UNIVERSITY OF MYSORE v. SHANKARA GANAPATHY PATHAK — 1998 DIGILAW 680 (KAR)

T. N. VALLINAYAGAM, J. ( 1 ) THE University of Mysore is the appellant challenges the decree of alteration of date of birth granted by the courts below from 2'. 10. 1938 to 6. 3. 1940. ( 2 ) THE suit in O. S. No. 1773/1992 on the file of the Second Additional First Munsiff is for a declaration that the date of birth of the plaintiff is 6. 3. 1940 and not 2. 10. 1938 and for a mandatory injunction by way of direction to direct the first defendant-University the date of birth of the first plaintiff as 6. 3. 1940. The suit was decreed by the courts below, challenging the say of the second appeal now preferred. Prima facie, I am of the opinion that the suit itself is not maintainable as the prayer should have been to direct the 3rd and 4th defendant to correct the date of birth in the S. S. L. C. book which the primary record. The University first defendant is bound by such record and it cannot incidently rely upon any other record except the record granted under the educational rules. ( 3 ) NOTWITHSTANDING the above, it is seen that the plaintiff joined the services of the university on 25. 11. 1968 as Research Assistant, class-I at the Oriental Research Institute of University of Mysore by giving the date of birth as 2. 10. 1938. It is his claim that on 24. 7. 1991, the Tahsildar had given him a certificate of date of birth and immediately he came forward with the present suit on 18. 12. 1992. ( 4 ) THOUGH the defence resisted contending that the date of birth in the S. S. L. C. certificate has been duly and properly mentioned and the Karnataka Secondary Education Board act of 1. 966, is a bar to the suit, unless the certificate issued under that Act is challenged. ( 5 ) UNFORTUNATELY, the courts below wrongly relied upon Ex. P. 2 and also holding that non-examination of such a person is not fatal to the validity of the document accepting the certificate issued and granted the relief. The appellate court simply confirmed the same. ( 6 ) THE second appeal has been admitted on the following question of law. P. 2 and also holding that non-examination of such a person is not fatal to the validity of the document accepting the certificate issued and granted the relief. The appellate court simply confirmed the same. ( 6 ) THE second appeal has been admitted on the following question of law. " (A) Whether the courts below were justified in granting a decree for correction of the date of birth of the plaintiff from 2. 10. 1938 to 6. 3. 1940 on the evidence let in? (b) Even assuming that the plaintiff was entitled to seek declaration on regarding date of birth, whether the civil court has jurisdiction to direct the employer to correct the date of birth in the service records so as to extend the period of service of the employee? (c) Whether such a direction to correct the date of birth in the records of the employer would amount to interfering with the terms of service between the parties and specifically enforcing a contract of personal services beyond the contractual term? (d) Whether judgment and decree of the courts below in so far as direction to correct the date of birth in the employment record is opposed to the decisions of this court in ILR 1992 Kar. 554 and ILR 1995 Kar. 680 and ILR 1194 Kar. 2489?". ( 7 ) SO far as question No. (a) is concerned, it cannot be said that the evidence available on record justifying the conclusion arrived at the courts below. Any event such evidence is insufficient to arrive at such a conclusion. So far as question No. (b) is concerned, the answer is in favour of the appellant and against the plaintiff because the plaintiff has no right to direct the employer to change the date of birth as there is a separate machinery maintained and available for that purpose. There is answered to question No. (c) and (d) also. ( 8 ) THE learned counsel for the appellant relied upon in the case of R. Kuppuraj v. Bharath Gold Mines Ltd. the dictum reads as follows :"there are no compelling reasons to grant any injunctive relief since the conduct of the plaintiff in accepting the recorded date of birth for more than three decades gives a lie to his present claim of change in the date of birth. The present claim of the plaintiff based on educational Certificate, birth extract seems very inconsequential against the sanctity and authority of the time honoured entries in the Service Book which the plaintiff himself has been accepting for more than 30 years. Entries in the service Records which have stood the test of time and remain unchallenged for a considerable period cannot be modified unless there are overwhelming reasons to establish that the entries had been made under dubious or erroneous circumstances which throw grave doubts about the authority or validity of thf. entries and the conduct of the plaintiff has been throughout transparently open and above board. It is recognised principle that unless the entry is challenged well in time unless it is established that the plaintiff had not derived any undue benefit which he would not have enjoyed by his claim of changed date of birth at the fag end of one's cateer should not be countenanced. In view of the same, for purpose of obtaining in- junctive relief plaintiff has not made out prima facie case warranting this court's interference in granting injunctive relief. " ( 