Sevagaperumal vs The Government of Tamil Nadu

R. Mala, J.—This Second appeal has been filed to set aside the judgment and decree, dated 17.08.1994 made in A.S. No. 113 of 1992 passed by the learned Subordinate Judge, Tenkasi, reversing the judgment and decree, dated 27.06.1991 made in O.S. No. 292 of 1989 passed by the learned District Munsif, Tenkasi.

The Appellant as Plaintiff filed the suit for declaration to declare that the Plaintiff was born on 10.02.1939 and for consequential mandatory injunction to direct the Defendants to correct the Date of Birth of Plaintiff as 10.02.1939 instead of 08.10.1936 in the Plaintiff''s Service Register etc., stating that he is the eldest son of Paramasivan Pillai and his wife Meenakshi Ammal and born on 10.02.1939 at Neduvayal village, which has been evidenced by Birth Certificate issued by the Government authorities, but unfortunately, when the Plaintiff was inducted for his school studies, his Date of Birth was wrongly entered as 08.10.1936 and the Plaintiff came to know about the mistake only recently and it was not wantonly done, but only due to ignorance and hence, he approached the concerned authorities to rectify the mistake, but in vain. Therefore, he sent a notice, requesting the Defendants u/s 80 C.P.C to rectify the mistake regarding his actual Date of Birth and declare his Date of Birth as 10.02.1939 within two months after receipt of the notice. The Defendants received the notice, but they have not sent any reply and not taken any steps to rectify the mistake. Hence, he has come forward with the suit.

Repudiating the said pleadings, the second Defendant filed a written statement, which was adopted by the first Defendant, stating that the suit is barred by limitation and there is no cause of action to file the suit and that the suit is bad for non-joinder of necessary parties, viz., the Plaintiff''s parents and they prayed for dismissal of the suit.

The learned trial Judge, after considering the averments both in the plaint and in the written statement and after considering the arguments advanced by both the counsel, framed necessary issues and considering the oral evidence of P.W.1 and the documentary evidence of Exs.A1 to A6, decreed the suit. As against the same, the Respondents-Defendants, as Appellants preferred First Appeal in A.S. No. 113 of 1992 before the learned Subordinate Judge''s Court, Tenkasi and the First Appeal was allowed, setting aside the judgment and decree of the trial Court. As against the judgment and decree of the first appellate Court, the present Second Appeal has been filed by the Appellant/Plaintiff.

At the time of admission of the Second Appeal, this Court framed the substantial questions of law as to "Whether the suit is barred by limitation?"

The Appellant as Plaintiff has filed the suit for declaration to declare that his Date of Birth is 10.02.1939 and also for consequential relief and he also filed the documents Exs.A.2 to A.4, which are his younger brother''s Birth Certificates to show that the Appellant''s Date of Birth is 10.02.1939, apart from the AppellantPlaintiff''s Birth Certificate Ex.A-1, and the Appellant/Plaintiff issued a notice Ex.A5 to the Respondents/Defendants to alter his Date of Birth in his Service Register and the acknowledgement for the same is Ex.A-6. Since the Respondents/Defendants refused to alter the Date of Birth, the Appellant/Plaintiff has come forward with the suit. The trial court accepted the arguments and evidence of the Plaintiff and decreed the suit, against which, the Defendants have preferred First Appeal, which had been allowed and hence, the Plaintiff has come forward with this Second Appeal.

The learned Counsel appearing for the Appellant/Plaintiff submitted that the first appellate Court committed an error in dismissing the suit. As per Section 74 of the Indian Evidence Act, the Birth Certificate is a public document, which is an admissible evidence. He relied upon several decisions of Courts and submitted that at the time of filing the Second Appeal, he has filed a petition in C.M.P. No. 14188 of 1994 and also obtained an interim stay. Even though the order of interim stay has been granted, he was permitted to retire on the date of superannuation as per his old Date of Birth, and hence he prayed for setting aside the judgment and decree passed by the first appellate court and prayed for a decree as per the plaint.

Per contra, the learned Government Advocate appearing for the Respondents/Defendants submitted that the Appellant/Plaintiff was a teacher and he kept quiet all along and on the eve of his retirement, he came forward with the suit for changing his Date of Birth, which will affect the other candidates. To prove his case, neither he examined his parents, nor produced the particulars in respect of his Date of Birth. Except his ipse dixit document, i.e. the Birth Certificate, nothing has been filed before the Court to show that he has been born on 10.02.1939. The first appellate Court considered all the aspects in proper perspective and came to the correct conclusion, which does not warrant any interference and hence, he prayed for dismissal of the Second Appeal.

