ORDER
1. The defendants in O.S.No.728 of 1984 on the file of the learned District Munsif, Mayiladuthurai, are the appellants in the second appeal. The respondent herein filed the suit against them for declaration that his date of birth was 26.10.1927 and for a consequential permanent injunction restraining the defendants from giving effect to their order Na.Ka.No.3517-B of 1984 dated 24.10.1984.
2. His case was as follows:-
He Joined the services of Animal Husbandry Department in the year 1943 as a temporary Assistant. At the time of his joining duty, he had given his date of birth approximately as 26.10.1924. The same was recorded in his Service Register. He became a permanent employee on 15.4.1972 and when the defendants wanted the plaintiff to give his date of birth, he gave it as 26.10.1927 and as per this declaration, his date of birth was recorded as 26.10.1927. However, the defendants took the date of birth given in 1943 as the correct date of birth and on that basis, had passed orders directing the plaintiff to retire from service on 31.10.1984. Though the plaintiff had sent an application to the defendants stating that his date of birth was 26.10.1927 as recorded in the permanent Service Register, the application was rejected. In the permanent Service Register, the year had been corrected as 1924. This was contrary to law. A casual look at the Service Register would clearly show that there had been a material alteration. The termination of the plaintiff’s services taking the date of birth as 26.10.1924 was very improper. The suit was
therefore necessitated. In as much as the plaintiff had received the order terminating his services only on 26.10.1984, it was not possible for him to issue the statutory notice under Section 80 of the Code of Civil Procedure. Having regard to the circumstances of the case, the same had to be dispensed with. There was no need to give a notice under Section 80.
3. The second defendant filed a written statement and the same was adopted by defendants 1 and 3. When the plaintiff joined the services of the department, he had clearly given the date of birth as 26.10.1924 and the same had been entered in his Service Register and other Government records. Taking into consideration his date of birth as 26.10.1924, he had been asked to retire on 31.10.1984 Afternoon. He had also accepted the position. He had also signed the necessary forms relating to pension. The Government also had issued necessary orders on his pensionary benefits. It was not correct to say that any tampering with the plaintiff’s date of birth had been made. The plaintiff, in any event, had filed the suit belatedly. If the plaintiff was to get relief, it would affect the seniority and promotion of other Government employees. There was no cause of action for the sint. The suit was liable to be dismissed.
4. On the above pleadings, the trial Court framed the necessary issues and held on the oral and the documentary evidence that the plaintiff was entitled to have the declaration that his date of birth was 26.10.1927, but he was not entitled to the relief of injunction. The suit was dismissed in other respects.
5. On appeal by the defendants, the learned Subordinate Judge in A.S.No.54 of 1987 by judgment and decree dated 19.12.1988 confirmed the decision of the trial Court and dismissed the appeal.
6. It is as against that, the present second appeal has been filed. At the time of admission the following substantial questions of law were framed for decision in the second appeal:
(1) Whether the suit was properly laid against the State without impleading the State of Tamil Nadu represented by the Collector of Thanjavur as provided under Civil Procedure Code?
(2) Whether the suit was bad for non-compliance of Section 80 of the Code of Civil Procedure and in the absence of a petition to dispense with such notice as provided under Section 80(2)?
(3) Whether the suit was barred under Rule 49(c) of the General Rules for Subordinate Services?
(4) Whether the Courts below erred in law in ignoring the entries in the Service Roll, which also forms part of the Service Register, when such service Roll furnishes the date of birth as 25.10.1924?
(5) Whether the Courts below erred in law in not holding that the respondent would not have completed the age of 18 and be eligible for appointment on 13.9.1943 if his date of birth was actually 25.10.1927 since the minimum qualifying age for entry into service is 18?
7. It is contended by the learned Special Government Pleader that the Courts below clearly erred in granting the prayer of declaration to the plaintiff and that there was a clear bar under Rule 49(c) of the General Rules for Subordinate Services. It is the contention of the learned Special Government Pleader that when once there were entries made in the Service Roll forming part of the Service Register and the date of birth of the plaintiff was found to be 26.10.1924, the plaintiff was bound by it and there was no question of his getting the date of birth declared as a different date. One other aspect urged by the learned Special Government Pleader was that if the plaintiff’s date of birth was taken as 26.10.1927, on the date he got appointed on 13.9.1943 he had not completed 18 years of age and he would have been ineligible for getting appointed in 1943. The learned Special Government Pleader also contended that the suit was bad for want of notice under Section 80 of the Code of Civil Procedure.
8. The learned Counsel for the respondent/plaintiff sought to support the judgments of the Courts below on the reasoning given by them. The learned Counsel also relied on the various, exhibits filed on the side of the plaintiff to substantiate his case that his date of birth was only 26.10.1927 and not 26.10.1924.
