JUDGMENT : This second appeal is in challenge of the judgment and decree dated 16.3.2004 and 3.4.2004, respectively, passed by the learned District Judge, Koraput, Jeypore in T.A. No. 7 of 2002 reversing the ex parte judgment and decree dated 8.3.2002 and 27.3.2002 respectively, passed by the learned Civil Judge (Junior Division) Jeypore in T.S. No. 21 of 2001. 2. In this appeal, the appellant is the defendant before the learned trial Court and the respondent is the plaintiff. Learned trial Court dismissed the suit ex parte refusing to declare that the plaintiff's correct date of birth is 10.12.48 in order to grant the consequential relief of correction of date of birth in plaintiff's service book. The plaintiff took the stand that on 1.9.1964 he was appointed as a Driver in Balimela Dam Project. At the time of his appointment, his employer did not take any certificate from him for such appointment. In October 2000, when the plaintiff took his service book, he came to know that his date of birth was wrongly noted as 8.3.1944 instead of 10.12.1948. Having come to know this mistake, he applied to the defendant for correction of his date of birth through the Sub-Divisional Officer under whom he was working. The application was forwarded to the Executive Engineer, who without forwarding the application to the Chief Engineer (defendant), rejected the same on the ground that it was not made in accordance with Rule 65 of OGFR Vol. I. Hence the suit. 3. The defendant, though received summons in the suit, did not appear before the learned trial Court. So, the learned Trial Court proceeded ex parte. The plaintiff examined himself as the sole witness and proved documents marked Ext. 1 to 5. Learned trial Court analyzed the evidence and dismissed the suit observing inter alia, that in the absence of proof of the concerned entry in the School Admission Register, the transfer certificate (Ext. 1) cannot be relied on, more so when the authority who issued the same has not been examined as a witness. It is also held by the Trial Court that plaintiff's stand, that his correct date of birth is 10.12.1948 is not acceptable inasmuch as if that were to be accepted then the plaintiff must have entered into the service when he was below 16 years which is not permissible under the Orissa Service Code. It is also held by the Trial Court that plaintiff's stand, that his correct date of birth is 10.12.1948 is not acceptable inasmuch as if that were to be accepted then the plaintiff must have entered into the service when he was below 16 years which is not permissible under the Orissa Service Code. The learned Trial Court further held that plaintiff's suit against the defendant, a public servant, without giving notice under Section 80 of the Civil Procedure Code (C.P.C.) is not maintainable. 4. Being aggrieved, the plaintiff preferred an appeal before the learned District Judge. On being served with appeal notice, the defendant appeared in the appeal through the Government pleader, Jeypore and participated in the proceeding. Learned lower appellate Court is of the opinion that the burden lies on the defendant to prove by reliable evidence that the date of birth mentioned in the service book is correct and the date of birth reflected in the transfer certificate (Ext. 1) is incorrect. On the non-compliance of Section 80 C.P.C. it is held that strict compliance of Section 80 C.P.C. is not necessary in the present case inasmuch as the application made by the plaintiff for correction of his date of birth virtually amounts to a notice in the suit. In so far as contravention of the Orissa Service Code regarding the minimum age for entering into service is concerned, it was held that such minor technical defect which does not affect the merit of the case should not be a ground to dismiss the suit. 5. With such observations, the learned lower appellate Court set aside the ex parte decree and decreed the suit declaring 10.12.1948 to be plaintiff's correct date of birth and directed the defendant to correct the date of birth .in the plaintiff's service book. 6. 5. With such observations, the learned lower appellate Court set aside the ex parte decree and decreed the suit declaring 10.12.1948 to be plaintiff's correct date of birth and directed the defendant to correct the date of birth .in the plaintiff's service book. 6. In this second appeal, the reversing judgment is challenged on the grounds that the learned lower appellate Court should not have shifted the onus to the defendant to prove that the disputed entry in the service book is not correct, that non-compliance of Section 80 of C.P.C. and infraction of provisions contained in the Orissa Service Code prescribing the minimum age limit for entering into Government Service should not have been held as minor technical defects, and that the application made by the plaintiff for correction of date of birth does not amount to virtual compliance of Section 80 C.P.C. 7. The second appeal is admitted on the following substantial questions of law. 1. Whether the observation of the learned first Appellate Court that onus is on the respondents to prove that the date of birth mentioned in the service book was correct, and that the date of entry in the transfer certificate, Ext. 1, is correct are legally justified and in accordance with the provisions of the Orissa Service Code? 2. Whether the findings of the learned lower appellate Court in holding that the non-compliance of Section 80 C.P.C. would no way prejudice the respondent is correct? 