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2017 DIGILAW 442 (ORI)

Satyaban Behera v. State of Orissa

2017-04-21

A.K.RATH

body2017
JUDGMENT : A.K. Rath, J. Plaintiff is the appellant against a confirming judgment in a suit for declaration that his date of birth is 13.03.1958 and mandatory injunction. 2. The case of the plaintiff is that he was born on 13.03.1958. His parents got him admitted in U.P. School, Balbaspur (now U.G.M.E. School, Balbaspur) in Class-I. At the time of admission, his date of birth was correctly recorded as 13.03.1958 in the school admission register. Thereafter, he prosecuted his study in the Talab High School. After completion of H.S.C. Examination, he received the certificate from the Board of Secondary Education, Orissa in the year 1976. He found that his date of birth has been wrongly entered in the certificate as 13.03.1957 in place of 13.03.1958. Immediately, he wrote a letter on 10.05.1976 to the Secondary, Board of Secondary Education, Orissa, Cuttack for correction of the date of birth. After his graduation, he joined as a junior assistant in the office of the Chief Engineer, Irrigation, Orissa, Bhubaneswar on 26.06.1980. On 12.05.1985, he wrote a letter to the Chief Engineer, Irrigation, Orissa, Bhubaneswar for correction of date of birth in his Service Book. But then the authorities did not correct his date of birth. He had also sent another letter on 12.05.1988 to the Engineer-in-Chief, Water Resources, Orissa, Bhubaneswar. Thereafter, he filed W.P.(C) No.16169 of 2010 before this Court challenging the wrong entry. This Court vide order dated 12.12.2011 granted liberty to avail the remedy available under the Specific Relief Act. After issuing notice under Sec.80 C.P.C. to the defendant nos.1 and 2, he instituted the suit in the court of the learned Civil Judge (Sr. Divn.), Sambalpur seeking the aforesaid reliefs. 3. Though summons were issued to the defendant nos.1 and 2, but they had chosen not to contest the case and as such set ex-parte. The defendant nos.3, 4 and 5 entered appearance and filed their respective written statement. The specific case of the defendant no.3 is that on verification of the Tabulation Register and Certificate Register of the Board in respect of the candidates, it was found that the date of birth of the plaintiff is 13.03.1957. After 30 years of passing the H.S.C. Examination the claim of the plaintiff is not entertainable. The suit for correction of date of birth is filed after decades with ulterior motive to delay his superannuation. After 30 years of passing the H.S.C. Examination the claim of the plaintiff is not entertainable. The suit for correction of date of birth is filed after decades with ulterior motive to delay his superannuation. The defendant no.4 has reported that the date of birth of the plaintiff has been recorded in the Talab High School admission register as 13.03.1957 and not 13.03.1958. The plaintiff had produced the transfer certificate issued by Talab M.E. School bearing T.C. No.43 dated 07.07.1970 to take admission into Class-VII in Talab High School. He had prosecuted his study first in U.P. School, Balbaspur, then in Talab M.E. School, but did not disclose the date of birth recorded in the admission register of Talab M.E. School. He had suppressed the facts. He had never approached the Board authorities for correction of his date of birth. The entry in the Board certificate was based on the records produced by the High School from which the plaintiff was sponsored as a candidate for H.S.C. Examination. The plaintiff has filled up the application form for admission into the H.S.C. Examination in his own handwriting. No correction could be made at this stage. The entries made in the H.S.C. certificate of the plaintiff were based on records. 4. The defendant no.4 in his written statement has stated that the plaintiff was admitted in Class-VIII in Talab High School, Talab on 08.07.1970 whose date of birth was entered in the record as 13.03.1957. The plaintiff had never disputed his date of birth before him. So, the claim of the plaintiff is not maintainable. 5. The case of the defendant no.5 is that the plaintiff was admitted in Class-I in Balbaspur U.G.M.E. School, Balbaspur on 30.04.1963. His date of birth was entered in the admission register in serial no.4001 as 13.03.1958. He studied in the school upto 5th class and took transfer certificate on 01.07.1968. 6. On the interse pleadings of the parties, learned trial court struck seven issues. To substantiate the case, the plaintiff had examined two witnesses and on his behalf twelve documents had been exhibited. The defendants had examined one witness and on their behalf four documents had been exhibited. 