JUDGMENT
Mukundakam Sharma, C.J.
Page 0070
1. The present appeal revolves around the issue with regard to change of date of birth of the appellant in the service record of the appellant which was initiated and prepared at the time of entry of the appellant into the service which was recorded as 26.05.1940. It is also not disputed that the aforesaid date of birth was entered into and written as 26.05.1940 Page 0071 on the basis of the Senior School Leaving Certificate(SSLC). The appellant entered and joined the services on 29.12.1962 and immediately thereafter the service record of the appellant was prepared where his date of birth was recorded as 26.05.1940.
2. It, however, appears that the appellant filed a suit on 28.09.1973 which was registered as Original Suit No. 565/1973 in the Court of the IInd Additional Munsiff of Mangalore, Karnataka. It may be stated that in the said suit, however, the appellant bank was not made a party and only the School Board and the State of Karnataka were made parties. It also transpires from the record that a decree was passed in the suit on 29.11.1977 wherein a direction was issued to the Karnataka Secondary Education Board and the State of Karnataka to correct the date of birth of the appellant as 26.10.1942. The decree was passed on 29.11.1977 and immediately thereafter,i.e., 31.03.1978 an application was filed by the respondent to the appellant praying for correction of his date of birth in the service record as 26.10.1942 in terms of the decree passed by the Court of the IInd Additional Munsiff of Mangalore. The aforesaid representation submitted by the appellant was, however, rejected by the bank on 04.04.1978 on the ground that there is no provision for correction of date of birth in the rules of the appellant bank.
3. There was a complete silence on the part of the respondent thereafter and it appeared to the bank that the respondent stood satisfied. However, near about the date of retirement, i.e., 31.05.2000 a representation came to be filed once again which was filed on 20.04.2000 requesting for correction of the date of birth of the appellant on the basis of the aforesaid decree passed by the Mangalore Court. The said representation was also considered by the bank and the same was rejected on 27.04.2000.
4. The writ petition was filed in this Court by the appellant just before his retirement in which judgment was passed by the learned Single Judge on 22.05.2000 allowing the writ petition holding that the appellant bank is bound to give effect to the order passed by the Civil Court in as much as the record of the date of birth is a matter concerning the School Board and the State Government and, therefore, the bank was not a necessary party to be imp leaded in the Civil Suit filed. Immediately after the aforesaid order was passed by the learned Single Judge, an appeal was preferred and the Division bench while issuing notice on the appeal stayed the operation of the order passed by the learned Single Judge. Consequent thereto, the respondent stood retired from service w.e.f. 31.05.2000 which is the date on which he was required to be retired on the basis of the entry in the service record.
5. Mainly two contentions were raised by the learned Counsel appearing for the appellant before us. The first is with regard to the delay in approaching the writ court. It was pointed out that the earlier representation of the appellant was rejected on 04.04.1978 and thereafter he was silent for a long period of time. Nothing was done by the respondent. Only few days before his retirement, he again took up the plea once again by filing a fresh representation, which was rejected immediately. Consequently, it was Page 0072 submitted before us that the writ petition should not have been entertained and should have been rejected at the threshold itself. The case which was sought to be made before us is that the date of birth is to be recorded in the service record on the date of entry of the appellant in the service and that also on the basis of the School Leaving Certificate as existed on that date. It was pointed out that there is no provision for change of date of birth once given by an employee and that the same is binding on the parties. It was submitted that there is also no provision in the Rules for correction of the date of birth once furnished and recorded on the basis thereof.
6. The respondent on the ground that he had obtained the School Leaving Certificate from an institute in Mangalore, went to Mangalore Court to file the aforesaid civil suit but in the said suit Canara Bank was not made a party. The decree was obtained behind the back of the Canara Bank who was his employer. The date of birth was not only to be changed and corrected in the original Senior School Leaving Certificate issued by the School Board but the same was also to be corrected and changed in the records of the bank. In that view of the matter, in our considered opinion, the bank was a necessary party. The said decision rendered by the Civil Court cannot be said to be binding and effective on the bank for the bank cannot even file an appeal to prove and establish that the aforesaid direction for correction of the date of birth in the service record would not and cannot bind the bank to change the date of birth as entered in the service record of the bank.
7. In this connection, we may appropriately refer to the decision of the Supreme Court in the case titled as Director of Technical Education and Anr. v. Smt. K. Sitadevi . In para 6 of the said judgment, the Supreme Court held, and declared the legal position to the following effect:
…a decree without the state being a party is not binding on the employer (the State) in the matter of determination of the date of birth….
8. The aforesaid decision, in our considered opinion, would squarely apply to the facts of the present case. The aforesaid decision was also rendered partly on the similar facts where the respondent, a lady Engineer entered into State Govt. service in 1955. The matriculation certificate produced by her indicated her date of birth to be 19-10-1929. She filed suit for alteration of her date of birth to 21-08-1933. Andhra University alone was imp leaded and not the State Government. Decree was obtained and a fresh certificate was issued correcting the date of birth. Her application for consequential correction in her service record was rejected by the Govt. The said action was upheld by the Supreme Court.
9. We may also refer to the decision of Supreme Court in the case of Union of India v. C. Rama Swamy wherein the respondent was appointed to the Indian Police Service and his date of birth was recorded on the basis of his Senior School Leaving Certificate(SSCL) and also on the basis of his application for appearing in Civil Service Examination of the Page 0073 year 1967, in which he was selected. As the representations of the Respondent therein to the Andhra Pradesh State Government and then to Government of India in the year 1982, for alteration of the date of birth from 17-6-1939 to 15-6-1941 were rejected the Respondent therein filed a suit in the court of the District Munsif, Sholinghur, impleading the Director of School Education, Madras; District Educational Officer, Vellore and his eldest sister Kamla as the defendants, but neither the state nor Central Governments were made parties. The said suit was decreed in his favor and it was held that he is entitled to alteration of the entry regarding his date of birth in his SSCL. Armed with the corrected certificate and the judgment of the civil court directing for alteration of date of birth the Respondent therein made a representation to Government of India which was rejected. The supreme court while upholding the said action observed that:
25. In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the first instance, communicates a particular date of birth there is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and, therefore, more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age, after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability.
The principle of estoppel was accordingly held to be applicable and the respondent therein was prevented and estopped from claiming that his date of birth as recorded earlier was wrong and incorrect.
10. The facts in the aforesaid decisions being partly similar and applicable to the facts of the present case, we hold that the order passed by the learned Single Judge is incorrect. We also hold that there is inordinate delay and laches on the part of the appellant in approaching the writ court of this Court. The appellant after rejection of the first representation could and should have immediately approached the writ court. The respondent slept over his rights, if any, and accepted the position and only a few days before his date of retirement took up the plea once again by initially filing a representation and on rejection thereof by filing a writ petition. Successive representations after rejection of the first representation would not explain Page 0074 the delay. Such a writ petition should not have been entertained when filed only a few days prior to the date of retirement. It is apparent that the writ petition was filed with a delay of about 22 years and that also just before his retirement. In that view of the matter also the respondent is not entitled to any relief in the writ petition.
11. In view of the above discussion, we allow the appeal by setting aside the judgment and order of the learned Single Judge dated 22.5.2000 and order for dismissal of the writ petition. There shall be no order as to costs.