Karnataka High Court

R. Chandramathi vs The Chief Secretary on 25 May, 2022

Bench: Chief Justice, Ashok S.Kinagi

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 25TH DAY OF MAY 2022

                      PRESENT

THE HON'BLE MR. RITU RAJ AWASTHI, CHIEF JUSTICE

                        AND

       THE HON'BLE MR. JUSTICE ASHOK S. KINAGI


        WRIT APPEAL NO.406 OF 2022 (S-RES)

BETWEEN:

R. CHANDRAMATHI
D/O RAMACHAR,
AGED ABOUT 56 YEARS,
R/OF YADOORU, HOSANAGARA TALUK,
SHIVAMOGGA DISTRICT-570 005
WORKING AS STAFF NURSE AT J C HOSPITAL
TEERTHAHALLI,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT OF KARNATAKA.
                                      ...APPELLANT

(BY SRI. HANUMANTHAPPA HARAVI B GOWDAR, ADV.)

AND:

1.     THE CHIEF SECRETARY
       GOVERNMENT OF KARNATAKA,
       VIDHANA SOUDHA,
       BANGALORE-560001.

2.     THE PRINCIPAL SECRETARY
       HEALTH AND FAMILY WELFARE DEPARTMENT
       GOVERNMENT OF KARNATAKA
       VIDHANA SOUDHA, BANGALORE 560001.
                         -2-



3.     THE PRINCIPAL SECRETARY
       KARNATAKA PRIMARY DEPARTMENT OF EDUCATION
       M.S. BUILDING
       BANGALORE 560001.

4.     THE DEPUTY DIRECTOR OF PUBLIC INSTRUCTIONS
       SHIVAMOGGA DISTRICT,
       SHIVAMOGGA-570005.

5.     THE BLOCK EDUCATION OFFICER
       TEERTHAHALLI TALUK
       SHIVAMOGGA DISTRICT-570005.

6.     THE SECRETARY KARNATAKA STATE
       SECONDARY EDUCATION EXAMINATION BOARD,
       MALLESHWARAM
       BANGALORE 560003.

7.     THE HEAD MASTER
       GOVT. HIGHER AND PRIMARY SCHOOL
       RYAVEGUDDAKOPPA
       RYAVE POST HOSANAGARA TALUK
       SHIVAMOGGA DISTRICT 570016.

8.     HEAD MASTER
       GOVT. HIGHER AND PRIMARY SCHOOL
       TONKABAILU, TENGINAKOPPA POST
       TEERTHAHALLI TALUK
       SHIVAMOGGA DISTRICT 570005.

9.     HEAD MASTER
       GOVERNMENT MODEL HIGHER PRIMARY SCHOOL
       MILLAGHATTA
       SHIVAMOGGA TALUK
       SHIVAMOGGA DISTRICT 570005.

10 .   THE PRINCIPAL
       KASTURBA GIRLS PRE UNIVERSITY COLLEGE
       HIGH SCHOOL DIVISION,
       SHIVAMOGGA 577005.
                             -3-



11 .   THE PRINCIPAL
       KASTURBA GIRLS COLLEGE
       COLLEGE DIVISION
       SHIVAMOGGA 570005.

12 .   THE CHIEF MEDICAL OFFICER
       JAYACHAMARAJENDRA TALUK
       THEERTHAHALLI
       SHIVAMOGGA DISTRICT - 570005.
                                         ....RESPONDENTS

(BY SRI. G.V. SHASHIKUMAR, AGA)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF
THE KARNATAKA HIGH COURT ACT, 1961, PRAYING TO

A. SET ASIDE THE ORDER DATED 19.04.2022 PASSED
BY THE HON'BLE LEARNED SINGLE JUDGE IN W.P. NO.
8125/2022 AND CONSEQUENTLY ALLOW THE WRIT
PETITION.

B. PASS ANY OTHER APPROPRIATE ORDER / OR
DIRECTION AS THIS HON'BLE COURT DEEMS FIT IN THE
FACTS AND CIRCUMSTANCES .


     THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, ASHOK S. KINAGI, J., DELIVERED
THE FOLLOWING:

                       JUDGMENT

This intra-court appeal is filed challenging the

order dated 19.04.2022 passed in W.P.No.8215/2022.

