Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5720 OF 2021
KARNATAKA RURAL INFRASTRUCTURE ..APPELLANT(S)
DEVELOPMENT LIMITED
VERSUS
T.P. NATARAJA & ORS. ..RESPONDENT(S)
With
CIVIL APPEAL NO. 5721 OF 2021
KARNATAKA RURAL INFRASTRUCTURE ..APPELLANT(S)
DEVELOPMENT LIMITED & ANR.
VERSUS
M.C. SUBRAMANIAM REDDY. ..RESPONDENT(S)
J U D G M E N T
M. R. Shah, J.
1.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 11.03.2019 passed by the High
Court of Karnataka at Bengaluru in Regular First Appeal
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2021.09.21
16:58:18 IST
Reason:
(RFA) No.1674 of 2013, by which the High Court has allowed
the said appeal preferred by respondent No.1 herein –
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employee and has quashed and set aside the judgment and
decree passed by the learned Trial Court consequently
dismissing the suit filed by respondent No.1 herein – original
plaintiff declaring the date of birth of employee 24.01.1961,
the original defendant – Karnataka Rural Infrastructure
Development Limited (hereinafter referred to as the original
defendant – appellant corporation) has preferred the present
appeal.
2. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 05.11.2019 passed by the High
Court of Karnataka at Dharwad in Writ Petition No.109447 of
2019 (SRES), by which the High Court has partly allowed
the said writ petition, relying upon the judgment and order
passed in RFA No.1674 of 2013 (which is the subject matter
of Civil Appeal No.5720 of 2021 arising out of SLP No.2368 of
2020) and has directed the Karnataka Rural Infrastructure
Development Limited to reconsider the decision of original
writ petitioner with respect to change of date of birth, the
original respondent Karnataka Rural Infrastructure
Development Limited has preferred Civil Appeal No.5721 of
2021 arising out of SLP No.1062 of 2021.
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Civil Appeal No.5720 of 2021
3.
The facts leading to the present appeal in nutshell are as
under:
3.1
That respondent No.1 herein – original plaintiff was
appointed with the appellant corporation in the year 1984.
In the service record his date of birth was reflected as
04.01.1960 as per SSLC Marks Card. After the lapse of
nearly 24 years, respondent no.1 herein – original plaintiff
requested for change of date of birth from 04.01.1960 to
24.01.1961. That thereafter respondent No.1 filed a suit for
declaration before Additional City Civil and Sessions Judge at
Bengalore to declare that his date of birth is 24.01.1961. The
suit was opposed by the appellant – corporation relying upon
the Karnataka State Servants (Determination of Age) Act,
1974 (hereinafter referred to as the Act, 1974) and resolution
dated 17.05.1991 passed by the appellant corporation
adopting the Karnataka Civil Service Rules and allied laws.
The said rule provided that the request for change of date of
birth in the service record shall be made within a period of
three years from the date of joining or within one year from
commencement of the Karnataka Act No.22 of 1974. The suit
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was also opposed on the ground of delay and laches on the
part of respondent No.1 – original plaintiff in requesting to
change the date of birth. Relying upon Section 5(2) of the Act,
1974 the learned Trial Court dismissed the suit vide
judgment and decree dated 28.07.2013.
3.2
Feeling aggrieved and dissatisfied with the judgment and
decree passed by the learned Trial Court dismissing the suit,
respondent No.1 – original plaintiff preferred Regular First
Appeal No.1674 of 2013 before the High Court. The High
Court by the impugned judgment and order dated
11.03.2019 has allowed the said appeal by observing that it
was highly impossible that the plaintiff should have availed
the remedy within three years from the date of joining of
service and also observing that the resolution dated
17.05.1991 passed by the appellant corporation adopting
the Karnataka Civil Service Rules and allied laws was not
brought to notice of the plaintiff.
3.3
Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court dated
11.03.2019 allowing the said appeal and quashing and
setting aside the judgment and decree passed by the learned
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Trial Court dismissing the suit preferred by respondent No.1
herein and consequently decreeing the suit and declaring the
date of birth of respondent No.1 – original plaintiff
24.01.1961 instead of 04.01.1960 recorded in the service
record, original defendant – employer – corporation has
preferred the present appeal.