Heard the arguments advanced by the learned Counsel appearing for the Appellant/Plaintiff as well as the learned Government Advocate appearing for the Respondents/Defendants and perused the entire materials available on record.

The Appellant as Plaintiff filed the suit, stating that his Date of Birth is 10.02.1939, but he has filed the suit on 20.06.1989. His Date of Birth has been given in the Service Register as 08.10.1936. As per 08.10.1936, his Date of Superannuation is 31.10.1994. Since he was working as a Teacher, he has been permitted to work till the end of the academic year i.e. up to 30.04.1995. It is pertinent to note that it is very important to decide the averment in paragraph 3 of the plaint, wherein the Plaintiff has stated as follows:

The Plaintiff Thiru.P. Sevekaperumal is the eldest son of Paramasivan Pillai and his wife Meenakshi Ammal. He was born on 10.02.39 at Neduvayal Village. The fact will be clear from the Birth Register extract maintained by the Government Authorities. But unfortunately when the Plaintiff was inducted for his school studies his date of birth was wrongly entered as 08.10.36. The Plaintiff came to know about the mistake only recently. Such mistake was not wanton but due to ignorance. The Plaintiff has been put to ineffable difficulties because of such wrong entry about his age.

A perusal of the said averments in the plaint would show that the Plaintiff never stated that he was working as a Teacher. Admittedly, he was working as a Secondary Grade Teacher in a Government Primary School, Shengottai. Even though in the body of the plaint, he never stated as to when he joined duty, now, he wanted a mandatory injunction, directing the Defendants to correct his Date of Birth as 10.02.1939 instead of 08.10.1936 in his Service Register. But, the District Educational Officer and District Collector, Tirunelveli alone have been arrayed as Defendants (Respondents herein). The Tamil Nadu State and Subordinate Service Rules came into existence only on 01.01.1955. While so, even the Appellant/Plaintiff was born on 08.10.1936, he would have joined duty only after the completion of 18 years, but, he has not given the date as to when he joined the service.

At this juncture, it is appropriate to consider the evidence of P.W.1, the Plaintiff (Appellant herein), wherein, he has stated that in his S.S.L.C. Book, his Date of Birth has been given as 08.10.1936, but he has not filed the S.S.L.C Book before the Court. In his cross-examination, he has stated that he did his S.S.L.C. during the year 1956-1957, but the Tamil Nadu State and Subordiante Services Rules has came into existence only in 1955. In this connection, it is worthwhile to refer Rule 49 of the General Rules contained in Part II of the Tamil Nadu State and Subordinate Services Rules, which deals with the alteration of the Date of Birth, as follows:

Rule 49: Alteration of date of birth.--(a) If, at the time of appointment, a candidate claims that his date of 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 Commissioner of Revenue Administration 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 Commissioner of Revenue Administration shall be dispensed with and the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall examine and scrutinize 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 Certificate, School, College or University records, birth extract from records of local bodies or military discharge certificates, shall be summarily rejected.

*Proviso- [Omitted in G.O. Ms. No. 388, P & AR (Per.S), dt.27-12-95, w.e.f.3-8-94]

(d) In considering the question of permitting an alteration on the date of birth as entered in the official records even when such entry is proved to have been due to a bonafide mistake, the Government or the appointing authority shall take into consideration the circumstance whether the applicant would normally be eligible for appointment to the post at the time of entry into service had his age been correctly stated and what would have been its effect on his service and the service conditions of other officers in the service and may permit the alteration subject to such condition as they or it may deem fit to impose:

Provided that the Tamil Nadu Public Service Commission shall be consulted in the case of an applicant who has been initially recruited through the Tamil Nadu Public Service Commission, if it is proposed to accept his request for alteration of date of birth.

(e) The Procedure laid down in Sub-rule (a) shall be followed in all cases where alteration of date of birth is proposed suo motu by the Head of Office on the basis of medical opinion, in the absence of any other authoritative records.

Explanation-For the purpose of this sub-rule "authoritative records" are the secondary school leaving certificate or University, College, or School records or Discharge Certificate of Army.

(f) The decision of the Tamil Nadu Public Service Commission, the appointing authority or the Government, as the case may be, shall be final.

Rule 49(b) of the above extracted Rules, stated that 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. Admittedly, the Appellant/Plaintiff has not given any application within five years of entry into service and he filed the same on the eve of his retirement.

