Karnataka High Court
Sri. H.B. Prabhakara vs The State Of Karnataka on 27 March, 2019
Equivalent citations: AIRONLINE 2019 KAR 517, 2019 (2) AKR 741, 2019 LAB IC 2984, 2019 (3) KCCR SN 178 (KAR), (2019) 4 KANT LJ 353
Bench: B.V.Nagarathna, H.T. Narendra Prasad
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH 2019
PRESENT
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MR.JUSTICE H.T.NARENDRA PRASAD
WRIT PETITION No.12158 OF 2019 (S-KSAT)
BETWEEN:
Sri H.B.Prabhakara,
S/o.H.R.Balachandra Joise,
Aged about 59 years,
OCC Tracer
O/o Executive Engineer,
Cauveri Niravari Nigama,
18th Cross, Nanjanagudu
Mysore District - 571 301. .... Petitioner
(By Sri M.Babu Rao, Advocate)
AND
1. The State of Karnataka,
Represented by its Secretary,
Department of Irrigation,
M.S.Building,
Bengaluru - 560 001.
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2. The Superintendent Engineer,
Kabini and Varuna Canals Circle
Mysore
Mysore District - 573 120.
3. The Executive Engineer,
Kabini Canals Divison,
Nanjanagudu
Mysore District - 571 301. ...Respondents
(By Sri I.Taranath Poojary, Advocate)
This writ petition is filed under Articles 226 & 227 of
the Constitution of India praying to quash the order dated
6.3.2019 passed by the Hon'ble Karnataka State
Administrative Tribunal at Bangalore as per Annexure-A
and to direct respondent Nos. 1 and 2 to consider the
representations dated 10.11.1999, 10.10.2002 and
03.01.2017 as per Annexures-A7, A8 and A9 and to treat
the petitioner's date of birth as 15.11.1959 and continue
the service till 15.11.2019 as per Anneuxre-A1.
This writ petition, having been heard and reserved
for orders on 20.03.2019, coming on for pronouncement
this day, NARENDRA PRASAD J., made the following:
ORDER
This writ petition is directed against order dated 06.03.2019 passed by the Karnataka State Administrative Tribunal, Bengaluru ('Tribunal', for short) in 3 A.No.693/2019, whereby the Tribunal has rejected the application filed by the applicant.
2. For the sake of convenience, parties are referred to as per their ranking before the Tribunal.
3. Brief facts of the case are that, the applicant was appointed as a Tracer on daily-wage basis in Kabini Canal Division, Nanjangud. As per order dated 07.12.1997, issued by the Superintending Engineer, Kabini and Varuna Canals Circle, Mysuru, on completion of ten years of service, his service was regularized and he was posted to Kabini Canal Division, Nanjangud and on 19.11.1999, he was appointed as a Tracer against a supernumerary post in Kabini Canal Division, Nanjangud. Further case of the applicant is that on 15.09.1999 he applied for certified copy of Transfer Certificate. In the Transfer Certificate (TC) dated 17.09.1999 issued by the Head Master, Government Lower Primary School, Hedatale, Nanjangud Taluk, Mysore District, wherein he left the school after 4 completion of his 2nd standard, his date of birth has been mentioned as 15.11.1959. But, in the Transfer Certificate (TC) dated 26.05.1973 issued by the Head Master, Government Lower Primary School, Dalavayi, Nanjangud Taluk, Mysore District, wherein he left the school after passing his 7th standard, his date of birth has been mentioned as 15.03.1959 instead of 15.11.1959. Hence the applicant got issued legal notice dated 03.11.1999 to the Chief Secretary, Government of Karnataka and Deputy Director of Public Instruction, Mysore District to issue a direction to the Head Master, Government Lower Boys Primary School, Dalavayi, Nanjangud, Mysore District to correct the date of birth of the applicant as 15.11.1959. Subsequently, he also gave a representation dated 10.11.1999 to the Executive Engineer, Kabini Canal Division, Nanjangud. Since there was no response to the legal notice and also representation, he submitted further representations dated 10.10.2002 and 03.01.2017 to the 5 Executive Engineer, Kabini Canal Division, Nanjangud. Since the same was not considered, he filed an application before the Tribunal seeking a direction to respondent Nos. 1 and 2 to consider the representations dated 10.11.1999, 10.10.2002 and 03.01.2017 as per Annexures A7, A8 and A9 and to treat the applicant's date of birth as 15.11.1959 and to continue his services till 15.11.2019. The Tribunal, after considering the arguments and documents produced by the parties has rejected the application on merits as well as on limitation. Being aggrieved by the same, applicant has filed this writ petition.
