Dismissed

D.P. Prakash Murthy v. the Chief Secretary

Karnataka HC12 Oct 2023RSA/1793/2016

Case brief

AI extract

What is this about?

This court dismissed a second appeal by a state employee against a trial court order rejecting his suit to correct his date of birth. The court held that the civil suit was barred because the Act bars civil jurisdiction for age determination and the suit was also time-barred.

What did the court decide?

The appeal was dismissed, and the judgments and decrees of the courts below were confirmed.

D.P. Prakash Murthy Vs the Chief Secretary — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 1793 OF 2016 (DEC)

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BETWEEN:

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D.P. PRAKASH MURTHY, S/O LATE PUTTASWAMAPPA, AGED ABOUT 59 YEARS, HOUSE NO.871, 27^TH MAIN ROAD, 2^ND CROSS, J.P.NAGAR, MYSORE - 570 008.

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…APPELLANT

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(BY SMT. DEEPIKA K., ADVOCATE FOR SRI. PRAMODA K., ADVOCATE)

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AND:

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Digitally signed by SUNITHA GANGARAJU

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Location: High Court of Karnataka

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THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE - 560 001.

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THE COMMISSIONER, DEPARTMENT OF PUBLIC INSTRUCTIONS, NRUPATHUNGA ROAD, BANGALORE - 560 002.

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THE SECRETARY, KARNATAKA SECONDARY EDUCATION BOARD, MALLESHWARAM, BANGALORE - 560 003.

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THE DEPUTY DIRECTOR, DEPARTMENT OF EDUCATION, NANJANGUD ROAD,

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BENGALURU - NILGIRI ROAD MYSUR - 570 001.

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THE BLOCK EDUCATIONAL OFFICER, NANJANGUD TALUK, NANJANGUDU - 571 301.

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THE HEAD MASTER, GOVERNMENT PRIMARY SCHOOL, DASANOOR VILLAGE, KOWLANDE HOBLI - 571 301, NANJANGUD TALUK,

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THE HEAD MASTER, JSS HIGH SCHOOL, NEAR SIDDAPPA SQUARE, LAKSHMIPURAM, MYSORE - 570 001.

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THE DIRECTOR, CENTRAL SERICULTURE BOARD, BANGALORE - 560 023.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.07.2016 PASSED IN RA NO.9/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NANJANGUD, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.01.2015 PASSED IN OS NO.478/2012 ON THE FILE OF THE ACJ AND JMFC., NANJANGUD.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This second appeal is filed by the appellant

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challenging the judgment and decree dated 20.07.2016

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passed in R.A.No.9/2015 by the Senior Civil Judge and JMFC, Nanjangud confirming the judgment and decree dated 02.01.2015 passed in O.S.No.478/2012 by the Additional Civil Judge and JMFC, Nanjangud.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellant is the plaintiff and respondent Nos.1 to 8 are the defendant Nos. 1 to 8.

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The brief facts leading rise to filing of this appeal are as under:

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The plaintiff born on 30.12.1957 at Dasanur Village, Kavalande Hobli, Nanjangud Taluk, Mysore District. His parents mentioned his date of birth as 30.12.1954 instead of 30.12.1957 at the time of admitting in the school. The said mistake was crept in the school records due to illiteracy and mistake on the part of the parents of the plaintiff. The plaintiff studied from 1^st to 7^th standard in the Government Primary School, Dasanur Village, from 1962 to 1968. He prosecuted his studies at JSS High

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School, from 1968 to 1971. He joined JSS Collage, Mysore and prosecuted P.U Education and thereafter, joined Yuvaraja Collage, Mysore and obtained B.Sc Degree. He completed his M.Sc. Degree Course in Manasa Gangothri, Mysore and joined the service in Sericulture Department. Immediately after joining the service at defendant No.8 i.e., Central Sericulture Board, the plaintiff executed an affidavit on 07.03.1984 and declared his date of birth as 30.12.1957 before defendant No.8 and requested several times to the defendants to change his date of birth as 30.12.1957 instead of 30.12.1954. The defendants refused to rectify the said mistake on flimsy grounds. The plaintiff has no other option except issuing a legal notice to the defendants. The plaintiff issued a legal notice on 30.05.2012 and claim made in the legal notice has not been complied by the defendants. Due to the said mistake, the plaintiff suffered heavy loss and cause of action arose for the plaintiff to file a suit. Hence, the suit.

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Defendant No.6 filed the written statement contending the suit filed by the plaintiff is barred by law of limitation. It is contended that the plaintiff falsely claiming his date of birth as 30.12.1957. It is contended that the date of birth of the plaintiff was entered in the school records as per the information submitted by his parents and same is correct. Hence, on these grounds, sought for dismissal of the suit.

