High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 25.01.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANS.A.No.351 of 1997The Director (Personal)Neyveli Lignite Corporation Ltd.,Neyveli. .. Appellant/Defendant No.3 vs.1.R.Senathipathi .. 1st respondent/Plaintiff2.The State of Tamil Nadu, rep by its District Collector, Coimbatore.3.The Director, Directorate of Technical Education, College Road, Madras-6. .. RR 2 & 3 / D1 & D2Prayer: This second appeal has been preferred against the decree andjudgment dated 28.10.1996, passed by the learned Subordinate Judge,Udumapet in A.S.No.12 of 1995, reversing the decree and judgment dated19.9.1994, passed in O.S.No.482/1992 on the file of the Court of DistrictMunsif, Pollachi.For Appellant : Mr.N.Nithiyanandam For Respondents : Mr.R.N.Amarnath for R1 Mr.P.Shanthi Rakkappan, Govt.Advocate (CS) For R2 & R3 JUDGMENTThe 3rd defendant in O.S.No.482/1992 on the file of the Court ofDistrict Munsif, Pollachi, who has succeeded in his defence, lost the samein the appeal preferred by the plaintiff in A.s.No.12/1995 on the file ofthe Court of Subordinate Judge, Udumalpet, is the appellant herein. Theplaintiff has filed the suit in O.S.No.482/1992 for declaration that hisdate of birth is 20.8.1964 and also for consequential mandatory injunction https://hcservices.ecourts.gov.in/hcservices/ directing the 3rd defendant/appellant herein to correct the date of birthof the plaintiff in his service register as 20.8.1964 in stead of19.3.1963.2. The averments in the plaint in brief relevant for the purpose ofdeciding this appeal are as follows:-2(a) The plaintiff is the second son of his father RamasamyGounder and mother Rathinam. The plaintiff's elder brother was born on16.11.1961 and the plaintiff's younger brother was born on 14.11.1967.The plaintiff studied in Nachimuthu Polytechnic during 1976-1982.Thereafter he pursued his studies in Institute of Technology at Coimbatorefrom1982 to 1986 and he became a graduate in engineering. Thereafter theplaintiff joined in the D3's Corporation as an Assistant Engineer on7.4.1987. In all his school records, the plaintiff's date of birth hasbeen wrongly mentioned as 19.3.1963. The plaintiff's father is anilliterate, hence he gave the date of birth of the plaintiff as 19.3.1963instead of 20.8.1964. When the plaintiff's parents were makingarrangements for the marriage of the plaintiff, through his horoscope theplaintiff came to know that his date of birth is 20.08.1964. When theplaintiff made a search in the Sub-Registrar's office Pollachi in respectof the registration of his birth he came to know that there was no entryfor his birth in the year 1963, but his birth was entered in the registerfor 1964 as his date of birth is 20.8.1964. A certificate has been issuedto that effect by the Sub-Registrar. So the plaintiff's date of birth is20.8.1964 and not 19.3.1963. In the service register maintained in theD3's corporation also the plaintiff's date of birth has been wronglyentered as 19.3.1963 on the basis of his date of birth recorded in theschool register. The plaintiff has issued notice under Section 80 ofCPC. The said notice was received by D1, who had instructed the plaintiffto take necessary steps through the relevant department. D3 has receivedthe notice but has not chosen to send any reply. Hence, the suit.3. The second defendant has filed his written statement which wasadopted by the first defendant, which runs as follows:-The suit is not maintainable at all on law or on facts. Theplaintiff has joined in Nachimuthu Polytechnic Higher school on 7.7.1996.while joining in the school his date of birth was given as 19.3.1963.Only on the basis of a declaration given in the school certificate hisdate of birth has been entered into other registers like serive registeretc., as 19.3.1963. The diplomo certificate as well as transfercertificate has been issued to the plaintiff on 7.7.1982 itself. In boththe certificates his date of birth has been mentioned as 19.3.1963. Thecontention of the plaintiff that only through his horoscope he came toknow that his date of birth is 20.8.1964 cannot be sustainable. Theplaintiff has left the school on 7.7.1982 itself. Hence, after a longlapse of time the plaintiff is not entitled to ask for any correction ofhis date of birth in the service register. The plaintiff can claimmandatory injunction subject to the rules and regulations followed by theNeyveli Lignite Corporation Ltd.. If the date of birth is corrected as https://hcservices.ecourts.gov.in/hcservices/

