Karnataka High Court
State Of Karnataka vs Gurubasappa Basappa Sajjan on 25 September, 1995
Equivalent citations: ILR1996KAR1175
JUDGMENT Hari Nath Tilhari, J.
1. This is the defendant's Second Appeal against the judgment and decree dated 3.9.1984 delivered by the Civil Judge, Bagalkot, Bijapur District, in R.A.No. 27 of 1984 (The Deputy Commissioner, Bijapur, representing the Government of Karnataka v. Gurubasappa Basappa Sajjan) dismissing the appeal and confirming the judgment and, decree dated 2.3.1984 delivered by the Munsiff, Badami, in O.S.No. 7 of 1983 (Gurubasappa s/o Basappa Sajjan v. The Deputy Commissioner, Bijapur, representing the Government of Karnataka) decreeing the plaintiff's suit for declaration of his date of birth to be 5.3.1950 and not 28.6.1948 as shown in the School Certificate.
2. The plaintiff/respondent alleges that in the School Certificate his date of birth was shown as 28.6.1948 and that the said date of birth is said to have been entered on the approximation given by his parents at the time of his admission to the primary school and that his real and exact date of birth is 5.3.1950. It had been stated in the plaint that as the difference of age in the Educational Certificates and the birth extract came to his notice and a legal notice was issued to the Government under Section 80 of the Code of Civil Procedure for correction and rectification in the Certificates. The plaintiff alleges that as there was no action taken on the notice, he filed the suit. Further, he alleges that the cause of action arose on 1.1.1983. The plaintiff claimed in the suit the relief of declaration of his date of birth to be 5.3.1950 as his correct date of birth. He also claimed the consequential relief that the same may be entered by correction in all Educational Certificates by the authorities concerned. So, he prayed for the grant of decree declaring his correct date of birth as 5.3.1950 and consequential relief of entering his correct date of birth in all Educational Certificates and records.
3. No doubt, the plaintiff has stated that the wrong date of birth shown in the Educational Certificates affects him adversely into Government service and deprives him of the benefits under the Government service.
4. The suit was contested by the defendant on many grounds. It was alleged that the allegations, made in the plaint are not admitted. Instead, the said allegations were said to be vague. The defendant also took up the plea that the suit was barred by limitation and, according to the defendant, the suit should have been filed within three years from the date of attaining majority. Further, the suit was not maintainable. The defendant contested the suit on another ground stated in the written statement and the notice under Section 80 of the Code of Civil Procedure was not in accordance with law and did not comply with the requirements of Section 80 CPC and therefore, the suit was not maintainable. The other, ground on which the maintainability of the suit was challenged by the defendant was that the Karnataka Secondary Education Examination Board (KSEEB) had not been made a party to the suit.
5. On the pleadings the Trial Court framed the following issues:
i) Whether the plaintiff proves that his correct date of birth is 5.3.1950 and not 28.6.1948 shown in the school certificate?
ii) Whether the plaintiff proves that he is entitled to the consequential relief to get corrected the date of birth in school certificates?
iii) Whether the defendant proves that the suit is not in time?
iv) Whether the defendant proves that the suit is not maintainable for non-compliance with Section 80 CPC?
v) Whether the defendant proves that the suit is bad for nonjoinder of necessary parties?
vi) What order or decree?
The Trial Court answered Issues Nos. 1 and 2 in affirmative and Issues Nos. 3, 4 and 5 in negative. The Trial Court held that the plaintiff is entitled for a declaration that his correct date of birth is 5.3.1950 and the date of birth mentioned in the Educational Certificates as 28.6.1948 to be wrong. The Trial Court further held that the plaintiff is entitled for consequential relief to get his date of birth corrected in the School Certificates.
6. The Trial Court held that the suit was within time and that the suit was maintainable. The Trial Court also held that the defendant did not prove that there was no compliance with the requirements of Section 80 C.P.C. The Trial Court further held that the suit was not bad for non-joinder of the KSEEB. The Trial Court opined that though the KSEEB is a proper party it is not a necessary party as it is controlled by the Government of Karnataka and the Government of Karnataka is represented in the suit by the Deputy Commissioner, Bijapur and on this reasoning the Trial Court held that there was no case of non-joinder of necessary parties.
Having recorded the above findings, the Trial Court decreed the suit of the plaintiff/respondent.
7. Being aggrieved by the judgment and decree of the Trial Court the defendant/appellant took up the matter in appeal before the lower Appellate Court where, the judgment indicates, the same pleas that were taken before the Trial Court were raised as to the question of maintainability of the suit, viz., the suit was time-barred and the suit was bad for non-joinder of necessary parties.
