A DORAISAMY Vs. DIRECTOR OF SCHOOL EDUCATION MADRAS

JUDGEMENT

(1.) THE plaintiff in O. S. No. 907 of 1995 on the file of the Court of District Munsif, Vaniyambadi, North Arcot Ambedkar District, who failed before both the Courts below, has filed the above second appeal. The suit in question was filed for declaration and also for a consequential direction to the defendant/respondent to correct the date of birth of the appellant in his S. S. L. C. Book as on September 2, 1943 instead ic of January 10, 1938 and have such correction made in all other records that the date of birth of the appellant was September 2, 1943. In the Plaint presented before the trial Court, it was claimed that during the month of January, 1994 there was a partition in the family of the appellant in the presence of his father, aged about 94 years and other members and during the course of discussion at that time the second senior brother of the appellant by name Chinna Anumanthan claimed that he was 60 years old and this created a doubt and inquisitiveness in the appellant to verify about his own date in view of the existence of two other sisters immediately above him and induced him to verify the relevant records, which disclosed, according to the appellant, that Chinna Anumanthan was horn on November 23, 1934, that the other two sisters were born on March 21, 1938 and November 1, 1940 and that his date of birth was September 2, 1943. The date of birth as entered in the S. S. L. C. book of the appellant was therefore claimed to be an incorrect one and he was entitled to have the same corrected, by virtue of the order of the Government in G. O. Ms. No. 39, Education dated January 12, 1944. To have the date so corrected, it appears, the appellant called upon the a respondent to carry out the correction by issuing a lawyer's notice dated November 3, 1994 under Sec. 80 of the Code of Civil Procedure, 1908 and in spite of the fact that the appellant submitted all the records, the defendant declined to comply with the request for correction, necessitating the filing of the suit for the relevance referred to supra.

(2.) THE defendant filed a written statement disputing the claims of the appellant and contended that the appellant retired from service as Headmaster of Desiriappanoor Panchayat Union Primary School on January 31, 1996 itself and that he is only continuing on Office on reemployment basis and consequently he is not entitled at that stage to have the age corrected. Relying upon Rule 49 of the Tamil Nadu State and Subordinate Services Rules, hereinafter referred to as the Rules, the defendant also contended that the claim for correction should have been made within the time stipulated and in accordance with the said Rule and it is not open to the appellant to make an application at the fag end of his career and that such request could not be complied with in view of the decisions of the Courts on the point, particularly that of Supreme Court, reported in State of Tamil Nadu v. T. V. Venugoplan, An objection was also raised on the ground of non-joinder of necessary and proper parties and also on the ground that the suit claim was barred by limitation and the appellant had no cause of action to maintain the suit.

(3.) ON the above claims and counter claims, the suit came to be tried and both sides adduced oral and documentary evidence. Learned Trial Judge by his judgment and decree dated April 25, 1996 dismis suit on the ground that the claim was not maintainable both in terms of the provisions contained in Rule 49 of the Rules and the decision of the Apex Court noticed supra. Even on the merits of the claim, learned Trial Judge was of the view that the appellant failed to examind, his senior brother or connect the certificates of the said person and that in the absence of propek and sufficient proof, the extract relating to the date September 2, 1943 could not be considered to relate really to the birth date of the appellant. Aggrieved, the Apllant pursued the matter on appeal before the rub Court Tiruppathur, North Arcot Ambedkar District in A. S. No. 8 of 1996. Learned First Appellate Judge also extensively considered the contentions in the light of both the factual details presented by means of oral and documentary evidence, as also the relevant Rules and the decision of the Supreme Court. In addition to the findings recorded by learned Trial Judge, learned First Appellate Judge also specifically adverted to the claim based on Rule 49 (c) of the Rules and came to the conclusion that Proviso to 5 Rule 49 (c) will have no application to the case of the appellant and consequently no exception could be taken to the Judgment and decree of the Trial Judge dismissing the suit. Learned First Appellate Judge also adverted to some other decisions on the subject, wherein the claim for correction or alteration of date of birth at the fag end of the service career came to he deprecated on more than one occasion. Agreeing with the findings of the trial Judge, the appeal came to he dismissed by judgment and decree dated September 24, 1996. Hence, the above second appeal.