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Judgment
Sabina, J
Petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a direction that the respondents should carry out necessary correction in his service record pertaining to his date of birth.
The case of the petitioner, in brief, is that he had joined the office of respondent No.1 on 3rd October, 1987 as a clerk. Date of birth of the petitioner was recorded as 13th February 1963, in his matriculation certificate. Consequently, in the service record of the petitioner, his date of birth was recorded as 13th February 1963, on the basis of his matriculation certificate. The fact that the date of birth had been wrongly recorded in the matriculation certificate of the petitioner remained unnoticed till December, 2009. It is only in December, 2009, when petitioner visited Gram Panchayat of his village in connection with some Panchayat meeting, he came to know that his date of birth had been recorded as 13th February, 1964 in the record of Gram Panchayat, Deothi-Majhgaon, Tehsil Rajgarh, District Sirmaur. Immediately, the petitioner approached the respondents for correction of his date of birth in his middle and matriculation certificates by moving a representation (Annexure P-1). However, the representation moved by the petitioner was rejected vide communication dated 31st May, 2010 (Annexure P-2), on the ground that there was no provision to make correction in the date of birth in certificate of middle standard and correction could only be made in matriculation certificate.
Petitioner filed a civil suit for declaration to the effect that his date of birth be corrected in his middle as well as matriculation certificates, basing reliance on the Panchayat record. Petitioner had also sought a decree for mandatory injunction restraining the respondents from further issuing any certificate showing his wrong date of birth. The suit was dismissed by the trial Court vide judgment/ decree dated 29th May, 2015 (Annexure P-3). Appeal filed by the petitioner against the said judgment/decree was dismissed by the first appellate Court vide judgment/decree dated 6th January, 2017 (Annexure P -4). Regular second appeal filed by the petitioner before this Court was allowed vide judgment/decree dated 4th January, 2021 (Annexure P-5).
Thereafter, the petitioner moved an application before respondent No.1 on 28th January, 2021 (Annexure P-6), seeking correction of his date of birth in the middle and matriculation certificate. Respondent No.1, in pursuance of judgment/decree of this Court has carried out the necessary correction in the certificates and issued the same afresh. Thereafter, the petitioner, after obtaining fresh middle and matriculation certificates, reflecting the correct date of birth, again moved an application before respondent No.1 on 12th February, 2021, seeking correction of his date of birth in the service record. Petitioner also furnished fresh middle and matriculation certificates reflecting his correct date of birth to respondent No.1. However, respondents, instead of correcting the date of birth of the petitioner in the service record have issued letter dated 1st February, 2021, asking the petitioner to complete his paper work with respect to his retirement process.
Respondents, in their reply, took up preliminary objections, inter alia, that the writ petition was barred by Section 11 Explanation IV and Order II Rule 2 of The Code of Civil Procedure, 1908. Petitioner had failed to seek the relief now sought by him in the Civil Suit filed by him, hence, the relief sought by the petitioner in the writ petition was deemed to have been waived by the petitioner. Petitioner has already retired on 28th February, 2021. The date of birth of the petitioner has been recorded in the service record on the basis of matriculation certificate submitted by the petitioner at the time of joining his services. It has been stated in the judgment dated 4th January, 2021 passed by this Court that petitioner had not claimed any relief with regard to the correction of date of birth in his service record, but had only sought relief that his date of birth be corrected in the middle and matriculation certificates.
Mr. B.C. Negi, learned Senior counsel assisted by Mr. Pratap Singh Goverdhan, learned counsel for the petitioner has submitted that the respondents were bound to make correction with regard to the date of birth of the petitioner in his service record on the basis of the correction incorporated in his middle and matriculation certificate. In the Panchayat record, date of birth of the petitioner has been correctly recorded and on the basis of the said entry, this Court, in appeal filed by the petitioner, had ordered the correction of his date of birth in his middle and matriculation certificate. It is only in December, 2009, the petitioner got the knowledge that his date of birth has not been correctly recorded in his matriculation certificate and immediately he had taken recourse to law. Rigors of Section 11, Explanation IV and Order II Rule 2 CPC were not applicable to the facts of the present case as the cause of action, on the basis of which the present writ petition has been filed, is different than the cause of action on the basis of which Civil Suit was filed.
