KARNATAKA RURAL INFRASTRUCTURE DEVELOPMENT LIMITED versus T.P. NATARAJA & ORS. on 21 September 2021

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 11.03.2019 passed by the High Court of Karnataka atBengaluru in Regular First Appeal (RFA) No.1674 of 2013, by whichthe High Court has allowed the said appeal preferred by respondentNo.1 herein – employee and has quashed and set aside the judgmentGand decree passed by the learned Trial Court consequently dismissingthe suit filed by respondent No.1 herein – original plaintiff declaring thedate of birth of employee 24.01.1961, the original defendant – KarnatakaRural Infrastructure Development Limited (hereinafter referred to asthe original defendant – appellant -corporation) has preferred the presentHappeal.

2. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 05.11.2019 passed by the High Court of Karnataka atDharwad in Writ Petition No.109447 of 2019 (S-RES), by which theHigh Court has partly allowed the said writ petition, relying upon thejudgment and order passed in RFA No.1674 of 2013 (which is the subjectmatter of Civil Appeal No.5720 of 2021 arising out of SLP No.2368 of2020) and has directed the Karnataka Rural Infrastructure DevelopmentLimited to reconsider the decision of original writ petitioner with respectto change of date of birth, the original respondent - Karnataka RuralInfrastructure Development Limited has preferred Civil Appeal No.5721of 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:-

3.1That respondent No.1 herein – original plaintiff wasappointed with the appellant - corporation in the year 1984.In the service record his date of birth was reflected asD04.01.1960 as per SSLC Marks Card. After the lapse ofnearly 24 years, respondent no.1 herein – original plaintiffrequested for change of date of birth from 04.01.1960 to24.01.1961. That thereafter respondent No.1 filed a suitfor declaration before Additional City Civil and SessionsJudge at Bengalore to declare that his date of birth isE24.01.1961. The suit was opposed by the appellant –corporation relying upon the Karnataka State Servants(Determination of Age) Act, 1974 (hereinafter referred toas the Act, 1974) and resolution dated 17.05.1991 passedby the appellant - corporation adopting the Karnataka CivilFService Rules and allied laws. The said rule provided thatthe request for change of date of birth in the service recordshall be made within a period of three years from the dateof joining or within one year from commencement of theKarnataka Act No.22 of 1974. The suit was also opposedon the ground of delay and laches on the part of respondentGNo.1 – original plaintiff in requesting to change the date ofbirth. Relying upon Section 5(2) of the Act, 1974 the learnedTrial Court dismissed the suit vide judgment and decreedated 28.07.2013.

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A3.2Feeling aggrieved and dissatisfied with the judgment anddecree passed by the learned Trial Court dismissing thesuit, respondent No.1 – original plaintiff preferred RegularFirst Appeal No.1674 of 2013 before the High Court. TheHigh Court by the impugned judgment and order dated11.03.2019 has allowed the said appeal by observing that itBwas highly impossible that the plaintiff should have availedthe remedy within three years from the date of joining ofservice and also observing that the resolution dated17.05.1991 passed by the appellant - corporation adoptingthe Karnataka Civil Service Rules and allied laws was notCbrought to notice of the plaintiff.

3.3Feeling aggrieved and dissatisfied with the impugnedjudgment and order passed by the High Court dated11.03.2019 allowing the said appeal and quashing and settingaside the judgment and decree passed by the learned TrialDCourt dismissing the suit preferred by respondent No.1herein and consequently decreeing the suit and declaringthe date of birth of respondent No.1 – original plaintiff24.01.1961 instead of 04.01.1960 recorded in the servicerecord, original defendant – employer – corporation haspreferred the present appeal.E

4. Shri Gurudas S. Kannur, learned Senior Advocate appearingon behalf of the appellant – corporation has vehemently submitted in thefacts and circumstances of the case more particularly when the requestfor change of date of birth was made after 24 years and dehors thestatutory provisions, the High Court committed a grave error in decreeingFthe suit and granting the declaratory relief. It is submitted that as mandatedby Section 5 (2) of the Act, 1974 no such alteration to the date of birth tothe advantage of a State servant be made unless the employee has madean application for the purpose within three years from the date on whichhis age and date of birth is accepted and recorded in the service registerGor book or any other record of service or within one year from the dateof commencement of the Act, 1974, whichever is later. It is submittedthat the Act, 1974 came to be adopted by the appellant – corporation inthe year 1991 and therefore respondent No.1 – original plaintiff ought tohave made the request for change of date of birth at least within oneyear from 17.05.1991 i.e. when the resolution was passed by the appellantH

