Telangana High Court

The Additional Joint Secretary, vs Kammari Hanmantha Chary on 4 April, 2024

  THE HON'BLE SRI JUSTICE SAMBASIVARAO NAIDU

           SECOND APPEAL No.602 OF 2017


JUDGMENT:

The defendants in O.S.No.1357 of 2011 on the file of

III Senior Civil Judge, City Civil Court, Hyderabad are

appellants in this Second Appeal which is filed under

Section 100 of C.P.C.

2. This appeal has been filed assailing the Judgment

and decree of the 1st appellate Court in A.S.No.269 of 2012

dated 10.03.2016, by which the 1st appellate Court

confirmed the Judgment and Decree granted in favour of

the respondent/plaintiff.

3. As could be seen from the record, the respondent

herein has filed O.S.No.1357 of 2011 before the learned

Junior Civil Judge, City Civil Court, Hyderabad, seeking

declaration of his date of birth as 16.09.1972 on the

ground that the same was wrongly noted in his school

records.

4. According to the averments made in the plaint filed

before the trial Court, the respondent has claimed that he

was born on 16.09.1972 at Niloufer hospital, Hyderabad.

However, since his parents were illiterates, they got

mentioned the date of birth in the school records as

06.03.1971. The respondent was employed in Bharat

Dynamics Limited (BDL), Kanchanbagh, Hyderabad and

was selected for the post of J.P(Fitter) and joined the

service on 18.06.2009. The date of birth of the respondent

was recorded in all the records based on the S.S.C marks

memo. The respondent has claimed that his parents out of

illiteracy mentioned the above said date of birth

approximately and subsequently on realization that he was

born at Niloufer hospital, Hyderabad, and having obtained

the date of birth certificate from the G.H.M.C., he has filed

the suit seeking declaration of his date of birth as

16.09.1972.

5. The appellants herein have opposed the claim.

According to the written statement filed by the appellants

before the trial Court, it was claimed that the Board of

Secondary Education is the examination conducting body,

it used to obtain applications from the Head Master

concerned along with manuscript nominal rolls and fee

receipt in respect of the candidate who wanted to take the

examinations. The manuscript nominal rolls will contains

all the details like name, father's name, date of birth, sex,

subjects offered and medium of instruction. The candidates

who are admitted to the examinations will be issued with

hall tickets based on the particulars contained in the

manuscript nominal rolls. Permanent record will be

maintained in respect of all the candidates who have

registered for examination irrespective of their results.

6. The respondent herein appeared for SSC

examination through ZPHS School, Shiva Nagar, Medak

District. As per the school record, his dated of birth was

06.03.1971 and the same was entered in the records. The

appellants have also averred in the written statement filed

before the trial Court that as per

G.O.Ms.No.1263/Education, there was an amendment,

according to which the Director of School Education is

empowered to entertain and effect corrections or

alterations in respect of the application for correction and

alteration of date of birth, but no such application for date

of birth shall be entertained after a period of three (3) years

from the date of completion of the said course. They have

also informed the Court that according to

G.O.Ms.No.604/Education, the Commissioner for

Government examination was authorized to make minor

corrections viz., spelling mistakes in the S.S.C marks

memo, but, date of birth shall not be corrected. Therefore,

the appellants have claimed before the trial Court that the

prayer for declaration of date of birth as sought for by the

respondent herein cannot be granted, thereby, prayed for

dismissal of the suit.

7. The trial Court framed the following issues:

1. Whether the plaintiff is entitled to relief of declaration as prayed for?

2. To what relief?

8. During trial the respondent was examined as PW1.

He has marked Exs.A1 to A5. The mother of the

respondent was examined as PW2. The appellants have

examined PWs 1 and 2, and got marked Exs.B1 to B5. The

trial Court having appreciated the pleadings, evidence,

accepted the contentions of the respondent and passed a

decree, declaring the date of birth of respondent as

16.09.1972 and directed the appellants herein to correct

the same in his S.S.C certificate and concerned records.

9. Being aggrieved by the said Judgment, the present

appellants have filed the 1st appeal vide A.S.No.269 of 2012

before the Additional Chief Judge, City Civil Court,

Hyderabad. The 1st appellate Court having re-appreciated

the evidence and pleadings, dismissed the appeal under

the impugned Judgment.

10. The appellants have filed the present appeal on

the ground that the Judgment of the trial Court as well as

1st appellate Court is illegal, contrary to law. The case

involves substantial questions of law and the non

consideration of material evidence on record has resulted

the decree in favour of the respondent. The trial Court and

1st appellate Court failed to consider the judgments placed

by the appellants before the respective Courts. The

appellants have claimed that the observations made by the

trial Court and 1st appellate Court on the documents

produced by the appellants are incorrect.

11. The appellants have contended that both the

Courts incorrectly brushed aside the mandatory provisions

of Section 80 of C.P.C., merely because the said defence

was not taken in the written statement filed by the

appellants, in spite of the fact that there was no notice as

required under Section 80 of CPC by the respondent before

filing the suit.

