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2020 DIGILAW 2083 (KAR)

C. v. Srinivasa VS Deputy Commissioner Mysuru District

2020-10-20

B.V.NAGARATHNA, N.S.SANJAY GOWDA

body2020
JUDGMENT Sanjay Gowda, J. - The appellant is the writ petitioner. The appellant filed the writ petition for quashing Official Memorandum dated 18.12.2019 (Annexure-P) and for a direction to the respondents to continue him till he attains the age of 60 years by considering his date of birth as 20.05.1965. 2. The Official Memorandum (Annexure-P) was only a memorandum by which the Mysuru City Corporation notified that the twenty of its employees would be attaining the age of superannuation in the year 2020. In the said memorandum, the name of the petitioner was found at Sl.No.28. 3. The case put forth by the appellant before the learned Single Judge was that he had studied upto SSLC and was appointed as a Mali, which was a Group-D post on a monthly wage basis, on 01.07.1988. He contended that while he was working as a daily wage employee, the time scale and other benefits were extended to all the daily wagers by a notification dated 24.11.1995 (Annexure-A to the writ petition) and pursuant to the said notification, his payscale stood revised. He stated that the said notification was issued pursuant to the judgment of the Apex Court which mandated that employees who had completed ten years of service would have to be regularized. 4. He contended that, in the said notification dated 24.11.1995, he came to know that his date of birth had been wrongly mentioned as 13.08.1960, instead of 20.05.1965 and he had submitted a representation along with Transfer Certificate on 21.07.2017 and requested for his date of birth to be corrected accordingly. He contended that pursuant to his request, the Corporation effected correction, but thereafter, without noticing the correction, they had issued an endorsement dated 29.01.2018 whereby his request was rejected on the ground that it was barred by limitation. 5. It was his case before the learned Single Judge that his request for correction was rejected on the basis of a Government Circular which had been issued in terms of the Karnataka State Services (Determination of Age) Act, 1974. He contended that the provisions of the said Act were inapplicable since he was not a Government servant and the same could not be applied to the employees of the Corporation. 6. He contended that the provisions of the said Act were inapplicable since he was not a Government servant and the same could not be applied to the employees of the Corporation. 6. The learned Single Judge, on consideration of the material produced before him, came to the conclusion that the petitioner had made a request for changing his date of birth from 13.08.1960 to 20.05.1965 only in the year 2019-2020 and in view of the law declared by the Apex Court in a series of decisions, the belated claim of the petitioner could not be entertained. The learned Single Judge placing reliance on the judgment of the Apex Court in the case of State of Jammu & Kashmir Vs. R.K.Zalpuri and Others, (2016) AIR SC 3006 and dismissed the writ petition on the ground of delay of laches. It is against this order that the present appeal has been filed. 7. During the course of hearing of this appeal, it was noticed that the notification dated 24.11.1995, by which time scale was extended to the appellant along with other employees and which had been produced by the appellant as Annexure A to his Writ petition, the name of the appellant was shown at Sl.No.160 and there were corrections made in the said notification in relation to the name of the appellant s father, his date of birth and his educational qualifications. 8. By the said correction, the appellant father s name which had been entered as Venkataramaiah was rounded off and in the margin, the name Venkataramanaiah was entered and in the column relating to the date of birth of the appellant, the date of birth 13.08.1960 was erased and 20.05.1965 had been entered. As regards educational qualification, in column No.5, as against no educational qualification , an entry that the appellant had passed SSLC had been made. 9. As regards educational qualification, in column No.5, as against no educational qualification , an entry that the appellant had passed SSLC had been made. 9. This Court recorded the statement of the learned counsel for the appellant to the effect that Annexure-A, which had been produced along with the Writ Petition, was the notification supplied to the appellant under the Right to Information Act, 2005 (for short, hereinafter referred to as the RTI Act ) and directed the appellant s counsel to produce the original notification that the appellant received under the RTI Act in a sealed envelope along with a memo and ordered the sealed envelope to be kept in the safe custody of the Registrar (Judicial). 10. This Court also directed the learned counsel appearing for the Corporation to take specific instructions as to whether any such change as reflected in Annexure-A had been made in the original records and further directed the counsel for the Corporation to verify from the original records as well as the office copy of the copy supplied to the appellant under the RTI Act in this regard. 