– corporation adopting the Act, 1974 and allied laws. It is submitted thatin the present case respondent No.1 - employee made the applicationfor the first time vide notice dated 23.06.2007 i.e. after the lapse of 24years since he joined the service and nearly after the lapse of 16 yearsfrom the date of adoption of enactment (Act, 1974) by the appellant –corporation.

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4.1It is submitted that the High Court ought to have appreciatedthat the ignorance of law cannot be an excuse. It is submittedthat being an employee in fact he was supposed to knowthe rules and regulations applicable to the employees of thecorporation.

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4.2It is submitted that in any case, the High Court ought tohave non suited the employee on the ground of delay andlaches as the request for change of date of birth was madeafter lapse of 16 years from the date of adoption ofenactment (Act, 1974) by appellant – corporation.

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4.3Relying upon the decisions of this court in the cases of HomeDeptt. v. R. Kirubakaran, 1994 Supp (1) SCC 155; State ofM.P. v. Premlal Shrivas, (2011) 9 SCC 664; Life InsuranceCorporation of India & Others v. R. Basavaraju (2016) 15SCC 781 and Bharat Coking Coal Limited and Ors. v. ShyamKishore Singh (2020) 3 SCC 411, it is prayed to allow theEpresent appeal.

4.4Learned advocate appearing on behalf of the appellant –corporation had fairly admitted that so far as respondentNo.1 herein - employee is concerned, the impugnedjudgment and order passed by the High Court has beenimplemented. However, as others suits are pending, he hasrequested to decide the question of law so that the impugnedjudgment and order passed by the High Court may not comein the way of corporation.

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5. Shri Ashok Bannidinni, learned Advocate appearing on behalfof respondent No.1 – original plaintiff has submitted that so far asrespondent No.1 – original plaintiff is concerned the impugned judgmentand order passed by the High Court has been implemented in the year2019 and even thereafter he has attained the age of superannuationtreating and considering his date of birth as 24.01.1961, nothing further H

Ais required to be done in the present appeal and as such the presentappeal has become infructuous so far as respondent No.1 – originalplaintiff is concerned.

5.1Now so far as Civil Appeal No.5721 of 2021 arising out ofSLP No.1062 of 2020 is concerned, it is submitted that evenBthe said appeal has also become infructuous as after theimpugned judgment and order dated 05.11.2019 passed bythe High Court in writ petition No.109447 of 2019, by whichthe High Court has directed the appellant – corporation tore-consider the request of the writ petitioner – respondentherein for change of date of birth in light of the judgmentCand order passed in RFA No.1670 of 2013, thereafter theappellant – corporation reconsidered the application/representation of the writ petitioner – respondent hereinand his prayer for change of date of birth came to be rejectedagainst which even the writ petition was preferred beforeDthe learned Single Judge and the same has also beendismissed. It is submitted that therefore even Civil AppealNo. 5721 of 2021 arising out of SLP No.1062 of 2020 hasbecome infructuous.

5.2Learned Senior Advocate appearing on behalf of appellantE-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 theservice record. The employees of the State Government for theFdetermination of the age are governed by the Karnataka State Servant(Determination of Age) Act, 1974; Section 4 of the Act, 1974 providesfor bar of alteration of age except under the Act, 1974; Section 5 of theAct, 1974 provides alteration of age or date of birth of State servantswhich provides that subject to Sub-section (2), the State GovernmentGmay, at any time, after an inquiry, alter the age and date of birth of aState servant as recorded or deemed to have been recorded in his serviceregister or book or any other record of service. Sub-section (2) of Section5 further provides that no such alteration to the advantage of a Stateservant shall be made, unless he has made an application for the purposewithin three years from the date on which his age and date of birth isH

accepted and recorded in the service register or book or any other recordof service or within one year from the date of commencement of Act,1974, whichever is later. Section 6 of the Act, 1974 further provides thatno court shall have jurisdiction to settle, decide or deal with any questionwhich is required to be decided under the Act, 1974. It also furtherprovides that no decision under Act, 1974 shall be questioned in anycourt of law. Section 4, Section 5 and Section 6 which are relevant forour purpose are re-produced 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 ofthe age or date of birth of a State servant as accepted and recordedor deemed to have been accepted and recorded in his serviceregister or book or any other record of service under section 3shall, in so far as it relates to his conditions of service as suchState 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 servantas recorded or deemed to have been recorded in his service registeror book or any other record of service:

