IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.1674 OF 2013 BETWEEN Sri. T.P.Nataraja, S/o. Late T.G.Pandaiah, Aged about 51 years, R/at No.370/3, 3rd Main, 6th Cross, Subbanna Garden, Vijayanagar, Bengaluru-560040.
(By Sri. K.N.Nitish, Advocate) AND 1. The State of Karnataka, Rep. by its Chief Secretary, Vidhana Soudha, Dr. Ambedkar Veedhi, Bengaluru-560001.
2. The Director, Karnataka Secondary Education Examination Board, Malleshwaram, Bengaluru-560003.
3. The Deputy Director of Public Instructions, Bengaluru South, Basavanagudi, Bengaluru-560019.
4. The Head Master, Acharya Paatashala High School, N.R.Colony, Bengaluru-560019.
…Appellant 5. The Managing Director, Karnataka Land Army Corporation Limited, Chinnaswamy Stadium Building, Rajabhavan Road, Bengaluru-560001.
Now Called as ‘Karnataka Rural Infrastructure Development Limited’, Grameenabhivriddi Bhavana, 4th and 5th Floor, Anandarao Circle, Bengaluru-560009.
…Respondents (By Smt. M.Geetha, HCGP for R1-R3;
R4 – Served; Sri. H.Devendrappa, Advocate, for R5) This RFA is filed under Section 96 of CPC against the judgment and decree dated 20.07.2013 passed in O.S.No.9212/2007 on the file of the IX Additional City Civil and Sessions Judge, Bengaluru, dismissing the suit for declaration.
This RFA coming on for final hearing this day, the court delivered the following:
JUDGMENT This appeal is filed by the plaintiff in O.S.9212/2007 on the file of IX Additional City Civil and Sessions Judge (CCH5) Bengaluru, challenging the judgment dated 20.7.2013. Briefly stated the facts are as follows : -
2. According to the plaintiff, his date of birth is 24.1.1961. His birth took place at Gavipuram Maternity Home, Bengaluru and on the basis of the entries made in the hospital register, birth certificate was issued. When he was admitted to school, a wrong entry was made in the school register showing his date of birth as 4.1.1960. In the SSLC marks card, his date of birth is shown as 4.1.1960. He secured an employment with the fifth defendant-corporation. After noticing the mistake with regard to his date of birth, he gave a representation to fourth and fifth defendants to make necessary corrections. They did not take any action. Thereafter, he issued a notice under section 80 of the Civil Procedure Code (‘CPC’ for short) on 23.6.2007 to the defendants. Even after issuance of notice, defendants did not take action; therefore he brought a suit seeking a declaration that his date of birth is 24.1.1961 and consequentially a direction to defendants 1 to 4 to make necessary entries in the concerned registers showing his date of birth as 24.01.1961.
3. None of the defendants filed written statement.
Plaintiff adduced evidence as PW1 and produced 8 documents as per Exs. P1 to P8. The learned trial judge after considering the oral and documentary evidence produced by the plaintiff came to the conclusion that the suit was not maintainable as the appellant was governed by the Karnataka State Servants (Determination of Age) Act, 1974 (for short referred to as the ‘Act’) and according to section 5 (2) of the said Act the appellant should have made an application to the concerned authorities within three years from the date of acceptance of date of birth. Since the plaintiff did not avail that remedy, declaration cannot be granted in a Civil Court. Having arrived at this conclusion, the trial court dismissed the suit.
4. Learned counsel for the appellant argues that the trial court has come to a wrong conclusion that the provisions of the Act is applicable to the plaintiff. Plaintiff is employed with fifth defendant-Corporation to which this law was not made applicable when he joined the services in the year 1983. The only remedy open to the plaintiff was to give a representation to the defendants which he did. When his representation was not considered, he had to file a suit. He argues that Ex..P1 is the birth certificate issued by the concerned authority according to the Registration of Births and Deaths Act. It prevails over all other documents. Because there was a mistake in entering his date of birth when he was admitted to the school, the same continued till he passed his SSLC examination. Ex.P1 is the basic document to be taken into consideration. Therefore, the trial court should have noticed that suit was very much maintainable and granted the relief as sought for by the plaintiff. In support of his arguments, he places reliance on the judgment of the Supreme Court in the case of CIDCO vs Vasudha Gorakhnath Mandevlekar [(2009) 7 SCC 283].