11. In compliance with the said order dated 21.09.2020, learned Counsel for the appellant has filed the original copy of Annexure-A which he had received under the RTI Act. 12. It may be relevant to state here that the learned counsel for the appellant filed the statement of objections that had been filed in the writ petition along with a memo. In the statement of objections to the writ petition, the Corporation had produced the notification dated 24.11.1995 as Annexure-R1. The notification which is produced by the Corporation, however, in respect of the appellant does not contain any corrections, either in respect of the father s name of the appellant, his date of birth or educational qualification. In other words, in the notification dated 24.11.1995, in respect of the appellant, the father s name continues to be shown as Venkataramaiah and his date of birth was stated as 13.08.1960 and as per Column No.5, it indicated that the appellant has no educational qualification . To put it differently, the corrections found in Annexure-A, which was produced by the appellant in the Writ Petition, were not found in Annexure-R1 filed by the Corporation, thereby indicating that Annexure-A which was produced by the appellant cannot be taken at its face value. 13. To put it differently, the corrections found in Annexure-A, which was produced by the appellant in the Writ Petition, were not found in Annexure-R1 filed by the Corporation, thereby indicating that Annexure-A which was produced by the appellant cannot be taken at its face value. 13. Learned counsel for the appellant, however, contended that it was for the Corporation to answer this anomaly. He contended that it was the Corporation which was the custodian of the records and the appellant had no role to play in the issuance of Annexure-A. He also stated that as per the endorsement given in reply to the RTI application, the Corporation had indicated that it had no records relating to the appointment of the appellant and there were also no records to indicate on what basis the date of birth had been entered, thereby indicating the entry regarding the date of birth had been made without any valid basis. This argument, obviously, was advanced to put forth the plea that the appellant had no role to play in the corrections made in Annexure- A. 14. It may be pertinent to state here that pursuant to the notification Annexure-A dated 24.11.1995, as per the petition averments, the appellant in paragraph 4 of his writ petition stated as follows: 4. It is respectfully submitted that the petitioner has come to know the aforesaid list recently and further he has come to know that his date of birth has been wrongly mentioned as 13.08.1960 instead of 20.05.1965 in the said list. Immediately he submitted a representation enclosing Transfer Certificate issued by Sri Mallikarjunaswamy High School, Udayagiri, Mysuru to the 2nd Respondent on 21.07.2017 and requested to correct the said typographical errors committed by the officials in the records of the 2nd Respondent Corporation. The copies of the said Representation dated 21.07.2017 and the said Transfer Certificate are herewith produced as ANNEXURE-B AND C respectively. Considering the same, the 2nd Respondent effected proper corrections in the aforesaid list. alterations But without examining the same properly, the 2nd Respondent issued an Endorsement dated 29.01.2018 and rejected the aforesaid request of the Petitioner stating that the said representation for correction of date of birth is barred by limitation by referring the Government Circular dated 06.07.2015. A copy of the said Government Circular dated 06.07.2015 is herewith produced as ANNEXURE-D. 15. alterations But without examining the same properly, the 2nd Respondent issued an Endorsement dated 29.01.2018 and rejected the aforesaid request of the Petitioner stating that the said representation for correction of date of birth is barred by limitation by referring the Government Circular dated 06.07.2015. A copy of the said Government Circular dated 06.07.2015 is herewith produced as ANNEXURE-D. 15. Thus, as per the petition averments, the appellant, in response to the notification dated 24.11.1995, claims to have made an application for correction only on 21.07.2017. In other words, after a period of 22 years of the issuance of Annexure-A, for the first time, the appellant sought for correction of the so-called errors in Annexure-A. In the representation given by the appellant, the appellant merely stated that in the seniority list, his date of birth has been wrongly entered as 13.08.1960 and the same ought to have been entered as 20.05.1965 and he was hence submitted a request to the authorities along with the supporting school records to correct the error but the same had been wrongly rejected on the ground that the claim was being made ten years after the opening of the service register. 16. It is to be noticed here that the appellant did not contend that a correction had been made in the notification dated 24.11.1995 regarding his date of birth and that correction was required to be followed. On the other hand, a reading of the representation dated 21.07.2017 indicates that a request to correct the date of birth was made only in the year 2017. 17. It may also be pertinent to state here that the appellant submitted one more representation dated 19.03.2018 (which is produced as Annexure-R3 to the statement of objections). In the said representation, he stated that at the time when the time scale was extended, he had submitted an application along with supporting school records and requested for his date of birth to be entered as 20.05.1965 and his father s name to be entered as Venkataramanaiah , but the said request had been rejected on the basis of the Government Circular dated 06.07.2015. He also contended in the said representation that the provisions of the Karnataka State Services (Determination of Age) Act, 1974, would not be applicable to him and requested that his date of birth be corrected. 18. He also contended in the said representation that the provisions of the Karnataka State Services (Determination of Age) Act, 1974, would not be applicable to him and requested that his date of birth be corrected. 