Karnataka Rural Infrastructure Development Limited vs T. P Nataraja, The State Of Karnataka, The Director, Karnataka Secondary Education Examination Board, The Deputy Director Of Public Instructions, The Head Master, Acharya Paatashala High School

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)

JUDGMENT

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

(RFA) No.1674 of 2013, by which the High Court has allowed Natarajan Date: 2021.09.21 16:58:18 IST Reason:

the said appeal preferred by respondent No.1 herein –

1 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.

2 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

3 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

4 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

5 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.

6 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

7 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.

8 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

9 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 obtained by the State servant 1 [after he became such servant]1 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

11 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.

19 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

20