RAMA KANT SHARMA Vs. HARYANA STATE

JUDGEMENT

(1.) This case was referred by me while setting singly vdie order dated May 30, 1989, and this is how this case has come up for final hearing before this Bench.

(2.) This is plaintiff's second appeal whose suit has been dismissed by both the Courts below The plaintiff who is working as an Additional Public Prosecutor, Karnal, filed the suit on September 16, 1980, for declaration that his actual date of birth was March 11, 1925 and as such, he was to retire on March 4, 1923, on attaining the age of 8 years whereas it came to his notice in the year 1978 that his date of birth was wrongly entered as March 4, 1923, in his service record on the basis of his school certificate. In the written statement, it was pleaded on behalf of the state that the plaintiff was estopped from filing the suit on account of his own act and conduct, as at the time of this first appointment as P. S. I. he had represented his date of birth as Match 4, 1923. It was also pleaded that his Appointment was made on the basis of information supplied by him and that was corroborated by the documents produced by him at the time of his entry into government service and, therefore, he had no cause of action to file the present suit which was also barred by limitation besides being not maintainable It was further pleaded that the Director Prosecution, had lightly rejected his representation for correction of his age and the said order was legal and valid Reference was also made to Rule 7.3 of (he Punjab Financial Rules, Volume I, to contend that if within two years from the date of his appointment the government servant does not represent regarding the correctness of his age then that would be presumed as correct and, therefore, the plaintiff was now to debarred from bringing the suit regarding his age.

(3.) The trial Court held that the plaintiff had failed to prove his date of birth to be March 11, 1925, as claimed by him in the plaint. It was also held that the plaintiff could bring the suit for correction of his age within two years of his joining service in the year 1950 and suit having been filed in 1980 was not within time A finding was also recorded that the plaintiff by his own act and conduct was estopped from filing the present suit as he could not be allowed to blow hot and cold and to allege that he was younger than the age given in his service record while his remaining service was for two years. In view of these findings, the plaintiff's suit was dismissed vide judgment dated March 31, 1981. In appeal, the learned Additional District Judge reversed the finding of the trial Court as regards the date of birth and came to the conclusion that the evidence led by the plaintiff clearly established that his date of birth was March 11, 1925. The suit was also held to be not within time as the same was filed not within three years from the date of the knowledge of the mistake by the plaintiff. According to the lower appellate Court, cause of action for correcting his date of birth had accrued to the plaintiff in or around the year 1950 and, thus, the suit was clearly time-barred. Ultimately, the suit was dismissed with the observations:- "The sum and substance of the discussion foregoing is that his real date of birth is 11.3.1925, but he is estopped from asserting qua the State of Haryana that his date of birth is 11.3.1925 and so the relief which he has sought in the present suit against the State of Haryana cannot be granted to him."