8. The lower Appellate Court having heard the learned Counsel for the parties dismissed the appeal. The lower Appellate Court held that the findings recorded by the Trial Court did not suffer from any error. It held that the plaintiff's suit was within time. It rejected the contentions that the KSEEB is a necessary party and that the suit was bad for non-joinder of necessary parties. It opined that, as no relief was sought against the KSEEB, there was no merit in the contention that the KSEEB is a necessary party. Only after having considered the arguments advanced by the learned Counsel for the parties, the lower Appellate Court dismissed the appeal.
9. Having felt aggrieved the defendant has come up in Second Appeal before this Court.
10. I have heard Sri N.B. Viswanath, learned High Court Government Pleader, for the appellant. Notice of this Appeal was served on the respondent. He remains unrepresented, as no one has entered appearance for him.
11. Sri Viswanath, learned High Court Government Pleader, urged that the decree passed by the Trial Court for simple declaration was against the mandate of law under Section 34 of the Specific Relief Act and as such the lower Appellate Court should have set aside the decree passed by the Trial Court. The learned High Court Government Pleader for the appellant submitted that, when the plea of non-joinder of necessary parties was raised challenging the finding of the Trial Court, the learned Counsel for the plaintiff gave up the consequential relief and, when that is so, the suit was only for Declaration and not for consequential relief and, therefore, the suit should have been dismissed- Another contention that has been raised by Sri Viswanath is that the suit was not maintainable in view of the provision of Section 6 of the Karnataka State Servants (Determination of Age) Act, 1974 (for short the Age Determination Act). These are the only two contentions raised before me. The learned High Court Government Pleader also made a reference to the Decision of a Division Bench of this Court in STATE OF KARNATAKA vs. T. SRINIVAS, 1987(1) KLJ 387.
12. That as regards the first contention of the learned Counsel for the appellant, viz., the learned High Court Government Pleader, that the plaintiff had not claimed any consequential relief, it is not correct. When the suit was originally filed, the plaintiff/respondent had claimed the relief of declaration of his correct date of birth and also the consequential relief for correction thereof in the Educational Certificates, No doubt, the KSEEB had not been made a party. But, the defendant is the Deputy Commissioner, Bijapur, representing the State. The allegation of the plaintiff is that in the School Leaving Certificate and the Transfer Certificate which he had filed in the lower Appellate Court his date of birth has been wrongly shown as 28.6.1948. The Transfer Certificate had been issued by the Head Master, Government Kannada Boys Upper Primary School, Kesapur, Muddebihal Taluk, Bijapur District. This Certificate clearly shows that it is of the Educational Department, Karnataka State, and that it can be used for Primary, High, Higher Secondary, and Multi-purpose Schools. Education Department is of the State Government and the School referred to therein is the Government School in Bijapur District. The Government had been made a party to the suit through the Deputy Commissioner, Bijapur. As per Clause(c) of sub-section (1) of Section 80 of the Code of Civil Procedure in the case of a suit to be instituted against. State Government it has to be instituted through the instrumentality of the Collector of the District or it has to be instituted impleading the Secretary. So, when the suit has been instituted mentioning the opposite party as the Deputy Commissioner representing the State Government it cannot be said to be that impleadment is in any way defective as the Education Department is included in and is part and parcel of the State Government. The State being a Welfare State must be for the welfare of the citizen and it is not expected to behave like the ordinary litigants and to litigate matter on sheer technical grounds.
13. In my opinion the Trial Court as well as lower Appellate Court have been justified in rejecting the defendant-appellant's contention and in holding the suit was not bad for non joinder as State Government impleaded through Deputy Commissioner represented the KSEEB. There was no question of plaintiff-respondent's Counsel giving up the consequential relief. The Court below rightly held the KSEEB was not necessary party, if at all it could be said to /be a proper party. That in view of provision of Section 99 of the Code no decree can be reversed or varied on the basis of such a plea and as such the lower appellate Court rightly maintained the Trial Court decree. So, while rejecting the contention of the learned High Court Government Pleader for the appellant that the suit was not maintainable on the ground that the suit was for declaration without the consequential relief is misconceived, and it has got no substance, it is hereby held that the suit was maintainable as framed and decree passed by Trial Court is not liable to be reversed or set aside.