20.8.1964, the plaintiff will be in service for another 1 ½ years.After the plaintiff came to know about the date of birth from horoscope hehas not approached the Neyveli Lignite Coporation (D3) to change his dateof birth. The plaintiff has to take necessary steps before theappropriate department for the change of date of birth. Without resortingto the said course, the suit filed by the plaintiff is not maintainable.As per the circular dated 20.8.1992, the plaintiff can take steps onlythrough his employer to change his date of birth. But the plaintiff hasnot taken any steps through his employer. D3 is a Government of Indiaundertaking. After the lapse of long time from leaving the school theplaintiff has come forward with this suit for a relief of changing hisdate of birth. Even in his SSLC transfer book there is a declaration tothe effect that in future there will not be any change of date of birth.Contrary to the said declaration flouting the same to the winds, theplaintiff has filed this suit, which is liable to be dismissed with costs.4. The 3rd defendant in his written statement would contend that thesuit is not maintainable on facts and law. The court has no jurisdictionto entertain the suit. The plaintiff joined in the D3's corporation on7.4.1989 and at the time of joining in the corporation his date of birthwas registered as 19.3.1963, with the declaration that there will not beany claim in future for change of date of birth. The plaintiff has toprove that his date of birth is 20.8.1964 and not 19.3.1963. The claim ofthe plaintiff is against the rules and regulations of the D3-Corporation.Hence the suit is liable to be dismissed with costs. 5. On the basis of the above said pleadings the learned trial Courtframed 4 issues and 2 additional issues and after scrutinising theevidence available both oral and documentary, the learned trial Judge hascome to a conclusion that the plaintiff is not entitled to any relief andconsequently dismissed the suit without costs. Aggrieved by the findingsof the learned trial Judge, the plaintiff has preferred an appeal inA.S.No.12/1995 before the Subordinate Judge, Udumalpet. The learned firstappellate Court has allowed the appeal and decreed the suit as prayed for.Aggrieved by the findings of the learned first appellate Court, the 3rddefendant has preferred this appeal.6. Now the only point for determination in this appeal is whether thedate of birth of the plaintiff is liable to be entered in the serviceregister and other connected records maintained for the plaintiff in D3-Corporation as 20.8.1964 instead of 19.3.1963?7.The Point:-7(a) The learned counsel appearing for the appellant wouldcontend that Ex.B.2 & B.3 are the standing orders for workmen for theNeyveli Lignite Corporation Ltd, and establishment regulations of the saidcorporation respectively. As per Ex.B.2, standing orders 10(d) says thatthe age of a workman, as recorded with the Company at the time ofemployment, shall not thereafter be sought to be altered by the workman https://hcservices.ecourts.gov.in/hcservices/ and that once the date of birth has been entered into the records kept inthe company then under no circumstance it shall not be altered by theworkman. As per Ex.B.3-Establishment Regulations Rule 9 deals withrecords of age. According to Rule 9,(a) the company shall record the age of everyemployee. The following documents shall be deemed to besatisfactory proof of age at the time the employee enters theCompany's service:-(i) Matriculation or SSLC certificate(ii) Birth Certificate(b) (i) In the case of an employee, the year of whosebirth is known but not the date and month, the 1st July shall betreated as the date of birth. And when both the year and themonth of birth are known but not be exact date, 16th of themonth shall be treated as the date of birth. (ii) Where an employee is unable to produce anyevidence of his age he shall state his age and make a writtendeclaration that the age as stated by him is correct. Suchemployee shall be got examined by the Company's authorisedMedical Officer, free of cost, and the opinion of such Medicalofficer as to the employee's are shall be binding on allconcerned.(c) The age of an employee as recorded with the Company atthe time of his employment, shall not thereafter be sought tobe altered by the employee.So under Ex.B.2 standing order 10(d) and as per Ex.B.3 EstablishmentRegulation Rule 9(c), the date of birth once entered in the records ofD3's-corporation in respect of an employee, it shall not be altered by theemployee thereafter. As per the Rule 9(a) the proof for date of birth ofan employee is matriculation or SSLC certificate and if it is notavailable then birth certificate. On the date of joining in thematriculation school the date of birth of the plaintiff was given only as19.3.1963. Ex.A.11 is the Technical High School leave certificate inwhich the date of birth of the plaintiff has been mentioned as 19.3.1963.There is also a declaration attached to the certificate, which was signedby the father of the plaintiff on 12.3.1979, wherein it has been clearlydeclared by the father of the plaintiff that the date of birth of theplaintiff is 19.3.1963 and the date, month and year of the date of birthof the plaintiff is correct and in future there will not be any claim forchange of the date of birth of the plaintiff on the ground that at thetime of joining the plaintiff in the school a wrong date of birth has beengiven. Contrary to the above said declaration made by the plaintiff'sfather, the plaintiff has now come to the Court