C P GOVINDARAJAN Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) These two Writ Petitions have been referred to the Division Bench on the ground that important questions of law of general importance have arisen for consideration in these cases. As the facts and points of law arising in these two cases are similar, they were heard together and are disposed of by this common order.

(2.) The relevant facts of these cases may briefly be stated as follows : Sri Govindarajan, the petitioner in W.P. No. 26405 of 1982 entered as a Class II Probationer after being selected by the Public Service Commission for the said post in the year 1959. In due course he rose to the position of Joint Director of Land Records. In his Service Register, his date of birth is entered as 18-9-1928. According to that date he had to retire from service on 18-9-1983. On the 22nd of May 1979 he made an application to the State Government under S. 5 of the Karnataka State Servants (Determination of Age) Act 1974 (hereinafter referred to as the Act) praying for alteration of his date of birth entered in the Service Register from 18-9-1928 to 18-9-1931. It is his case that it is only a few days before the date of his application that he came to know that his correct date of birth is 18-9-1931. The State Government appointed the Solicitor and Ex-officio Deputy Secretary, Department of Law and Parliamentary Affairs, as the Enquiry Officer for making an enquiry into the application, as required by sub-sec. (3) of S. 5 of the Act. After hearing the petitioner and examining the relevant provisions of the Act, the Enquiry Officer came to the conclusion that the application of the petitioner is barred by limitation, the same not having been presented within the prescribed period of one year as required by S. 5 (2) from the date of coming into force of the Act. The Act came into force on the 18th of June 1974. He also came to the conclusion that there is no provision for condoning the delay in presenting the application. According to him, the provisions of S. 5 of the Limitation Act, 1963 are not applicable firstly for the reason that there is exclusion of the provisions of S. 5 of the Limitation Act and secondly for the reason that the State Government which is the authority to take the decision under S. 5 not being a Court, S 5 of the Limitation Act cannot be invoked. The State Government accepting the opinion of the Enquiry Officer made an order on the 4th of May 1982 rejecting the application of the petitioner as barred by limitation. The petitioner has challenged the said order and has prayed for a direction to the State Government to condone the delay and to consider the claim of the petitioner on merits. 2. Sri Channabasavaiah, the petitioner in WP No 17792 of 1981 joined service in the Government Silk Filature in the year 1955 as a labourer and in due course earned promotion as Assistant Factory Manager, Government Silk Filatures. In the Service Register, his date of birth is entered as 3- 7-1926 and it is on that basis that he has continued in service. He filed a WP 12948 of 1981 in this Court for the issue of a writ in the nature of mandamus directing the State Government to accept 3-1-1930 as his correct date of birth as against 3-7-1926 entered in the Service Register. That petition was disposed of by the learned Single Judge on the 2nd of July 1981. The learned Single Judge gave an opportunity to the petitioner to make an application for the altering his date of birth and also to make an application under S. 5 of the Limitation Act for condoning the delay in making the application. If the petitioner makes such application, the State Government was directed to consider the application for condonation of delay in the first instance and if it comes to the conclusion that it is maintainable, to decide whether the delay should be condoned. If the delay is condoned the State Government was directed to consider the application under S. 5 of the Act on merits expeditiously. Thereafter the petitioner presented an application on 4-7-1981 under S. 5 of the Act for altering his date of birth from 3-7-1926 to 3-1-J930. He also made a separate application under S. 5 of the Limitation Act for condoning the delay in making the application under S. 5 of the Act. The State Government appointed an Enquiry Officer to enquire into the matter and to make a report after giving the petitioner an opportunity of presenting his case. The Enquiry Officer made a report to the State Government. He came to the conclusion that the provisions of S. 5 of the Limitation Act are not applicable on the ground that the applicability of the same has been excluded by the provisions of the Act. He also opined that the State Government not being a Court the provisions of S. 5 cannot be successfully pressed into service. The State Government accepted the said report and rejected the application of the petitioner for condoning the delay, by its order dated 18th August 1981. The State Government was, therefore, not required to consider the claim of this petitioner on merits. It is the said order that is challenged by the petitioner in this writ petition.

(3.) Having regard to the contentions urged by the learned counsel for all the parties, the following points arise for determination :-