Full Judgment Text
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PETITIONER:
R. S. KALLOLIMATH
Vs.
RESPONDENT:
STATE OF MYSORE & ANR.
DATE OF JUDGMENT06/05/1977
BENCH:
SINGH, JASWANT
BENCH:
SINGH, JASWANT
KRISHNAIYER, V.R.
CITATION:
1977 AIR 1980 1978 SCR (1) 145
1977 SCC (3) 425
ACT:
Service law-Entry of Government servant’s date of birth in
service register revised to an earlier date-Whether State is
precluded from refixing wrongly given dates-Government
Notification granting extension of service equal to half the
period of difference between the original and revised dates-
Denial of extension of service to appellant whether
justified.
HEADNOTE:
The appellant gave his date of birth as March 13, 1912,
while joining the service of the Mysore State Electricity
Department in November, 1945. The date was accepted and
entered in the service register, on his producing a horo-
scope in support of his claim. In or about 1950, the State
Government in pursuance of a policy decision, started
revising the entries relating to the dater. of birth in case
of those of its employees whose service register entries
differed from the dates as recorded in their school or
college registers. In the educational institutions where
the appellant had studied, his date of birth was found to be
recorded as January 28, 1904, and the State Government
accordingly refixed the service register entry. The
appellant protested and made several unsuccessful
representations. On August 14, 1958, the State Government
issued a Notification directing the grant of extension of
service equal to half the period of difference between the
original and revised dates of birth, but on April 1, 1959,
the appellant received a formal written communication that
he had been retired from service with immediate effect. The
appellant filed a suit against the order, seeking mandatory
injunction directing the Government to accept his date of
birth as originally entered in the service register. In the
alternative, he claimed the benefits of the Notification of
August, 1958. The trial Court decreed the suit holding that
the Government was not justified in altering his date of
birth on the basis of the entries in his college register.
It directed the Government to accept the service register
entry. In a State appeal, the High Court partially upheld
the decision, but quashed the direction regarding the
acceptance of the service register entry. The High Court
left it open for the Government to refix the appellant’s
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date of birth according to law. An enquiry was held and the
Government again fixed his date of birth as 28-1-1904. The
appellant’s writ petition was dismissed in limine.
Partly allowing the appeal by special leave, the Court,
HELD : (1) The State is not precluded merely because of the
acceptance of the date of birth of its employee in the
service register from holding an enquiry if there exists
sufficient reasons for holding such enquiry and refixing his
date of birth. [151 F-G]
State of Orissa v. Dr. (Miss) Binapani Del & Ors. [1967] 2
S.C.R. 625A.I.R. 1967 SC 1269, followed.
(2) Nothing tangible has been brought to our notice which
could have justified the Government to deprive the appellant
of the benefit of the clear and categoric directions
contained in its memorandum dated August 14, 1958. The
course adopted by the Government in not allowing the
appellant to continue in service for half of the period of
difference between the date of birth as originally recorded
in the service register and the revised date of birth, has
manifestly resulted in grave injustice to the appellant.
[151 H, 152 B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1659 of 1972.
(Appeal by Special Leave from the Judgment and Order dated
the 5th July, 1971 of the Mysore High Court in W.P. No. 1662
of 1971 ).
146
B. P. Singh, for the appellant.
N. Nettar, for respondents.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-This appeal by Special leave is directed
against an order dated July 5, 1971, of the High Court of
Mysore at Bangalore dismissing in limine writ petition No.
1662 of 1971 seeking issuance of a writ quashing order No.
P.W.D./EBS 70 dated March 31, 1971, passed by the first
respondent herein directing that January 28, 1904, be
accepted as the correct date of birth of the appellant and
the period from January 28, 1959 (the date of his attaining
superannuation) to March 31, 1959 (when he actually handed
over charge of his office) be treated as extension of
service.