14. As regards the second contention of the learned High Court Government Pleader; that the sujt was not maintainable in view of Section 6 of the Karnataka State Servants' Determination of Age Act, it is to be noted that no such plea had been taken by the defendant at the stage of trial, nor was any issue got framed to that effect. The pleas that were raised by the defendant in the written statement have always been subjected to issue. But, no such plea was taken in the present case. In the present case in the plaint of the suit in addition to the relief for declaration, claim for consequential relief for correction in the education certificates had been made. That being the position, in my opinion, it cannot be said that the suit was not maintainable. In the Decision relied upon by the learned High Court Government Pleader for the appellant in The State of Karnataka v. T. Srinivas, the law has been laid down by the Division Bench of this Court in very clear terms The Division Bench in paragraph 14 of the Order observed as under:
" In our view, whether the relief that is sought for by the plaintiff could be adjudicated by the plaintiff before the Civil Court either under Section 34 of the Act or under Section 9 of the Code does not appear to be very material, since, in our view, both the words 'legal character' under Section 34 of the Act and the words 'suits of civil nature' under Section 9 of the Code are comprehensive enough to include the relief of this nature since a declaration that he was born on a particular date clothes him with various legal rights, immunities, privileges and powers and the refusal of such a declaration may visit him with certain duties, liabilities and disabilities. That is sufficient for us to come to the conclusion that declaration of date of birth is not merely a declaration of a legal status. A contrary view would be opposed to jurisprudential concept of status."
After having made a reference to Section 4 of the Age Determination Act, the Division Bench of this Court has further observed as under :
"This is an indication of the fact that the Civil Court has jurisdiction to make a declaration regarding the date of birth or alteration of age of the Government servant in matters not relating to his conditions of service. That being so, either on principle or on authority, the jurisdiction of the Civil Court cannot be questioned in the case of non-governmental employees or persons. Even in the case of Government servants, a suit for declaration of age or date of birth could be maintained if the relief claimed does not relate to his conditions of service."
A reading of Section 6 along with Section 4 of the Age Determination Act per se reveals that Civil Court has no jurisdiction to settle or decide or deal with the question of age or date of birth so far as it relates or affects the conditions of service of the State servant. But, this principle is subject to the exception viz., Section 5 of the Age Determination Act. It will be profitable to quote Sections 4, 5 and 6 of the Age Determination Act. Section 4 reads thus :
"4. Bar of alteration of age except under the Act. -
Notwithstanding anything contained in any law or any judgment, decree or order of any court or other authority, no alteration of the age or date of birth of a State servant as accepted and recorded or deemed to have been accepted and recorded in his service register or book or any other record of service under section 3 shall, in so far as it relates to his conditions of service as such State servant, be made except under Section 5."
Section 5 of the Age Determination Act reads as under:
"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 against the State Government:
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 powers of the State Government under sub-section (1) and this sub-section shall in respect of the 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 constituting the offence and the statement of the accused as provided for in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), forward the case to a 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 proceedings before the said officer shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code, 1860 (Central Act 45 of 1860).
Section 6 of, the Age Determination Act reads as follows:
"6. Bar of Jurisdiction of Courts.-
(1) No court shall have jurisdiction to settle, decide or deal with any question which is required to be decided under this Act.
(2) No decision under this Act shall be questioned in any court of law."
A perusal of Section 4 of the Age Determination Act per se reveals I that it creates a bar against alteration of age or date of birth of the Government servant as accepted and recorded in his Service I Register in so far as it relates to his conditions of service. Section 5 provides how alteration is to be made in the service records and the procedure therefor has been prescribed therein and bars Civil Court's jurisdiction in regard thereto so far as it relates to conditions of service and not otherwise.
15. In the present case the declaration given by the Civil Court cannot be said to be completely without jurisdiction. The decree granted by the Civil Court is in the nature of a declaration and it may not affect the service conditions. If the Educational Certificates are corrected in pursuance of the decree that may not be a case of claiming alteration of his age in the Service Register on the basis of the decree. But, he can claim alteration of his date of birth in the Service Register on the basis of the corrected date of birth mentioned in the Educational Certificates. Anyway I leave the question open for being considered at a later stage. No doubt, declaration can be granted in view of the Decision of the Division Bench of this Court; but, it should not affect the conditions of service. By the decree it is declared that the date of birth of plaintiff is 5-3-1950 and the date of birth shown in the School Certificate as 28-6-1948 is wrong. Nothing beyond that. So, in view of the law laid down by the Division Bench of this Court, I am of the opinion that the decree is perfectly valid and within jurisdiction and the decree is not to be taken to be one affecting the service conditions of the plaintiff, unless proper alteration is sought from the authorities concerned under Section 5 of the Age Determination Act.
Subject to the above observations this second Appeal is dismissed.
No order as to costs.