4.
Shri Gurudas S. Kannur, learned Senior Advocate appearing
on behalf of the appellant – corporation has vehemently
submitted in the facts and circumstances of the case more
particularly when the request for change of date of birth was
made after 24 years and dehors the statutory provisions, the
High Court committed a grave error in decreeing the suit and
granting the declaratory relief. It is submitted that as
mandated by Section 5 (2) of the Act, 1974 no such alteration
to the date of birth to the advantage of a State servant be
made unless the employee 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 the Act, 1974,
whichever is later. It is submitted that the Act, 1974 came to
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be adopted by the appellant – corporation in the year 1991
and therefore respondent No.1 – original plaintiff ought to
have made the request for change of date of birth at least
within one year from 17.05.1991 i.e. when the resolution was
passed by the appellant – corporation adopting the Act, 1974
and allied laws. It is submitted that in the present case
respondent No.1 employee made the application for the first
time vide notice dated 23.06.2007 i.e. after the lapse of 24
years since he joined the service and nearly after the lapse of
16 years from the date of adoption of enactment (Act, 1974)
by the appellant – corporation.
4.1
It is submitted that the High Court ought to have appreciated
that the ignorance of law cannot be an excuse. It is
submitted that being an employee in fact he was supposed to
know the rules and regulations applicable to the employees
of the corporation.
4.2 It is submitted that in any case, the High Court ought to
have non suited the employee on the ground of delay and
laches as the request for change of date of birth was made
after lapse of 16 years from the date of adoption of enactment
(Act, 1974) by appellant – corporation.
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4.3 Relying upon the decisions of this court in the cases of Home
Deptt. v. R.Kirubakaran, 1994 Supp (1) SCC 155; State of
M.P. v. Premlal Shrivas, (2011) 9 SCC 664; Life Insurance
Corporation of India & Others v. R.Basavaraju (2016) 15 SCC
781 and Bharat Coking Coal Limited and Ors. v. Shyam
Kishore Singh (2020) 3 SCC 411, it is prayed to allow the
present appeal.
4.4 Learned advocate appearing on behalf of the appellant –
corporation had fairly admitted that so far as respondent
No.1 herein employee is concerned, the impugned judgment
and order passed by the High Court has been implemented.
However, as others suits are pending, he has requested to
decide the question of law so that the impugned judgment
and order passed by the High Court may not come in the way
of corporation.
5. Shri Ashok Bannidinni, learned Advocate appearing on
behalf of respondent No.1 – original plaintiff has submitted
that so far as respondent No.1 –original plaintiff is concerned
the impugned judgment and order passed by the High Court
has been implemented in the year 2019 and even thereafter
he has attained the age of superannuation treating and
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considering his date of birth as 24.01.1961, nothing further
is required to be done in the present appeal and as such the
present appeal has become infructuous so far as respondent
No.1 – original plaintiff is concerned.
5.1 Now so far as Civil Appeal No.5721 of 2021 arising out of SLP
No.1062 of 2020 is concerned, it is submitted that even the
said appeal has also become infructuous as after the
impugned judgment and order dated 05.11.2019 passed by
the High Court in writ petition No.109447 of 2019, by which
the High Court has directed the appellant – corporation to re
consider the request of the writ petitioner – respondent
herein for change of date of birth in light of the judgment and
order passed in RFA No.1670 of 2013, thereafter the
appellant – corporation reconsidered the
application/representation of the writ petitioner – respondent
herein and his prayer for change of date of birth came to be
rejected against which even the writ petition was preferred
before the learned Single Judge and the same has also been
dismissed. It is submitted that therefore even Civil Appeal
No. 5721 of 2021 arising out of SLP No.1062 of 2020 has
become infructuous.
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5.2 Learned Senior Advocate appearing on behalf of appellant
corporation is not disputing the aforesaid factual matrix.
6. Heard the learned counsel appearing on behalf of the
appellant – corporation and respondent No.1 employee.
