1. Second defendant in O.S.No.13752 of 1996, on the file of the V Assistant City Civil Judge, Madras, is the appellant herein.
2. Suit filed by plaintiff is for the following reliefs:-
'....to pass a decree
(a) declaring that the correct date of birth of the plaintiff is 13.7.1941;
(b) granting a mandatory injunction directing the defendants 1 and 2 to amend the date of birth of plaintiff as 13.7.1941 in the records maintained by the 1st defendant in the Secondary School Leaving Certificate and all also on the service register of the plaintiff maintained by the 2nd defendant respectively;
(c) to direct the defendants to pay the costs; and
(d) to pass such or other reliefs as this Hon'ble Court may deem fit and proper in the interest of justice.'
3. Material averments which necessitated the filing of the suit could be summarised thus:-
It is the case of the plaintiff that he was born on 13.7.1941 at Arakkonam North Arcot Ambedkar District, and both his parents are now on more. He was a student of St.Andrew's High School. Arakkonam, and did his graduation in Loyola College, Madras. It is further said that it was his paternal uncle's son S.Gopannah Naidu, Palanipet, Arakkonam, who admitted him into the school where he has given his date of birth as 16.2.1940, which has been carried over in all the school records and also in the Secondary School Leaving Certificate. After completion of his education, he joined the services of the State Bank of India at Kancheepuram, and at present he is working as Deputy Manager, State Bank of India, Zonal Office, Region 3, Madras. The plaintiff could not detect the mistake in the date of birth at the earliest point of time since the plaintiff had misplaced his horoscope, and could found the same only in January, 1993. Under the above circumstances, plaintiff filed a suit for declaration of correct date of birth under SR. No. 52817 of 1993. The plaint was returned with a direction that the Birth Certificate issued by the municipality should be produced. In those circumstances, as per legal advice, he searched for the extract of birth certificate, and with great difficulty, he was able to get the certificate only in 1996, a few days before the institution of the suit. According to the plaintiff, he could not take appropriate and immediate action for the correction of the date of birth as he came to know about the same only after ascertaining the date of birth by getting a certified copy of the birth extract. It is further said that in the event of date of birth of the plaintiff is being corrected, no one will be prejudiced as his continuation of the service will not affect anybody's promotional opportunities as the plaintiff voluntarily declined to accept all the promotions already offered to him and continued to be only a Deputy Manager, even though as on date he is eligible to hold a higher post. Therefore, because of the correction of the date of birth, no officers below the plaintiff in seniority waiting for promotion will be affected. On the other hand, a great injustice would be caused to plaintiff if the date of birth is not corrected. In the cause of action paragraph, plaintiff has said that the cause of action for the suit arose at Madras where the plaintiff is permanently residing and in the first week of January, 1993 when plaintiff traced out his original horoscope and on 6.2.1993 when plaintiff issued noticeto first defendant under Section 80, C.P.C., and on 27.3.1996 when the birth extract had been obtained from Arkkonam Municipality. It is on the above grounds, the suit was filed for the reliefs stated above.
4. In the written statement filed by second defendant/Chief General Manager of the State Bank of India, he has contended that the suit is barred by limitation, and it is liable to be dismissed on that ground itself. According to second defendant, the date of birth as furnished by plaintiff has been accepted and entered in his service record. The State Bank of India has issued administrative instructions regarding the change of date of birth of its employees. The same are contained in Circulars dated 12.12.1985, 8.5.1986 and 27.5.1986. As per the Circular dated 27.5.1986, once a date of birth furnished by an employee at the time of his appointment is accepted and entered in the Service Record by the appropriate authority, the same should not be subject to alteration'. (Italics) According to the appellant, the above instruction bars the alteration of date of birth. The allegation that the plaintiff was born on 13.7.1941 is also not admitted. The allegation that the plaintiff's uncle made a mistake while plaintiff was admitted in school is also denied. At the time of joining service, plaintiff himself has stated that his date of birth is 16.2.1940, and also declared that the particulars furnished by him are correct. Having made such a declaration, and after having kept quiet for more than 25 years, plaintiff is not entitled to have the date of birth altered. There is no prior proceeding in which plaintiff has made a representation seeking for alteration of date of birth. According to second defendant, the date of birth, namely, 16.2.1940 as furnished in the School Leaving Certificate and in the Service Register is authentic and reliable. The birth extract has been obtained only recently, and the same is not valid and binding on the defendants. It is further contended that the Birth. Extract relied on by plaintiff is not conclusive proof, and there is nothing to show that it pertains or relates to plaintiff. Even according to plaintiff, he came to know about the mistake in the Service Register as early as in January, 1993. But he has not taken steps to have the same rectified immediately. The suit filed after three years, after the knowledge of the mistake is barred by limitation. The allegation that none of the juniors of plaintiff will be affected by permitting the plaintiff to continue in service is also denied. Any change in the date of birth will have a chain of reaction, inasmuch as there is a chance of promotion of his juniors, and at the same time plaintiff also will not be put to any hardship. Second defendant, therefore, prayed for dismissal of the suit.
