A. Doraisamy vs Director of School Education

Raju, J.—The plaintiff in O.S. No. 907 of 1995 on the file of the Court of District Munsif, Vaniyambadi, North Arcot Ambedkar District,

who failed before both the courts below, has filed the above second appeal. The suit in question was filed for declaration and also for a

consequential direction to the defendant/respondent, to correct the date of birth of the appellant in his S.S.L.C. Book as on 2.9.1943 instead of

10.1.1938 and have such correction made in all Other records that the date of birth of the appellant was 2.9.1943. In the plaint presented before

the trial court, it was claimed that during the month of January, 1994 there was a partition in the family of the appellant in the presence of his father,

aged about 94 years and other members and during the course of discussion at that time the second senior brother of the appellant by name

Chinna Anumanthan claimed that he was 60 years old and this created a doubt and inquisitiveness in the appellant to verify about his own date in

view of the existence of two other sisters immediately above him and induced him to verify the relevant records, which disclosed, according to the

appellant, that Chinna Anumanthan was born on 23.11.1934, that the other two sisters were born on 21.3.1938 and 1.11.1940 and that his date

Of birth was 2.9.1943. The date of birth as entered in the S.S.L.C. book of the appellant was therefore claimed to be an incorrect one and he was

entitled to have the same corrected, by virtue of the order of the Government in G.O.Ms. No. 39, Education, dated 12.1.1944. To have the date

so corrected, it appears, the appellant called: upon the respondent to carry out the correction by issuing a lawyer''s notice dated 3.11.1994 u/s 80

of the Code of Civil Procedure, 1908 and in spite of the fact that the appellant submitted all the records, the defendant declined to comply with the

request for correction, necessitating the filing of the suit for the relevance referred to supra.

The defendant filed a written statement disputing the claims of the appellant and contended that the appellant retired from service as Headmaster

of Desiriappanoor Panchayat Union Primary School on 31.1.1996 itself and that he is only continuing on Office on re-employment basis and

consequently he is not entitled at that stage to have the age corrected. Relying upon Rule 49 of the Tamil Nadu State and Subordinate Services

Rules, hereinafter referred to as the Rules, the defendant also contended that the claim for correction should have been made within the time

stipulated and in accordance with the said rule and it is not open to the appellant to make an application at the fag end of his career and that such

request could not be complied with in view of the decisions of the courts on the point, particularly that of the Supreme Court, reported in State of

T.N. Vs. T.V. Venugopalan, . An objection was also raised on the ground of non-joinder of necessary and proper parties and also in the ground

that the suit claim was barred by limitation and the appellant had no cause of action to maintain the suit.

On the above claims and counter claims, the suit came to be tried and both sides adduced oral and documentary evidence. Learned Trial Judge

by his judgment and decree dated 25.4.1996 dismissed the suit on the ground that the claim was not maintainable both in terms of the provisions

contained in Rule 49 of the Rules and the decision of the Apex Court noticed supra. Even on the merits of the claim, learned Trial Judge was of the

view that the appellant failed to examine his senior brother or connect the certificates of the said person and that in the absence of proper and

sufficient proof, the extract relating to the date 2.9.1943 could not be considered to relate really to the birth date of the appellant. Aggrieved, the

Appellant pursued the matter on appeal before the the Sub Court, Tiruppathur North Arcot Ambedkar District, in A.S. No. 8 of 1996. Learned

First Appellate Judge also extensively considered the contentions in the light of both the factual details presented by means of oral and

documentary evidence, as also the relevant rules and the decision of the Supreme Court. In addition to the findings recorded by learned Trial

Judge, learned First Appellate Judge also specifically adverted to the claim based on Rule 49(c) of the Rules and came to the conclusion that

proviso to Rule 49(c) will have no application to the case of the appellant and consequently no exception could be taken to the judgment and

decree of the Trial Judge dismissing the suit. Learned First Appellate Judge also adverted to some other decisions on the subject, wherein the claim

for correction or alteration of date of birth at the fag end of the service career came to be deprecated on more than one occasion. Agreeing with

the findings of the trial Judge, the appeal came to be dismissed by judgment and decree dated 24.9.1996. Hence, the above second appeal.

Mr. Vijayakumar, learned Counsel appearing for the appellant while elaborating the substantial questions of law raised in the grounds of appeal

contended that the courts below committed an error in holding that the suit was not maintainable and barred by limitation and that the deletion of

proviso to Rule 49(c) of the Rules with effect from 3.8.1994 by Order dt.27.12.1995 cannot in any manner affect the claims of the appellant since

at that point of time, when the appellant made his application, the proviso was very much on the Statute, Accordingly, learned Counsel for the

appellant contended that the courts below committed an error in rejecting the claim and on the other hand the suit ought to have been decreed as

prayed for.