Provided that no such alteration shall be made if the ageand date of birth of a State servant has been accepted and recordedor deemed to have been accepted and recorded in the serviceregister or book or any other record of service in pursuance of adecree of a civil court obtained by the State servant[1] [after hebecame such servant][1] against the State Government:

Provided further that no such alteration shall be madewithout giving the State servant concerned a reasonableopportunity of being heard.

(2) No such alteration to the advantage of a State servantshall be made unless he has made an application for the purposewithin three years from the date on which his age and date ofbirth is accepted and recorded in the service register or book orany other record of service or within one year from the date ofcommencement of this Act, whichever is later.

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A6. Bar of jurisdiction of courts.- (1) No court shall havejurisdiction to settle, decide or deal with any question which isrequired to be decided under this Act.

(2) No decision under this Act shall be questioned in anycourt of law.

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8. So far as the appellant corporation is concerned, they adoptedthe 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 asadopted by the appellant – corporation in the year 1991 was required tobe made by respondent No.1 – employee within a period of one yearCfrom 17.05.1991 being the employee of the appellant - corporation.However, respondent No.1 – employee made the request for change ofdate of birth vide notice dated 23.06.2007 i.e. after the lapse of 24 yearssince he joined the service and nearly after the lapse of 16 years fromthe date of adoption of enactment (Act, 1974) by the appellant –corporation. The High Court in the impugned judgment and order hasDobserved that nothing is on record that resolution dated 17.05.1991adopting the Act, 1974 was brought to the notice of the employee andthat therefore respondent No.1 – employee might not be aware of theapplicability of the Act, 1974. Aforesaid cannot be accepted. Being theemployee of the corporation, he was supposed to know the rules andEregulations applicable to the employees of the corporation. Ignorance oflaw cannot be an excuse to get out of the applicability of the statutoryprovisions.

9. Even otherwise and assuming that the reasoning given by theHigh Court for the sake of convenience is accepted in that case alsoFeven respondent No.1 – employee was not entitled to any relief or changeof date of birth on the ground of delay and laches as the request forchange of date of birth was made after lapse of 24 years since he joinedthe service. At this stage, few decisions of this court on the issue ofcorrection of the date of birth are required to be referred to.

G9.1 In the case of Home Deptt. v. R. Kirubakaran (Supra), it isobserved and held as under:- “7. An application for correction of the date of birth should not bedealt with by the Tribunal or the High Court keeping in view onlythe public servant concerned. It need not be pointed out that anysuch direction for correction of the date of birth of the publicH

servant concerned has a chain reaction, inasmuch as others waitingfor years, below him for their respective promotions are affectedin this process. Some are likely to suffer irreparable injury,inasmuch as, because of the correction of the date of birth, theofficer concerned, continues in office, in some cases for years,within which time many officers who are below him in senioritywaiting for their promotion, may lose the promotion for ever…”

9.2 In the case of State of M.P. v. Premlal Shrivas, (Supra) inparagraph 8 and 12, it is observed and held as under:-

“8. It needs to be emphasised that in matters involving correctionof date of birth of a government servant, particularly on the eveof his superannuation or at the fag end of his career, the court orthe tribunal has to be circumspect, cautious and careful whileissuing direction for correction of date of birth, recorded in theservice book at the time of entry into any government service.Unless the court or the tribunal is fully satisfied on the basis of theirrefutable proof relating to his date of birth and that such a claimis made in accordance with the procedure prescribed or as perthe consistent procedure adopted by the department concerned,as the case may be, and a real injustice has been caused to theperson concerned, the court or the tribunal should be loath to issuea direction for correction of the service book. Time and again thisCourt has expressed the view that if a government servant makesa request for correction of the recorded date of birth after lapseof a long time of his induction into the service, particularly beyondthe time fixed by his employer, he cannot claim, as a matter ofright, the correction of his date of birth, even if he has good evidenceto 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) 2SCC 162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).