3. Whether the learned 1st appellate Court was legally right in holding that the date of birth mentioned in the school leaving certificate is acceptable notwithstanding the fact that it contravenes Rule 52-A of the Orissa Service Code, which says that the minimum age of entry into Government service is 18 years? 8. Relying on the decisions in G.N. Bharat Cooking Coal Ltd. v. Sib Kumar Dushad reported in 2000 (2008) SCC 696, learned counsel for the State argues that heavy onus lies on the plaintiff-respondent to prove that the entry in the service book with regard to respondent's date of birth is incorrect but the learned lower appellate Court, has wrongly placed the entire burden on the defendant-appellant. Learned counsel for the respondent, on the other hand, argues that the respondent as plaintiff discharged the onus by proving the Transfer Certificate (Ext. Learned counsel for the respondent, on the other hand, argues that the respondent as plaintiff discharged the onus by proving the Transfer Certificate (Ext. 1) which records the plaintiff's correct date of birth whereas, the defendant preferred not to contest the suit and did not challenge the plaintiff's assertion that the date of birth recorded in his service book is incorrect. In the decision cited by the learned counsel for the State, it is observed by the apex Court that in a case where an employee comes to the Court for correction of his date of birth long after joining service and particularly when the employee is due to retire shortly the burden is heavy on the employee who asserts that the date of birth in the service record maintained by the employer is untrue and incorrect. It is further held that the burden can be discharged only by producing acceptable evidence of a clinching nature. In the case of the case of Secretary and Commissioner, Home Department v. R. Kirubakaran 1994 SCC (L & S) 449 referred to in para 21 of the judgment in G.M. Bharat (supra), similar view has been taken by the apex Court. It is observed that the employee seeking relief for correction of date of birth has to produce evidence which is conclusive in nature. 9. Learned trial Court considered the Transfer Certificate (Ext. 1) which is the sole piece of evidence to dislodge the entry made in the service book and concluded that in the facts and circumstances of the case the plaintiff failed to adduce clinching evidence to prove that the entry in the service books is in correct. But, the learned appellate Court has placed the burden on the appointing authority to prove as to on what basis the date of birth entered in the service book was made. It is further held by the learned lower appellate Court that once the employee proved his date of birth by exhibiting one Transfer Certificate which is a public document, the onus shift to the appointing 'authority to prove by reliable evidence that the date of birth mentioned in the service book is correct and that the date of birth mentioned in the transfer certificate is incorrect. 10. In this case, the suit was filed in 2001, while the plaintiff was going to be superannuated in the year 2002. 10. In this case, the suit was filed in 2001, while the plaintiff was going to be superannuated in the year 2002. The plaintiff had been in service for about 37 years before he filed the suit for correction of date of birth in his service book. In Burn Standard Co. Ltd. v. Dinabandhu Mazumdar (1995) 4SCC 172 the Hon'ble Apex Court made the following observations which are quoted in G.N. Bharat Cooking Coal Ltd. (supra) and those are very relevant for the purpose of the case on hand : "When a person seeks employment, he impliedly agrees with the terms and conditions on which employment is offered. For every post in the service of the Government or any other instrumentality there is the minimum age of entry prescribed depending on the functional requirements of the post. In order to verify that the person concerned is not below that prescribed age he is required to disclose his date of birth. The date of birth is verified and if found to be correct is entered in the service record. It is ordinarily presumed that the birth date disclosed by the incumbent is accurate. The situation then is that the incumbent gives the date of birth and the employer accepts it as true and accurate before it is entered in the service record. The entry in the service record made on the basis of the employee's statement cannot be changed unilaterally at the sweet will of the employee except in the manner permitted by service conditions or the relevant rules." In that case of Secretary and Commissioner, Home Department (supra) the following important observations have been made which are quite helpful for proper guidance; "Cases are not unknown when a person accepts appointment keeping in view 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. 