Briefly stated the facts leading of the appeal are : The
appellant joined service as a Senior Operator in the
Department of Electricity of the State of Mysore on November
23, 1945. Though in the registers of the school and other
educational institutions in which the appellant had studied,
his date of birth had been recorded as January 28, 1904, he
gave March 13, 1912 (AD) as the date of his birth at the
time of his entry into service and produced a horoscope in
support of his representation. Relying on the horoscope,
the Deputy Chief Electrical Engineer accepted March 13, 1912
as the date of the appellant’s birth and entry in the
service register came to be made accordingly. In course of
time, the appellant was promoted as Assistant
Superintendent, Power and Light, Mysore. In or about 1950,
the erstwhile Government of Mysore in pursuance of the
policy decision taken by it in respect of the dates of birth
of Government servants started revising the entries relating
to the dates of birth in case of those of its employees
whose dates as entered in the service register were
different from the entries made in the school or college
registers. Consequently the appellant was also called upon
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by the State Government to furnish information regarding the
educational institutions where he had studied. On the
appellant’s supplying the requisite information, the State
Government made inquiries from the heads of the various
institutions in which the appellant bad prosecuted his
studies and on coming to know that his date of birth as
entered in the registers of the institutions was January 28,
1904, it accepted that date as the correct date of the
appellant’s birth and informed the Accountant General, the
Chief Electrical Engineer of Mysore and the appellant
accordingly on June 26, 1954. The appellant thereupon
raised a protest and made representations to the concerned
authorities against the alteration in the date of his birth
contending that the date of birth declared by him at the
time of his joining the State service was absolutely
correct. On the matter being put up before the Minister for
Industries and Electricity, be directed that the appellant
be asked to see him on November 16, 1955. to put forth his
case before him together with evidence, if any. Though the
appellant could not appear before the Minister on November
16, 1955, he did appear before him on December 12, 1955 when
the latter after hearing the former recorded the following
note on the concerned file
147
"Sri R.S. Kallolimath, Assistant
Superintendent, Power and Light, Mysore, has
submitted a memorandum, through the Chief
Electrical Engineer praying that his date, of
birth may kindly be accepted as 23rd December,
1.912 instead of 28th January, 1904 as already
ordered by Government. He submits that 23-12-
1912 is the date given by him in his
application for appointment and that it has
been changed to 28-1-1904 on the basis of the
information furnished by the College in which
he studied. It is asserted that when he was
called upon to furnish evidence in the matter,
he had only his horoscope written in Marathi
and that he was not able to lay his figure
(written in pencil as finger above) on other
collateral evidence available in his family
records. He says that subsequently, he had
been able to get the original declaration made
by Sri Dundappa Kadeppa Jotwar (his patron and
benefactor) before the Magistrate of Terdal
Taluk, Sangli State. The original declaration
has been produced. This declaration before
the Magistrate was made on 4-2-1941, and long
before Sri Kallolimath got into service.
According to the declaration the date of birth
is 23-12-1912. There is no reason to doubt
the bona fides of this declaration made before
the Magistrate in 1941 since it has happened
long before the officer entering into service.
This cannot be said to have been fabricated.
The date of birth in the declaration agrees
with the date of birth given in the
application for appointment. It is also
corroborated by the horoscope. This is a
circumstance which makes out a prima
facie case for reconsideration of the
question. It may be placed before the Council
for consideration."
On October 23, 1956, a communication appears to have been
addressed on behalf of the Government to the Chief
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Electrical Engineer stating that there was no material for
reconsideration of the decision taken by the Government with
regard to the appellant’s age. A copy of this communication
was also despatched to the appellant on October 29, 1956.
Despite this intimation, the appellant kept on making
further representations requesting the Government not to
alter the date of his birth as entered in the service
register but the same did not evoke any response.
On the formation of the Mysore Electricity Board, the
appellant’s services were lent to the Board with effect from
September 30, 1957. Shortly thereafter i.e. on October 8,
1957, he was promoted as First Grade Superintendent in the
scale of Rs. 550-840 and was posted to the Bangalore Power
and Light Civil Area, Bangalore-1.