7. Relying on the entry made in the admission register of Balbaspur U.G.M.E. School, Ext.12, learned trial court held that the date of birth of the plaintiff is 13.03.1958 and not 13.03.1957. The defendants had examined one witness and on their behalf four documents had been exhibited. 7. Relying on the entry made in the admission register of Balbaspur U.G.M.E. School, Ext.12, learned trial court held that the date of birth of the plaintiff is 13.03.1958 and not 13.03.1957. It further held that the plaintiff entered into service at the age of 22 years in the year 1980 and filed the suit for correction of his date of birth in the year 2012 at the age of 54 years and as such he is not entitled to any relief. Held so, learned trial court dismissed the suit. The plaintiff unsuccessfully challenged the judgment and decree of the learned trial court before the learned District Judge, Sambalpur in R.F.A. No.42 of 2016 which met the same fate. 8. Mr. S.C. Satpathy, learned counsel for the appellant submitted that the plaintiff was born on 13.03.1958. He was admitted in U.P. School, Balbaspur (now U.G.M.E. School, Balbaspur) in Class-I by the parents. His date of birth was correctly mentioned as 13.03.1958 in the school admission register, Ext.12. Thereafter he prosecuted his study in Talab High School. After completion of H.S.C. Examination, certificate was issued to him in the year 1976. He found that his date of birth has been wrongly mentioned as 13.03.1957. He wrote a letter on 10.05.1976 to the Secretary, Board of Secondary Education, Orissa, Cuttack for correction of his date of birth. After completion of graduation, the plaintiff joined as junior assistant on 26.06.1980 in the office of the Chief Engineer, Irrigation, Orissa, Bhubaneswar. On 12.05.1985, he wrote a letter to the Chief Engineer, Irrigation, Orissa, Bhubaneswar for correction of date of birth in his Service Book. Thereafter he wrote another letter on 12.05.1988. The defendants maintained a sphinx like silence. Thereafter he filed W.P.(C) No.16169 of 2010 before this Court. This Court disposed of the said writ petition granting liberty to the plaintiff to avail the remedy under the Specific Relief Act. Thereafter he instituted the suit. He further submitted that the Board authority has erroneously entered the date of birth of the plaintiff in the certificate. Though both the courts held that entry made in the certificate is illegal, but dismissed the suit on untenable and unsupportable grounds. Thereafter he instituted the suit. He further submitted that the Board authority has erroneously entered the date of birth of the plaintiff in the certificate. Though both the courts held that entry made in the certificate is illegal, but dismissed the suit on untenable and unsupportable grounds. He further submitted that the suit is within the period of limitation, since liberty was granted by a Bench of this Court to avail remedy. He further submitted that when substantial justice and technical considerations are pitted against each other, cause of substantial justice would be sub-served and the law of limitation has to be ignored. Cause of substantial justice cannot be defeated on technical consideration, i.e., law of limitation. He further submitted that the judgments of the courts below are infraction of principle of natural justice. 9. The submission of learned counsel for the appellant is difficult to fathom. The plaintiff appeared at the H.S.C. Examination in the year 1976. In the certificate, Ext.1, his date of birth has been mentioned as 13.03.1957. 10. Section-VI of the Regulations of the Board of Secondary Education, Orissa deals with miscellaneous regulations including regulations relating to the conduct of examinations and disciplinary measures. Regulation 39 of the Board of Secondary Education Regulation, 1955 deals with the date of birth. The same reads as under. “39. Date of Birth: The date of birth once entered in the Board’s records cannot be changed unless it is of the nature of clerical error or printing mistake. Application for the correction of the date of birth should be made within three years of passing the examination. No change in date of birth recorded shall be made unless the application for correction is received through the head of the institution concerned within three years of passing the examination.” 11. The plaintiff has filled up the form in appearing in the H.S.C. Examination, 1976. He passed H.S.C. Examination in the year 1976. Certificate was issued to him in the year 1976. There is no clerical error or printing mistake in the H.S.C. certificate. Furthermore, the application for correction of date of birth was not received through Head of the institution concerned by the Board authorities within three years of passing of the Examination. 