Appeal dismissing a suit for declaration of correct date of birth. The court held the claim barred by limitation and rejected evidence from school registers absent original records.
The appeal was dismissed as it failed to raise any substantial question of law pertaining to limitation and evidentiary value of the documents.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF ORISSA: CUTTACK
R.S.A. No.349 of 2006
From the judgment and decree dated 19.07.2006 and 01.08.2006 respectively passed by Sri A.K. Patnaik, learned Additional District Judge, Jharsuguda in R.F.A. (T.S.) No.29 of 2005 confirming the judgment and decree dated 31.08.2005 and 05.09.2005 respectively passed by Shri J. Mishra, learned Civil Judge (Jr. Divn.), Jharsuguda in C.S. No.46 of 2004.
Smt. Sanjukta Das ………..…… Appellant ---versus—
Secretary, Education Department, Govt. of Orissa, Bhubaneswar and others
………….…… Respondents
For Appellant : Mr. Budhiram Das, Advocate
J U D G M E N T
P R E S E N T:
THE HON’BLE DR. JUSTICE A.K. RATH
---------------------------------------------------------------------------Date of Hearing : 17.01.2019 │ Date of Judgment: 17.01.2019
Dr. A.K. Rath, J. This appeal at the plaintiff’s instance assails the confirming first appellate judgment of learned Additional District Judge, Jharsuguda in a suit for declaration that her date of birth in the High School Certificate is wrong.
02. The case of the plaintiff is that she is working as Staff Nurse at Central Hospital under M.C.L. Ib. Valley, Brajrajnagar since 19.8.1991. Her date of birth was mentioned as 5.7.1966 in the certificate of Diploma in Nursing and Midwifery as well Service Book according to the certificate issued by the Board of Secondary Education. While appearing in the H.S.C. Examination in the year
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1983, she filled up her form mentioning her date of birth as 5.7.1967. But the defendant no.2, Secretary, Board of Secondary Education, Orissa, Cuttack, wrongly mentioned her date of birth in the certificate as 5.7.1966. In all her certificates right from Class I to I.A., her date of birth has been mentioned as 5.7.1967. The Headmistress of Municipal Girls High School has given correct date of birth to the defendant no.2 as admitted by her in her reply to the Advocate’s notice. Because of wrong recording of date of birth in her Service Book, she being a Govt. servant, will be deprived of getting the service benefits and also pensionary benefits at the time of her retirement. Though she approached the defendant no.2 for correction of date of birth, but the defendant no.2 maintained a sphinx like silence. With this factual scenario, she instituted the suit seeking the reliefs mentioned supra, after serving notice under Sec.80 C.P.C. to the defendants.
03. The defendant no.1 was set exparte. The defendant nos.2 and 3 have filed their separate written statements denying the assertions made in the plaint. The case of the defendant no.2 was that she filled up the form to appear in the H.S.C. examination mentioning her date of birth as 5.7.1966. Accordingly, the defendant no.2 prepared the register. The records have been prepared by the Board in accordance with the Regulation 9 and 25 after receipt of forms duly filled up by the plaintiff. In all the available records, the date of birth of the plaintiff has been mentioned as 5.7.1966.
04. The defendant no.3 has also filed written statement admitting the plaint averments. It is pleaded that the competent authority has jurisdiction to correct the error.
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05. Stemming on the pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary. On anatomy pleadings and evidence on record, learned trial court came to hold that the date of birth mentioned by the defendant no.2 is correct. The plaintiff failed to prove that the defendants wrongly recorded her date of birth in HSC Certificate. She had not taken any steps for correction of her date of birth as per Regulation 39 of the Board of Secondary Education Regulation. The suit was filed after lapse of 20 years after issuance of HSC Certificate. Held so, it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree before the learned Additional District Judge, Jharsuguda in R.F.A. (T.S.) No.29 of 2005, which was eventually dismissed.
06. Mr. Budhiram Das, learned Advocate for the appellant, submits that in the admission register, the date of birth has been mentioned as 5.7.1967, but inadvertently the same has been mentioned as 5.7.1966 in the HSC Certificate. Learned trial court is not justified in holding that no notice under Sec.80 C.P.C. was served. No issue was framed with regard to service of notice under Sec.80 C.P.C. He further submits that the suit is within the prescribed period of limitation.
07. The plaintiff appeared at the H.S.C. Examination in the year 1983. H.S.C. Certificate was issued to her. Section-VI of the Regulations of the Board of Secondary Education, Orissa deals with miscellaneous regulations including regulations relating to the conduct of examinations and disciplinary measures. Regulation 39 of the Board of Secondary Education Regulation, 1955 deals with the date of birth. The same reads as under.