I have carefully considered the submissions of the counsel for the appellant. In my view, the concurrent judgment of the courts below do not call

for any interference in this second appeal and that the grounds of challenge sought to be made against the judgments of the courts below, do not

merit the acceptance of this Court. Rule-49 of the Rules in so far as it relates to the present case reads as follows:

Alteration of date of birth: (A) If, at the time of appointment, a candidate claims that the date of his birth is different from that entered in his

S.S.L.C. or Matriculation Register or school records, he shall make an application to the Tamil Nadu Public Service Commission in cases where

the appointment is made in consultation with the Commission and in other cases to the appointing authority stating the evidence on which he relies

and explaining how the mistake occurred. The application shall be forwarded to the Board of Revenue for Report after investigation by an Officer

not below the rank of a Deputy Collector and, on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority, as

the case may be, shall decide whether the alteration of date of birth may be permitted or the application may be rejected.

Provided that in case of a candidate who was born outside the State of Tamil Nadu the investigation through the Board of Revenue shall be

dispensed with and the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall examine and scrutinise the

records that may be produced by the candidate and shall decide whether the alteration of date of birth may be permitted or the application may be

rejected.

(b) After a person has entered service, an application to alter the date of his birth as entered in the Official records shall be entertained only if such

an application is made within five years of such entry into service. Such an application shall be made to the authority competent to make an

appointment to the post held by the applicant at the time of his application and shall be disposed of in accordance with the procedure laid down in

Sub-rule (a).

(c) Any application received after five years after entry into service or any application, which is not supported by entries in Secondary School

Leaving Certificates, School College or University records, birth extract from records of local bodies or military discharge certificates, shall be

summarily rejected. Provided that the application for alteration of date of birth of a person who entered into service prior to the 24th January,

1961 shall be submitted at least one year before the date of his retirement reckoned with reference to the Official records.

...

The right of a Government to have an alteration of date of birth is indisputably governed and regulated by the provisions contained in the Tamil

Nadu State and Subordinate Services Rules and particularly Rule 49 extracted above, which is relevant to the purposes of the present case. The

scope and content of such rights came to the dealth with by the Apex Court on more than one occasion and it was made clear even in the latest

pronouncements reported in State of T.N. Vs. T.V. Venugopalan, that the application for correction of the date birth of an in-service employee

should be made within five years from the date when the Rules had come into force in 1961 and if no application is made, after expiry of five years,

the Government employee loses his right to make such an application for correction of his date of birth. In reversing a decision of the Tamil Nadu

Administrative Tribunal, Madras in C.A. No. 1993 of 1993 and while applying and reiterating the earlier view taken by the Apex Court in a case

arising from this State reported in Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, , it was held that the inordinate

delay in making the application is itself a ground for rejecting. The claim for the correction of date of birth and the government servant having

declared his date of birth as entered in the service register to be correct, could not be permitted at the fag end of his service career to raise a

dispute as regards the correctness of the entries in the service register. The ratio of the said decision would, in my view, squarely apply to the case

on hand and the findings recorded and conclusions arrived at by the courts below in rejecting the claim of the appellant, are well merited and quite

in accordance with law and do not suffer any infirmity warranting interference by this Court.

That apart, the claim on behalf of the appellant based on the proviso to Rule 49(c) also is miconceived and has no merit whatsoever. Apart from

the fact that the proviso came to be deleted subsequently by an order dated 27.12.1995 with effect from 3.8.1994. The proviso itself will have no

application to the case of the appellant and no advantage can be taken by the appellant on the basis of the said proviso which reads that the

application for alteration of the date of birth of a person, who entered into service prior to 24.1.1971, shall be submitted at least one year before

the date of his retirement reckoned with reference to the Official records. The appellant indisputably came to be appointed to service on

23.6.1964 and in respect of the claims like the one projected by the appellant, it is the main rule, particularly Clause (c) of Rule 49 will be attracted

and the rejection of the claim by the defendant, as also by the courts below cannot be said to be either unwarranted or unjust.

Further, the courts below have also chosen to reject the claim on merits. The Appellant has not chosen to examine his brother Chinna

Anumanthan or any of the other sisters to prove his claim or to connect the birth extracts as relating to really his sisters and that the appellant was

younger to them as claimed. The reasons assigned by the courts below and the defects pointed out in the entries as creating a genuine and

reasonable doubt about the relevance of those documents to the claim of the appellant and rejecting them as also the now claimed date of birth

cannot be said to be either vitiated by any patent error of law or perversity of approach, consequently, I do not see any justification to entertain this

second appeal.

The second appeal, therefore, fails and shall stand dismissed. Consequently the C.M.P. is also dismissed.