Mr V M Srinivas vs State Of Karnataka
2022 Latest Caselaw 8943 Kant

                           1


 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 16TH DAY OF JUNE, 2022

                         BEFORE

     THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV

         WRIT PETITION No.7658/2022 (S-RES)


BETWEEN:

MR. V.M. SRINIVAS
S/O MUNISWAMY
AGED ABOUT 59 YEARS
ASST. EXECUTIVE ENGINEER
CAUVERY NEERAVARI NIGAMA,
NIYAMITHA, NO.4,
LARGE & MEDIUM IRRIGATION PROJECT,
SUB-DIVISION, MALAVALLI.

AND ALSO AT
#357, D. SUBBAIAH ROAD
CHAMARAJA MOHALLA
MYSORE - 570 024.
                                      ... PETITIONER

(BY SRI SHIVARUDRA, ADVOCATE)


AND:

1.     STATE OF KARNATAKA
       REP. BY CHIEF SECRETARY
       GOVERNMENT OF KARNATAKA
       VIDHANA SOUDHA
       BANGALORE - 560 001.

2.     STATE OF KARNATAKA
       REPRESENTED BY SECRETARY
       DEPARTMENT OF CAUVERY
                              2


     NEERAVARI NIGAMA LIMITED,
     M.S. BUILDING,
     DR. AMBEDKAR VEEDI,
     BANGALORE - 560 001.

3.   ADDITIONAL CHIEF SECRETARY
     WATER RESOURCES DEVELOPMENT DEPARTMENT
     VIKASA SOUDHA
     BANGALORE - 560 001.

4.   SUPERINDENTING ENGINEER
     CAUVERY NIRAVARI NIGAMA NIYAMITHA
     K.R.S. M & M I.P. CIRCLE
     MANDYA - 571 401.

5.   EXECUTIVE ENGINEER
     K.R.S.Aa.Ma,Ni.Yo. DIVISION,
     MALAVALLI - 471 430
     MANDYA DISTRICT.
                                        ... RESPONDENTS

(BY SRI M.C. NAGASHREE, AGA FOR R1 & R3;
SRI K.S. BHEEMAIAH, ADVOCATE FOR R4 & R5;
R2 DELETED V/O DATED 13.04.2022)

                             *****


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA, PRAYING TO DIRECT THE
RESPONDENTS TO NOT TO RELIEVE THE PETITIONER ON
SUPERANNUATION CONSIDERING THE DATE OF BIRTH AS
06.04.1962 (VIDE ANNEXURE-C) AND ETC.


     THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY,
THE COURT, MADE THE FOLLOWING:
                               3


                           ORDER

Petitioner is seeking for issuance of writ of mandamus

directing the respondents not to relieve the petitioner on his

superannuation considering his date of birth as 06.04.1962.

Petitioner has also sought for a direction in the nature of

writ of mandamus directing the respondents to consider and

declare his date of birth as per the order passed in

O.S.No.103/2019.

2. Petitioner is stated to have been appointed as

the Assistant Engineer through selection process of the

Karnataka Public Service Commission and was appointed on

08.12.2016 in the backlog vacancy which was not filled up

by the Government. Petitioner submits that he reported for

duty in the Planning Sub-Division of Ramanagara with effect

from 25.01.2017.

3. Petitioner submits that his date of birth is

20.04.1963 as is revealed from the records of the Hospital

at Annexure-C. It is further submitted that the petitioner

had applied for change of date of birth in the records and

had filed O.S.No.103/2019 seeking for declaration of his

date of birth as 20.04.1963 instead of 06.04.1962 as

entered in the government records. It is submitted that the

said suit has been allowed declaring the date of birth of the

petitioner as 20.04.1963. The judgment of the Principal I

Civil Judge and JMFC at Mysore dated 04.12.2020 in

O.S.No.103/2019 has been produced at Annexure-D.

4. It is further submitted that representation was

submitted to respondent No.5 along with the Court order

and a request was made to change his date of birth. It is

the submission of the petitioner that representation has

been made to the Additional Chief Secretary,

acknowledgment of which is produced at Page No.36.