5. On the above allegations, trial Court took oral and documentary evidence. On the side of plaintiff, he got himself examined as P.W.1, and also examined, P.Ws.2 and 3 who are independent witnesses. Chief Manager of the State Bank of India was examined as D.W.1. Ex.A-1 to A-5 were marked on the side of plaintiff, and Ex.B-1 to B-4 were marked on the side of defendants.
6. After evaluating the entire evidence, trial Court held that the suit is barred by limitation, and plaintiff is not entitled to have any relief in the suitsince the plaintiff himself has acquiesced to the date of birth as entered in the service register from the date of his entry into service. It was also held that the Circular issued by the appellant-Bank bind the plaintiff, and therefore, he cannot have the date of birth corrected. Trial Court also held that the date of birth as seen in Ex.A-3 Birth Extract has not been proved properly, and no materials are placed to show that a mistake has been committed. The suit was ultimately dismissed.
7. The matter was taken in appeal as A.S. No. 149 of 1999, on the file of III Additional Judge, City Civil Court. Madras. The lower appellate Court reconsidered the entire evidence and held that the decision of the trial Court is wrong. It declared that the plaintiff was born on 13.7.1941, and not on 16.2.1940, and consequently it held that he is entitled to continue in service till he attains the age of 60. It relied on Ex.A-3 as a relevant piece of evidence tofind that the date of birth of plaintiff entered in the Service Register is notcorrect, and that the same has been proved by P.Ws.2 and 3 taken along withthe evidence of P.W.1 (plaintiff). The suit was decreed. The same ischallenged in this second appeal, on the following substantial questions oflaws:-
'(1) Whether the lower appellate Court is right in rejecting the contention of the appellant herein that the suit is barred by limitation?
(2) Whether the lower appellate court is right in decreeing the suit and declaring the date of birth as 13.7.1941?
(3) Whether the lower appellate Court has not erred in reversing the findings, judgment and decree of the trial Court in O.S. No.13752 of 1996
(4) Whether the lower appellate Court was right in relying on Ex.P-3, the birth certificate and rejecting the evidence viz., SSLC Book and the declaration given by the 1st respondent/plaintiff of his date of birth as 16.2.1940 at the lime when he joined the duty?
(5) Whether the lower appellate Court is right in rejecting the documentary evidence i.e. Ex.B-2, B-3 and B-4 viz., the circulars issued by the appellant Bank and whether the same is not binding on the Bank and the employee, i.e., the 1st respondent plaintiff herein?
(6) Whether the first respondent/ plaintiff is entitled to the relief of declaration of his date of birth and re-employment and continuation in employment?'
8. Since the respondents have also entered appearance, the second appeal itself was heard for final disposal with consent of Counsel on both sides. They have also produced the relevant piece of evidence relied on by them as typedset of papers.
9. Heard learned Counsel on both sides.
10. Learned Counsel for appellant submitted that the suit is one for declaration under Section 34 of the Specific Relief Act, and that it is adiscretionary remedy. If it is found that there is delay, or there fire laches on the part of plaintiff, plaintiff cannot claim a relief as of right. It is further argued that the suit is hopelessly barred by limitation. Plaintiff himself filed a suit in early 1993, but did not pursue the same, and got the plaint returned. Three years after the cause of action arose, the present suit has been filed, and therefore, the same is hopelessly barred by limitation. It was further argued that the cause of action as mentioned in the plaint cannot be considered as a cause of action for filing the suit. Learned Senior Counsel submitted that the decision of the lower appellate Court is patently incorrect, and that it has ignored the well-settled legal principles. The lower appellate Court has not considered the law declared by the Honourable Supreme Court or by this Court, and that alone is a ground for interference under Sec. 100, C.P.C., in the sence that the judgment of the lower appellate Court is illegal.
11. It is further submitted by learned Senior Counsel that even if the date of birth alleged by plaintiff is correct, that by itself will not give the plaintiff any right to have the Service Registers corrected, when the service conditions prohibit any correction in the date of birth, in the Service Registers. So, merely on the basis of Ex.A-3, plaintiff cannot get a relief, and the correction of date of birth in the Service Register is not automatic. It was further argued that the law is well-settled that a suit of this nature cannot be entertained lightly, and the principle of estoppel also applies in such cases.