9. In General Administration Manual, Tamil Nadu Rule 25 runs as follows:
“If at the time of appointment a candidate claims that his date of birth is different from that entered in his SSLC Book, he should make an application to the Tamil Nadu Service Commission, if the appointment is made in consultation with the Commission and in other cases to the appointing authority stating the evidence on which he relies and explaining how the mistake occurred. The matter will be enquired into by an officer not below the rank of a Deputy Collector and on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority will decide whether the alteration of the date of birth may be permitted or the application rejected. After the person has entered service, an application to correct his date of birth as entered in the official records should normally be entertained only if the application is made within 5 years of entry into service, any application received after five years after entry into service will be summarily rejected.”
Under Rule 64 it is stated that,
“the date of birth entered in the Service Book or Roll of Non-Gazetted Government Servant shall not be altered, except in the case of a clerical error, without the orders of the Director.”
10. A distinction was sought to be made on behalf of the plaintiff that this rule would apply only if the application for correction was to be made to the Department and not to the filing of the suit in the Civil Court. Even according to the plaintiff, he had given his date of birth in the year 1943 as 26.10.1924. He was confirmed in employment on 15.4.1972 and according to the plaintiff, at the time he was confirmed he gave the date of birth as 26.10.1927. Reliance was placed on the horoscope of the plaintiff and it was contended on behalf of the plaintiff that the person who cast the horoscope was dead and the trial Court accepted the horoscope date as the correct date of birth of the plaintiff.
11. In my view, the date of birth given in the horoscope ought not to have been accepted. It is well established that the horoscope by itself has very little evidential value. In 1981 the plaintiff’s department people called for explanation from the plaintiff with regard to his date of birth. This was followed by an inspection of the Service Register of the plaintiff in June, 1984. After inspecting the Service Register, on 12.6.1984 the plaintiff wrote to the Assistant Director of the Department that his date of birth has been corrected as 25.10.1924. According to the plaintiff, the figure 7 has been corrected as 4. A perusal of the Service Register marked as Ex.B-1 shows his date of birth as 25.10.1924, in the Service Roll, and in the Service Book, there is some correction made with regard to the year of birth. Though one of the witnesses on the side of the defendants has said that it looked like 6 corrected as 4, still by itself it cannot mean that the plaintiff’s date of birth was 25.10.1927. The person, who spoke to the correction apparently was not responsible for any such correction, it has to be noted that if the plaintiff’s date of birth were to be taken as 1927, he would not have been able to join service in 1943 since he would not have completed 18 years of age. The Courts below have been persuaded to hold in favour of the plaintiff on the basis of this alleged correction in his Service Book. The fact remains that the plaintiff’s services were regularised in 1972. Rule 49(c) of the Rules provides for a five year period to have the record relating to a person’s date of birth corrected. Apparently, the plaintiff had not approached the authorities within the stipulated time.
12. In State of Orissa and others v. Brahamarbar Semapathi, , the person concerned in that case, as per the Service Record, was to retire on 31.5.1989. Just a few days prior to his retirement, i.e. on 24.4.1989, he filed an application for correction of his date of birth. The Administrative Tribunal passed an order in favour of the Officer and prohibited the Government from retiring the Officer concerned. The matter went to the Supreme Court. The Supreme Court observed that,
“from the records it would appear that the person concerned became aware of the entry in the Service Register in the year 1970 and he had not taken any action within five years thereafter and under those circumstances. Rule -65
of the Orissa General Finance Rules was clear that his claim for alteration should be summarily rejected without any further inquiry.”
13. In Secretary and Commissioner, Home Department and others v. R. Kirubakaran, 1994 Supp.(1) SCC 155 the Supreme Court has criticised the tendency of the public servant coining forward with application for change of date of birth at the fag-end of his career and had also referred to the various problems and consequences that would follow if such suits were entertained. It is worthwhile to reproduce the relevant paragraph.
“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, in as much as others waiting for years below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, in as much 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 for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. 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. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant to prove the wrong recording of his date of birth, in his service book.”
14. In Chief Medical Offices v. Khadeer Khadri, the Supreme Court held against the person concerned on the ground that correction was sought beyond the period fixed under the Rules. To the same effect is the decision of the Supreme Court in Union of India and others v. Kahtilal Hematsam Pandya, .
