Secretary and Commissioner, Department of Public Health and Others vs Dr. G. Chowdappa

Bellie, J.—This second appeal is preferred by the defendants. The respondent-plaintiff filed the suit for declaring that his date of birth is 1.8.1932 but by mistake the date of birth has been entered in the school certificate as 1.7.1930 and that continued in the subsequent school and college registers and also in the service register, and he wrote to the defendants for correction of the service records by noting down his correct dale of birth but they have not complied with that request and therefore the suit had to be filed for declaration that his date of birth is 1.8.1932 and for consequential injunction directing the defendants for correcting the date of birth in the service register.

The defendants, among other things, contended that in view of Rule 49(b) and (c) of the Tamil Nadu State and Subordinate Service Rules within five years from the date of entering into service the plaintiff should have preferred an application to the head of the department for correction of his date of birth and that he has not done and therefore the suit is not maintainable.

The trial court did not accept the case of the plaintiff and instead it upheld the contention of the defendants and hence it dismissed the suit. But on appeal the appellate court differed from the finding of the trial court and it held that the plaintiff was born on 1.8.1932 and therefore the date of birth mentioned in the service records as 1.7.1930 is incorrect and the plaintiff is entitled to have the correction as prayed for and for the consequential injunction and therefore the appellate court set aside the Judgment and decree of the trial Court and passed a decree in favour of the plaintiff. Hence the appeal by the defendants.

Now in the second appeal the only question raised by the defendants is one relating to Rule 49(c). It is contended that it is not the plaintiffs case that he filed an application before the authorities within five years from his entry into service and therefore he has not availed of an opportunity given to him to rectify the mistake and therefore he cannot now come forward with a suit for a decree to achieve a thing which he failed to get availing the said rule. But on hearing Mr. Somayaji, learned Counsel for the respondent-plaintiff, I am satisfied that the said Rule will not apply to the case of the plaintiff and therefore it cannot be said that he has no right to file the suit. It appears originally the Government Servants had a right to file an application before the authorities for consideration for rectification of the wrong date of birth entered in the registers into the correct date of birth, but by way of an amendment in G.O. Ms. No. 351, P. & A.R. (Personnel) Department, dated 27.3.1978, that right has been restricted to a period of five years from the dale of entry into service. Obviously this Rule can be made applicable only to those people who have joined service subsequent to that date and it cannot be made applicable to those people who have entered into service before that date. In the present case it is not in dispute the plaintiff got entry into service on 4.5.1962. Hence he is not affected by this Rule.

In an unreported decision in W.P. No. 1263 of 1979, Padmanabhan, J., had an occasion to consider the point of applicability of the rule with regard to employees who joined service before the date of amendment and he too has held that the rule cannot be made applicable to such an employee. Therefore there is no merit in the point raised in the second appeal. Hence it is dismissed with costs. The interim stay granted in C.M.P. No. 8708 of 1988 is vacated.