12. Be that as it may, in our opinion, the delay of over two decadesin applying for the correction of date of birth is ex facie fatal tothe case of the respondent, notwithstanding the fact that therewas no specific rule or order, framed or made, prescribing theperiod within which such application could be filed. It is trite thateven in such a situation such an application should be filed whichcan be held to be reasonable. The application filed by the respondent AB

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A25 years after his induction into service, by no standards, can beheld to be reasonable, more so when not a feeble attempt wasmade to explain the said delay. There is also no substance in theplea of the respondent that since Rule 84 of the M.P. FinancialCode does not prescribe the time-limit within which an applicationis to be filed, the appellants were duty-bound to correct the clericalBerror in recording of his date of birth in the service book.”

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9.3 In the case of Life Insurance Corporation of India & Othersv. R. Basavaraju (Supra), it is observed as under:- “5. The law with regard to correction of date of birth has beenCtime and again discussed by this Court and held that once the dateof birth is entered in the service record, as per the educationalcertificates and accepted by the employee, the same cannot bechanged. Not only that, this Court has also held that a claim forchange in date of birth cannot be entertained at the fag end ofretirement”D

9.4 In the case of Bharat Coking Coal Limited and Ors. v. ShyamKishore Singh (Supra) of which one of us (Justice A.S. Bopanna) was aparty to the bench has observed and held in paragraph 9 & 10 as under:- “9. This Court has consistently held that the request for change ofthe date of birth in the service records at the fag end of service isnot sustainable. The learned Additional Solicitor General has inthat regard relied on the decision in the case of State ofMaharashtra and Anr. v. Gorakhnath Sitaram Kamble (2010)14SCC 423 wherein a series of the earlier decisions of this Courtwere taken note and was held as hereunder:

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“16. The learned counsel for the appellant has placed relianceon the judgment of this Court in U.P. Madhyamik ShikshaParishad v. Raj Kumar Agnihotri [(2005) 11 SCC465: 2006SCC (L&S) 96]. In this case, this Court has considered anumber of judgments of this Court and observed that theGgrievance as to the date of birth in the service record shouldnot be permitted at the fag end of the service career.

17. In another judgment in State of Uttaranchal v. PitamberDutt Semwal [(2005) 11 SCC 477 : 2006 SCC (L&S) 106]relief was denied to the government employee on the groundHthat he sought correction in the service record after nearly 30

years of service. While setting aside the judgment of the HighCourt, this Court observed that the High Court ought not tohave interfered with the decision after almost three decades.

19. These decisions lead to a different dimension of the casethat correction at the fag end would be at the cost of a largenumber of employees, therefore, any correction at the fag endmust be discouraged by the court. The relevant portion of thejudgment in Home Deptt.v. R. Kirubakaran[1994 Supp (1) SCC155 : 1994 SCC (L&S) 449 : (1994) 26 ATC 828] reads asunder: (SCC pp. 158- 59, para 7)

“7. An application for correction of the date of birth [by apublic servant cannot be entertained at the fag end of hisservice]. It need not be pointed out that any such direction forcorrection of the date of birth of the public servant concernedhas a chain reaction, inasmuch as others waiting for years,below him for their respective promotions are affected in thisprocess. Some are likely to suffer irreparable injury, inasmuchas, because of the correction of the date of birth, the officerconcerned, continues in office, in some cases for years, withinwhich time many officers who are below him in seniority waitingfor their promotion, may lose their promotion forever. …According to us, this is an important aspect, which cannot belost sight of by the court or the tribunal while examining thegrievance of a public servant in respect of correction of hisdate of birth. As such, unless a clear case on the basis ofmaterials which can be held to be conclusive in nature, is madeout by the respondent, the court or the tribunal should not issuea direction, on the basis of materials which make such claimonly plausible. Before any such direction is issued, the court orthe tribunal must be fully satisfied that there has been realinjustice to the person concerned and his claim for correctionof date of birth has been made in accordance with the procedureprescribed, and within the time fixed by any rule or order. …the onus is on the applicant to prove the wrong recording of hisdate of birth, in his service book.”

