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2020 DIGILAW 1592 (KAR)

Srinivasa 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.3283 of 2020, 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 on 04.10.1998 as 'Mali' a group-D post on monthly wages. 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. The appellant recently noticed that his date of birth was wrongly mentioned as 28.02.1960 instead of 15.10.1969 in the list published by the second respondent. The petitioner gave a representation enclosing SSLC marks card on 31.12.2018 requesting the second respondent to correct his date of birth. The second respondent after examining the representation and documents produced along with it, issued an endorsement dated 13.02.2019 rejecting the representation of the appellantpetitioner for correction of date of birth. The petitioner aggrieved by the endorsement dated 13.02.2019 vide Annexure-D and another endorsement dated 13.08.2019 vide Annexure-M and Official Memorandum dated 18.12.2019 passed by the second respondent filed the writ petition before the learned Single Judge. 3. The learned Single Judge after considering the material on record and after considering the judgment of the Hon'ble Apex Court held that the petitioner is not entitled for correction 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 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 impugned order granted 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 impugned order granted 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 latches, even though there is no delay on the part of the appellant in making representation for alteration of date of birth. The said representation is filed within a reasonable time from the date of his knowledge. Further, he submits that the petitioner has produced SSLC marks card and other school records which indicates that the appellant was born on 15.10.1969 and not on 28.02.1960. 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. It is not in dispute that the appellant has joined the service of the second respondent on 04.10.1988. Though the appellant relies on the SSLC marks card to indicate his date of birth as 15.10.1969, 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 SSLC marks card which has been produced by the appellant-petitioner indicates that he has completed SSLC examination for the academic year 1994-95 and the petitioner has obtained the said SSLC marks card on 29.05.1995 as per Annexure-C attesting his signature. Hence, the said document was in custody of the petitioner and he has not produced the said document at earliest point of time. Subsequently, 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 is produced at Annexure-A. In the said Annexure-A, the name of appellant is figured at Sl.No.205. Subsequently, 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 is produced at Annexure-A. In the said Annexure-A, the name of appellant is figured at Sl.No.205. The said Annexure discloses the date of birth of the appellant as 28.02.1960 and the said list was prepared on 24.11.1995. The appellant did not file any objection before publishing the Official Memorandum as per Annexure-A. The said Annexure-A was published in the month of November 1995. Appellant was in possession of SSLC marks card as on the date of publication of Annexure-A. Annexure-A was published subsequently after securing SSLC marks card by the appellant, the appellant did not produce SSLC marks card at the time of publishing Annexure-A. The service records maintained by the second respondent discloses the date of birth as 28.02.1960 which has been furnished by the appellant himself at the time of induction into service. The appellant submitted the representation enclosing SSLC marks card only on 31.12.2018 seeking for change of entry relating to date of birth indicating that what is contained in the service records as 28.02.1960 has to be corrected as 15.10.1969. The appellant for the first time made representation in the year 2018, that is, after 23 years from the date of securing SSLC marks card, that is, on 29.05.1995, which is more than three decades after induction into service. The position 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 the same to be correct during the entire service. In the present case, the appellant has produced Annexure-A wherein it discloses the date of birth of appellant as 28.02.1960. As already pointed out, the appellant has not taken any steps for correction of date of birth immediately after completion of SSLC, that is, in the year 1995. 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 an representation to the second respondent for correcting his date of birth. 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 an representation to the second respondent for correcting his date of birth. The action of the appellant in making representation for correction of date of birth at the fag end of his service is not sustainable. 7. The appellant-petitioner has not explained for delay in making representation for rectification of date of birth. Thus, the representation made by the appellant is 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 ( BHARAT COKING COAL LTD. V. 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 The writ appeal is dismissed. The pending interlocutory applications do not survive and accordingly, the same are disposed of.