4. Heard learned counsel for the parties and perused the writ papers.
5. Sri M.Babu Rao, learned counsel for the petitioner submits that in the TC issued by the Head Master, Lower Primary School, Hedatale, Nanjangud Taluk,. Mysore District, the date of birth of the applicant was recorded as 15.11.1959. This TC was issued when he left the school 6 after studying 2nd standard. But in the TC issued by the Head Master, Government Lower Boys School, Dalavayi, Nanjangud, Mysore District, when he left the school after passing 7th standard examination, his date of birth was wrongly shown as 16.03.1959 instead of 15.11.1959. After he came to know of the same he had given representations to the Executive Engineer, Kabini Canal Division, Nanjangud and also got issued legal notice. The legal notice was issued within three years from the date his service had been regularized. The same was within the time-limit prescribed under Section 5 of the Karnataka State Servants' (Determination of Age) Act, 1974 ('Act' for short). Since the respondents did not considered the representations, he approached the Tribunal. Even though legal notice had been issued within one year as prescribed under Section 5 of the Act, the Tribunal has rejected the claim of the applicant on the ground of delay, which is not correct.
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6. He further submits that in similar circumstances, a Division Bench of this Court in W.P.No.3231/1998 disposed off on 10.06.1998 has granted relief to the parties. Hence, he prays for allowing of the writ petition.
7. Sri I.Tharanath Poojary, learned Additional Government Advocate submits that the applicant has not made the application before the State Government as per Section 5 of the Act within the prescribed period of three years. Therefore, the Tribunal has rightly rejected the application and the same does not call for any interference at the hands of this Court.
8. The applicant was appointed as a Tracer on daily wage basis in the Kabini Canal Division, Nanjangud. As per order dated 07.12.1997, his services were regularized and by order dated 19.11.1999 he was appointed as Tracer against a supernumerary post. As per the provisions of the Act, the Government servant had to file an application for change of age and date of birth in the service records 8 within three years from the date on which his date of birth was accepted and recorded in the service register or book. For immediate reference Section 5 is extracted hereinbelow:
"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 his 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.
Provided further that no such alteration shall be made without giving the State servant concerned a reasonable opportunity of being heard.9
(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."
9. On a bare reading of the above provision, it is very clear that if any Government servant intends to change his age and date of birth in the service register or book or any other records of service, he has to file an application within three years from the date on which his age and date of birth is accepted. In the case on hand, even though applicant was appointed in the year 1987 on daily wage basis and had been regularized in the year 1997, he did not make any application to the State Government for altering the age or date of birth in the service register. What is referred to by applicant at Annexure A6 is a legal notice issued to the Chief Secretary 10 and Deputy Director of Public Instructions to issue a direction to the Head Master, Government Lower Boys school, Dalavayi, Nanjangud, Mysore District to correct the date of birth of the applicant as 15.11.1959. The representation dated 10.11.1999 is given to the Executive Engineer, Kabini Canal Division, Nanjangud. There is no application made by the applicant as per Section 5 of the Determination of Age Act to the State Government for alteration of date of birth in the service register. Hence, the Tribunal has rightly rejected the application of the applicant.
10. The judgment of the Co-ordinate Bench relied upon by the applicant is not applicable to the case on hand. In that case, petitioner has filed the representation within one year from the date of coming into force of the Karnataka State Servants' (Determination of Age) Act, 1974 Since the said representation has not been considered by the competent authority, this Court directed 11 the authorities to consider the same. But in the case on hand, applicant has not filed any application as per the provisions of Section 5 of the Act. Since there was no application filed, the question of issuing direction to consider his application under Section 5 of the Act did not arise.
11. The Tribunal has rightly considered this aspect of the matter and rejected the application, both on merits as well as on the point of limitation. Therefore, we decline to interfere with the order passed by the Tribunal. Accordingly, writ petition is dismissed.
Sd/-
JUDGE Sd/-
JUDGE Cm/-