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." 11. Thus, the settled position of law is that the onus is on the employee concerned to prove that the date of birth recorded in his/her service book is wrong and that burden can be said to have been duly discharged only if the employee has produced materials which are conclusive in nature and found to be irrefutable proof of his/her date of birth. The appellant-plaintiff relied on only one piece of evidence i.e., School Transfer Certificate, which is marked as Ext. 1. It is true that in the suit, the defendant-respondent did not appear despite being summoned to appear and participate in the proceeding before the learned Trial Court but nonappearance of the defendant does not lessen the heavy onus that is placed on the employee to adduce irrefutable proof relating to date of birth. The transfer certificate is purportedly issued by the Headmaster-in-charge of Government High School, Sunabeda. In this certificate it is reflected that the appellant left the school on 31.5.1964 and the certificate was issued on 17.11.2000 which is sometime before filing of the suit. The transfer certificate is purportedly issued by the Headmaster-in-charge of Government High School, Sunabeda. In this certificate it is reflected that the appellant left the school on 31.5.1964 and the certificate was issued on 17.11.2000 which is sometime before filing of the suit. The plaintiff did not examine the person who issued the certificate to prove that the entries made in the transfer certificate regarding the date of birth so also other particulars stated therein were made on the basis of entries made in the School Admission Register which is undisputedly a public document. The transfer certificate has been marked exhibit only on the basis of the testimony of the plaintiff. He simply says that it has been issued by the Headmaster, Government High School, Sunabeda. He has not stated that in his presence the certificate was prepared on the basis of the entries made in the School Admission Register. He has also not stated as to who signed the transfer certificate certifying that the authority had verified and found the entries made in the certificate were correct. The certificate purports that it was issued by someone who was then In-charge of the Headmaster of the School but the plaintiff has stated that it was issued by none other than the Headmaster. In the plaint the plaintiff has averred that he was reading in Sunabeda Ashram School in Class-VII when he got the employment. But the transfer certificate is issued by the Headmaster, Sunabeda Government High School. No explanation is forthcoming to reconcile the school names. Learned Trial Court took note of this but learned lower appellate Court did not. 12. Under such circumstances, the transfer certificate cannot be said to be a true copy of the entries in the relevant School Admission Register. The plaintiff ought to have proved the entry in the Register or the person who issued the certificate should have been examined to prove its contents. Therefore, the learned trial Court has rightly refused to accept the certificate as a piece of conclusive evidence relating to the petitioner's date of birth. Learned lower appellate Court seems to have relied on some decisions mentioned in para-9 of the judgment reiterating the principle that once the School leaving Certificate is found to be duly proved, it is not necessary to examine the Headmaster of the School. Learned lower appellate Court seems to have relied on some decisions mentioned in para-9 of the judgment reiterating the principle that once the School leaving Certificate is found to be duly proved, it is not necessary to examine the Headmaster of the School. But he has not examined as to whether the transfer certificate, Ext.1, was duly proved by the plaintiff. With the evidence available on record, it cannot be said that the transfer certificate has been duly proved. No doubt, the transfer certificate is relevant under Section 35 of the Indian Evidence Act but assessment of its evidentiary value depends upon facts of each case. In this case, it is evident that the transfer certificate purports to have been issued only after accrual of cause of action, that is, after the plaintiff allegedly came to know that his date of birth was wrongly mentioned in his service book. Instead of relying solely on the transfer certificate, the plaintiff could have taken steps for production of the Admission Register to prove entry therein. 13. He filed the suit just at the fag end of his service career. He did not take steps for correction of the entry in the service book in accordance with Rule 65 of OGFR Volume I (FD) 42151/F dated 28.9.1992 which prescribes that any application for correction of date of birth in the service book shall be summarily rejected, if the employee concerned applies after five years of entry into Government service. This requirement is reflected in Ext. 4. Since the petitioner was already in service since 1964, he could have made application for correction of his date of birth at least within 5 years of issuance of FD No. 42151/F dated 28.9.1992. Learned lower appellate Court has failed to take note of the requirement of the aforestated rule mentioned in the OGFR. As already stated, it is observed by the Hon'ble apex Court in Secretary and Commissioner Home Department (supra) that the Court must be satisfied that 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, and, where there is no Rule or Order to that effect, the application must be filed within a reasonable period. 