration to said effect does not arise at all; accordingly, I answer Issue No.5 in the negative and Issue No.1 partly in the affirmative.
49) Issue No.6 : For the foregoing discussion and findings to Issues No.1 to 5, I proceed to pass the following :
ORDER (1) Suit of Plaintiff is hereby decreed in part.
(2) It is hereby declared that Plaintiff's correct date of birth as '20.07.1962'.
OS.3426/2019 41 (3) Defendants No.1 to 10 are hereby directed to effect necessary changes in all the educational records, service register and service book of Plaintiff by rectifying his date of birth as '20.07.1962'.
(4) Draw decree accordingly.
(Dictated to the Judgment Writer directly on computer, typed matter corrected and then pronounced by me in open court, dated this the 5th day of October, 2020.) (RAMA NAIK) VI Addl.City Civil & Sessions Judge, Bengaluru City.
OS.3426/2019 42 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Sri.N.Narayanaswamy, dtd.11.10.2019
(b) Defendants side : N I L II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Affidavit regarding Family Tree Ex.P.2 Certificate dtd.22.11.2017 issued by Defendant No.11 Ex.P.3 SSLC Marks Card of Plaintiff Ex.P.4 Diploma Certificate of Plaintiff Ex.P.5 Official Memorandum dtd.08.05.1987 of Defendant No.4 Ex.P.6 Certificate dtd.22.11.2017 issued by Defendant No.11 Ex.P.7 True Copy of SSLC Marks Card of Sri.Sreerama Reddy.N Ex.P.8 Office copy of legal notice dtd.19.12.2017 Ex.P.9 Postal Receipts ( 05 Nos.) to Ex.p.13 Ex.P.14 Postal Acknowledgments (07 Nos.) to Ex.P.20 Ex.P.21 Endorsement dtd.27.12.2017 issued by Defendant No.7 Ex.P.22 Endorsement dtd.02.01.2018 issued by Defendant No.9 OS.3426/2019 43 Ex.P.22(a) True Copy of Admission Register issued by Defendant No.9 Ex.P.23 Certified copy of Oder dated 22.04.2019 in Writ Petition No.12633/2018 Ex.P.24 Letter dtd.05.04.2019 issued by Defendant No.4 Ex.P.25 Certified copy of Judgment dtd.11.03.2019 in RFA.No.1674/2013
(b) Defendants side :
[Exhibited in the cross-examination of P.W.1 dtd.27.01.2020] Ex.D.1 Plaintiff's Application Form dtd.05.08.1983 Ex.D.1(a) Relevant entry in Ex.D.1 Ex.D.2 Service Book of Plaintiff Ex.D.2(a) Relevant entry in Ex.D.2 Ex.D.3 Notification of the year 2017 regarding issue of final seniority list issued by Defendant No.4 Ex.D.3(a) Relevant portion in Ex.D.3 Ex.D.4 Notice dtd.01.12.2018 issued by Defendant No.4 regarding date of birth and date of retirement of employees Ex.D.4(a) Relevant entry in Ex.D.4 Ex.D.5 Proceedings of Managing Director, KRIDL, dd.29.04.2019 Ex.D.6 Endorsement dtd.29.04.2019 issued by Defendant No.4 VI Addl.City Civil & Sessions Judge Bengaluru City.
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