2. Brief facts leading rise to filing of this appeal

is as under:

The appellant/petitioner is working as a Staff

Nurse at Jayachamarajendra Hospital, Teerthahalli,

Shivamogga District. The appellant has joined service

of the respondent No.2 in the year 1998, disclosing

her date of birth as 22.07.1962. In the year 2013,

the appellant found that there is a clerical error in the

year of birth of the appellant, as the appellant was

born on 22.07.1966. In order to rectify the said

mistake, filed a suit in O.S.No.814/2013 on the file of

Principal Civil Judge & JMFC, Shivamogga. The said

suit was partly decreed on 28.09.2015, declaring the

date of birth of the appellant as 22.07.1966 and the

suit against respondent No.2 herein, was dismissed.

The appellant/petitioner submitted a letter dated

08.12.2020, for correction of date of birth as per the

decree passed in O.S.No.814/2013. The respondent

No.1 passed an order dated 31.08.2021, declining to

consider the request of the appellant for correction of

date of birth in the Service Register. The

appellant/petitioner aggrieved by the order passed by

respondent No.1 vide Annexure-A, filed writ petition

in W.P.No.8215/2022. The learned Single Judge

dismissed the writ petition vide order dated

19.04.2022. The appellant aggrieved by the same,

has filed this appeal.

3. Heard the learned counsel for the appellant/

petitioner and learned Additional Government

Advocate for respondents.

4. Learned counsel for the appellant submits

that the impugned order is illegal and bad in the eye

of law. He further submits that the appellant has filed

a suit in O.S.No.814/2013. The civil court partly

decreed the suit of the appellant and declared the

date of birth of the appellant as 22.07.1966. He

further submits that the respondent No.1 ought to

have considered the decree passed in the aforesaid

suit. On the contrary, has issued an endorsement

declining to consider the request of the appellant for

correction of date of birth. He further submits that

the impugned order passed by the learned Single

Judge is arbitrary and illegal. Hence on these

grounds, prays to allow the appeal.

5. Per contra, learned Additional Government

Advocate supports the impugned order.

6. Perused the records and considered the

submissions of the learned counsel for the parties.

7. There is no dispute that the appellant has

joined the services of respondent No.2 in the year

1998 disclosing her date of birth as 22.07.1962. In

the year 2013, the appellant filed a suit in O.S.No.

814/2013 against the respondents herein and others

for declaration of the date of birth of appellant as

22.07.1966, after 15 years from the date of joining

the service. The said suit came to be partly decreed

and declared that the date of birth of the plaintiff as

22.07.1966 and suit came to be dismissed against the

respondent No.2 herein, vide judgment and decree

dated 28.09.2015. The appellant has not preferred

any appeal against the dismissal of suit against

respondent No.2 herein. The judgment and decree

passed in the aforesaid suit has attained finality.

After the disposal of the said suit, the appellant

submitted a representation dated 08.12.2020, i.e.,

after more than 5 years from the date of disposal of

the suit. The respondent No.1 declined to consider

the representation of the appellant on the ground that

as per Sub-section (2) of Section 5 of the Karnataka

State Servants (Determination of Age) Act, 1974,

provides for and prescribes the period of limitation for

alteration of date of birth and the representation

submitted by the appellant was not within the

prescribed period.

8. The appellant/petitioner has not explained

the reason for the delay in making the representation

for rectification of her date of birth, after joining

service in the respondent No.2. The appellant is aged

about 56 years at the time of filing of writ petition.

Thus, the representation made by the appellant is

belated which cannot be entertained by the writ court.

The Hon'ble Apex Court in the case of M/S. BHARAT

COKING COAL LIMITED & ORS. VS. SHYAM KISHORE

SINGH reported in (2020) 3 SCC 411 held that "the

prayer for change of date of birth at the fag end of

career is impermissible". Further, in the case of

KARNATAKA RURAL INFRASTRUCTURE DEVELOPMENT

LIMITED VS. T.P.NATARAJA & ORS., reported in AIR

ONLINE 2021 SC 747, Hon'ble Apex Court has held

as under:

"10. Considering the aforesaid decisions of this Court the law on change of date of birth can be summarized as under:

(i) application for change of date of birth can only be as per the relevant provisions/ regulations applicable;

(ii) even if there is cogent evidence, the same cannot be claimed as a matter of right;

(iii) application can be rejected on the ground of delay and latches also more particularly when it is made at the fag end of service and/or when the employee is about to retire on attaining the age of superannuation."

9. Therefore, applying the law laid down by the Hon'ble

Apex Court in the aforesaid judgment, the application for

change of date of birth was liable to be rejected on the ground

of delay and laches and respondent has rightly rejected the

application on the ground of delay and laches.

10. The learned Single Judge, after considering the

material on record, was justified in passing the impugned

order. We do not find any grounds to interfere with the

impugned order passed by the learned Single Judge.

Accordingly, we proceed to pass the following order :