Karnataka High Court
Sri K Srinivasa vs The Chief Secretary on 3 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1318 of 2023
R
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1318 OF 2023 (DEC)
BETWEEN:
1. SRI. K. SRINIVASA
S/O LATE V. KRISHNAPPA
AGED ABOUT 59 YEARS
NO.30, SONAR STREET
M.N.JOIS ROAD
CHAMARAJA MOHALLA
MYSURU-571 313.
...APPELLANT
(BY SRI. SRIKANTH M.P., AND
SRI. SATEESH N. KATTALAGI, ADVOCATE)
AND:
1. THE CHIEF SECRETARY
Digitally signed
by DEVIKA M GOVERNMENT OF KARNATAKA
VIDHANA SOUDHA
Location: HIGH
COURT OF BENGALURU-560 001.
KARNATAKA
2. THE SECRETARY
KARNATAKA SECONDARY EDUCATION BOARD
MALLESWARAM
BENGALURU-560 003.
3. THE JOINT DIRECTOR
PUBLIC EDUCATION DEPARTMENT
MYSURU DIVISION
MYSURU-570 001.
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RSA No. 1318 of 2023
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4. THE HEAD MASTER
KANNADA PRACTICING MIDDLE SCHOOL
MASJID ROAD, NAZARABAD
MYSURU-570 001.
5. THE HEAD MASTER/VICE PRINCIPAL
BIFURCATED MAHARAJAS HIGH SCHOOL
(MAHARAJA JUNIOR COLLEGE)
MASJID ROAD, NAZARBAD
MYSURU-570 001.
...RESPONDENTS
(BY SMT. RADHA RAMASWAMY, AGA)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 03.07.2023
PASSED IN R.A.NO.214/2021 ON THE FILE II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, MYSURU, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DATED 07.04.2012 PASSED IN O.S.NO.921/2011 ON THE FILE
OF IST ADDITIONAL I CIVIL JUDGE (JR.DN) AND JMFC,
MYSURU.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for the appellant and the learned
Additional Government Advocate for the respondents.
2. This appeal is filed against reversal of the judgment
of the Trial Court, wherein the Trial Court granted the relief of
declaration declaring the date of birth of plaintiff as 13.07.1964
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and also directed to enter the date of birth as 13.07.1964
instead of 03.07.1964 in the school records maintained by
them.
3. The factual matrix of the case of the plaintiff before
the Trial Court is that he was born on 13.07.1964 at
Cheluvamba Hospital, Mysore and Mysore City Corporation has
issued the birth certificate in this regard. But, in the SSLC
Marks card, the date of birth is mentioned as 03.07.1963
instead of 13.07.1964. The plaintiff is working as Lecturer in D.
Banumaiah Arts and Commerce College. The said fact is noticed
by the plaintiff while entering the family members' name in the
service register. Immediately, the plaintiff obtained for the birth
certificate before Mysore City Corporation and noticed that his
date of birth is wrongly mentioned as 03.07.1963 in the school
records. The plaintiff approached the defendant No.4 to change
the date of birth in the school records. But defendant No.4
directed to approach defendant No.3 and then the plaintiff
approached the defendant No.3 and defendant No.3 directed
the plaintiff to obtain the decree from the competent Court of
law. Thereafter, plaintiff issued statutory legal notice to the
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defendants and after receipt of the notice also, the plaintiff has
not changed the date of birth. Hence, the plaintiff has filed the
suit.
4. In pursuance of the suit summons, though the
defendants are served with notice, they did not choose to
appear. Hence, the plaintiff examined himself as P.W.1 and got
marked the documents as Exs.P1 to P6. The defendants have
not chosen to produce the evidence or mark any documentary
evidence.
5. The Trial Court having considered the material on
record, particularly the documents at Exs.P1 to P6, comes to
the conclusion that plaintiff has made out the case that his date
of birth is 13.07.1964 and in his school records, the same is
wrongly entered as 03.07.1963, particularly considering the
document of Ex.P1, birth certificate issued by the Mysore City
Corporation. In the birth certificate, the age of the appellant is
mentioned as 13.07.1964 and plaintiff was born in Cheluvamba
Hospital at Mysore and the same was entered by the Mysore
City Corporation and they issued the birth certificate. The
plaintiff has specifically stated that due to mistake, his date of
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birth was wrongly mentioned in the school records as
03.07.1963 and also comes to the conclusion that no reasons
are made out to disbelieve the oral evidence of the plaintiff in
this regard and answered issue No.1 in 'affirmative' and comes
to the conclusion that the same has to be corrected.