to change his date ofbirth.7(b) The learned counsel appearing for the D1/Plaintiff wouldcontend that the said declaration in Ex.A.11 will bind only theplaintiff's father and not the plaintiff. But this sort of contentionwill not be sustainable because the beneficiary by the change of the dateof birth will be only the plaintiff and not his father. When father https://hcservices.ecourts.gov.in/hcservices/ himself was not competent to ask for any change of date of birth in thecontrary to the entries in the school records in future, the plaintiff isequally also not competent to ask for change of his date of birth. Thedate of birth has been entered into in the school records only as per theparticulars furnished by the father of the plaintiff. The father of theplaintiff was examined before the trial Court as P.W.2. In the chiefexamination, P.W.2 would depose that the date of birth of the plaintiffwas entered in the school records by the teacher himself, but he wouldadmit that in Ex.A.11-declaration he has signed. He would depose to theeffect that there is a horoscope available for the plaintiff, and he hasproduced the birth certificate of the plaintiff as Ex.P.4 and the birthcertificate of elder brother of the plaintiff as Ex.P.1 and the birthcertificate of the younger brother of the plaintiff as Ex.P.3. In thecross-examination P.W.2 would admit that at the time of the receipt oftransfer certificate for the plaintiff, he has given a declaration to theeffect that he will not ask for change of date of birth for the plaintiffin future. Even though P.W.2 would depose in the chief examination thatthe date of birth in the school records was entered by a teacher out ofhis own, but there is no pleading in the plaint to the effect that theteacher has entered the date of birth of the plaintiff wrongly in theschool records. On the other hand, it is the definite case of theplaintiff that the plaintiff's father has furnished the date of birth tothe school and since he is illiterate he has given wrong date of birth ofthe plaintiff. In Ex.A.1 to A3 the name of the person is left blank.Ex.A.4 is related to a person born on 20.8.1964 to one Ramasamy Gounderand Rathinam and the copy of the same was obtained from the Sub-Registrar's Office on 17.1.1991 itself. But the plaint was filed only on3.8.1992. If the case of the plaintiff is true, then he would have filedthe suit in the year 1991 itself after coming to know through Ex.A.4 thathis date of birth is 20.8.1964, for declaration of his date of birth andmandatory injunction.7(c) P.W.1 is the plaintiff. In the chief examination on28.6.1994, P.W.1 has stated contrary to the D3's-Corporation's standingorders that the date of birth of one Ramasamy has been changed. Tosubstantiate this contention the plaintiff has not filed any document toshow that the date of the birth of one Ramasamy has been changed in D3'soffice. 7(d) The learned counsel for the appellant relied on JT 2005(6)SC 444 (State of UP and anr. Vs. Shiv Narain Upadhyaya) and contendedthat an application for correction of the date of birth should not bedealt with by the Courts, tribunal or the High Court keeping in view onlythe public servant concerned, a person accepts appointment keeping in viewthe date of retirement of his immediate senior. This is certainly animportant and relevant aspect, which cannot be lost sight of by the courtor the tribunal while examining the grievance of a public servant inrespect of correction of his date of birth. The facts of the above saidcase are as follows:-"An Executive Engineer of the State of Uttar Pradesh hasfiled an appeal questioning the legality of the judgment https://hcservices.ecourts.gov.in/hcservices/ rendered by a Division Bench of the Allahabad High Court holdingthat the respondent's date of birth was 1.9.1939 and not1.9.1930 a claimed by the appellant-State. Therespondent/employee was engaged as Class IV employee on2.1.1972. In the service records the date of birth wasindicated to be 1.9.1930. By order dated 31.1.1991 theExecutive Engineer-appellant No.2 intimated the respondent-employee that he had superannuated on 30.9.1990 having completed60 years of age. It was indicated that by mistake he wasallowed to work for three months more and paid, and, therefore,direction was given to refund the amount. The said order dated31.1.1991 was challenged by the respondent in a writ petition.His stand was that according to the school records his date ofbirth was 1.9.1939 and without any opportunity he had been pre-maturely retired nine years earlier. It appears that the HighCourt directed production of the service records. By theimpugned order dated 11.10.2002 the High Court allowed the writpetition holding that the State had failed to produce theservice record in spite of opportunities granted and, therefore,the petitioner's stand that his date of birth was 1.9.1939 wasaccepted. The said order of the High Court was challenged before theHonourable Apex Court. While disposing the appeal, theHonoruable Apex Court has held as follows:-An application