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2020 DIGILAW 1590 (KAR)

Thimmaiah V v. Deputy Commissioner

2020-08-25

ABHAY S.OKA, ASHOK S.KINAGI

body2020
JUDGMENT Ashok S. Kinagi, J. - The petitioner who is the appellant in the present writ appeal being aggrieved by the order dated 24th July 2020 passed in Writ Petition No.2490 of 2019, has filed this writ appeal. 2. Brief facts of the case are: The appellant-petitioner was appointed as a daily wage employee along with others with the second respondent- Corporation. The appellant was appointed as a 'Mali , a group- D employee post, on 01.05.1986. The appellant has not submitted any document to show the date of birth at the time of joining the service. While he was working, he has been treated as time scale employee with effect from 24.11.1995 by publishing the list and their scales were fixed accordingly as per Annexure-A by the second respondent. The appellant noticed that his date of birth was wrongly mentioned as 28.02.1959 instead of 02.04.1966 in the aforesaid list. After noticing the said fact, the appellant made a representation on 07.07.2018 to the second respondent enclosing his school document and requesting the second respondent to rectify his date of birth. The second respondent issued an endorsement dated 01.08.2018, as per Annexure-D, rejecting the representation made by the appellant-petitioner for rectification of date of birth. The appellant/petitioner aggrieved by the endorsement dated 01.08.2018 vide Annexure-D and the official memorandum dated 14.12.2018 vide Annexure-J, filed the writ petition before the learned Single Judge. 3. The learned Single Judge after considering the material on record and after considering several judgments of the Hon'ble Apex Court held that the appellant-petitioner is not entitled for rectification of date of birth at the fag end of his service and consequently passed the impugned order holding that the writ petition to the extent of challenging the superannuation fails. However, a writ of mandamus was issued to the respondents to pay to the petitioner his salary for the services rendered by him pursuant to the interim order passed by this Court. The petitioner aggrieved by the said order has filed this writ appeal. 4. Heard the learned Counsel appearing for the appellant. 5. However, a writ of mandamus was issued to the respondents to pay to the petitioner his salary for the services rendered by him pursuant to the interim order passed by this Court. The petitioner aggrieved by the said order has filed this writ appeal. 4. Heard the learned Counsel appearing for the appellant. 5. The learned Counsel appearing for the appellant submitted that the learned Single Judge without considering the material on record has dismissed the claim of the petitioner only on the ground of delay and laches, even though there is no delay on the part of the appellant in making the representation for rectification of his date of birth. The said representation is filed within reasonable time from the date of his knowledge. Further, he submits that the petitioner has produced the transfer certificate and other school records. The said transfer certificate indicates that the appellant was born on 02.04.1966 and not on 28.02.1959. He also places reliance on the judgment of the Hon'ble Apex Court in the case of M/S BHARAT COKING COAL LTD. AND OTHERS VS CHHOTA BIRSA URANW, (2014) 12 SCC 570 in Civil Appeal No.48902 of 2014 and prayed to allow the appeal by setting aside the order of the learned Single Judge and consequently to allow the writ petition filed by the petitioner-appellant. 6. Perused the records and the impugned order. It is not in dispute that the appellant has joined the service of the second respondent on 01.05.1986. Though the appellant relies on the school certificate issued on 02.02.1995, there is no material on record to indicate that the documents have been produced before the employer at the time of joining the employment. The transfer certificate produced by the petitioner discloses that the petitioner was born on 02.04.1966. The said transfer certificate was obtained on 02.02.1995 only in order to rectify the date of correction in the service register. The second respondent published the Official Memorandum dated 24.11.1995 showing the names of 217 daily wages employees who were appointed after 01.01.1986 stating their services were regularized by bringing them on time scale. The said Official Memorandum produced is marked as Annexure-A. In the said Annexure-A, the name of appellant is figured at Sl.No.89. The said Annexure-A discloses the date of birth of the appellant as 28.02.1959 and the said Annexure-A was prepared on 24.11.1995. The said Official Memorandum produced is marked as Annexure-A. In the said Annexure-A, the name of appellant is figured at Sl.No.89. The said Annexure-A discloses the date of birth of the appellant as 28.02.1959 and the said Annexure-A was prepared on 24.11.1995. The appellant did not raise any objection before publishing the Official Memorandum as per Annexure-A. The said Annexure-A was published in the month of November 1995. The appellant was in possession of the transfer certificate obtained on 02.02.1995. Though the appellant was aware that his correct date of birth is 02.04.1966, he has not made any representation for rectification of date of birth at the earliest point of time when he was in service. The appellant has made the representation only at the fag end of his service i.e. after more than two and half decades after induction into service. The law is well settled that if a particular date of birth is entered in the service register, the change sought cannot be entertained at the fag end of service after accepting it to be correct during the entire service. In the present case, the appellant has produced Annexure-A wherein it discloses his date of birth as 28.02.1959. As already pointed out, the appellant has not taken any steps for rectification of date of birth immediately after joining the service of the second respondent. The appellant was well aware about his date of birth shown in the service register maintained by the second respondent and has kept quite for more than two and half decades and at the fag end of his service, the appellant makes a representation to the second respondent for rectifying the date of birth. The action of the appellant in making representation for rectifying the date of birth at the fag end of his service is not sustainable and it is a belated dispute. 7. The appellant-petitioner has not explained the reason for the delay in making the representation for rectification of his date of birth. Thus, the representation made by the appellant is a belated dispute which cannot be entertained by the writ court. 7. The appellant-petitioner has not explained the reason for the delay in making the representation for rectification of his date of birth. Thus, the representation made by the appellant is a belated dispute which cannot be entertained by the writ court. We would like to place reliance of the judgment of Hon'ble Apex Court in the case of BHARAT COKING COAL LIMITED AND OTHERS Vs SHYAM KISHORE SINGH, (2020) 3 SCC 411 , wherein, the Hon'ble Apex Court held that "the prayer for change of date of birth at the fag end of career is impermissible". The learned Single Judge after considering the judgment of the Hon'ble Apex Court has held that the petitioner is not entitled for the relief sought in respect of correction of date of birth. The judgment relied by the learned Counsel for the appellant (M/S BHARAT COKING COAL LTD. AND OTHERS VS CHHOTA BIRSA URANW, (2014) 12 SCC 570 ), has already been considered by the Hon'ble Apex Court in the aforesaid judgment. As far as rectification of date of birth is concerned, it is a disputed question of fact and the writ Court cannot adjudicate on the disputed question of fact. The claim of the appellant-petitioner is clearly barred by the principles of estoppel, acquiescence and waiver. 8. We do not find any grounds to interfere with the order passed by the learned Single Judge. That the appellant has not made out any grounds to interfere with the impugned order. Accordingly, we proceed to pass the following order : ORDER The writ appeal is dismissed. The pending interlocutory applications do not survive and accordingly, the same are disposed of.