12. They have also claimed that the trial Court and

1st appellate Court appears to have been swayed away by

the questions put to the appellants and on the ground that

there was no suggestion that Exs.A2 and A3 are forged and

fabricated, simply passed a decree in favour of the

respondent, thereby, sought for setting aside the impugned

Judgment and prayed for dismissal of the suit.

13. The appellants have formulated (5) substantial

questions of law while filing the Second Appeal and this

appeal has been admitted on all the (5) substantial

questions of law, which are extracted hereunder:

1. Whether a suit without issuance of the mandatory notice as required under Section 80 of C.P.C. is maintainable in respect of any matter wherein urgency is not the sine qua non?

2. Whether, in respect of lack of defence of non issue of statutory notice under Section 80 of C.P.C., the Court is entitled to deal with the same and hold that just because the defence of non issue of notice under Section 80 of C.P.C., is not taken, there is any necessity to issue Section 80 C.P.C., notice?

3. Whether the Court can overrule the G.O.Ms.No.1263/Education dated 06.05.1961?

4. Whether the suggestion made during cross examination of PW1 can be the basis for decreeing a suit especially for relief as sought for in the present matter i.e., correction of date of birth?

5. Whether the Courts below can contradict as well as circumvent specific and categorical direction contained in G.O.Ms.No.1263/Education dated 06.05.1961 that specifically prohibit alteration of date of birth beyond the period of three years after completion of education?

14. As could be seen from the pleadings as well as

the evidence adduced by both the parties, it is very clear

that the respondent from the beginning has contended that

he was born at Nilouher hospital, Hyderabad and his date

of birth has been noted in the Municipal records. However,

due to illiteracy, his parents without knowing the said fact,

while admitting him to the school, mentioned a wrong date

of birth as an approximate date and subsequently, he came

to know about this mistake and he has obtained the

certificate from the G.H.M.C., and he wanted a declaration

to declare his correct date of birth.

15. The appellants did not raise any dispute about

the birth of the respondent herein at Niloufer hospital,

Hyderabad, nor there is any averment in the written

statement and the evidence produced by the appellants

herein, that the date of birth of respondent was incorrectly

noted in the Municipal records.

16. As rightly observed by the trial Court, it was not

the case of the appellants that the date of birth certificate

sought to be relied on by the respondent herein has been

fabricated, nor it is their case it is a fake document.

17. The next contention of the respondent was, his

parents out of illiteracy while admitting him to the school,

mentioned a wrong date as if it is his date of birth and

subsequently he realized the mistake and now wanted its

correction. The evidence of PW1 and his mother who is

examined as PW2 coupled with the documents marked as

Exs.A1 to A5 goes to show that the correct date of birth

was not mentioned in the school records and the said

incorrect date of birth was mentioned in the service register

of the respondent. But, it is based on the SSC marks

memo.

18. The appellants have contended before the trial

Court that in view of the Government Orders, which they

have marked during their evidence as Exs.B1 to B3 and

B5, the date of birth in the SSC marks memo cannot be

corrected by the Board of Secondary Education or

Commissioner who conducted the examination. The

appellants did not raise any objection as to the

maintainability of the suit on the ground that the

respondent did not issue notice as required under Section

80 of CPC.

19. It is an admitted fact that there was no notice

under Section 80 of CPC got issued by the respondent.

But, in the absence of specific averments and contentions

by the appellants, there was no opportunity for the

respondent/plaintiff to give his answer or to explain the

circumstances under which he did not issue notice. In fact,

it is not the case of the appellants herein that an urgent

order or relief has been granted to the respondent, in the

absence of notice under Section 80 of CPC. The appellants

could not substantiate their contention as to how the

absence of such a notice caused prejudiced to their

contention.

20. The appellants sought to rely on Judgment

between Government of Andhra Pradesh & Another vs.

M.Hayagreev Sarma 1 for the proposition that date of birth

recorded in service book on the basis of school certificate at

the time of entry into service and subsequent claim for 1 1990 2 SCC 682

alteration after commencement of rules even on the basis

of extracts of entry contained in births and deaths register

maintained under Birth, Death and Marriage Registration

Act, 1886 is not open.

21. The respondent relied on a Judgment between

R.K.Jangra vs State of Punjab and Others 2 wherein the

Hon'ble Apex Court was pleased to direct the competent

authority to apply mind to material furnished by the

applicant therein regarding his actual date of birth.

22. In the above stated case, the applicant filed an

application for correction of date of birth which was

rejected. He has approached the High Court of Judicature

at Chandigarh by filing writ petition. However, the High

Court has directed the applicant to approach civil Court for

correction of his date of birth.