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Defendant No.8 filed written statement contending that the plaintiff is working in Silk Worm Seed Technology Laboratory, Kodathi as a Scientist and he joined service as a Senior Research Assistant w.e.f. 02.02.1984 and declared his date of birth as 30.12.1954 and the same date of birth have been continued for many years upto this date. Further, the bio-data of the plaintiff having been verified by defendant No.8 and in the original certificates, his date of birth is mentioned as 30.12.1954. An attestation form submitted by the plaintiff at the time of joining duty where he has declared his date of birth as

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30.12.1954 and as per the records of the office of defendant No.8, the date of birth of the plaintiff is 30.12.1954. Defendant No.8 admitted the fact of submitting representation by the plaintiff on 09.03.1984 for correction of his date of birth from 30.12.1954 to 30.12.1957. It is contended that the suit is barred by law of limitation and the Court has no jurisdiction to try the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiff proves that his date of birth is 30.12.1957?

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1. Whether the plaintiff is entitled for the relief of declaration as prayed?

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1. Whether the plaintiff is entitled for the relief of mandatory injunction?

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1. Whether the defendants prove that the suit is barred by law of limitation?

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1. What order or decree?

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In order to prove the case of the plaintiff, examined himself as PW-1 and examined one witnesses as PW-2 and got marked 16 documents as Exs.P1 to P16. The officials of the defendants are examined as DW-1 to DW-3 and got marked 7 documents as Exs.D1 to D7.

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The trial Court after considering the oral and documentary evidence, answered issue Nos.1 to 3 in the negative, issue No.4 in the affirmative and consequently dismissed the suit of the plaintiff vide judgment dated 02.01.2015.

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The plaintiff aggrieved by the judgment and decree passed by the trial Court in the above said suit, filed an appeal in R.A.No.9/2015. The First Appellate Court, after hearing the parties, has framed the following points for consideration:

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1. Whether the appellant has made out reasonable and acceptable grounds for condonation of delay in preferring appeal?

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1. Whether the appellant proved that the judgment and decree of the trial court is illegal, erroneous, perverse and called for interference of this court?

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3) What order or decree ?

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The First Appellate Court, on re-appreciating the oral and documentary evidence placed on record by the parties, answered point answered point No.1 in affirmative and point No.2 in the negative and consequently, dismissed the appeal of the plaintiff and confirmed the judgment dated 20.07.2016 passed by the trial Court. The plaintiff aggrieved by the judgments and decrees passed by the courts below, has filed this second appeal.

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Heard the learned counsel for the plaintiff.

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Learned counsel for the plaintiff submits that

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the plaintiff was born on 30.12.1957, but the parents of the plaintiff got entered his date of birth as 30.12.1954 as they were ill-literate. She submits that in order to establish that the plaintiff was born on 30.12.1957, the

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plaintiff has produced Ex.P15 i.e., Horoscope, which discloses that the plaintiff was born in the year 1957 i.e., 30.12.1957. Both the Courts below have not considered Ex.P15. Hence, she submits that the Courts below have committed an error in dismissing the suit of the plaintiff. Hence, she prays to allow the appeal.

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Perused the records and considered the

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submissions of learned counsel for the plaintiff.

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It is not in dispute that the plaintiff was admitted in defendant No.6-School by his parents and he studied from 1^st standard to 7^th standard from 1962 to 1968. At the time of admission, the parents of the plaintiff shown his date of birth as 30.12.1954. The plaintiff after completion of 7^th standard got admitted in defendant No.7 School for 8^th standard and he completed his studies from 8^th to 10^th standard in defendant No.7 School from 1968 to 1971. Thereafter, the plaintiff jointed JSS College, Mysore for his PU Education and thereafter, joined Yuvaraja College and obtained B.Sc., Decree. The plaintiff

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completed his M.Sc., Decree in Manasa Gangotri, Mysuru. After completion of his post graduation decree, the plaintiff joined the service as Senior Research Assistant w.e.f. 02.02.1984 and declared his date of birth as 30.12.1954. After joining the service, the plaintiff has submitted an application for correction of his date of birth as 30.12.1957

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and thereafter, he continued in his service. Further, the date of birth of the plaintiff is continued as 30.12.1954 in the records. The defendants have not passed any order on the representation submitted by the plaintiff dated 17.04.1984. Thereafter, the plaintiff got issued a legal notice on 30.05.2012 i.e., after lapse of more than 26 years calling upon the defendants to correct the date of birth. The plaintiff produced the documents i.e., Ex.P1 is the legal notice, Ex.P2 to Ex.P7 are the postal acknowledgments, Ex.P8 to Ex.P14 are the postal receipts, Ex.P15 is the horoscope, Ex.P16 is the endorsement in order to establish that the plaintiff has submitted an application for correction of date of birth.