Mr. Vir Bahadur Verma, learned counsel for the respondents has submitted that the petition filed by the petitioner is barred by Section 11 explanation IV and Order II Rule 2 CPC. The petitioner had joined services of the respondents in the year 1987 and his date of retirement was 28th February, 2021, whereas the writ petition seeking correction of date of birth has been filed on 26th February, 2021. Petitioner had approached the respondents, for the first time, seeking correction of his date of birth in the middle and matriculation certificates on 29th April, 2010. Hence, the writ petition filed by the petitioner was liable to be dismissed on the ground of delay and laches.
In the present case, petitioner has filed the writ petition seeking correction of his date of birth in the service record. Petitioner had joined services of the respondents on 3 rd October, 1987. Petitioner moved a representation before the respondents on 29th April, 2010 seeking correction of his date of birth in the middle standard and matriculation certificates basing reliance on Panchayat record. However, the said representation filed by the petitioner was rejected vide order dated 31st May, 2010 with the following observations:-
" Examination Regulations, Chapter-14, Rule 14.7.1.
Applications regarding change in date of birth may be considered on payment of prescribed fee provided the change has been admitted in a Court of Law. Ordinarily, in such Court Cases the Board may not defend the proceedings even if the Board is made a party to such proceedings."
The petitioner, for the first time, approached the respondents seeking correction of date of birth in his middle standard and matriculation certificates as per Panchayat record on 29th April, 2010. Thereafter, the petitioner filed a civil suit for declaration, mandatory and permanent prohibitory injunction that necessary correction regarding his date of birth be made in the middle and matriculation certificates and the defendants/respondents be restrained from issuing any certificate or document showing his wrong date of birth. The suit filed by the petitioner was dismissed and the first appellate Court had also dismissed the appeal filed by the petitioner. Regular second appeal filed by the petitioner was allowed by this Court vide judgment/decree dated 4th January, 2021. The operative part of the said judgment, reads as under:-
"27. Consequently, in view of the detailed discussion made herein above as well as law relied upon, present appeal is allowed and judgments passed by the courts below are quashed and set-aside being perverse and suit of the plaintiff for declaration is decreed in its entirety and it is held that the date of birth of the plaintiff is 13.2.1964 and not 13.2.1963 and as such, defendant-Board is directed to carry out necessary corrections in the middle as well as matriculation certification forthwith. Respondent-Board is further restrained by way of permanent prohibitory injunction to issue any certificate or document showing wrong date of birth of the plaintiff is 13.2.1963. Present appeal is disposed of, so also pending application(s), if any."
While deciding the appeal, it has been duly noticed by the learned Single Judge in paragraphs 24 and 25 that the petitioner had not sought correction of his date of birth in his service record, but had only sought correction in the middle and matriculation certificates issued by the respondent-Board. Therefore, reliance placed by the Courts below upon Rule 7.1(d) of H.P. Financial Rules, 2009 was erroneous.
Section 11 Explanation IV CPC, reads as under:-
"Explanation IV - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."
Order II Rule 2 CPC, reads as under:-
"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation. For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
As per the above provisions, every suit shall include the whole of the claim, which the plaintiff is entitled to make in respect of a cause of action and in case, the plaintiff omits to claim any relief in the suit, then he shall not afterwards sue in respect of the portion so omitted or relinquished. It has been held by the Hon'ble Supreme Court in State Bank of India vs. Gracure Pharmaceuticals Limited, (2014) 3 SCC, 595, as under:-
"8. The scope of the abovementioned provisions came up for consideration before this Court in several cases. The earliest one dealt by the Privy Council was reported in Naba Kumar Hazra v. Radhashyam Mahish AIR 1931 PC 229 wherein the Privy Council held that the plaintiff cannot be permitted to draw the defendant to court twice for the same cause by splitting up the claim and suing, in the first instance, in respect of a part of claim only. In Sidramappa v. Rajashetty (1970) 1 SCC 186 this Court held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter, namely, the subsequent suit, will not be barred by the rule contained in Order 2 Rule 2, CPC.