6. The Trial Court also taken note of the judgment in
the case of STATE OF KARNATAKA VS. T. SUNDAR RAJ
reported in 1987 KLJ 387, wherein at paragraph No.18, it is
held that even in case of Government service, the suit for
declaration of age or birth could be maintained if the relief
claimed does not relevant to his conditions of service and also
taken note of other judgment in the case of STATE OF
KARNATAKA VS. GURUBASAPPA reported in ILR 1996
KARNATAKA 1175, wherein also it is held that since no relief
of declaration and consequential relief correction of date of
birth is not sought, it cannot be said that suit was not
maintainable. Here the plaintiff not claimed the relief relating to
his service conditions or to change the date of birth in his
service records. Thus, there is no legal impediment to grant the
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relief's claimed in the suit. The Trial Court passed this judgment
on 07.04.2012.
7. Being aggrieved by the same, the State filed the
appeal before the First Appellate Court in R.A.No.214/2021 and
the First Appellate Court having considered the grounds urged
in the appeal, formulated the points whether the judgment and
decree of the Trial Court requires interference. The First
Appellate Court having considered the material on record and
also the grounds urged in the appeal, comes to the conclusion
that in order to substantiate his contention, the plaintiff
examined himself as P.W.1 and relied upon birth certificate,
copy of the legal notice, postal acknowledgments and
endorsement as per Exs.P1 to P5. The birth certificate is
marked as Ex.P1 which reveals the date of birth as 13.07.1964
and also taken note of the documents which have been
produced before the Court. The First Appellate Court comes to
the conclusion that the Trial Court relying upon the document
at Ex.P1 has decreed the suit and comes to the conclusion that
it warrants interference by this Court and contend that as per
Section 6 of the Age Determination Act, the Court has no
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jurisdiction to determine the date of birth of an employee under
the Act, but inspite of it, the Trial Court has proceeded with the
matter and decreed the suit, which is against the principles of
natural justice.
8. The First Appellate Court referred the judgment in
CIVIL APPEAL NO.1009/2020 in the case of BHARAT
COKING COAL LIMITED & OTHERS VS. SHYAM KISHORE
SINGH and comes to the conclusion that while seeking the
relief of correction of date of birth, the correction cannot be
claimed as a matter of right, unless a clear case on the basis of
materials which can be held to be conclusive in nature, is made
out, the Court or the Tribunal should not issue a direction, on
the basis of materials which make such claim only plausible. It
is also observed in paragraph No.26 that onus is on the
applicant to prove the wrong recording of his date of birth, in
his service book and it is also laid down, time and again, the
Court has expressed the view that if a Government servant
makes a request for correction of the recorded date of birth
after lapse of a long time of his induction into the service,
particularly beyond the time fixed by his employer, he cannot
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claim as a matter of right, the correction of his date of birth,
even if he has good evidence to establish that the recorded
date of birth is clearly erroneous. No Court or the Tribunal can
come to the aid of those who sleep over their rights as held in
the judgment reported in (1993) (2) SCC 162. The First
Appellate Court having considered this principle, as well as the
material available on record, made an observation that plaintiff
had approached the Court after 13 years as he has served as
Assistant Professor and at the age of 46 years approached the
Court seeking the necessary relief for which he is not entitled
and also comes to the conclusion that the respondent is not
entitled for the suit relief. Hence, the judgment requires to be
set aside and the very suit itself is not maintainable. Being
aggrieved by the judgment of the First Appellate Court, the
present second appeal is filed before this Court.
9. This Court, while admitting the appeal, framed the
following substantial question of law:
"Whether the First Appellate Court is justified
in reversing the judgment and decree passed by the
Trial Court by holding that the appellant being a civil
servant was barred from seeking rectification of his
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date of birth in view of provisions of the Karnataka
State Servants (Determination of Age) Act, 1974,
when according to the appellant the said Act is not
applicable to his case as he is not governed under
Civil Service Rules?".