for correction of the date of birthshould not be dealt with by the courts, tribual or the HighCourt keeping in view only the public servant concerned. Itneed not be pointed out that any such direction forcorrection of the date of birth of the public servantconcerned has a chain reaction, inasmuch as others waitingfor years, below him for their respective promotions areaffected in this process. Some are likely to sufferirreparable injury, inasmuch as, because of the correctionof the date of birth, the officer concerned, continues inoffice, in some cases or years, within which time manyofficers who are below him in seniority waiting for theirpromotion, may loose the promotion for ever. Cases are notunknown when a person accepts appointment keeping in viewthe date of retirment of his immediate senior. This iscertainly an important and relevant aspect, which cannot belost sight of by the court or the tribunal while examiningthe grievance of a public servant in respect of correctionof his date of birth. As such, unless a clear case on thebasis of clinching materials which can be held to beconclusive in nature, is made out by the respondent and thattoo within a reasonable time as provided in the rulesgoverning the service, the court or the tribunal should notissue a direction or make a declaration on the basis ofmaterials which make such claim only plausible. Before any https://hcservices.ecourts.gov.in/hcservices/ such direction is issued or declaration made, the court orthe tribunal must be fully satisfied that there has beenreal injustice to the person concerned and his claim forcorrection of date of birth has been made in accordance withthe procedure prescribed, and within the time fixed by anyrule or order. If no rule or order has been framed or made,prescribing the period within which such application has tobe filed, then such application must be within at least areasonable time. . . . . . . . . . . . . The position was succinctly stated by this Court in theabove terms in JT 1993 (5) SC 404 (The Secretary andCommissioner Home Department and Ors. Vs. R.Kirubakaran).As observed by this Court in JT 1994(5) SC 337 : 1994(6) SCC302 (Tamil Nadu Vs. T.V.Venugopalan) and JT 1997(4) SC660 : 1997 (5) SCC 181 (State of Orissa and Ors. Vs.Ramanath Patnaik) when the entry was made in the servicerecord and when the employee was in service he did not makeany attempt to have the service record corrected, any amountof evidence produced subsequently is of no consequence. These aspects were also reiterated in JT 2003(6) SC59 : 2003 (6) SCC 483 (State of UP and Ors Vs. Gulaichi(Smt) and 2004(3) SCC 394 (State of Punjab and Ors. Vs.S.C.Chandha).The High Court has clearly erred in holding that theservice book was not produced. As the records reveal alongwith the affidavit a copy of original service book wasfiled. The documents have also been annexed in the presentappeal. As is clearly evident from the copy of the servicebook, more particularly the respondent-employee had on27.4.1977, signed the service book which contained his dateof birth as per Christian era. Additionally, the documentsreferred to above indicated the date of birth to be1.9.1930. This was also not challenged at any time. Above being the position the High Court was clearly inerror in holding that the date of birth of the respondent-employee was 1.9.1939, contrary to what has been recorded inthe service book. We find that the respondent-employee hadrendered service till the order dated 31.1.1991 was passed.It would not be equitable to direct refund of salaryreceived by him upto 31.1.1991 beyond the actual date ofsuperannuation i.e. 30.9.1990. However, the period beyondthe actual date of superannuation ie. From 30.9.1990 to31.1.1991 shall not be reckoned towards his retiralbenefits."So far the plaintiff in the case on hand has not moved his employer-D3 forthe change of date of birth in his service records. So as rightly held inthe above dictum of the Apex Court, the plaintiff is not entitled to askfor the relief regarding the change of date of birth without making any https://hcservices.ecourts.gov.in/hcservices/ application for the same before the employer, through the Court that tooafter a lapse of three years, which is contrary to Ex.B.2 & B3 rules andregulations of D3-Corporation. The entries in the service book regardinghis date of birth has been admitted by the plaintiff is seen from Ex.B.1.7(e) The learned counsel for the appellant relied on 1997 (2) LLJ136 (K.R.Sukumaran Nair Vs. State of Kerala and Others). The facts of theabove case in brief are as follows:-"The petitioner has approached the High Court Keralachallenging Exs.P.4 & P.10 declining his request for correctionof his date of birth in service Book as well as school records.The date of birth of the petitioner as entered in the SSLC Bookis 13.11.1111(ME). This was carried over to his service bookwhen it was opened on his entry in service. While continuing inservice, the petitioner could know that there was mistake in thedate of birth in his school records as