12. Article 58 of the Limitation Act provides to obtain any other declaration. The period of limitation is three years, when the right to sue first accrues. Furthermore, the application for correction of date of birth was not received through Head of the institution concerned by the Board authorities within three years of passing of the Examination. 12. Article 58 of the Limitation Act provides to obtain any other declaration. The period of limitation is three years, when the right to sue first accrues. The right to sue first accord to the plaintiff when he received the H.S.C. certificate in the year 1976. But then the suit was instituted in the year 2012, i.e., after lapse of 36 years. 13. Rule 65 of the Orissa General Financial Rules (Vol.1) provides that every person on entering Government service shall declare his/her date of birth which shall not differ from any such declaration expressed or implied for any public purpose before entering service. The date of birth shall be supported by documentary evidence such as Matriculation Certificate, Municipal Birth Certificate and entered in his/her service record. No alternation of the date of birth of Government servant shall be made except in case of clerical error without prior approval of the State Government. An application for effecting a change in the date of birth shall be summarily rejected if. (a) filled after five years of entry into Government service, or; (b) the change would so lower the applicants age that he/she would have been ineligible to appear in any of the academic or recruitment Examinations in which he/she had appeared or for consideration for appointment to any service or post under the Government. 14. The plaintiff instituted the suit after lapse of 36 years of passing of the H.S.C. Examination, i.e., at the fag end of his service career. Filing of successive representations does not save limitation. The plaintiff entered into Government service on 26.06.1980 as junior assistant. He became a member of the Orissa Administrative Service. He rose from deep slumber and instituted the suit. 15. In Executive Engineer, Bhadrak (R&B) Division, Orissa and others vs. Rangadhar Mallik, 1993 Suppl. (1) SCC 763 interpreting Rule 65 of the Orissa General Financial Rules, the apex Court held that when an application for correction of the date of birth was made near about the time of superannuation it shall not be corrected. The same view was echoed in the case of State of Tamil Nadu vs. T.V. Venugopalan, (1994) 6 SCC 302 . The same view was echoed in the case of State of Tamil Nadu vs. T.V. Venugopalan, (1994) 6 SCC 302 . The apex Court held thus: “………..the inordinate delay in making the application is itself a ground for rejecting the correction of date of birth. The government servant having declared his date of birth as entered in the service register to be correct, would not be permitted at the fag end of his service career to raise a dispute as regards the correctness of the entries in the service register. It is common phenomenon that just before superannuation, an application would be made to the Tribunal or court just to gain time to continue in service and the Tribunal or courts are unfortunately unduly liberal in entertaining and allowing the government employees or public employees to remain in office, which is adding an impetus to resort to the fabrication of the record and place reliance thereon and seek the authority to correct it.” 16. One aspect of the matter cannot be brushed aside. After entering into the service, the Service Book of the plaintiff was opened wherein his date of birth was recorded. He must have countersigned to the same. The said Service Book had been purposefully withheld. Further the plaintiff has not filed the transfer certificate of Talab M.E. School. 17. The submission of learned counsel for the appellant that the judgments of the courts below are infraction of principle of natural justice. This is the last straw on the camel’s back. In the trial court, the plaintiff adduced evidence. After hearing the argument of the learned counsel for the parties, the judgment was delivered. Being unsuccessful, he filed appeal before the learned District Judge, Sambalpur. The appeal was argued at a length. Learned appellate court dismissed the appeal. 18. As a sequel to the above discussion, the appeal is dismissed, since the same does not involve any substantial question of law.