15. In Government of Tamil Nadu etc. v. D. Thirupathy, 1997 (3) L.W. 688 S.S. Subramani, J. (as the learned Judge then was) has elaborately considered the question and after referring to several Supreme Court and this Court judgments, and rejected the claim of the plaintiff in that suit on the ground of unexplained delay. In the case before the learned Judge, the plaintiff was recruited as a Constable In 1941 and became a Sub Inspector and sought
a declaration that the alteration made by the District Police Office in the date of birth of plaintiff in the Service Register from 1.4.1925 to 1.4.1921 was without notice to him, irregular, unauthorised, not valid in law and not binding on him and sought for permanent prohibitory injunction restraining the defendants from retiring him from service on the basis of the illegally altered date of birth. The date of birth issued by the School Headmaster of the plaintiff as per the Record-sheet was 1.4.1925 and the same was entered in the Service Records. His further case was that he came to know that the date of birth in his Service Register had been altered from 1.4.1925 to 1.6.1921 without any notice to him, that there was already a record with the defendants wherein his date of birth was entered as 1.4.1925 and the correction of the sane as 1.6.1921 was without notice to him and therefore, it could not bind him in any way. The defence in that case was that at the time the plaintiff was recruited, he gave a solemn declaration that his date of birth was 1.6.1921 and the same would bind him that the Village Karnam had also certified the data of birth as 1.6.1921, that a Medical Officer also examined him wherein it was found that he was aged 20 years in 1941, that it was thereafter the date of birth was stated as 1921 in the documents and that if the date of birth was 1925 only, the plaintiff would not have been enlisted as a Constable and he would have been rejected as under aged. It was also contended that the suit was hopelessly barred by limitation and even though the plaintiff came to know that the date of birth might not be correct even in the year 1962, the suit being filed 16 years thereafter, was barred by limitation. The trial Court dismissed the suit. The first Appellate Court reversed, the findings of the trial Court and decreed the suit. It was as against that, the second appeal was preferred and the matter was decided by the learned Judge.
16. In K.V. Kaliappan v. The University of Madras rep. by its Registrar, Chennai, 2000 (3) M.L.J. 404 the writ petitioner entered service in the year 1974 and obtained a declaratory decree in the year 1981 that his correct date of birth was 29.10.1942, but made a petition for correction of date of birth in the Service Register in 1993. It was held by Sathasivam, J. that in the earlier decree the Director of School Education was not a party and in the absence of any direction in the decree to the Director of School Education for correction of date of birth, the rejection by the department was correct. The, learned Judge referred to a number of decisions of the Supreme Court and this Court while deciding the case.
17. Admittedly, the State of Tamil Nadu represented by the Collector, Thanjavur, has not been made a party. But, in my view, that by itself cannot be a ground for refusing relief to the plaintiff if he is otherwise entitled to the same. The department is sufficiently represented and that is not a very serious irregularity.
18. As regards the want of notice under Section 80 of the Code of Civil Procedure, it is seen from the records that there was an application filed for
dispensing with the notice and the same was ordered. In as much as no relief of permanent injunction was granted by the Courts below and unless the same is to be granted, the want of notice under Section 80 cannot be put against the plaintiff. The second substantial question of law is therefore answered against the appellant.
19. As regards the third substantial question of law. Rule 49(c) does provide for a period of five years limitation for applying for correction of date of birth. Admittedly, it has not been done. As already noticed, if his date of birth was really in 1927 he would not have been eligible for joining service when he was 17 years of age. In my view, he had the benefit of three years service by giving his date of birth as 1924 and at the fag-end of his career he cannot now turn round and say that he had given his date of birth wrongly or that his date of birth had been wrongly entered and needed correction. He cannot have the best of both worlds. The Courts below were in error in declaring the plaintiff’s date of birth as 26.10.1927.
20. There is a deplorable and pernicious tendency in our country among employees of Government, Public Sector Undertakings, Banks, etc. to seek corrections of their dates of birth at the fag-end of their service alleging various reasons for not applying earlier at the beginning as soon as they entered service or within the time specified in the rules or within a reasonable time if not so provided. More often than not, if the correction they seek is granted, at the time they joined duty they would not have been eligible for employment. By lying at the beginning they had deprived another deserving and needy candidate of employment. By attempting to correct it at the end they deprive their immediate juniors of their promotion. There is chain reaction, a qualified candidate’s knock a the door of employment is not heard and he is turned out to bide time. It also happens in some cases that the Courts grant interim orders and the culprits manage to cling on to their jobs even after their dates of superannuation as per the extant records. Of course there may be some genuine cases of mistakes in the entries relating to dates of birth. But such instances are few and far between. What those people lack is a sense of fairplay. I have echoed only what the Supreme Court has observed in Secretary and Commissioner etc., and others v. R. Kirubakaran, 1994 Supp. (1) SCC 155.
21. The substantial questions of law are answered in the manner stated above. The second appeal will stand allowed. The judgments and the decree of the Courts below are set aside and the suit O.S.No.728 of 1984 on the file of the learned District Munsif, Mayiladuthurai, will stand dismissed. This will be no order as to costs .