In Gurbux Singh v. Bhooralal AIR 1964 SC 1810 the scope of the above-mentioned provision was further explained as under:
"6. In order that a plea of a Bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out; (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar."
In Sandeep Polymers (P) Ltd. case, the abovementioned principles were reiterated and this Court held as under:
"13. '22. Under Order 2 Rule 1 of the Code which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards.
The above-mentioned decisions categorically lay down the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the plaintiff has to place all his claims before the Court in one suit, as Order 2 Rule 2, CPC is based on the cardinal principle that defendant should not be vexed twice for the same cause.
Order 2 Rule 2, CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate cause of action. On the abovementioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case."
Petitioner by seeking correction of his date of birth mainly wanted that his date of retirement should be as per the corrected date of birth. The date of birth of the petitioner as recorded in his service record was 13th February, 1963 and he wanted the same to be corrected as 13th February, 1964. By claiming the said relief, petitioner, who was to retire on 28th February, 2021, would have got extension for one year on the basis of the corrected date of birth and would have retired on 28th February, 2022. Thus, the petitioner at the time of filing of the suit knew that he was also required to seek the relief of change of date of birth in his service record. Petitioner, however, did not seek the relief in the suit that the necessary correction in his date of birth be also made in his service record. The respondents in the writ petition as well as in the suit are the same. At the time of filing of the suit, petitioner did not incorporate the relief of correction of his date of birth in the service record. It cannot be said to be a case where the petitioner was not aware of the relief, now sought by him, at the time of filing the suit. Petitioner, thus, cannot draw any benefit from the decision passed by this Court in regular second appeal, whereby his date of birth was ordered to be corrected in his middle and matriculation certificate. Rather in the said judgment, it has been duly noticed by the learned Single Judge that the petitioner had not sought correction of his date of birth in his service record.
In the facts of the present case, the writ petition filed by the petitioner is barred by Section 11 explanation IV and Order II Rule 2 CPC.
Moreover, the practice of seeking correction of date of birth in service record at the fag end of service has been time and again deprecated by the Courts. It has been held by the Hon'ble Supreme Court in Bharat Coking Coal Ltd. vs. Shyam Kishore Singh, AIR 2020 SC, 940, as under:-
"9. This Court in fact has also held that even if there is good evidence to establish that the recorded date of birth is erroneous, the correction cannot be claimed as a matter of right. In that regard, in State of M.P. vs. Premlal Shrivas, (2011) 9 SCC 664 it is held as hereunder:
"8. It needs to be emphasised that in matters involving correction of date of birth of a government servant, particularly on the eve of his superannuation or at the fag end of his career, the Court or the tribunal has to be circumspect, cautious and careful while issuing direction for correction of date of birth, recorded in the service book at the time of entry into any government service. Unless the court or the tribunal is fully satisfied on the basis of the irrefutable proof relating to his date of birth and that such a claim is made in accordance with the procedure prescribed or as per the consistent procedure adopted by the department concerned, as the case may be, and a real injustice has been caused to the person concerned, the court or the tribunal should be loath to issue a direction for correction of the service book. Time and again this Court has expressed the view that if a government servant makes a request for correction of the recorded date of birth after lapse of a long time of his induction into the service, particularly beyond the time fixed by his employer, he cannot claim, as a matter of right, the correction of his date of birth, even if he has good evidence to establish that the recorded date of birth is clearly erroneous. No court or the tribunal can come to the aid of those who sleep over their rights (see Union of India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).