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The officials of the defendants were examined and got marked the documents i.e., Ex.D1 is the admission register extract, Ex.D2 is the transfer certificate, Ex.D4 is the Bio data and also Ex.D5 the SSLC marks card, which discloses the date of birth of the plaintiff as 30.12.1954. Further, though the plaintiff has submitted an application for alteration of date of birth in the year 1984, no order was passed. But the plaintiff has kept quiet for more than 26 years, he at the fag end of his service, has filed a suit for alteration of date of birth.

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Further, in order to consider the case in hand,

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it is necessary to consider the provisions of Section 3, 4 and 5 of the Karnataka State Servants (Determination of age) Act 1974 (for short 'the Act') which provides for alteration of age of date of birth of the State Government, reads as under:

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3. 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,

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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:

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Provided that where any such document is not available, the reasons for its nonavailability 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.

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(2) The appointing authority shall notwithstanding anything contained in any judgment, decree or order of any court 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:

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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] who is subject to the control of the High Court under 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.

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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

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birth and age specified in the certificate evidencing pass in such examination shall be accepted as his date of birth and age.

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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.

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(3) Notwithstanding anything contained in 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 section (2).

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(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 sub-section (2) or as the case may be sub-section (3), shall subject to any alteration made under section 5, be applicable for all purposes relating to the conditions of service including superannuation and retirement of the State servant concerned.

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4. 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 under Section 3 shall, in so far as it relates to

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his conditions of service as such state Servant, be made except under Section 5.

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5. Alterations of age or date of birth of State Servants: (1) Subject to subsection (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:

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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.

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Provided further that no such alteration shall be made without giving the State Servant concerned a reasonable opportunity of being heard.

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(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.

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(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:

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Provided that the powers of the state Government under sub-section (1) and this sub-section shall in respect of the alteration of

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the age or date of birth of a State servant who,-

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(i) is subject to the control of the High Court under Article 235 of the Constitution, be exercisable, by the High Court; and

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(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.

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(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:-

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(a) summoning and enforcing the attendance of any person and examining him an oath;

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(b) requiring the discovery and production of any document;

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(d) requisitioning any public record or copy thereof from any court or office;

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(e) issuing commissions for the examination of witnesses or documents.

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(5) (a) The officer appointed under subsection (3) Section 175, shall be deemed to be a civil court and when any offence as is described in 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

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jurisdiction to try the some 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 under section 346 of the Code of Criminal Procedure, 1973.

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(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).

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Section 3 of the Act deals with determination of

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age on entry into State service. Section 4 deals with Bar of alteration of age except under the Act and Section 5 deals

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with the alterations of age or date of birth of State Servants.

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Section 3 provides that 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

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copy or extract from the entries made in school or college records indicating the date of birth. Pursuant to Section 3 of the Act, the plaintiff had declared his date of birth as 30.12.1954 and produced the birth certificate as well as 10^th standard marks card which is marked as Ex.D5. Further, the plaintiff has also submitted bio data to the appointing authority as per Ex.D4. Ex.D4 discloses that the plaintiff himself has declared his date of birth as 30.12.1954.

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Section 4 of the Act provides that no such alteration shall be made if the age or 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.

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In the instant case, on the basis of the record submitted by the plaintiff i.e., school records, bio data and 10^th standard marks card, his date of birth was recorded as 30.12.1954 in the service register. The plaintiff has

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kept quite for more than 26 years and filed a suit at the fag end of service.

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Further, as per Section 6 of the Act, the suit filed by the plaintiff itself is not maintainable. There is a bar of jurisdiction of the Civil Court to settle, decide or deal with any question which is required to be decided under the Act.

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Further, though the plaintiff has submitted an application in the year 1984, but has filed a suit in the year 2012, the suit filed by the plaintiff is barred by limitation.

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The trial Court by placing a reliance on the judgment of the Hon’ble Apex Court in the case of UNION OF INDIA VS. C. RAMASWAMY AND OTHERS reported in AIR

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1997 SC 2055 has rightly passed the judgment.

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The First Appellate Court on re-apprecaition of material on record has rightly confirmed the judgment and

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decree passed by the trial Court. As both the Courts below have concurrently recorded a finding of fact that the plaintiff has failed to prove that he was born in the year 1957 instead of 1954 and further, the suit filed by the plaintiff is barred by limitation. Hence, I do not find any grounds to interfere with the impugned judgments and decrees. I do not find any substantial question that arises for consideration in this appeal.

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