5. The learned Government Pleader appearing for respondents 1 to 3 submits that there is no infirmity in the impugned judgment. The plaintiff joined the services of fifth defendant in the year 1983 and within three years from the date of joining, he should have made a representation seeking corrections of the date of birth. The plaintiff having failed to do so cannot maintain a suit seeking declaration with regard to his date of birth. Trial court has passed a well reasoned order. Therefore, appeal is liable to be dismissed.
6. Learned counsel appearing for the fifth respondent argues that in the year 1991, the fifth respondent passed a resolution adopting the Karnataka Civil Services Rules and therefore the appellant is very much governed by the Act. The trial court has come to a right conclusion to dismiss the suit. There are no reasons to interfere with the judgment.
7. I have considered the arguments and perused the records. Ex.P1 is the birth certificate issued by the Commissioner, Bengaluru Bruhath Mahanagara Palike. In this document, date of birth of the appellant is shown as 24.1.1961. Ex.P2 is the SSLC marks card in which date of birth is shown as 4.1.1960. Ex.P3 is a representation given by the appellant to the fifth respondent seeking corrections in the service registers by mentioning his date of birth as 24.1.1961. Ex.P4 is an endorsement given by the fifth respondent stating that if the date of birth mentioned in the SSLC marks card is corrected, to that effect corrections would be effected in the service register. Ex.P5 is the copy of the notice issued under section 80 of CPC. Exs. P6 and P7 are the postal acknowledgments.
8. Going by Ex.P1 it becomes clear that the date of birth of the appellant is 24.1.1961. The question is whether after joining the services of the fifth defendant, should the plaintiff have sought for rectification in the concerned registers with regard to his date of birth? The trial court has given a reason that the appellant should have sought rectification in accordance with the Act. I do not think that this finding of the trial court is correct. There is no dispute that the appellant joined services of the fifth defendant in the year 1983. At that time Karnataka Civil Services Rules were not applicable to the fifth defendant-corporation. It was only in the year 1991, as has been submitted by the counsel for the fifth respondent, a resolution was passed by the fifth respondent adopting Karnataka Civil Services Rules. It is very pertinent to mention here that none of the defendants contested the suit and only for the first time in this appeal such a contention is being put forward. Be that as it may. When the Karnataka Civil Services Rules were not applicable to the fifth defendant-corporation when the appellant entered into service, it is highly impossible to accept the argument that the appellant should have availed remedy within three years from the date of joining the service.
9. The Supreme Court in the case of CIDCO (supra) has clearly held that entries made in the Births and Deaths Register prevail over the entries in the school registers. The respondents do not dispute the correctness of Ex.P1. All that they now contend is that the appellant did not seek corrections with regard to his date of birth within three years from the date of adoption of the Karnataka Civil Services Rules. This argument is highly fallacious. It is not the case of the respondents that such a resolution passed by the fifth respondent was brought to the notice of every employee of the fifth respondent-corporation. In these circumstances, it is to be held that nothing prevented the trial court in placing reliance on Ex.P1 to grant a declaration with regard to correct date of birth of the appellant. This findings of the trial court are not sustainable. Hence, it is to be set aside.
10. Consequently, the appeal is allowed. Judgment of the trial court is set aside. Suit is decreed. It is declared that the date of birth of the appellant is 24.1.1961. Respondents are directed to make necessary entries in the concerned registers mentioning his date of birth as 24.01.1961. There is no order as to costs.
SD/- JUDGE ckl