BATAKRISHNA SAMAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) Issuance of writ of certiorari is sought by the Petitioner - against the Order Dated 2.2.2009 passed by the Orissa Administrative Tribunal, Bhubaneswar in O.A. No. 304 of 2002.

(2.) BRIEF facts leading to the present lis are that the Petitioner entered into Government service in the year 1982 and after completion of the probation period, joined as Establishment Officer in the office of the Deputy Director, Agriculture, Balasore in the year 1983. In his service book the date of birth of the Petitioner has been entered as 12.6.1952 which was on the basis of the certificate issued in favour of the Petitioner on passing the High School Certificate Examination in the year 1970. The Petitioner was, thereafter, promoted to the rank of Junior Class -I Officer and was posted as Commercial Tax Officer, Bhadrak in the year 1998. In September, 2001, the Petitioner was promoted Jo Class -I Senior Branch and posted as Additional Assistant Commissioner, Commercial Tax, (Appellate Unit), Bhubaneswar and states to be presently wording as Joint Secretary, Finance (Department. It is the case of the Petitioner that though his date of birth has been mentioned as 12.6.1952 in his service book, but his actual date of birth is 28.4.1954. On realizing such mistake, the Petitioner repeatedly approached the Board of Secondary Education to correct the entry with regard to his date of birth in the certificate, but the Board of Secondary Education did not respond to such request. In the meanwhile, admittedly, the elder brother of the Petitioner filed T.S. No. 174 of 1995 before the Learned Civil Judge (Junior Division), Jajpur, inter alia, seeking the following reliefs: (a) Let it be declared that the Plaintiff is the eldest son of his father. (b) Let it be declared that Defendant No. 1 is younger to plain tiff by one year & eleven months. (c) Let it be declared that the Plaintiff has right, title, interest & possession over the suit land as his father's eldest son. (d) Let the date of birth of Defendant No. 1 maintained in the High School Certificate issued by the Board of Secondary Education be declared as wrong. (e) Let the Defendant No. 3 be directed to correct the date of birth of Defendant No. 1 according to the finding of the Court. (f) Let the cost of the suit be decreed. (g) Let such other relief or reliefs be granted for which the Plaintiff is found entitled.

(3.) ON considering the evidence adduced in the suit, the Learned Civil Judge came to the following findings of fact: (i) A declaratory suit for correction of date of birth is maintainable before the Civil Court. (ii) The Plaintiff who is the elder brother of the Defendant No. 1 (Writ Petitioner) is elder to the Defendant No. 1 by one year & 11 months. (iii) The Plaintiff is in peaceful possession over the disputed properties. The date of birth of the Defendant No. 1 (Writ Petitioner) mentioned in the High School Certificate issued by the Board of Secondary Education is wrong; (iv) The Defendant No. 3 (Board of Secondary Education) cannot be directed to correct the date of birth of the Defendant No. 1 (Writ Petitioner) at the behest of the Plaintiff, who is his elder brother. (v) The suit is not barred by law of limitation.