Be that as it may, in our opinion, the delay of over two decades in applying for the correction of date of birth is ex facie fatal to the case of the respondent, notwithstanding the fact that there was no specific rule or order, framed or made, prescribing the period within which such application could be filed. It is trite that even in such a situation such an application should be filed which can be held to be reasonable. The application filed by the respondent 25 years after his induction into service, by no standards, can be held to be reasonable, more so when not a feeble attempt was made to explain the said delay. There is also no substance in the plea of the respondent that since Rule 84 of the M.P. Financial Code does not prescribe the time-limit within which an application is to be filed, the appellants were duty-bound to correct the clerical error in recording of his date of birth in the service book."
The learned Additional Solicitor General has also relied upon the decision of this Court in the case of Factory Manager Kirloskar Brothers Ltd. vs. Laxman in SLP (C) Nos.2592-2593/2018 dated 25.04.2019 wherein the belated claim was not entertained. Further reliance is also placed on the decision of this Court in the case of M/s Eastern Coalfields Ltd. & Ors. vs. Ram Samugh Yadav & Ors. in C.A.No.7724 of 2011 dated 27.05.2019 wherein this Court has held as hereunder:
"Nothing is on record that in the year 1987 when the opportunity was given to Respondent No.1, to raise any issue/dispute regarding the service record more particularly his date of birth in the service record, no such issue/dispute was raised. Only one year prior to his superannuation, Respondent No.1 raised the dispute which can be said to be belated dispute and therefore, the learned Single Judge as well as the employer was justified in refusing to accept such an issue.
The Division Bench of the High Court has, therefore, committed a grave error in directing the appellant to correct the date of birth of Respondent No.1 in the service record after number of years and that too when the issue was raised only one year prior to his dispute was raised earlier."
It has also been held by the Hon'ble Supreme Court in Civil Appeal No.5720 of 2021, titled Karnataka Rural Infrastructure Development Limited & Anr. vs. T.P. Nataraja & Ors, and one connected matter, decided on 21.09.2021, as under:
"10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under:
(i) application for change of date of birth can only be as per the relevant provisions/regulations applicable;
(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;
(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation."
Clause 7.1 (d) reads as under:-
7.1 (d) (1) in regard to the date of birth a declaration of age made at the time of or for the purpose of entry into Government service, shall as against the Government servant in question, be deemed to be conclusive unless he applies for correction of his age as recorded within 2 years from the date of his entry into Government service. Government, however, reserves the right to make a correction in the recorded age of the Government servant at any time against the interest of that Government servant when it is satisfied that the age recorded in his service book or in the history of service of a gazetted Government servant is incorrect and has been incorrectly recorded with the object that the Government servant may derive some unfair advantage therefrom.
(2) When a Government servant, within the period allowed, makes an application for the correction of his date of birth as recorded, an inquiry shall be made to ascertain his correct age and reference shall be made to all available sources of information such as certified copies of entries in the Municipal birth register. University or School age certificates, JANAMPATRI (horoscope) as the case may be. It should, however, be remembered that it is entirely discretionary on the part of the sanctioning authority to refuse or grant such application on being satisfied and no alteration should be allowed unless it has been satisfactorily proved that the date of birth as originally given by the applicant as a bona fide mistake and that he has derived no unfair advantages therefrom. In case the matriculation certificate in available, the date of birth recorded in the certificate will be deemed to be the correct age.
(3) The result of every such inquiry should in the case of Gazetted/Non-Gazetted Government servants be briefly stated in their service cards/service books and if correction is sanctioned, the fact should be reported to the Accountant General."
Thus, as per the above provisions, an employee can seek correction of his date of birth in the service record within two years from the date of his entry in government service. However, in the present case, the petitioner has sought correction of his date of birth in the service record when he was almost due to retire by filing the writ petition.
Thus, the writ petition filed by the petitioner is liable to be dismissed on the ground of delay and laches as the petitioner has sought correction of his date of birth when he was almost due to retire and also on the ground that the writ petition is barred by Section 11 Explanation IV and Order II Rule 2 CPC. Consequently, the writ petition is dismissed. Pending application(s), if any, also stand disposed of.