On June 14, 1958, the appellant received a communication
from the Chief Electrical Engineer informing him that he
would be attaining the age of superannuation on January 28,
1959, in accordance with the entries in his college
register. The appellant thereupon wrote to the Chief
Electrical Engineer on July 4, 1958, stating that his
representation to the State Government was still pending and
that the order was not binding on him.
148
By notification dated August 14, 1958, the State Government
directed that "all such Government servants whose date of
birth have been revised to an earlier date consequent on the
policy of the Government of the former Mysore State to
review the dates of birth of all servants as set out in D.O.
letter No. 12255-12325/CB.121-50-98 dated 20 March, 1950 and
Official Memorandum No. 10612-50/ A.P.S. 21-51-6 dated 4
November, 1952, should be granted extension of service equal
to half the period of difference between the date of birth
as originally indicated in the Government records and the
revised date of birth."
On March 30, 1959, when the appellant was serving as
Executive Engineer at K.G.F. he was informed by the Chief
Electrical Engineer on telephone that he had been retired
from service with immediate effect and that he should hand
over charge of his office. On April 1, 1959, the appellant
received a formal written communication from the Chief
Electrical Engineer reiterating that he had been retired
from service with immediate effect. Aggrieved by this
order, the appellant filed a writ petition, being writ
petition No. 524 of 1959, in the High Court of Mysore
challenging the action of the Government. At the hearing of
this petition on December 13, 1961, counsel for the
appellant made a statement before the court withdrawing the
petition ’without prejudice to the other remedies that might
be available to his client not only by way of institution of
a suit but also under the Official Memorandum issued by the
Government on August 14, 1958.’ The petition was accordingly
permitted to be withdrawn. On March 28, 1962, the appellant
filed a suit against the first respondent seeking :
"(a) a declaration that he still continued in
service and was entitled to all the benefits
of his service, and that the communications
dated June 14, 1958 and April 1, 1959 were
invalid and were liable to be quashed.
(b) issue of a mandatory injunction
directing the Government to accept the date of
birth as entered in the service register as
the date of his birth, to work out the date of
his attaining superannuation accordingly, and
to refrain from accepting or relying on the
entry found in the College Register as the
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date of his birth and to pay all such
amounts or emoluments as might be found due to
him (the appellant) including the emoluments
which he was legitimately entitled by way of
increments, promotion etc..
(c) In the alternative, the appellant prayed
for issue of a mandatory injunction directing
the Government to implement the communications
dated August 14, 1958 issued in their No. GAD
3 DTB 58 and to pay to him all such amounts or
emoluments as might be found due to him
including the emoluments by way of increments,
promotions etc."
149
The suit was contested by the State Government inter alia
on the grounds that mere entry of the date of birth in the
service register of the appellant at the time of his
appointment was not conclusive and that the Government had
power and authority to alter the date if it was subsequently
found to be incorrect, that the date accepted by the
Government, viz., January 28, 1904 was the one which was
found in the registers of the institutions in which the
appellant had studied; that the Government order dated
August 14, 1958, did not enable the appellant to claim
extension of service as of right and that the suit was
barred by time.
On a consideration of the evidence adduced before it, the
trial court decreed the suit vide its judgment dated March
31, 1965 holding that the suit was within time and that the
Government order dated April 1, 1959, retiring the appellant
from service without giving him a prior show cause notice
and without affording him an opportunity to rebut the case
of the State violated the service rules and the principles
of natural justice and was invalid. It further held that
though the Government had power to review or alter the date
of birth and was not estopped from examining, reviewing or
altering the appellant’s date of birth, it was not justified
in altering his date of birth on the basis of the entry in
his college register which could not be accepted as final.
It, however, observed that the appellant was not entitled to
the benefit of Government Order dated August 14, 1958.