9 ) AGAIN this court has relied upon in the case of A. Devadass v. Managing Director, ksrtc is as follows :"if the employer has entered the age or date of birth of an employee in the service record of the employee, on the basis of the statement/representation made or document given by the employee, the employer cannot subsequently alter the same to the deteriment or disadvantge of the employee without holding an enquiry. Any such alteration without an enquiry and without giving an opportunity to the employee to contravert the employee's claim to alter the date of birth would be contrary to the principles of natural justice. But on the other hand,, if the employee requests for alteration of his date of birth entered in the service records, refusal to accede to such' a request by the employer need not be preceded by an enquiry. The principles of natural justice do not contemplate grant of hearing in such a case, as an employee has no legal right to require the employer to change his date of birth so as to increase the period of his service. The principles of natural justice do not contemplate grant of hearing in such a case, as an employee has no legal right to require the employer to change his date of birth so as to increase the period of his service. Even if the employer enquires into the matter to satisfy itself about the genuineness of the employee's claim, the employee need not be heard in the matter. In fact even if the employee obtains a declaration regarding the date of birth from a dompetent court, the employee does not get a right to seek alteration of the age or date of birth in the service records. This is because when a person is employed, the contract is based on the date of birth or age given by the employee, which determines the period of service. Unless the service conditions or contract of employment specifically permits the employee to claim correction of date of birth entered in the service record, the employee cannot claim correction of date of birth as of right and there is no obligation on the part of the employer to accept or act upon such altered date of birth. The above position is however subject to the following well recognised exceptions :- (a) Where a competent court not only gives a declaration regarding date of birth, but also directs the employer to change the date of birth in a suit or proceedings to which the employer is a party (where such a suit is maintainable and not barred under any law); (b) Where the Rules and Regulations governing the conditions of service of the employee or the contract of employment provide not only for recording the age/date of birth, but for alteration of the age/date of birth and the employee has complied with the procedure prescribed therefore, thereby entitling him to recording of the altered age/date of birth; (c) Where the employer had accepted the request of the employee for alteration of the date of birth. " ( 10 ) AGAIN the dictum relied on by this court in the case of C. N. Narayana v. M/s. Bharat Heavy Electricals Ltd is as follows :"under Standing Order 18, some provision has been made for-rectification of the date of birth. This provision cannot be viewed in isolation nor can it conflict with the well settled law on the point. This provision cannot be viewed in isolation nor can it conflict with the well settled law on the point. The well defined principles laid down by the Courts namely, that a belated correction will generally not be permitted, is the overriding consideration which would apply in all these cases. One cannot put back the clock to find out under what circumstances the wrong representation as far as date of birth was made, but having regard to the consequences of belated alterations, it should normally not be permitted. In this case, the original documents produced by the respondents clearly establish that the petitioner had indicated his age as 23 years in 1958 and even if he has not given the date and month, it still indicates that his date of birth was 1935. He would therefore be bound by this statement. In the absence of cogent evidence with regard to how some other date is mentioned in some of his certificates, there is a ready answer available in so far as since even at this point of time if the petitioner is unable to produce his birth certificate, it is obvious that the school entries were made on the basis of similar representations and merely because on the basis of such entries, a date is reflected in the Leaving certificates, a Court cannot straightaway rely upon them as unimpeachable evidence. Again, on the facts of the present case, the question as to whether the petitioner in fact produced the certificates along with his representation or not is in dispute and cannot be conclusively decided one way or the other merely on the basis of pleadings. On an overall. view of the matter, therefore, no interference is called for as regards the decision of the respondents in this case. " ( 11 ) APART from unreported decision in rfa No. 641/1994 dated 11. 3. 1998 also followed the above dictum and dismissed the prayer for direction to correct the date of birth. ( 12 ) FOLLOWING the above dictums and answering the question of law framed in favour of the appellant, the second appeal is allowed setting aside the judgment and decree of the Courts below, the suit is dismissed with costs. Appeal allowed. --- *** --- .