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1983 DIGILAW 389 (ALL)

Abdul Ghafoor v. Union of India (through Minister, Railway Administration, New Delhi)

1983-05-19

SRI DEOKI NANDAN

body1983
JUDGMENT Sri Deoki Nandan, J. -This is a plaintiff's second appeal in a suit for a declaration that the retirement of the plaintiff from the service on 26 May 1973, is quite illegal, void and not binding on the plaintiff. The plaintiff's case was that his true date of birth was 17 January 1925, and when he was first appointed as a loco cleaner in the Railway Administration on 10 December 1943, he declared his age to be 18 years and in March 1944 also his age was assessed to be 19 years by the Divisional Medical Officer, Delhi. Unfortunately, due to some mistake, his service record was sent to Pakistan on partition of the country and he was even out of work from 8 November 1947 to 7 October 1951, on the wrong assumption that he had opted for Pakistan. That position was, however, corrected by an order, dated 22 September 1951, and he resumed his duties with effect from 8 October 1961, but the service record having been sent to Pakistan, his age was assessed by the Divisional Medical Officer, Delhi, as 45 years and his date of birth was accordingly recorded as 27 May 1915. The plaintiff made representations and sought a change in the date of birth so recorded, but in January 1969, he was informed by the competent Authority that it was not satisfied that any change was called for in the date of birth as recorded. Accordingly, the plaintiff's retirement became due on 26 May 1973. That was wrong, and he accordingly instituted the suit on 23 May 1975. Since the plaintiff could not prevent the Railway Administration from retiring him, he was actually retired from service and the plaint was amended and instead of an injunction restraining the defendant from retiring him, the relief of declaration that the retirement of the plaintiff on 26 May 1973, was illegal, was substituted by an amendment of the plaint. 2. Apart from the other pleas raised by the defendant Railway Administration. one of the pleas raised was that the suit is barred by limitation on the ground that the cause of action first accrued to the plaintiff when his age was assessed at 45 years on 27 May 1960 and his date of birth was recorded as 27 May 1915. Apart from the other pleas raised by the defendant Railway Administration. one of the pleas raised was that the suit is barred by limitation on the ground that the cause of action first accrued to the plaintiff when his age was assessed at 45 years on 27 May 1960 and his date of birth was recorded as 27 May 1915. At any rate, even the representations made by the plaintiff were finally disposed of by the Competent Authority in January 1969, and even if that be taken to be the date of the accrual of the cause of action, the suit was filed clearly beyond 3 years and was thus barred by limitation. So far as the prayer for injunction is concerned, suffice it to say that the suit appears to have been filed some three days before the due date of retirement only to stall the plaintiff's retirement by a temporary injunction. The true cause of action, on which the suit was based, was the fact of the record of his date of birth as 25 May 1915, and that arose on 27 May 1960. It is not disputed that the plaintiff had to retire on attaining the age of superannuation which was 58 years according to the service rules. Therefore, the ground on which birth the claim for declaration was based, was that the plaintiff's true date of birth was 17 January 192), and that his date of birth as wrongly recorded as 25 May 1915 on 17 May 1960, or, may be, when the defendant Railway Administration finally refused to correct the mistake, i.e., when the Competent Authority informed the plaintiff, in January 1969, that his date of birth, as recorded, did not call for any change. 3. Among other things, the trial Court held on issue (1) that the suit was barred by limitation on the bans that the cause of action for it accrued in the year 1960. That was sufficient for the dismissal of the suit. I may point out that the limitation for a suit for declaration under the Limitation Act, 1963, as prescribed by Article 58 of the Schedule, is ,three years, from the date when the right to sue first accrues. That was sufficient for the dismissal of the suit. I may point out that the limitation for a suit for declaration under the Limitation Act, 1963, as prescribed by Article 58 of the Schedule, is ,three years, from the date when the right to sue first accrues. Since I am not satisfied that the finding of the trial Court on this point suffers from any error no other point survives, for consideration, and I need not go into the same. 4. The appeal fails and is dismissed d but, in the circumstances, I would make no order as to costs.