- (1.) THE defendants in O.S.No.728 of 1984 on the file of the learned District Munsif, Mayiladuthurai, are the appellants in the second appeal. THE respondent herein filed the suit against them for declaration that his date of birth was 26.10.1927 and for a consequential permanent injunction restraining the defendants from giving effect to their order Na.Ka.No.3517-B of 1984 dated 24.10.1984.
(2.) HIS case was as follows:- He Joined the services of Animal Husbandry Department in the year 1943 as a temporary Assistant. At the time of his joining duty, he had given his date of birth approximately as 26.10.1924. The same was recorded in his Service Register. He became a permanent employee on 15.4.1972 and when the defendants wanted the plaintiff to give his date of birth, he gave it as 26.10.1927 and as per this declaration, his date of birth was recorded as 26.10.1927. However, the defendants took the date of birth given in 1943 as the correct date of birth and on that basis, had passed orders directing the plaintiff to retire from service on 31.10.1984. Though the plaintiff had sent an application to the defendants stating that his date of birth was 26.10.1927 as recorded in the permanent Service Register, the application was rejected. In the permanent Service Register, the year had been corrected as 1924. This was contrary to law. A casual look at the Service Register would clearly show that there had been a material al teration. The termination of the plaintiff's services taking the date of birth as 26.10.1924 was very improper. The suit was therefore necessitated. In as much as the plaintiff had received the order terminating his services only on 26.10.1984, it was not possible for him to issue the statutory notice under Section 80 of the Code of Civil Procedure. Having regard to the circumstances of the case, the same had to be dispensed with. There was no need to give a notice under Section 80. The second defendant filed a written statement and the same was adopted by defendants l and 3. When the plaintiff joined the services of the department, he had clearly given the date of birth as 26.10.1924 and the same had been entered in his Service Register and other Government records. Taking into consideration his date of birth as 26.10.1924, he had been asked to retire on 31.10.1984 Afternoon. He had also accepted the position. He had also signed the necessary forms relating to pension. The Government also had issued necessary orders on his pensionary benefits. It was not correct to say that any tampering with the plaintiff's date of birth had been made. The plaintiff, in any event, had filed the suit belatedly. If the plaintiff was to get relief, it would affect the seniority and promotion of other Government employees. There was no cause of action for the sint. The suit was liable to be dismissed. On the above pleadings, the trial Court framed the necessary issues and held on the oral and the documentary evidence that the plaintiff was entitled to have the declaration that his date of birth was 26.10.1927, but he was not entitled to the relief of injunction. The suit was dismissed in other respects. On appeal by the defendants, the learned Subordinate Judge in A.S.No.54 of 1987 by judgment and decree dated 19.12.1988 confirmed the decision of the trial Court and dismissed the appeal. It is as against that, the present second appeal has been filed. At the time of admission the following substantial questions of law were framed for decision in the second appeal: (1) Whether the suit was properly laid against the State without impleading the State of Tamil Nadu represented by the Collector of Thanjavur as provided under Civil Procedure Code" (2) Whether the suit was bad for non-compliance of Section 80 of the Code of Civil Procedure and in the absence of a petition to dispense with such notice as provided under Section 80(2)" (3) Whether the suit was barred under Rule 49(c) of the General Rules for Subordinate Services" (4) Whether the Courts below erred in law in ignoring the entries in the Service Roll, which also forms part of the Service Register, when such service Roll furnishes the date of birth as 25.10.1924" (5) Whether the Courts below erred in law in not holding that the respondent would not have completed the age of 18 and be eligible for appointment on 13.9.1943 if his date of birth was actually 25.10.1927 since the minimum qualifying age for entry into service is 18"
(3.) IT is contended by the learned Special Government Pleader that the Courts below clearly erred in granting the prayer of declaration to the plaintiff and that there was a clear bar under Rule 49(c) of the General Rules for Subordinate Services. IT is the contention of the learned Special Government Pleader that when once there were entries made in the Service Roll forming part of the Service Register and the date of birth of the plaintiff was found to be 26.10.1924, the plaintiff was bound by it and ther e was no question of his getting the date of birth declared as a different date. One other aspect urged by the learned Special Government Pleader was that if the plaintiff's date of birth was taken as 26.10.1927, on the date he got appointed on 13.9.1943 he had not completed 18 years of age and he would have been ineligible for getting appointed in 1943. The learned Special Government Pleader also contended that the suit was bad for want of notice under Section 80 of the Code of Civil Procedure. The learned Counsel for the respondent/plaintiff sought to support the judgments of the Courts below on the reasoning given by them. The learned Counsel also relied on the various, exhibits filed on the side of the plaintiff to substantiate his case that his date of birth was only 26.10.1927 and not 26.10.1924. In General Administration Manual, Tamil Nadu Rule 25 runs as follows: "If at the time of appointment a candidate claims that his date of birth is different from that entered in his SSLC Book, he should make an application to the Tamil Nadu Service Commission, if the appointment is made in consultation with the Commission and in other cases to the appointing authority stating the evidence on which he relies and explaining how the mistake occurred. The matter will be enquired into by an officer not below the rank of a Deputy Collector and on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority will decide whether the alteration of the date of birth may be permitted or the application rejected. After the person has entered service, an application to correct his date of birth as entered in the official records should normally be entertained only if the application is made within 5 years of entry into service, any application received after five years after entry into service will be summarily rejected." Under Rule 64 it is stated that, "the date of birth entered in the Service Book or Roll of Non-Gazetted Government Servant shall not be altered, except in the case of a clerical error, without the orders of the Director." ;