10. Learned counsel for the appellant in his argument
would vehemently contend that the First Appellate Court
committed an error in applying the provisions of Karnataka
State Servants (Determination of Age) Act, 1974 and the very
approach is erroneous and the said Act is not applicable to the
case of the appellant as he is not a Government Servant under
Civil Service Rules. Learned counsel also brought to notice of
this Court statement of objects and reasons of the Karnataka
State Servants (Determination of Age) Act, 1974 and brought
to notice of this Court Act 22 of 1974, although the provisions
of the Karnataka Financial Code have been issued under the
Constitution of India, they do not have the effect of excluding
civil Courts from determining the date of birth for purpose of
ascertaining the date of superannuation of Government
servants. This has enabled Government servants to institute
suits some time before the date of superannuation for
determining their dates of birth and in many cases decrees
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have been passed determining the date of birth, which in many
cases is different from the one determined under Article 404 of
the Karnataka Financial Code. The counsel also brought to
notice of this Court definition of 'State Servant' in this Act,
wherein it is stated that 'State Servant' means a person who is
a member of a civil service of the State of Karnataka or who
holds a civil post under the State of Karnataka. The counsel
referring the definition would contend that this appellant, who
is a private employee, though he is getting grant-in-aid and
salary, he is not a civil servant as defined under Section 2 and
he is not a civil servant.
11. Learned counsel for the appellant, in support of his
argument, he relied upon the judgment in DR. S.L. AGARWAL
VS. THE GENERAL MANAGER, HINDUSTAN STEEL LTD.
reported in AIR 1970 SC 1150, wherein it is observed that
protection of Clause (2) extends to person referred to in Clause
(1). The counsel also brought to notice of this Court paragraph
No.9, wherein discussion was made about the employee who is
working in Hindustan Steel Limited and detailed discussion was
made and brought to notice of this Court paragraph No.10,
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wherein the Apex Court has observed that it has its
independent existence and by law relating to Corporations it is
distinct even from its members. In these circumstances, the
appellant, who was an employee of Hindustan Steel Limited,
does not answer the description of a holder of a civil post under
the Union as stated in the article. The appellant was not
entitled to the protection of Article 311. The counsel referring
this judgment would contend that though Hindustan Steel
Limited getting the aid from the Central Government and
comes to the conclusion that he is not holding any civil post.
12. Per contra, the learned Additional Government
Advocate for the respondents would vehemently contend that
the First Appellate Court while reversing the findings of the
Trial Court comes to the conclusion that suit is maintainable,
apart from assigning other reason. She would vehemently
contend that the appellant was getting his salary under the aid
of granting code. Hence, the Act referred above is applicable to
the case on hand and therefore, cannot contend that said Act is
not applicable to the present case, as he is not governed under
Civil Service Rules. She would contend that when salary is
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disbursed under grant-in-aid code, cannot contend that he is
not a civil servant. She would further contend that First
Appellate Court having reassessed the material on record, in
paragraph No.24 held that as per Section 6 of the Age
Determination Act, the Court has no jurisdiction to determine
the date of birth of an employee under the Act, but inspite of it,
the Trial Court has proceeded with the matter and decreed the
suit which is against the principles of natural justice. She would
contend that there was delay in approaching the Court also and
appellant had rendered the service of 13 years and thereafter
itself, approached the Court. Hence, the First Appellate Court
has not committed any error and reasons are given while
reversing the judgment of the Trial Court.
13. Having heard learned counsel for the appellant and
the learned Additional Government Advocate for respondents
and the substantial question of law framed by this Court, this
Court has to analyze the material on record. It is not in dispute
that the appellant was working as Lecturer at D. Banumaiah
Arts & Commerce College. It has to be noted that in the plaint
itself, it is specifically stated that cause of action arose to him
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for correction of date of birth on 28.02.2009, the date of
absorption, while giving the details of family members to the
service records, when the same was noticed. Immediately, he
had approached the concerned and concerned have given
endorsement that they have to approach the competent Court
of law and said endorsement is marked as Ex.P6 and on
issuance of Ex.P6 only, he has issued legal notice as per Ex.P2
and the same is served on the defendants in terms of Exs.P3 to
P5 and they have not taken any decision for correction of the
same. Hence, he had approached the Civil Court seeking the
relief of declaration to correct the date of birth. While seeking
such relief, specific averment is made in the plaint that he was
born at Cheluvamba Hospital, Mysore and the same is
communicated to the concerned Corporation and there was an
entry in the Mysore City Corporation that his date of birth is
13.07.1964 and also obtained certificate from the corporation
in terms of Ex.P1.
14. It has to be noted that entry was made long back
and this entry was more than 30 years old and there is
presumption in respect of 30 years old document and the same
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need not be proved by examining any of the persons under
Section 35 of the Evidence Act. The Trial Court also taking note
of Ex.P1 i.e., the birth certificate, wherein it is stated that his
date of birth is 13.07.1964, the defendants have not disputed
the same by filing any statement of objections and even for the
legal notice also, they have not given any reply or denied the
same and taking into note of the fact that a mistake has crept
in while mentioning the date of birth as 03.07.1963 instead of
13.07.1964, comes to the conclusion that no reasons are made
out to disbelieve the oral or documentary evidence and
accepted the same.