23. Being aggrieved by the said order, the applicant

approached the Hon'ble Supreme Court by filing Civil

Appeal and while considering the said application since the

date of his retirement was very close, the Hon'ble Apex 2 2009 5 SCC 703

Court considered the request, and directed the concerned

authorities to allow the request.

24. The respondent had also relied on another

Judgment between Madan Mohan Singh and Others vs.

Rajini Kant and Another 3 based on a judgment between

Brijmohan Singh vs Narayan Sinha and two more

judgments, the Hon'ble Apex Court held that for

determining the age of a person the best evidence is of

his/her parents, if it is supported by unimpeachable

document.

25. In case, date of birth depicted in the school

evidence of reliable persons and contemporaneous

documents viz., date of birth register of the municipal

corporation, Government hospital/Nursing home etc., the

entry in the school registration is to be discarded.

26. He has also relied on a Judgment between

Resham Singh vs. Union of India and Another 4

3 2010 9 SCC 209 4 2007 SCC Online P&H 1117

wherein the High Court at Punjab and Haryana made the

following observations:

It was, thus, held that where there is a conflict, between the date of birth, recorded by the competent authority under the Births and Deaths Registration Act and the school leaving certificate, primacy was to be accorded to the birth certificate issued by the authority under the Registration of Births and Deaths. It was also held that unless upon verification, the certificate issued by the Registrar of Births and Deaths, appears to be doubtful or suspicious or the Passport authority is not satisfied as to its genuineness, then alone would the Passport authority be justified in declining to effect a correction in the date of birth and directing an applicant to seek adjudication, as to his date of birth before a civil Court.

The aforementioned judgments, with which we are in respectful agreement, have correctly and succinctly delineated the powers and the jurisdiction of a Passport authority, considering an application for alternation of date of birth, based upon two contradictory documents i.e. a birth certificate issued by the Registrar of Births and Deaths and a certificate issued by an education authority.

A birth certificate is issued by a Registrar of Births and Deaths and reflects an entry extracted from the register maintained by the Registrar under the Registration of Births and Deaths Act, 1969. The aforementioned statute was enacted to provide for and regulate registration of Births and Deaths and for matters connected therewith. Section 7 thereof, requires a State government to appoint a Registrar for each area comprising the area within the jurisdiction of a municipality/panchayat or the local authority or any other area or a combination of any two or more of them. Section 16 of the Act requires every Registrar to keep in the prescribed form a register of Births and Deaths for the registration of births and deaths

in his area or any part thereof in relation to which, he exercises jurisdiction. A register of Births and Deaths is, thus, a public record of births and deaths that occur within the area assigned to a Registrar. The Register being a public record, presumption of truth attaches thereto and consequently to the birth certificate, reflecting an extract from the Births and Deaths register. A matriculation certificate, on the other hand, is primary evidence of the marks obtained by a candidate in a qualifying examination and the date of birth recorded as an ancillary measure. Primacy would, therefore, have to be accorded to the date of birth reflected in the birth certificate issued by the Registrar of Births and Deaths.

27. The respondent while relying on Kokilaben J.

Panchal vs. Regional Passport Officer, Ahmedabad 5

sought for dismissal of the appeal. The following was the

observations made by the Hon'ble Apex Court in the above

referred in the above referred Judgment:

At this stage, it is also required to be noted that normally when there is a discrepancy in the date of of birth in the certificate issued by the competent authority under the provisions of the Births and Deaths Registration Act as well as school leaving certificate, in that case, primacy is required to be given to the birth certificate issued by the Municipality and the competent Government Authority under the Births and Deaths Registration Act, unless it is on verification of such document, a doubt is created and / or authority is not satisfied with regard to the genuineness of the same. It is also required to be noted that when there is dispute with regard to genuineness of the date of birth and / or certificate, then, certainly the

5 2006 SCC Online Gujarat 31

passport authority can refuse to make necessary correction and / or effect change in the passport with regard to the date of birth and/or place of birth is concerned, and may insist for order from the Court i.e. declaratory order from the Civil Court but for that, a petition under Article 226 of the Constitution of India is not maintainable as further evidence is to be led with regard to correct date of birth and on appreciation of evidence, declaratory order is required to be passed and this Court in exercise of the powers under Article 226 of the Constitution of India would not like to enter into the disputed question of facts. Therefore, for the aforesaid purpose, the passport authority is required to entertain the application, hold necessary enquiry and consider the same and if not satisfied then, to give reasons for not accepting the same.

28. Even though the appellants have contested the

suit on other technical grounds i.e., power of the

appellants to correct the date of birth etc., was never their

case that the respondent herein has manipulated the

records. The respondent has produced oral evidence of his

mother and documents including the date of birth

certificate from the concerned Municipal authorities which

clearly shows his date of birth as 16.09.1972. Therefore, in

the light of the Judgments relied on by the respondent

herein, as the evidence of PWs 1 and 2 coupled with the

documents clearly indicates that a mistake was crept while

admitting the respondent in the school, is entitled to seek