The learned Counsel appearing for the Appellant/Plaintiff relied on a decision of this Court in the case of "G. Balachandran v. The State of Tamil Nadu rep. by the Collector Dharmapuri District and one Anr. 1993 (2) L.W. 367, in which, it was held that in respect of the suit for declaration and mandatory injunction to correct the date of birth of the Plaintiff, the starting point for filing the suit accrues within three years from the date of rejection of the demand made in the notice given by the Plaintiff and not the date when the Plaintiff became aware of the same and the relevant observations made by the Court in the said decisions are as follows:

So, the only question to be dealt with in the present second appeal is about the above said point of limitation. The relevant Article applicable in the present case would be Article 113, the residuary Article. There, the period of limitation is three years from the time when the "right to sue accrues." In the present case, the lower appellate court has found that the above said right to sue has accrued to the Plaintiff even in 1976 itself when he came to know that his date of birth was only 7.7.1957 and not 7.7.1956. The learned Counsel for the Appellant submits that the abovesaid reasoning of the lower appellate Court is totally erroneous since according to Gannon Dunkerley and Co., Ltd. Vs. Union of India (UOI), , there is no right to sue until there is an accrual of the right asserted in the suit, and its infringement, or at least a clear and unequivocal threat to infringe that right by the Defendant against whom the suit is instituted. The learned Counsel points out that pursuant to Ex.A4 dated 29.10.1979, the application made by the Plaintiff to the Defendant for making the necessary correction, the reply was sent by the Defendant under Ex.A5 dated 3.11.1979 rejecting the claim of the Plaintiff. So, according to the said Counsel, the time would begin to run only from 3.11.1979. The learned Counsel for the Respondent could not make any submission contra in view of the above said Supreme Court decision. Therefore relying on the above said Supreme Court decision, this Second Appeal has to be allowed.

The learned Counsel appearing for the Appellant/Plaintiff contended that examination of the parents is not necessary and to substantiate the same, he relied upon the decision of this Court in the case of Bagiammal v. Kamalammal 77 L.W. 679, wherein, it has been stated that it is true that, if there is any controversy about the identity of person, mere production of the death register extract will not be sufficient, but, where the controversy has not been raised at the relevant time, and there is no evidence contra, the finding of the lower Court would be conclusive in the Second Appeal. But, the above said citation is not applicable to the facts of the present case.

The learned Counsel appearing for the Appellant/Plaintiff further relied upon the decision of this Court in the case of M. Radhakrishnan Vs. The District Educational Officer and Others, , wherein, this Court held as follows:

...At this stage, the learned Additional Government Pleader pointed out the distinction between the case reported in Balachandran v. State of Tamil Nadu (1993) 2 L.W. 367 and the present case. He pointed out the assertion of the Plaintiff in the plaint that after knowing the mistake the Plaintiff was repeatedly writing to the Education Department for the correction of his date of birth in the S.S.L.C. Book, but no favourable reply was given by the Education Department. The above said pleading was strengthened by P.W.2 (Plaintiff) in his oral evidence. For this the learned Additional Government Pleader contended that after knowing the correct date of birth in the year 1966, according to the Plaintiff, he made several representations to the Defendants and no favourable reply was given by the Education Department. Hence as rightly pointed out by the learned Additional Government Pleader, in this case the cause of action arose even as early as in the year 1966 and subsequent reply by the Defendants to the Plaintiff, in view of Article 113, the present suit filed in the year 1979 is clearly barred by limitation. In the light of the above factual assertion as borne out by evidence, the decision relied on by the learned Senior Counsel for the Appellant, i.e. Balachandran v. State of Tamil Nadu (1993) 2 L.W. 367 is distinguishable and not applicable to the facts of the present case.

Learned Counsel appearing for the Appellant/Plaintiff also relied upon the decision of this Court in the case of Thambi v. V.M. Duraisamy (2008) 7 M.L.J. 1086, wherein, this Court has held thus:

A certificate issued by the headmaster of a school could not be proved without examining the headmaster. But under Sections 74 and 76 of the Evidence Act a certified copy issued by the authority concerned under his signature and seal is a public document, admissible on production.

But, the above said decision is not applicable to the facts of this case.