15. This Court would like to reply upon the judgment of
Apex Court in the case of NARINDER KAUR VS. PUNJAB
AND HARYANA HIGH COURT AND OTHERS reported in
(2011) 11 SCC 553 wherein, the Apex Court has held with
regard to presumptive value of Municipal records. It is held that
considering presumptive value which attaches to birth and
deaths records of Municipal Council which supported
appellant's, appellant's prayer for change of date of birth as
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prayed was allowed relying on the application filed under
Sections 35 and 114 Iii(e) of the Evidence Act, 1872.
16. The First Appellate Court while reversing the same,
given the reason that he had approached the Court belatedly
and no doubt, an observation is made in paragraph No.27 that
appellant is seeking the relief of declaration belatedly, but when
the plaint itself disclose the cause of action as stated that his
appointment was confirmed on 28.02.2009 and within a span of
2 years, an attempt was made for correction of date of birth
and the same was not done and an endorsement was issued in
terms of Ex.P6 and immediately, the appellant filed the suit,
that too within a period of limitation.
17. It is also important to note that the First Appellate
Court though not directly stated that Karnataka State Servants
(Determination of Age) Act, 1974 is applicable, but in
paragraph No.24 made an observation that Section 6 of the
Age Determination Act, the Court has no jurisdiction to
determine the date of birth of an employee under the Act.
Hence, it is clear that the First Appellate Court taken note of
the very same Act. But, in the case on hand, in view of the
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contention raised by the learned counsel for the appellant that
he is not a State Government Servant as well as Civil Rules not
applicable to the appellant, who is servant in a private Aided
College and also definition of 'State Servant' in this Act,
wherein it is stated that 'State Servant' means a person who is
a member of a civil service of the State of Karnataka or who
holds a civil post under the State of Karnataka. When such
being the case, he is not governed under Civil Service Rules
and also not holding any post under State of Karnataka and
also it has to be noted that he was working in a private college
and the very Act is not applicable and there is a force in the
contention of learned counsel for the appellant that he is not
holding any Civil Service of the State of Karnataka. When he
was not having civil post under State of Karnataka, the very
observation made by the Trial Court is erroneous.
18. The learned counsel for the appellant also relied
upon the judgment of the Apex Court in AIR 1970 SC 1150,
wherein also discussion was made with regard to protection of
Clause (2) extends to person referred to in Clause (1). The
counsel also brought to notice of this Court paragraph No.9,
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wherein discussion was made about the employee who is
working in Hindustan Steel Limited and detailed discussion was
made and brought to notice of this Court paragraph No.10,
wherein the Apex Court has observed that it has its
independent existence and by law relating to Corporations it is
distinct even from its members. In these circumstances, the
appellant, who was an employee of Hindustan Steel Limited,
does not answer the description of a holder of a civil post under
the Union as stated in the article. The appellant was not
entitled to the protection of Article 311. When such observation
is made, in the case on hand, he is an employee of private
aided institution and he is also governed under Karnataka
Secondary Education Board. When such being the case, he
cannot be termed as a Civil Servant, but very approach of the
First Appellate Court is erroneous. It is also important to note
that after 13 years, he has approached the Court and the very
contention of the First Appellate Court that no cause of action is
erroneous and cause for the suit arose on and from
28.02.2009, since his service was confirmed in 2009, since was
absorbed into service on the said date. When such being the
case, said observation is erroneous and the right will accrue to
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a person, when he is appointed as a permanent employee,
since he was absorbed into service on the said date. In the
case on hand, he was permanent employee in the year 2009
and the reason assigned by the First Appellate Court is
erroneous and categorically claimed that while giving family
details to service register noticed error and immediately, he
approached the respondents and thereafter, gave notice and
endorsement was issued in terms of Ex.P6 and then cause of
action arose to him to approach the Court. Hence, I answer the
substantial question of law framed by this Court as 'affirmative'
that the appellant has proved that he is not a civil servant and
also not barred from seeking rectification of his date of birth
and Karnataka State Servants (Determination of Age) Act,
1974 is not applicable, as he is not governed under Civil
Service Rules.
19. In view of the discussion made above, I pass the
following:
ORDER
(i) The regular second appeal is allowed.
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(ii) The judgment and decree of the First
Appellate Court is set aside and
consequently, the judgment and decree of
the Trial Court is restored.
Sd/-
(H.P.SANDESH)
JUDGE
ST