7. The dispute is with respect to change of date of birth in the
service record. The employees of the State Government for
the determination of the age are governed by the Karnataka
State Servant (Determination of Age) Act, 1974; Section 4 of
the Act, 1974 provides for bar of alteration of age except
under the Act, 1974; Section 5 of the Act, 1974 provides
alteration of age or date of birth of State servants which
provides that 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. Subsection (2) of Section 5 further
provides that 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
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register or book or any other record of service or within one
year from the date of commencement of Act, 1974, whichever
is later. Section 6 of the Act, 1974 further provides that no
court shall have jurisdiction to settle, decide or deal with any
question which is required to be decided under the Act,
1974. It also further provides that no decision under Act,
1974 shall be questioned in any court of law. Section 4,
Section 5 and Section 6 which are relevant for our purpose
are reproduced herein below:
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 his conditions of service as such State
servant, be made except under section 5.
5. Alteration 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:
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
1
obtained by the State servant [after he became such
1
servant] against the State Government:
1. Inserted by Act 22 of 1977 w.e.f. 29.7.1977
10
Provided further that no such alteration shall be made
without giving the State servant concerned a reasonable
opportunity of being heard.
(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.
6. Bar of jurisdiction of courts. (1) No court shall
have jurisdiction to settle, decide or deal with any
question which is required to be decided under this Act.
(2) No decision under this Act shall be questioned in
any court of law.
8. So far as the appellant corporation is concerned, they
adopted the provisions of the Act, 1974 by resolution dated
17.05.1991. Therefore, as such the request for change of date
of birth as per the Act, 1974 as adopted by the appellant –
corporation in the year 1991 was required to be made by
respondent No.1 – employee within a period of one year from
17.05.1991 being the employee of the appellant
corporation. However, respondent No.1 – employee made the
request for change of date of birth vide notice dated
23.06.2007 i.e. after the lapse of 24 years since he joined the
service and nearly after the lapse of 16 years from the date of
adoption of enactment (Act, 1974) by the appellant –
corporation. The High Court in the impugned judgment and
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order has observed that nothing is on record that resolution
dated 17.05.1991 adopting the Act, 1974 was brought to the
notice of the employee and that therefore respondent No.1 –
employee might not be aware of the applicability of the Act,
1974. Aforesaid cannot be accepted. Being the employee of
the corporation, he was supposed to know the rules and
regulations applicable to the employees of the corporation.
Ignorance of law cannot be an excuse to get out of the
applicability of the statutory provisions.
9. Even otherwise and assuming that the reasoning given by the
High Court for the sake of convenience is accepted in that
case also even respondent No.1 – employee was not entitled
to any relief or change of date of birth on the ground of delay
and laches as the request for change of date of birth was
made after lapse of 24 years since he joined the service. At
this stage, few decisions of this court on the issue of
correction of the date of birth are required to be referred to.
9.1 In the case of Home Deptt. v. R.Kirubakaran (Supra), it is
observed and held as under:
12
“7. An application for correction of the date of birth
should not be dealt with by the Tribunal or the High
Court keeping in view only the public servant concerned.
It need not be pointed out that 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, inasmuch as, because of the
correction of the date of birth, 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 lose the promotion for ever…”
9.2 In the case of State of M.P. v. Premlal Shrivas, (Supra) in
paragraph 8 and 12, it is observed and held as under:
“8. It needs to be emphasised that in matters involving
correction of date of birth of a government servant,
particularly on the eve of his superannuation or at the
fag end of his career, the court or the tribunal has to be
circumspect, cautious and careful while issuing direction
for correction of date of birth, recorded in the service
book at the time of entry into any government service.
Unless the court or the tribunal is fully satisfied on the
basis of the irrefutable proof relating to his date of birth
and that such a claim is made in accordance with the
procedure prescribed or as per the consistent procedure
adopted by the department concerned, as the case may
be, and a real injustice has been caused to the person
concerned, the court or the tribunal should be loath to
issue a direction for correction of the service book. Time
and again this Court has expressed the view that if a
government servant makes a request for correction of the
recorded date of birth after lapse of a long time of his
induction into the service, particularly beyond the time
fixed by his employer, he cannot claim, as a matter of
right, the correction of his date of birth, even if he has
13
good evidence to establish that the recorded date of birth
is clearly erroneous. No court or the tribunal can come to
the aid of those who sleep over their rights (see Union of
India v. Harnam Singh [(1993) 2 SCC 162 : 1993 SCC
(L&S) 375 : (1993) 24 ATC 92] ).