14. 14. Learned lower appellate Court has wrongly observed that since the plaintiff employee has exhibited the transfer certificate, the onus shifts on to the defendant-employer to prove by reliable evidence that the date of birth mentioned in the service book was correct and that the date of birth entered in the transfer certificate is incorrect. Since Ext. 1 has not been duly proved, the aforestated observation of the learned lower appellate Court is totally erroneous and legally unjustified. 15. So far non-compliance of Section 80 C.P.C. is concerned, it is not in dispute that before presentation of the plaint, no notice under Section 80 C.P.C. was served on the defendant, which is a public officer. Despite service of summons, the defendant did not appear. The learned Trial Court did not take note of non-compliance of Section 80 C.P.C. and admitted the suit. 16. In the decision reported in 2007 (1) OLR (SC) 360 (State of U.P. v. Pioner Builders, A.P.), which is relied on by the learned counsel for the State, it is observed by the apex Court that Section, 80 C.P.C. imposes a statutory and unqualified obligation upon the Court and in the absence of compliance thereof the suit is not maintainable. However, in the same judgment the apex Court has further observed that the question whether in fact there is waiver of the requirement of Section 80 (1) C.P.C. or not necessarily depends on fact of each case. Learned counsel for the respondent has cited decisions of this Court reported in 25 (1959) CLT 335 (Basudev Biswal v. Padmanav Choudhury and AIR 1971 Orissa 227 (State of Orissa v. Bamadev Panigrahi), wherein it is held that the right purported to have been given under Section 80 C.P.C. can be waived. In the former case, the Government pleader appearing on behalf of the State for the first time raised an objection in the appeal that the suit was not maintainable against the State Government as no notice under Section 80 C.P.C. was served on the State. In the later case, a plea was taken in the written statement regarding non-compliance of Section 80 C.P.C. but an issue on that aspect was not raised nor was that point canvassed in the trial Court. Though in the lower appellate Court a ground was raised on that point it was not canvassed before the learned lower Court. In the later case, a plea was taken in the written statement regarding non-compliance of Section 80 C.P.C. but an issue on that aspect was not raised nor was that point canvassed in the trial Court. Though in the lower appellate Court a ground was raised on that point it was not canvassed before the learned lower Court. Under such circumstances, it was held that the plea of want of notice cannot be permitted to be raised for the first time in second appeal to the prejudice of the plaintiff. In the case on hand, there is no dispute that no notice under Section 80 C.P.C. was served on the defendant. However, the plaint was admitted by the Trial Court. Though notice was duly served on the defendant, none appeared on behalf of the defendant for which the Court proceeded ex parte. While delivering judgment, trial Court held that the suit is not maintainable for non-compliance of Section 80 C.P.C. Learned lower Court ought to have returned the plaint on the ground of non-compliance of Section 80 C.P.C. In the first appeal, learned Government pleader had appeared and participated in the hearing of the appeal and had supported the observation made by the learned Trial Court that the suit is not maintainable on the ground of non-compliance of Section 80 C.P.C. But the learned Appellate Court considered it to be a mere technical defect not touching the merit of the case. Learned appellate Court further observed that the representation for correction of his date of birth which was made by the plaintiff-respondent before filing of the suit may virtually be considered to be a notice under Section 80 C.P.C. 17. In my considered view since the appellant-defendant preferred not to contest the suit and allowed itself to be set ex parte, and no objection was raised as to the statutory requirement, it is to be deemed that the defendant has waived that requirement. The second substantial question of law is answered accordingly. 18. Coming to the 3rd substantial question of law, it is already stated that the suit was filed about two years before the plaintiff was going to be superannuated. Learned counsel for the State argues that if the suit for correction of date of birth is filed at the fag end of service career, the same is not to be entertained by the Court. Learned counsel for the State argues that if the suit for correction of date of birth is filed at the fag end of service career, the same is not to be entertained by the Court. In support of his contention no authority has been cited. Relying on G.N. Bharat Cooking Coal Ltd. (supra) he has submitted that raising of such a dispute on the verge of retirement is deprecated by the apex Court. In that case it has been observed that in large number of cases, employees who are on the verge of retirement raise such a dispute but such belated approach to the Court for interim protection must be discouraged. Nowhere it is observed that no Civil Suit can be filed at the fag end of an employee's service career. 