AI Structured Summary
Not yet generated for this judgment
Judgment
A.N. Venugopal Gowda, J.—The petitioner joined the service on 25.09.1985, as an Assistant Teacher, in Lower Primary School, Thattanahalli, Anekal Taluk. His service was regularized retrospectively, on 16.08.1991. According to the petitioner, though the admission register, from first standard to seventh standard, correctly shows his date of birth (DoB) as 29.02.1955, in the eighth standard, it was wrongly entered as 02.06.1953. Seeking correction of DoB, an application dated 04.03.1995 having been submitted, a communication dated 23.03.1995 vide Annexure-C was sent, to the Secretary, Karnataka State Secondary Education Board (for short the KSSE Board''), consenting for change of DoB from 02.06.1953 to 29.02.1955, in the SSLC Marks Card of the petitioner. The change of DoB in the SSLC Marks Card and the service record of the petitioner having not been made, alleging inaction on the part of the respondents, this writ petition was filed asking for a mandamus against the respondent No. 1, to consider a representation dated 11.02.2013 vide Annexure-F and to direct respondent No. 2, to rectify the petitioner''s DoB, as 29.02.1955, in the service record and grant consequential benefits.
Sri N.S. Bhat, learned advocate, contended that in view of the consent accorded by DDPI, Mysore District, on 23.03.1995, to change the DoB of the petitioner from 02.06.1953 to 29.02.1955 and in view of the petitioner''s representation dated 11.02.2013, there being an obligation on the part of the respondents 1 and 2, to rectify the mistake and enter the correct DoB of the petitioner in the service record, there being inaction, which is arbitrary and illegal, interference is called for.
Smt. M.S. Prathima, learned HCGP, on the other hand submitted that, if the petitioner has any grievance in the matter of DoB entered in his service record, based on the DoB appearing in any authentic record, he ought to have sought the relief in terms of the provisions of the Karnataka State Servants (Determination of Age) Act, 1974 (for short ''the Act''). She submitted that the petitioner having entered Government service on 25.09.1985, his service having been retrospectively regularized on 16.08.1991, having not sought alteration of DoB recorded in his service record in the manner provided under the Act, cannot seek mandamus for correction of DoB entered in the service record.
In view of the rival contentions the point for consideration is, ''whether the writ of mandamus can lie compelling the respondents to act contrary to law?''
Relevant provisions of the Act, read as follows:
Determination of age on entry into State Services.-
(1) Every person on appointment as a State servant shall declare his age along with the date of birth, and in support of such declaration shall furnish to the appointing authority documentary evidence, namely, an authenticated, extract from the birth or baptismal register, original horoscope or correspondence contemporaneous with the time of birth, indicating the date and time of birth, an authenticated copy or extract from the entries made in school or college records indicating the date of birth:
Provided that where any such document is not available, the reasons for its non-availability shall be furnished along with such other documentary evidence in support of the declaration of the age and date of birth as the appointing authority may require.
(2) The appointing authority notwithstanding anything contained in any judgment, decree or order of any Court shall after considering the evidence produced by the State servant and after such enquiry as it deems fit, accept the age and date of birth which in its opinion is satisfactorily established; and shall inform the State servant and shall record or cause to be recorded in the service register or book or any other record of service of the State servant the age and date of birth so accepted:
Provided that if the age and date of birth of a State servant has been determined by a decree of a Civil Court obtained by the State servant after he became such servant against the State Government and which has become final before the commencement of this Act, the age and date of birth so determined shall be accepted and recorded or caused to be recorded in the service register or book or any other record of service of the State servant concerned:
Provided further that in the case of a State servant who has passed the Secondary School Leaving Certificate Examination or any other examination equivalent thereto, the date of birth and age specified in the certificate evidencing pass in such examination shall be accepted as his date of birth and age:
Provided further that the powers of the appointing authority under sub-section (1) and sub-section (2) shall, in respect of a State Servant who is subject to the control of the High Court under Article 235 of the Constitution be exercisable by the High Court.
(3) Notwithstanding anything contained in such sub-sections (1) and (2), the age and date of birth of a State servant accepted and recorded in his service register or book or any other record of service before the date of commencement of this Act in accordance with the rules then in force shall be deemed to be the age and date of birth of such State servant accepted and recorded in the service register or book or any other record of service under sub-section (2).