12. Be that as it may, in our opinion, the delay of over
two decades in applying for the correction of date of birth
is ex facie fatal to the case of the respondent,
notwithstanding the fact that there was no specific rule
or order, framed or made, prescribing the period within
which such application could be filed. It is trite that even
in such a situation such an application should be filed
which can be held to be reasonable. The application filed
by the respondent 25 years after his induction into
service, by no standards, can be held to be reasonable,
more so when not a feeble attempt was made to explain
the said delay. There is also no substance in the plea of
the respondent that since Rule 84 of the M.P. Financial
Code does not prescribe the timelimit within which an
application is to be filed, the appellants were dutybound
to correct the clerical error in recording of his date of
birth in the service book.”
9.3 In the case of Life Insurance Corporation of India & Others v.
R.Basavaraju (Supra), it is observed as under:
“5. The law with regard to correction of date of birth has
been time and again discussed by this Court and held
that once the date of birth is entered in the service
record, as per the educational certificates and accepted
by the employee, the same cannot be changed. Not only
that, this Court has also held that a claim for change in
date of birth cannot be entertained at the fag end of
retirement”
9.4 In the case of Bharat Coking Coal Limited and Ors. v. Shyam
Kishore Singh (Supra) of which one of us (Justice A.S.
14
Bopanna) was a party to the bench has observed and held in
paragraph 9 & 10 as under:
“9. This Court has consistently held that the request for
change of the date of birth in the service records at the
fag end of service is not sustainable. The learned
Additional Solicitor General has in that regard relied on
the decision in the case of State of Maharashtra and Anr.
v. Gorakhnath Sitaram Kamble (2010)14 SCC 423
wherein a series of the earlier decisions of this Court were
taken note and was held as hereunder:
“16. The learned counsel for the appellant has placed
reliance on the judgment of this Court in U.P.
Madhyamik Shiksha Parishad v. Raj Kumar Agnihotri
[(2005) 11 SCC465: 2006 SCC (L&S) 96]. In this case,
this Court has considered a number of judgments of
this Court and observed that the grievance as to the
date of birth in the service record should not be
permitted at the fag end of the service career.
17. In another judgment in State of Uttaranchal v.
Pitamber Dutt Semwal [(2005) 11 SCC 477 : 2006 SCC
(L&S) 106] relief was denied to the government
employee on the ground that he sought correction in
the service record after nearly 30 years of service.
While setting aside the judgment of the High Court,
this Court observed that the High Court ought not to
have interfered with the decision after almost three
decades.
19. These decisions lead to a different dimension of the
case that correction at the fag end would be at the cost
of a large number of employees, therefore, any
correction at the fag end must be discouraged by the
court. The relevant portion of the judgment in Home
Deptt.v. R. Kirubakaran [1994 Supp (1) SCC 155 :
1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads as
under: (SCC pp. 158 59, para 7)
15
“7. An application for correction of the date of
birth [by a public servant cannot be entertained
at the fag end of his service]. It need not be
pointed out that 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,
inasmuch as, because of the correction of the
date of birth, 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 lose their
promotion forever. … According to us, this is an
important aspect, which cannot be lost sight of by
the court or the tribunal while examining the
grievance of a public servant in respect of
correction of his date of birth. As such, unless a
clear case on the basis of materials which can be
held to be conclusive in nature, is made out by
the respondent, the court or the tribunal should
not issue a direction, on the basis of materials
which make such claim only plausible. Before
any such direction is issued, the court or the
tribunal must be fully satisfied that there has
been real injustice to the person concerned and
his claim for correction of date of birth has been
made in accordance with the procedure
prescribed, and within the time fixed by any rule
or order. … the onus is on the applicant to prove
the wrong recording of his date of birth, in his
service book.”
