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2020 Supreme(Kar) 931
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
Abhay S. Oka, Ashok S Kinagi, JJ.
Thimmaiah V - Appellant
Versus
Deputy Commissioner - Respondent
Writ Appeal No. 435 of 2020
Decided On : 25-08-2020
Pratheep K C, Advocate, I. Tharanath Poojary, Advocate, Geetha Devi, Advocate
The change sought cannot be entertained at the fag end of service after accepting it to be correct during the entire service.
Headnote:
DATE OF BIRTH - Employment Dispute - - The appellant-petitioner sought rectification of his date of birth at the fag end of his service. The court held that the change sought cannot be entertained at the fag end of service after accepting it to be correct during the entire service. The appellant's delay in making the representation for rectification of his date of birth was considered a belated dispute and not sustainable. The court also cited the judgment of BHARAT COKING COAL LIMITED AND OTHERS Vs SHYAM KISHORE SINGH, (2020) 3 SCC 411, wherein it was held that the prayer for change of date of birth at the fag end of a career is impermissible.
Fact of the Case:
The appellant-petitioner sought rectification of his date of birth at the fag end of his service. The court held that the change sought cannot be entertained at the fag end of service after accepting it to be correct during the entire service.
Finding of the Court:
The court found that the appellant's delay in making the representation for rectification of his date of birth was considered a belated dispute and not sustainable.
Issues: The main issue was whether the appellant's request for rectification of his date of birth at the fag end of his service was permissible.
Ratio Decidendi: The court held that the change sought cannot be entertained at the fag end of service after accepting it to be correct during the entire service. The appellant's delay in making the representation for rectification of his date of birth was considered a belated dispute and not sustainable.
Final Decision: The writ appeal was dismissed, and the pending interlocutory applications were disposed of.
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. 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 Offi
