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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S.S. SUBRAMANI
Government of Tamil Nadu by the Secretary to Government & Another
Versus
D. Thirupathy
S.A. No. 532 of 1989
Decided On :Decided on : 04-03-1997
SERVICE - DATE OF BIRTH - ALTERATION - LIMITATION - ESTOPPEL - [ARTICLES 113, 120 LIMITATION ACT, 1963] - Suit for declaration that alteration of date of birth in service register is irregular, unauthorized, not valid in law and not binding on plaintiff - Plaintiff joined service in 1941, representing his date of birth as 1-6-1921 - In 1962, plaintiff came to know that his date of birth was altered to 1-4-1925 without notice to him - Plaintiff filed suit in 1978 for declaration and injunction restraining defendants from retiring him on the basis of altered date of birth - Trial court dismissed suit holding it was barred by limitation and plaintiff was estopped from filing suit - Lower appellate court reversed trial court's findings and decreed suit - On second appeal, held, suit was barred by limitation - Plaintiff was aware of wrong entry in service register in 1962 and should have filed suit within three years from that date under Article 113 of Limitation Act - Plaintiff was also estopped from claiming correction of date of birth as he had given declaration that his date of birth was 1-6-1921 and had obtained employment on that basis - Second appeal allowed, suit dismissed.
Fact of the Case:
Plaintiff, a Sub Inspector of Police, filed a suit seeking a declaration that the alteration of his date of birth in the service register from 1-4-1925 to 1-6-1921 was irregular, unauthorized, and not binding on him. He also sought an injunction restraining the defendants from retiring him on the basis of the altered date of birth. The plaintiff claimed that he came to know about the alteration in 1962 and had submitted several representations to the authorities, but they were rejected. The trial court dismissed the suit, holding that it was barred by limitation and that the plaintiff was estopped from filing the suit. The lower appellate court reversed the trial court's findings and decreed the suit.
Finding of the Court:
The High Court held that the suit was barred by limitation. The plaintiff was aware of the wrong entry in the service register in 1962 and should have filed a suit within three years from that date under Article 113 of the Limitation Act. The High Court also held that the plaintiff was estopped from claiming correction of his date of birth as he had given a declaration that his date of birth was 1-6-1921 and had obtained employment on that basis.
Issues: 1. Whether the suit was barred by limitation? 2. Whether the plaintiff was estopped from claiming correction of his date of birth?
Ratio Decidendi: 1. The High Court held that the suit was barred by limitation as the plaintiff was aware of the wrong entry in the service register in 1962 and should have filed a suit within three years from that date under Article 113 of the Limitation Act. 2. The High Court held that the plaintiff was estopped from claiming correction of his date of birth as he had given a declaration that his date of birth was 1-6-1921 and had obtained employment on that basis.
Final Decision: The High Court allowed the second appeal and dismissed the suit.
1. Defendants in O. S. No. 9382 of 1978, on the file of IX Assistant Judge, City Civil Court, Madras are the Appellants.
2. Suit filed by plaintiff was to declare that the alteration made by the District Police Office, Chengalpattu, in the date of birth of the plaintiff in the Service Register from 1-4-1925 to 1-4-1921, without notice to plaintiff, is irregular, unauthorised, not valid in law and not binding on plaintiff. As a consequence, a further relief is also sought for in the nature of permanent prohibitory injunction from restraining the defendants from retiring the plaintiff from service on the basis of the said illegally altered date of birth. Costs of the suit is also sought to be recovered.
3. The material averments in the plaint are as follows:—
On the date of suit, plaintiff was working as Sub Inspector of Police in the Prohibition Intelligence Bureau, at Madras. He was enlisted as a Constable in the Police Force of the then Madras State Government on 1-11-1941. At the time of enlistment, he produced the Record-sheet issued by the Headmaster of the District Board Higher Elementary School, Alandur, where he had studied. The date of birth of the plaintiff as per the Record-sheet is 1-4-1925 and the same was entered in the Service Records. Plaintiff served as Constable for some years, and later, as Head Constable in various Police Stations in Chengalpattu District. It is averred that in the year 1962, plaintiff came to know that the date of birth in his Service Register had been altered from 1-4-1925 to 1-6-1921 without any notice to him. It is his case that there is already a record with the defendants wherein his date of birth was entered as 1-4-1925, and the correction of the same as 1-6-1921 was without notice to him and, therefore, it cannot bind him in any way.
4. It is further averred that as soon as the plaintiff learnt about the unauthorised correction, he submitted a petition requesting the Superintendent of Police, to have the original date of birth restored. Plaintiff also attached his E.S.L.C. Certificate containing the said date of birth as additional evidence. The Superintendent of Police gave a reply on 1962 stating that if his date of birth was taken as 1-4-1925 as per the School Certificate, his age at the time of enlistment will be 16 years and 7 months and that it would be a question of enlistment on false pretenses for which he could be dismissed. Plaintiff, thereupon, gave a reply that he is willing to face the charge as it is not his mistake and he had not suppressed any fact. But the Authorities did not pursue the matter, nor did they give any reply to the plaintiff. It is further alleged that subsequent petitions were also filed. But all of them were dismissed on the ground that the correction could not be entertained after 22 years of service. He also moved an Application in the year 1966 to the second defendant, which was also rejected. A complaint was given to the Governor in 1972, but the same was also rejected as belated. Again another representation was given to the Governor on 11.2.1972, which was also dismissed in 1976. It is said that the plaintiff was directed to retire on 30-6-1976, on the basis of the date of birth altered by the Department. He filed a writ petition before this Court for the issue of a writ of mandamus calling upon the defendants to forbear from retiring the plaintiff with effect from 30-6-1976. But the same was dismissed, directing the plaintiff to file a civil suit and, therefore, he has filed the present suit. He also said that since urgent relief is required, he may be exempted from issuing a notice under Section 80, C.P.C.
5. In the written statement filed by first defendant, which was adopted by second defendant, it is said that the suit is not maintainable either on law or on facts. It is also said that the plaintiff is not entitled to declaration as prayed for. On the date when he was recruited, he gave a solemn declaration that his date of birth
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