“10. This Court in fact has also held that even if there
is good evidence to establish that the recorded date of
birth is erroneous, the correction cannot be claimed as a
matter of right. In that regard, in State of M.P. vs. Premlal
Shrivas , (Supra) it is held as hereunder:
16
“8. It needs to be emphasised that in matters involving
correction of date of birth of a government servant,
particularly on the eve of his superannuation or at the
fag end of his career, the court or the tribunal has to
be circumspect, cautious and careful while issuing
direction for correction of date of birth, recorded in the
service book at the time of entry into any government
service. Unless the court or the tribunal is fully
satisfied on the basis of the irrefutable proof relating to
his date of birth and that such a claim is made in
accordance with the procedure prescribed or as per the
consistent procedure adopted by the department
concerned, as the case may be, and a real injustice has
been caused to the person concerned, the court or the
tribunal should be loath to issue a direction for
correction of the service book. Time and again this
Court has expressed the view that if a government
servant makes a request for correction of the recorded
date of birth after lapse of a long time of his induction
into the service, particularly beyond the time fixed by
his employer, he cannot claim, as a matter of right, the
correction of his date of birth, even if he has good
evidence to establish that the recorded date of birth is
clearly erroneous. No court or the tribunal can come to
the aid of those who sleepover their rights” (see Union
of India v. Harnam Singh [(1993) 2 SCC 162 : 1993
SCC (L&S) 375 : (1993) 24 ATC 92] ).
12. Be that as it may, in our opinion, the delay of over
two decades in applying for the correction of date of
birth is ex facie fatal to the case of the respondent,
notwithstanding the fact that there was no specific rule
or order, framed or made, prescribing the period within
which such application could be filed. It is trite that
even in such a situation such an application should be
filed which can be held to be reasonable. The
application filed by the respondent 25 years after his
induction into service, by no standards, can be held to
17
be reasonable, more so when not a feeble attempt was
made to explain the said delay. There is also no
substance in the plea of the respondent that since
Rule 84 of the M.P. Financial Code does not prescribe
the timelimit within which an application is to be
filed, the appellants were dutybound to correct the
clerical error in recording of his date of birth in the
service book.”
10. Considering the aforesaid decisions of this Court the law
on change of date of birth can be summarized as under:
(i) application for change of date of birth can only be as
per the relevant provisions/regulations applicable;
(ii) even if there is cogent evidence, the same cannot be
claimed as a matter of right;
(iii) application can be rejected on the ground of delay
and latches also more particularly when it is made
at the fag end of service and/or when the employee
is about to retire on attaining the age of
superannuation.
11. Therefore, applying the law laid down by this court in the
aforesaid decisions, the application of the respondent for
change of date of birth was liable to be rejected on the
18
ground of delay and laches also and therefore as such
respondent employee was not entitled to the decree of
declaration and therefore the impugned judgment and
order passed by the High Court is unsustainable and not
tenable at law.
12. However, considering the fact that when the impugned
judgment and order passed by the High Court has been
implemented and respondent No.1 has retired thereafter
considering his date of birth as 24.01.1961, it is observed
that the present judgment and order shall not affect
respondent No.1 – employee and we decide the question
of law in terms of the above in favour of the appellant –
corporation. With this Civil Appeal No. 5720 of 2021
stands disposed of.
13. So far as the Civil Appeal No.5721 of 2021 arising out of
the SLP No.1062 of 2020 is concerned, it is true that
while passing the impugned judgment and order the High
Court heavily relied upon the judgment in RFA No.1674
of 2013 (subject matter of Civil No.5720 of 2021) which
also is not sustainable in law as observed hereinabove.
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However considering the fact that thereafter after the
impugned judgment and order dated 05.11.2019 passed
by the High Court in W.P. No.109447 of 2019 directing
the appellant – corporation to consider the case of the
original writ petitioner – respondent herein in light of the
decision in the case of RFA No.1674 of 2013, the case of
the respondent came to be reconsidered and his prayer
for change of date of birth came to be rejected on the
ground of delay and laches and even thereafter also the
fresh decision was challenged before the learned Single
Judge and the learned Single Judge has also dismissed
the subsequent writ petition. Therefore, no further order
is required to be passed in the present appeal and is
accordingly disposed of. However, question of law is
decided in favour of the appellant – corporation as
observed hereinabove.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(A.S. BOPANNA)
New Delhi,
September 21, 2021
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