well as in servicerecords. He submits that the actual date of birth is 14.11.1112(ME). Seeking correction the petitioner made an application onJune 25, 1986 to Government. In that the petitioner applied forthe correction of the date of birth in service records. Thepetitioner produced Ex.P.3 certificate in support of this claim.That is the birth certificate issued to the petitioner. Hisrequest was rejected in Ex.P.4. The petitioner was informed inEx.P.4 that only after correcting the SSLC Book, application forcorresponding correction in Service Book can be entertained.Later the petitioner on May 9, 1988 again approached theGovernment seeking correction of date of birth withoutcorresponding correction in School records. The petitionerpointed out orders granted in favour of other persons withoutsuch correction in School records. This was rejected in 1989.In the meantime the petitioner applied to the commissioner forGovernment Examination under Rule 3 Chapter VI KER forcorrection of date of birth in the SSLC book; that was on June27, 1989. But it was not in the statutory form. The petitionerwas asked to submit an application in the statutory form. Thepetitioner submitted it as per Ex.P.5 on June 15,1990. That wasrejected on September 10,1990 stating that it could not beentertained due to delay. As per Rule 3(1)(A) Chapter VI KER,the period of limitation was fixed as 15 years at that time.It was in the above circumstances the petitioner's request wasrejected on the ground of delay. Thereupon the petitionersubmitted an application for condonation of delay beforeGovernment. It was rejected by a cryptic order Ex.P.8. Ex.P.8was challenged before this Court. That was quashed in Ex.P.9judgment and directed reconsideration. Government reconsideredit and passed Ex.P.10 order, again rejecting it, on the groundof delay. Ex.P.10 is dated May 25, 1991. By that time a notewas introduced under Rule3(1)(A) Chapter VIKER providing forcondonation of delay. But that will be allowed, as per the saidnote, only in respect of those who have not crossed the age of https://hcservices.ecourts.gov.in/hcservices/ 50 years. Thus when Ex.P.10 was issued though there wasprovision for condonation of delay the petitioner was notentitled for condonation, because he had crossed the age of 50years. So I see no reason to interfere with Ex.P.10 orderwhereby the petitioner's request for condonation of delay isrejected. Before introduction of this note there was noprovision for condonation of delay. It was contended on behalf of the petitioner that evenwithout the correction of date of birth in school records, hisdate of birth shall be corrected in the service book based onEx.P.3 certificate of birth.This contention cannot be accepted in the light of theinstructions under Rule 143 in Part III KSR.Instruction thereunder reads as follows:1.The entry in the service book regarding the date of birthshould indicate on what evidence the date of birth was accepted.The following documents shall be considered as satisfactoryproof of date of birth;2. In the case of the persons who have attended areconginsed School/College, the School Leaving Certificate or anauthenticated extract of admission register of school or collegewhere the employee last studied"So in the above said case, it has been held that the entries in the schoolleaving certificate alone is a satisfactory prove for date of birth. 7(f) The learned Subordinate Judge has wrongly came to theconclusion that Ex.B.2 & B.3 regulations are only to the employees of D3-Corporation and Ex.B.2 and B.3 will certainly bind the plaint and as perthe relevant provisions of rules and regulations under Ex.B.2 & B.3 anemployee under D3 cannot change or alter his date of birth once it wasentered in its service records. The plaintiff also examined P.W.3 anastrologer, who would depose that he has prepared two horoscopes underEx.A12 & A13 and in the cross examination he would depose that he does notremember on which date he prepared those horoscopes. Further it is alsonot explained why two horoscopes were prepared under Ex.A12 & A13. Undersuch circumstances, the findings of the trial Court that the plaintiff isnot entitled to any relief under the suit alone is sustainable and thejudgment and decree of the first appellate Court is liable to be setaside. Point is answered accordingly.8. In the result, the Second Appeal is allowed with costs through outand the decree and judgment of the first appellate Court in A.S.No.12 of1995 on the file of the Subordinate Judge, Udumalpet, is set aside and https://hcservices.ecourts.gov.in/hcservices/ consequently the decree and judgment passed in O.S.No.482/1992 on the fileof the District Munsif Court, Pollachi is restored and the suit isdismissed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ssvTo, 1. The Subordinate Judge, Udumalpet.2. The District Munsif, Pollachi.3. The Record Keeper, VR Section, High Court, Madras.+ 1 CC To Mr. N.A.K.Sarma, Advocate SR NO. 5470+ 1 CC To Mr. R.N.Amarnath, Advocate SR NO.5215S.A.No.351 of 1997je[co]gp/27.3.