“10. This Court in fact has also held that even if there is goodevidence to establish that the recorded date of birth is erroneous,the correction cannot be claimed as a matter of right. In that AB

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regard, in State of M.P. vs. Premlal Shrivas, (Supra) it is held ashereunder:- A

“8. It needs to be emphasised that in matters involving correctionof date of birth of a government servant, particularly on the eveof his superannuation or at the fag end of his career, the court orthe tribunal has to be circumspect, cautious and careful whileissuing direction for correction of date of birth, recorded in theservice book at the time of entry into any government service.Unless the court or the tribunal is fully satisfied on the basis of theirrefutable proof relating to his date of birth and that such a claimis made in accordance with the procedure prescribed or as perthe consistent procedure adopted by the department concerned,as the case may be, and a real injustice has been caused to theperson concerned, the court or the tribunal should be loath to issuea direction for correction of the service book. Time and again thisCourt has expressed the view that if a government servant makesa request for correction of the recorded date of birth after lapseof a long time of his induction into the service, particularly beyondthe time fixed by his employer, he cannot claim, as a matter ofright, the correction of his date of birth, even if he has good evidenceto establish that the recorded date of birth is clearly erroneous.No court or the tribunal can come to the aid of those who sleepovertheir rights” (see Union of India v. Harnam Singh [(1993) 2 SCC162 : 1993 SCC (L&S) 375 : (1993) 24 ATC 92] ).

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12. Be that as it may, in our opinion, the delay of over two decadesin applying for the correction of date of birth is ex facie fatal tothe case of the respondent, notwithstanding the fact that thereFwas no specific rule or order, framed or made, prescribing theperiod within which such application could be filed. It is trite thateven in such a situation such an application should be filed whichcan be held to be reasonable. The application filed by the respondent25 years after his induction into service, by no standards, can beGheld to be reasonable, more so when not a feeble attempt wasmade to explain the said delay. There is also no substance in theplea of the respondent that since Rule 84 of the M.P. FinancialCode does not prescribe the time-limit within which an applicationis to be filed, the appellants were duty-bound to correct the clericalerror in recording of his date of birth in the service book.”

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10. Considering the aforesaid decisions of this Court the law onchange of date of birth can be summarized as under:

(i) application for change of date of birth can only be as per therelevant provisions/regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimedas a matter of right;

(iii) application can be rejected on the ground of delay and latchesalso more particularly when it is made at the fag end of serviceand/or when the employee is about to retire on attaining theage of superannuation.

11. Therefore, applying the law laid down by this court in theaforesaid decisions, the application of the respondent for change of dateof birth was liable to be rejected on the ground of delay and laches alsoand therefore as such respondent employee was not entitled to the decreeof declaration and therefore the impugned judgment and order passedby the High Court is unsustainable and not tenable at law.

12. However, considering the fact that when the impugned judgmentand order passed by the High Court has been implemented and respondentNo.1 has retired thereafter considering his date of birth as 24.01.1961, itis observed that the present judgment and order shall not affectrespondent No.1 – employee and we decide the question of law in termsof the above in favour of the appellant – corporation. With this CivilAppeal No. 5720 of 2021 stands disposed of.

13. So far as the Civil Appeal No.5721 of 2021 arising out of theSLP No.1062 of 2020 is concerned, it is true that while passing theimpugned judgment and order the High Court heavily relied upon thejudgment in RFA No.1674 of 2013 (subject matter of Civil No.5720 of2021) which also is not sustainable in law as observed hereinabove.However considering the fact that thereafter after the impugned judgmentand order dated 05.11.2019 passed by the High Court in W.P. No.109447of 2019 directing the appellant – corporation to consider the case of theoriginal writ petitioner – respondent herein in light of the decision in thecase of RFA No.1674 of 2013, the case of the respondent came to bereconsidered and his prayer for change of date of birth came to berejected on the ground of delay and laches and even thereafter also thefresh decision was challenged before the learned Single Judge and the A

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Alearned Single Judge has also dismissed the subsequent writ petition.Therefore, no further order is required to be passed in the present appealand is accordingly disposed of. However, question of law is decided infavour of the appellant – corporation as observed hereinabove.

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Appeal disposed of.

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