(4) The age and date of birth accepted and recorded or deemed to have been accepted and recorded in the service register or book or any other record of service under subsection (2) or as the case may be, sub-section (3) shall, subject to any alteration made u/s 5, be applicable for all purposes relating to the conditions of service including superannuation and retirement of the State servant concerned.
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 u/s 3 shall, insofar as it relates to his conditions of service as such State servant, be made except u/s 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 the 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 u/s 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 Sections 193 and 228 of the Indian Penal Code, 1860 (Central Act 45 of 1860).
Undeniably, on the basis of the DoB of the petitioner as appearing in his SSLC Marks Card, the entry relating to the DoB in his service record was made. The DoB so recorded is subject to alteration to be made as per the provisions of S. 5 of the Act. Sub-S.(2) of S. 5, provides remedy for a State Servant, to make an application for the purpose of alteration of the DoB, entered in the service record, within three years from the date on which, his age and DoB was accepted and recorded in the service register or within one year from the date of commencement of the Act, whichever is later.
It is not the case of the petitioner, that he made any application before the Competent Authority, seeking alteration of his DoB, in the manner provided under S. 5 of the Act. Since the field is occupied by the statutory provisions, a Government servant would get right only under the Act to seek relief, in the manner provided therein. Court can direct the Government or an Instrumentality of the State by mandamus to act in consonance with law and not in derogation of the statutory provisions. In the absence of an order passed as provided under S. 5 of the Act, the petitioner has no legal right to ask for a mandamus directing respondent No. 1, to change his DoB in the Service Record.
The petitioner has joined the Government service as Assistant Teacher on 25.09.1985. Acting on a representation dated 04.03.1995 of the petitioner, a communication vide Annexure-C was sent by respondent No. 3, to the Secretary, KSSE Board, Bangalore-03, consenting for change of DoB in the SSLC Marks Card from 02.06.1953 to 29.02.1955. Undisputedly, the petitioner did not take recourse to the procedure provided in the Act, in the matter of rectification of his DoB recorded in his service record based on the entry found in his SSLC Marks Card. Sri N.S. Bhat, was unable to point out any authority having been conferred on respondent No. 3, to consent for change of DoB in the SSLC Marks Card of the petitioner. Merely because, a communication vide Annexure-C was sent, which was without authority of law, there is no obligation on the part of the KSSE Board to correct the DoB of the petitioner in his SSLC Marks Card. The claim made by the petitioner in his representation dated 11.02.2013 vide Annexure-F, based on Annexure-C, being not in consonance with law i.e., the provisions of the Act, extracted supra, respondent No. 1 having no legal obligation is justified in not considering Annexure-F i.e., in the matter of correction of the DoB of the petitioner in his service record.
The State having made special law, in the matter of determination of age of its servants, any Government servant, who has a grievance in the matter with regard to the DoB entered in his service record, should seek relief, if any, in the manner provided under the Act. The State Government is under an obligation to follow the statutory provisions and regulate the claim, when approached for relief, i.e., in the manner provided under the Act. Neither the respondents can act contrary to the provisions of the Act nor can the Court direct the respondents to act contrary to the provisions of the Act, in as much as, no mandamus car, lie against the Government or an Instrumentality of the State, to act in contravention of the provisions of the statute occupying the field, as it would amount to compelling an Authority to violate the law, which would result in destruction of law.
In State of U. P. and others Vs. Harish Chandra and others, , Apex Court has held that no mandamus can be issued either to refrain from enforcing the law or to act contrary to the law.
In Chingleput Bottlers Vs. Majestic Bottling Company, , Apex Court has held that to issue a writ of mandamus it must be shown that under the Act and the Rules there was a legal duty imposed on the Authority and the person aggrieved had a corresponding legal right to seek its enforcement.
Since, the petitioner has failed to show any existing legal right in him and a corresponding duty on the respondents i.e., in terms of the provisions of the Act, in the matter of correction of his DOB in his service record, I do not find any ground to issue mandamus against the respondents, to consider representation made vide Annexure-F.
There being no ground to issue Rule Nisi and the petition being devoid of merit is rejected.
Smt. M.S. Prathima, is permitted to file memo of appearance within four weeks.