Aggrieved by this judgment and decree, the State preferred
an appeal to the High Court which was partially accepted
vide judgment dated September 20, 1968. While upholding the
part of the judgment and decree of the trial court which
declared that the decision of the Government fixing the
appellant’s date of birth as January 28, 1904 and the Gov-
ernment order dated April 1, 1959 retiring the appellant
from service was invalid and the appellant was still in
service on the date of the suit, the High Court quashed that
part of the judgment and decree of the trial court which
directed the State Government to accept the date of birth as
entered in the service register as the correct date. The
High Court also set aside the judgment and decree of the
trial court in so far as it directed the Government to pay
all such sums or emoluments as might be found due to the
appellant including the emoluments as he might be ultimately
entitled to by way of increments etc. on the ground that an
equally efficacious relief could be obtained by filing a
suit and there was no prayer in the plaint for a specific
amount by way of arrears of salary. With regard to the
alternative relief sought by the appellant, the High Court
observed as follows :
"The alternative prayer, for the issue of a
mandatory injunction with a direction to
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Government to implement the communication
(sic) of the Government dated 14-8-1958 does
not arise for consideration in view of the
fact that the order of the Government has been
declared invalid."
The first respondent then made an application to the High
Court for review of its aforesaid judgment and decree which
was disposed of
150
by the Court on July 3, 1-970. The material portion of the
order of the High Court disposing of the ’review application
runs thus
"Consequently, it was held that the plaintiff
respondent was entitled to a declaration that
he was still in service on the date of the
suit. But that declaration can only be un-
derstood as declaring that in the absence of
any re fixation of the date of birth of
plaintiff respondent by the, Government, the
plaintiff respondent must be deemed to be in
service on the date of the suit. The above
said declaration cannot be understood to mean
that the Governor cannot refix the date of
birth of the plaintiff-respondent, according
to law. We consider that this clarification
is sufficient and no further order is
necessary on the above review petition."
Pursuant to the observations made by the High Court on
September 8, 1970 (while disposing of another writ petition
(No. 1354 of 1969) filed by the appellant) to the effect
that the Government’s power to hold an enquiry into the
correctness of the date of birth of a Government servant did
not come to an end with the retirement of the Government
servant from service, the Government vide order No.
PWD/IEBS/70 dated November 18, 1970 directed Shri T. S.
Narayana Rao, Joint Secretary to Government of Mysore,
General Administration Department, to make an enquiry for
the purpose of determining the correct date of birth of the
appellant. The Enquiry Officer accordingly held an enquiry
and submitted his report to the Government, the operative
portion whereof runs thus :-
"I have carefully considered the oral and
documentary evidence placed before me on
behalf of Government. Shri Kallolimath, in
his declaration dated 21-4-1950 (Exhibit-H)
admitted that he studied in Karnatak School,
the Wilsom College and the Royal Institute.
The years of his stay in these Institutions
are also indicated there. The Registers of
these Institutions for the relevant periods
are produced by appropriate authority and
brought on record. The entries therein very
clearly and uniformly indicate that the date
of birth furnished by Sri Kallolimath right
through his scholastic career was 28-1-1904.
Evidently, he never disputed this date, which
he certainly would have done had a mistake
occurred, particularly so if his date of
birth, as pow claimed by him, was 13-3-1912.
The difference being very nearly eight years
he would be the first to get it rectified.
The circumstances clearly indicate that his
date of birth is 28-1-1904 and not 13-3-1912.
On the basis of the evidence placed before me,
I have no hesitation in coming to the
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conclusion that the correct date of birth of
Shri R. S. Kallolimath is 28th January, 1904.
1 record my finding accordingly."
151
Thereafter the State Government vide its order No.
PWD/IEBS/70 dated March 31, 1970 accepted the findings of
the Enquiry Officer observing and directing as follows :-
"He (the Enquiry Officer) has found that the
correct date of birth of Shri R. S.
Kallolimath is 28-1-1904.
Government has considered the records. From
the entries in the registers of the
educational institutions where, admittedly,
Shri R. S. Kallolinath studied and the other
circumstance it is clear that Shri R. S.
Kallolimath’s date of birth is 28-1-1904 and
not 13-3-1912 as had been entered in his
service register.