“ 39. Date of Birth : The date of birth once entered in the Board’s records cannot be changed unless it is of the
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nature of clerical error or printing mistake. Application for the correction of the date of birth should be made within three years of passing the examination. No change in date of birth recorded shall be made unless the application for correction is received through the head of the institution concerned within three years of passing the examination.”
08. Article 58 of the Limitation Act provides to obtain any other declaration. The period of limitation is three years, when the right to sue first accrues. The right to sue first accrued to the plaintiff when she received the H.S.C. certificate.
09. In Khatri Hotels Pvt. Ltd. & Anr. vs. Union of India & Anr. (2011) 9 SCC 126, the apex Court held:
“30.While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.”
10. The apex Court in the case of Board of Trustees of Port of Kandla vs. Hargovind Jasraj and another , 2013 (3) SSC 182 held:
“22. The expression right to sue has not been defined. But the same has on numerous occasions fallen for interpretation before the Courts. In State of Punjab & Ors. V. Gurdev Singh (1991) 4 SCC 1, the expression was explained as under :
“6………. The words “right to sue” ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.”
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11. Rule 65 of the Orissa General Financial Rules (Vol.1) provides that every person on entering Government service shall declare his/her date of birth which shall not differ from any such declaration expressed or implied for any public purpose before entering service. The date of birth shall be supported by documentary evidence such as Matriculation Certificate, Municipal Birth Certificate and entered in his/her service record. No alternation of the date of birth of Government servant shall be made except in case of clerical error without prior approval of the State Government. An application for effecting a change in the date of birth shall be summarily rejected if (a) filled after five years of entry into Government service, or; (b) the change would so lower the applicants age that he/she would have been ineligible to appear in any of the academic or recruitment Examinations in which he/she had appeared or for consideration for appointment to any service or post under the Government.
12. Even if, it held that the notice under Sec.80 C.P.C. was served on the defendants, but then the suit is liable to be dismissed on the ground of limitation. Furthermore, the Service Book of the plaintiff has not been exhibited. The same has been purposefully withheld. When the Service Book is opened, the plaintiff must have countersigned on the same.
13. The apex Court in the case Birad Mal Singhvi v. Anand Purohit , AIR 1988 S.C. 1796, held that to render a document admissible under Section 35 of the Representation of the People Act, 1951, three conditions must be satisfied. Firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially
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enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. It was further held that if the entry in the scholar’s register regarding date of birth is made on the basis of information given by parents, the entry would have evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will have no evidentiary value. Merely because the documents such as extract of School Register, mark list or certificate of Education Board etc. are proved, it does not mean that the contents of documents are also proved. Mere proof of such documents would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. (emphasis laid)
14. Exts.3, 4 & 5 in no case can be regarded as entries made in the school admission register. The certificates issued by the Headmaster/Headmistress of the school purported to be based on the entry made in the school admission register. Relevant school admission registers have not been called for, nor any such official of the school has been summoned to produce the schools admission registers to give authenticity to the certificates granted by the Headmaster/Headmistress of the schools. These certificates cannot be treated as entries made by such public servants in due discharge of their duties in the registers or records maintained by such schools. Therefore, Exts.3 to 5 cannot be taken to be proved under Sec.35 of the Evidence Act. Furthermore, the in-charge Headmistress of Govt. Girls High School, who has signed the written statement on behalf of the defendant no.3, has also not come
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forward to prove that the date of birth of the plaintiff was 5.7.1967. The pleading is not proof.
15. As a sequel to the above discussion, the appeal fails and the same is dismissed, since the same does not involve any substantial question of law.
Dr. A.K. Rath,J.
Orissa High Court, Cuttack The 17th January, 2019/Basanta
3 issues framed by the court
Whether the suit for declaration regarding incorrect date of birth filed after 20 years is barred by limitation under Article 58.
Whether the entries in school certificates and admission registers possess evidentiary value to prove the correct date of birth without the original school admission register.
Whether the appellant can establish a clerical error in the date of birth after invoking the correction mechanism within the limitations period.
Colour shows how this judgement treated each authority
Khatri Hotels Pvt. Ltd. & Anr. vs. Union of India & Anr.Explained¶28
(2011) 9 SCC 126 · Who else cites this
Board of Trustees of Port of Kandla vs. Hargovind Jasraj and anotherExplained¶29
2013 (3) SSC 182
State of Punjab & Ors. V. Gurdev SinghExplained¶31
(1991) 4 SCC 1 · Who else cites this
Birad Mal Singhvi v. Anand PurohitDistinguished¶36
AIR 1988 S.C. 1796 · Who else cites this
5 provisions across 5 enactments
Smt. Sanjukta Das
Secretary, Education Department, Govt. of Orissa
A.K. Rath
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