The learned Government Advocate appearing for the Respondents/Defendants relied on the decision of the Supreme Court in the case of State of U.P. and Another Vs. Shiv Narain Upadhyaya, , wherein, the Apex Court has held as follows:

An application for correction of the date of birth should not be dealt with by the Courts, Tribunal or the High Court keeping in view only the public servant concerned. Any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective Promotions are affected in this process. Some are likely to suffer irreparable injury, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may loose the promotion for ever. Further the Court must be slow in granting an interim relief or continuation of service unless prima facie evidence of unimpeachable character is produced because if employee fails he would have enjoyed undeserved benefit and thereby caused injustice to his immediate junior.

Learned Government Advocate further relied upon the decision of the Supreme Court in the case of U.P. Madhyamik Shiksha Parishad and Others Vs. Raj Kumar Agnihotri, and submitted that a correction in entries made in Government records on the basis of which the Government servant got the service, cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement.

Learned Government Advocate further relied upon the decision of this in the case of A. Rajagopalan v. Registrar, University of Madras, Chennai 2009 (2) M.L.J. 1000 and submitted that the applications for alteration of date of birth in service records, have to be made at the earliest or within the time limit prescribed under service rules and applications which are filed on the verge of retirement, have to be summarily rejected.

Admittedly, the Appellant/Plaintiff has not filed the application within five years as per Rule 49(b) of the Tamil Nadu State and Subordinate Services Rules. As per the said decision of the Supreme Court reported in U.P. Madhyamik Shiksha Parishad and Others Vs. Raj Kumar Agnihotri, , the alteration of Date of Birth cannot be allowed to be changed just a few years before retirement or at the fag end of his retirement. Here also, the Appellant/Plaintiff entered into the service after completing his 18 years and he has come forward with the suit at the fag end of his retirement and hence, this Court is of the considered view that the Appellant/Plaintiff is not entitled to get the relief as prayed for in the plaint.

As per the dictum laid down by the Supreme Court in the case of State of U.P. and Another Vs. Shiv Narain Upadhyaya, , the application for correction of Date of Birth could not be dealt with by the Courts keeping in view only the public public servant concerned, and any such direction for correction of Date of Birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions, are affected in this process, and some are likely to suffer irreparable injury, if the officer concerned continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may loose the promotion for ever.

While applying all the above said decisions along with the present case and also as per the evidence of P.W.1, it is seen that the Appellant/Plaintiff has attended the examination during the year 1956-1957 and hence, he would have joined in service only after 1957. The Tamil Nadu State and Subordinate Services Rules has come into effect only on 01.01.1955. In such circumstances, as per Rule 49 (b) of the said Rules, the Appellant/Plaintiff ought to have submitted his application for altering his Date of Birth, within five years of his entry into service and hence, the Appellant/Plaintiff is not entitled to change his date of birth, as per the decision of this Court in the case of A. Rajagopalan v. Registrar, University of Madras, Chennai 2009 (2) M.L.J. 1000 (cited supra).

Furthermore, the learned Counsel for the Appellant/Plaintiff relied upon the decision of the Supreme Court in the case of The State of Bihar Vs. Rani Sonabati Kumari, and submitted that even though interim stay has been granted by this Court, he was permitted to retire from service on attaining the age of superannuation i.e. on 30.04.1995, and hence, he prayed for the allowing the Second Appeal. But, the above argument does not merit acceptance, because the Appellant/Plaintiff filed the suit for altering his Date of Birth and consequential mandatory injunction to correct the Date of Birth in his Service Register and even though initially he has obtained interim order of stay before this Court, which has been subsequently extended from time to time, subsequently, the order of interim stay had been vacated, by dismissing the stay petition on 7.9.1995, with the following observations:

Learned Counsel for the Petitioner represents that the Petitioner who is a teacher has been already relieved from his post though the interim stay was in force. As the Petitioner is not in service now, there is no point in extending the stay and it is left to the Petitioner to work out his remedies in any other forum according to law. Therefore, this petition is dismissed as unnecessary.

Considering the above observations made by this Court while dismissing the stay petition, I do not find any merits in allowing the Second Appeal, in view of the superannuation of the Appellant/Plaintiff.

Considering all the above facts, this Court is of the opinion that the suit is barred by limitation and the first appellate Court has considered all the aspects in proper perspective and allowed the First Appeal and dismissed the suit filed by the Plaintiff. The substantial question of law is answered accordingly.

In the above stated factual and legal position, I do not find any infirmity or illegality in the judgment and decree of the first appellate court and they are liable to be confirmed and the Second Appeal deserves to be dismissed.

In the result,

(a) the Second Appeal is dismissed;

(b) the judgment and decree of the first appellate Court are confirmed;

(c) No costs.