Government records its finding accordingly and
directs that 28-1-1904 be accepted as the
correct date of birth of Shri R. S.
Kallolimath. Consequently the date of his
attaining superannuation would be 28-1-1959.
As he was actually retired, on 31st March,
1959, the period from 28-1-1959 to 31-3-1959
is treated as extension of service. Pension,
gratuity and other retirement benefits which
have to be settled on the aforesaid basis
have, it is ascertained from the Mysore State
Electricity Board, where he had been working
since the formation of the Board, been
settled. Shri R. S. Kallolimath is entitled
to only such amounts as have been so settled.
Payment in terms thereof less amounts, if any,
already drawn, shall be authorised and it is
ordered accordingly."
The appellant challenged the above order before the High
Court by means of writ petition No. 1662 of 1971, which, as
already stated, was dismissed in limine on July 5, 1971.
Dissatisfied with this order, the appellant applied to the
High Court for grant of certificate of fitness to appeal to
this Court under Article 133(1) of the Constitution which
was rejected by the High Court vide order dated March 3,
1972. Thereupon the appellant applied to this Court under
Article 136 of the Constitutionfor special leave to
appeal which was granted. This is how the case is before us.
We have heard the learned counsel for the parties.
Although in view of the decision of this Court in State of
Orissa v. Dr. (Miss) Binapani Dei & Ors. (1967) 2 S.C.R.
625=A.I.R. 1967 S.C. 1269, it can no longer be disputed that
the State is not precluded merely because of the acceptance
of the date of birth of its employees in the service
register from holding an enquiry if there exist sufficient
reasons for holding such enquiry and refixing his date of
birth, it passes our comprehension as to why after granting
an extension of service to the appellant presumably in terms
of its Memorandum dated August 14, 1958, the Government
retraced its steps and suddenly terminated the services of
the appellant on March 31, 1959. Nothing tangible has been
brought to our notice which could have justified the
Government to deprive the appellant of the benefit of the
clear and categoric directions contained in its aforesaid
memorandum where it was clearly laid down that "all such
Government servants whose dates
152
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of birth have been revised to an earlier date consequent on
the policy of the Government of the former Mysore State to
review the dates of birth of all Government servants as set
out in Demi Official letter No. 12255-12325/CE.121.50-98
dated 20th March, 1950 and Official Memorandum No. 10612-
50/R.P.S.21-51-6 dated 4 November, 1952, should be granted
extension of service equal to half the period of difference
between the date of birth as originally indicated in the
Government records and the revised date of birth. . . ." The
course adopted by the Government in not allowing the
appellant to continue in service for half of the period of
difference between the date of birth as originally recorded
in the service register and the revised date of birth has
manifestly resulted in grave injustice to the appellant.
This is, therefore, a preeminently fit case in which the
High Court instead of dismissing in a summary manner the
writ petition No. 1662 of 1971 which raised substantial
questions of law and fact should have heard it on merits and
enforced the directions contained in the aforesaid
Memorandum dated August 14, 1958. As the impugned order
which seems to have been passed by the High Court without
the consideration which it merited has undoubtedly resulted
in gross injustice. We allow the appeal in part and instead
of remanding the case and asking the High Court to proceed
with the writ petition and dispose it of after a regular
hearing which is bound to involve undue delay, prolong the
agony of the appellant and lay the parties under unnecessary
additional monetary burden and thus tend to retard the
course of justice, we direct the State Government to allow
all the monetary benefits in term.-, of its aforesaid
Memorandum dated August 14, 1958 which but for the order
dated April 1, 1959 would have been available to the appe-
llant. In the circumstances of the case, the appellant
shall also be entitled to costs from the first respondent
which we assess at Rs. 1000.
In conclusion, we may observe in passing that we are
constrained to give the above relief to the appellant as
despite sufficient opportunity allowed to the respondents,
they have not so far accepted the offer made by the
appellant at our suggestion which may have been more
beneficial to them.
MR. Appeal allowed in part.
153