18. In response to Annexure-R3, the Corporation issued an endorsement dated 01.08.2018 which is produced as Annexure-R4, in which, it was stated that the Corporation had already considered his earlier request dated 21.07.2017 and rejected the same by an endorsement dated 29.01.2018 and it was not possible for the Corporation to reconsider his request, and it was therefore, rejecting the same. 19. It is thus clear that both in the year 2017 and 2018, the appellant did not put forth a claim that his date of birth had been rectified in 1995 itself, when the notification was issued. In fact, in both the representations, there is not even a whisper regarding the correction that is found in Annexure-A. The representations submitted on the other hand indicate that the date of birth of the appellant entered in the notification Annexure-A dated 24.11.1995 was in fact 13.08.1960 and this alleged error was required to be corrected because of his representations. Thus, even as of 2017, the appellant admitted that his date of birth had been wrongly entered as 13.08.1960. In this view of the matter, it is inconceivable that the notification dated 24.11.1995 which is produced as Annexure-A contained the correct date of birth as 20.05.1965. 20. It is, therefore, clear that even assuming that the Corporation had issued Annexure-A, the entry made regarding date of birth was obviously a manipulated entry and merely because Annexure-A was issued to the appellant under the RTI Act, the same cannot lead to the inference that the date of birth of the appellant was 20.5.1965. 21. It is to be stated here that when the copy of the notification dated 24.11.1995 produced by the Corporation indicated that that the date of birth of the appellant continued to be 13.08.1960 , it would not be possible to accept the contention of the appellant that his date of birth ought to be 20.05.1965 . 22. It may also be relevant to state here that though the claim of the appellant for correction of his date of birth was rejected by the Corporation on 29.01.2018 and 01.08.2018, the appellant has not chosen to challenge the said rejection at all in the Writ Petition. 22. It may also be relevant to state here that though the claim of the appellant for correction of his date of birth was rejected by the Corporation on 29.01.2018 and 01.08.2018, the appellant has not chosen to challenge the said rejection at all in the Writ Petition. In fact, the only prayer made in the writ petition, as stated earlier is, to quash the notification, in which the list of employees who were attaining superannuation in the year 2020 had been notified. It is thus clear that the appellant by not challenging the rejection of his request has basically accepted that his date of birth had been correctly entered as 13.8.1960 and the appellant cannot, therefore, be permitted to now contend that his date of birth had been wrongly entered. 23. The facts narrated above thereby clearly indicate that though the appellant who was appointed in the year 1988 and regularized in the year 1995, chose not to make any claim for correction of his date of birth till 2017 i.e., for a period of 22 years. It is, therefore, clear that the appellant was making a claim at the fag end of his career and this is clearly impermissible as per the law enunciated in a series of judgments rendered by the Apex Court in this regard. 24. It may also be relevant to state here that in exercise of powers under Section 421 of the Karnataka Municipal Corporations Act, 1976, the Karnataka Municipal Corporation (Common Recruitment of Officers and Employees) Rules, 2011 has been framed. Rule 10 of the said Rules relates to application of certain Rules and as per Rule 10 (8) of the said Rules, the provisions of the Karnataka State Servants (Determination of Age) Act, 1974 has been made applicable in respect of employees of the Municipal Corporation also. Thus, in respect of a Municipal Corporation employees, a claim for determination of age will have to be necessarily governed by the provisions of the Karnataka State Servants (Determination of Age) Act, 1974. 25. As can be seen from Section 3 of the said Act, an employee s date of birth will have to be declared by the employee along with documentary evidence, such as an extract of the birth register, etc. 26. 25. As can be seen from Section 3 of the said Act, an employee s date of birth will have to be declared by the employee along with documentary evidence, such as an extract of the birth register, etc. 26. Section 4 of the Act makes it clear that any alteration to be made to an entry regarding the date of birth can be made only as provided under Section 5 of the Act. Section 5 of the said Act, stipulates that the date of birth of an employee can be altered to his advantage only within a period of three years from the date on which his age and date of birth has been accepted and recorded in the service register and no alteration can be made thereafter for alteration. 27. Admittedly, the appellant was well aware that his date of birth had been entered as 13.08.1960 when the notification dated 24.11.1995 was issued and yet he chose not to seek for any alteration as provided under the said Act till 2017 i.e., for a period of 22 years. The necessary consequence of not making any request for alteration as provided under the Karnataka State Servants (Determination of Age) Act, 1974 would be that the date of birth entered in the notification dated 24.11.1995 as 13.8.1960 would continue govern the age of the appellant. The learned Single Judge has, therefore, rightly dismissed the writ petition. 28. In the result, we find no ground to interfere with the impugned order and the appeal is accordingly dismissed.