19. The last substantial question is with regard to Rule 52-A of the Orissa Service Code. Learned Trial Court took note of that provision in the Service Code and observed that if the plaintiff's case is accepted then he was clearly below 16 years of age by the time he entered into the service which is not permissible under the said Rule. Rule 52-A appears to have been inserted in the year 1966 i.e., after the plaintiff had joined in the service. It lays down that unless otherwise expressly provided by the State Government in any statutory rules the minimum age limit for entry into Government service shall not be below 18 years in the case of non-gazetted Class-III Ministerial Servant and Class-IV Government servant. It appears, there was no hard and fast rule on the minimum age limit prior to the introduction of Rule 52-A in the Service Code. Otherwise, such a rule should not have been introduced in 1966. I am fortified by F.D. No. 1245/F, dated 21.3.1944 which states that when, in the opinion of the appointing authority a person appointed at the 1st instance in an officiating a temporary capacity is likely to be made permanent at a later date, the question of exemption from age limit, if necessary, should be considered at the time of the first appointment. Therefore, on the ground that the plaintiff could not have entered into the service when he was below 18 years of age in the year 1964 cannot be a ground to reject his contention that his correct date of birth is 10.12.1948. 20. Therefore, on the ground that the plaintiff could not have entered into the service when he was below 18 years of age in the year 1964 cannot be a ground to reject his contention that his correct date of birth is 10.12.1948. 20. It is argued by the learned counsel for the respondent that in a second appeal the evidence cannot be re-appreciated to interfere with the lower appellate Court's conclusions of fact. It is well settled that re-appreciation of evidence in 2nd appeal is not permissible even if the lower appellate Court's finding of fact is erroneous. At the same time re-appreciation of evidence is permissible in some well recognised exceptional cases. When it is found that the learned lower appellate Court has not considered the evidence, oral or documentary, in its proper prospective or the finding of fact is vitiated by wrong approach to a matter causing injustice to a party, the 2nd appellate Court can reopen the question of fact. 21. In the case on hand, the trial Court had taken the correct approach to the core issue but the learned 1st appellate Court's approach is wrong. Ext. 1 is not duly proved to be a document incorporating the entries that actually find place in the School Admission Register duly maintained by the concerned School authority. It is not the best piece of evidence available on the correct date of birth of the respondent. The plaintiff failed to acquit himself of the onus of proving the correct date of birth by adducing evidence which is conclusive in nature. He should have either proved the entries in the School Admission Register by causing production of the register before the Court or the person, who copied out the entries from the concerned School Admission Register while preparing the transfer certificate, should have been brought to the witness box. This should have been done even if the defendant was set ex parte. Though on his statement Ext. 1 has been marked, it is quite clear that he had got no competency to prove the same. That apart, the learned 1st appellate Court failed to give due cognizance to the rule laid down in the OGFR Volume-I with regard to making application for correction of date of birth in his service book. Though on his statement Ext. 1 has been marked, it is quite clear that he had got no competency to prove the same. That apart, the learned 1st appellate Court failed to give due cognizance to the rule laid down in the OGFR Volume-I with regard to making application for correction of date of birth in his service book. That apart, the learned lower appellate Court wrongly placed the onus on the employer of proving that the entry made in the service book was correct or the entry in the transfer certificate was incorrect. For these reasons, this Court is of the opinion that the learned lower appellate Court has not considered the evidence on plaintiff's date of birth in its correct perspective and proceeded to set aside the judgment of the learned Trial Court taking a wrong approach thereby causing injustice to the defendant-appellant. 22. In the result, the Second Appeal is allowed on contest but in the facts and circumstances without cost. The judgment and decree of the learned lower appellate Court are set aside and that of the learned trial Court is confirmed. Appeal allowed.