5. It is relevant to note that the petitioner relies on

the representation of 14.11.2017 stated to have been made

to the Chief Engineer. However, there is no

acknowledgment as regards the representation of

14.11.2017. Petitioner submits that, no doubt the

provisions of the Karnataka State Servants (Determination

of Age) Act, 1974 (for short 'the Act') would apply to the

Government servants, however, the legal notice given prior

to filing of the suit to the Chief Engineer, copy of which was

marked as Ex.P.1 before the trial Court could be taken to be

an application made in terms of the Act as contemplated

under Section 5(2) of the Act. Accordingly, it is submitted

that no hyper-technical view ought to be taken as regards

non-making of application. It is further submitted that the

legal notice is to be construed to be an application made

under the Act and is submitted within the period of time

prescribed under the Act.

6. Learned Additional Government Advocate has

filed a memo enclosing copy of the communication by the

Chief Engineer, Communication and Construction (South),

Bengaluru to the Secretary, Government of Karnataka,

Department of Water Sources, dated 15.06.2022 and

submits that in light of the pendency of the matter, no

official endorsement was issued. It is made out from the

said communication that the date of birth of the petitioner is

recorded as 06.04.1962 in the records including the

seniority list maintained and insofar as the representation of

14.11.2017 relied upon by the petitioner, upon verification

in the records of the respondent - Appointing Authority,

there are no records evidencing the petitioner having made

such representation.

7. It is further submitted that the procedure

prescribed under the Act is required to be adhered to and in

the absence of any application being made under Section

5(2) of the Act to the State, (which should be interpreted as

appointing authority) question of considering any request or

considering the legal notice of the petitioner for correction

of age cannot be accepted.

8. Sri. Bheemaiah, learned counsel for respondents

4 and 5 submits that no application was made even to the

said respondents regarding change of date of birth.

9. Heard both sides.

10. It is not in dispute that the legal position remains

free from any ambiguity that insofar as the change in the

age of the Government servants, provisions of the Act

would apply to the exclusion of other remedies including

before the Civil Courts. Section 5(2) of the Act provides for

making an application within 3 years from the date on

which his age and date of birth is accepted and recorded in

the service register. Once procedure has been prescribed

under the above mentioned Act, an employee seeking to

take benefit of the provision must follow the procedure

prescribed. The legal notice made to the Chief Secretary

cannot be construed as an application under Section 5(2),

as requirement under Section 5(2) has to be adhered to by

the Government Servants by making an application to the

appointing authority. Ignorance of the such procedure

cannot be an excuse. The judgment of the Civil Court

cannot come to the aid of the petitioner as it is a settled

position that the jurisdiction of the Courts also are barred in

light of Section 6 of the Act. Once the government servant

has the knowledge of entry in the records of the

respondent, failure to follow the procedure under Section

5(2) of the Act is fatal and no discretion can be exercised in

favour of the petitioner.

11. It is also relevant to note that the respondent -

State has issued an endorsement on 18.03.2022 regarding

disposal of the representation of the petitioner dated

09.06.2021 seeking for change in the age and such

representation was made by relying on the judgment of the

Civil Court in O.S.No.103/2019. The endorsement is issued

stating that the petitioner ought to have followed the

procedure under Section 5(2) and 6 of the Act. It is

submitted that it is only as an after thought, assertion is

made that representation was given to the Government on

14.11.2017, which cannot be accepted. It is submitted that

the said endorsement has not been challenged and the

petition has been filed merely seeking issuance of writ of

mandamus.

12. Taking note of the endorsement dated

18.03.2022 which remains unchallenged, there is force in

the submission of the learned Additional Government

Advocate that the representation of 14.11.2017 was not in

fact made and such assertion cannot be accepted in the

absence of any evidence in the form of acknowledgment

from the appointing authority regarding making of such

representation.

13. Accordingly, petition is rejected as being devoid

of merits.

Sd/-

JUDGE

VP