Nityananda Patnaik v. Director General and I. G. of Police, Orissa, Cuttack
2018-04-23
A.K.RATH
body2018
DigiLaw.ai
JUDGMENT : A.K. Rath, J. This is a plaintiff’s appeal against confirming judgment. The suit was for declaration that the plaintiff’s date of birth is 22.07.1942. 2. The case of the plaintiff was that he was born on 20.07.1942. He was functioning as Inspector of Vigilance. The entry of his date of birth as 01.01.1938 in the school records and service register is wrong. He had no occasion to know the correct date of birth. On 25.12.1994, his mother informed him that he was 54 years. He enquired into the actual state of affairs and could know that his actual date of birth is 20.07.1942, not 01.01.1938. He filed a representation. With this factual scenario, he instituted the suit seeking the reliefs mentioned supra. 3. The defendant no.1 filed a written statement stating inter alia that the plaintiff made a representation on 06.01.1995 for correction of his date of birth. After due consideration, the representation was rejected. The order was communicated to the plaintiff on 16.05.1995. The date of birth of the plaintiff was recorded as 01.01.1938 in his service book as per matriculation certificate issued by the Board of Secondary Education under Rule 65 of the Orissa General Financial Rules. Once a date of birth is recorded in the service book, the same cannot be altered. The plaintiff being an educated man and officer of the Police Department for a long period, must have known his correct date of birth. He could have made attempts earlier for correction of his date of birth in his service book. Defendant no.2 also filed a written statement taking a similar stand. 4. Stemming on the pleadings of the parties, learned trial court struck three issues. To substantiate the case, the plaintiff had examined three witnesses and on his behalf three documents had been exhibited. Neither any witness had been examined by the defendants nor any documentary evidence had been exhibited. Learned trial court dismissed the suit with a finding that the suit is not maintainable. Felt aggrieved, the plaintiff filed T.A. No. 09 of 1995 before the learned Civil Judge (Senior Division), Aska. Learned appellate held that the suit is maintainable. On a threadbare analysis of the evidence on record as well as pleadings, it came to hold that the date of birth of the plaintiff is 01.01.1938. Held so, it dismissed the appeal. 5.
Felt aggrieved, the plaintiff filed T.A. No. 09 of 1995 before the learned Civil Judge (Senior Division), Aska. Learned appellate held that the suit is maintainable. On a threadbare analysis of the evidence on record as well as pleadings, it came to hold that the date of birth of the plaintiff is 01.01.1938. Held so, it dismissed the appeal. 5. The second appeal was admitted on the following substantial questions of law :- “Whether the finding of the appellate court is that the suit is barred by limitation is correct ?” 6. Heard Mr. Hemanta Kumar Behera, learned counsel on behalf of Mr. S.D. Das, learned Senior Advocate for the appellant and Mr. R.P. Mohapatra, learned Additional Government Advocate along with Mr. S. Mishra, learned Additional Standing Counsel for the respondent nos.1 and 2. None appeared for the respondent no.3. 7. Mr. Behera, learned counsel for the appellant submitted that under Article 58 of the Limitation Act, the period of limitation is three years, to obtain any other declaration when the right to sue first accrues. The right to sue accrued on 25.12.1994, when the mother of the plaintiff informed him the correct date of birth. The finding of the learned appellate court is that the suit is barred by limitation is perverse. 8. Per contra, Mr. Mohapatra, learned Additional Government Advocate submitted that the plaintiff instituted the suit at the fag end of his career. The cause of action stated in the plaint is a myth. The suit is barred by limitation. 9. 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 accrued to the plaintiff when he received the H.S.C. certificate. 10. In Khatri Hotels Pvt. Ltd. & Anr. V. Union of India & Anr. (2011) 9 SCC 126 , the apex Court held : “30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues.
The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.” 11. The apex Court in the case of Board of Trustees of Port of Kandla vs. Hargovind Jasraj and another, 2013 (3) SSC 182 held thus :- “22. The expression right to sue has not been defined. But the same has on numerous occasions fallen for interpretation before the Courts. In State of Punjab & Ors. V. Gurdev Singh (1991) 4 SCC 1 , the expression was explained as under : “6………. The words “right to sue” ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.” 12. 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. 13.
13. The plaintiff instituted the suit at the fag end of his service career. Filing of successive representations does not save limitation. 14. 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 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.” 15. 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. Neither the matriculation certificate nor the service book had been exhibited. The same have been purposefully withheld. The plaintiff was functioning as Inspector of Vigilance. In the H.S.C. certificate as well as in the service book, the date of birth of the plaintiff was recorded as 01.01.1938. The plaintiff rose from deep slumber and instituted the suit at the fag end of his service. Filing of the representation does not save limitation. As held by the apex Court in Executive Engineer (supra), when an application for correction of the date of birth was made near about the time of superannuation, it shall not be corrected. When the service book of the plaintiff was opened, it must have countersigned to the same.
Filing of the representation does not save limitation. As held by the apex Court in Executive Engineer (supra), when an application for correction of the date of birth was made near about the time of superannuation, it shall not be corrected. When the service book of the plaintiff was opened, it must have countersigned to the same. The first cause of action accrued when the H.S.C. certificate was issued. 16. By no stretch of imagination, it can be said that the plaintiff has passed matriculation examination prior to three years of institution of the suit. The learned appellate court is quite justified in holding, inter alia, that the suit is barred by limitation. The substantial question of law is answered accordingly. 17. Resultantly, the appeal fails and is dismissed. There shall be no order as to costs.