12. Per contra, learned Senior Counsel for first respondent submitted that the suit for correction of date of birth is maintainable, and it is of civil nature, and there is no bar under Section 9 of the Code of Civil Procedure. It was further argued that once the date of birth is corrected in the school records, which is repeated in the Service Register also, correction in the Service Register is automatic. Learned Senior Counsel further argued that the suit is no barred by limitation. Plaintiff could get an extract of the Birth Register only a few days before institution of the suit. Without production of the Birth Extract, he cannot get any relief, and that was the reason why the earlier plaint was returned. Under Article 113 of the Limitation Act, the right to sue accrues only on getting an extract of the Birth Certificate. Therefore, he prayed for dismissal of the Appeal.
13. I will first consider the question whether the plaintiff is entitled to the declaratory relief prayed for by him. For the said purpose. I feel that substantial questions of law Nos.1 to 4 and 6 could be considered together.
14. Under Section 34 of the Specific Relief Act, plaintiff cannot claim that he is entitled to get a declaration as of right. It is purely a matter of discretion. If there are laches on the part of plaintiff, that may be a valid ground to hold that he is not entitled to the relief sought for by him.
15. In Shiam Behari v. Madan Singh : AIR1945All293 , a Division Bench of the Allahabad High Court held that.
'It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not, under all the circumstances of the case, to grant the relief prayed for. Great delay on the part of the plaintiff is of itself sufficient reason for the Court in the exercise of its discretion to refuse relief.'
Page 295 of the Reports, we get the relevant passage, which reads thus:-
'.... Declaration is a matter of discretion and the plaintiff in this case is certainly not entitled to a declaratory relief. My reasons are theses:
'The doctrine of the Court thus established, therefore, is that laches on the part of the plaintiff (whether vendor or purchaser), either in executing his pan of the contract or in applying to the Court, will debar him from relief. 'A Party cannot call upon a Court of Equity for specific performance,' said Lord Alvanley M.R. in (1891) 5 Ves. 720 n8 unless he has shown himself ready, desirous, prompt and eager; 'or, to use the words of Lord Cranworth in (1854) 4 De G.M. &G.; 874 specific performance is relief which this Court will not give, unless in cases where the parties seeking it come promptly, and as soon as the nature of the case will permit; 'Fry on Specific Performance, Edn. 6, p. 515.
A Bench of this Court in 27 All. 678, gave full effect to this dictum and held that:
'Great delay on the part of the plaintiff, in applying to the Court for specific performance of a contract of which he claims the benefit is of itself sufficient reason for the Court in the exercise of its discretion to refuse relief.'
They followed the case in (1801) 5 Ves. 720 n8. That the principle is not a new one in this country is manifest from the observations of their Lordships of the Judicial Committee made so far as the year 1873 in I.A. Sup. Vol. 149 at page 162. Say their Lordships:
'It is not a matter of absolute right to obtain a declaratory decree. It is discretionary with the Court to grant it or not, and in every case the Court must exercise a sound judgment as to whether it is reasonable or not, under all the circumstances of the case, to grant the relief prayed for. There is so much more danger in India than here of harassing and vexatious litigation, that the Courts in India ought to be most careful that mere declaratory suits be not converted into a new and mischievous source of litigation.'
It was a simple suit for possession with a prayer for compensation. These reliefs, on the findings of the learned Judge himself, the plaintiff is not entitled to. It was no part of the duty of the Court to convert a suit for possession into one for declaration. This principle was followed by their Lordships in a later case in 31 I. A. 67 at p.69:
'A claim to a declaratory decree is not a matter of right, but that it rests with the judicial discretion of the Courts.' ........'
In this case, plaintiff entered the service as early as in 1962, and only at present he has come to Court, and that too at the fag end of his career, tochange the date of birth. It is not disputed by plaintiff himself that at the age of 58, the question whether he should be allowed to continue till the age of 60 years was taken into consideration. At that time, he did not have a case that he had not attained the age of 58, and proceedings were also issued by the appellant-Bank permitting him to continue till he attains the age of 60. Even though he knew even in the year 1993 that his date of birth as entered in the Birth Register is 16.2.1940, he did not think of filing a suit at that time. It is true that he initiated proceedings in the first week of January, 1993 in SR. No.52817 of 1993. The plaint was returned. He did not represent the same. He also did not move an application to get an extract of the Birth Register at that time. Long thereafter, on 21.7.1996, he applied for the same. It is clear from the above conduct that the discretionary relief of declaration should not be granted in this case. Even though according to plaintiff he came to know that the date of birth as entered in the Service Records was not correct, he had slept over the matter for quite a long time. According to me, while granting a declaratory relief, the above facts have to be considered.
16. In Secretary and Commissioner, Home Department and others v. R.Kirubakaran, : (1994)ILLJ673SC . Their Lordships held that 'an application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years below him for their respective promotions, are affected in this process. While granting such declaratory relief, the consequences of granting such declaration also will have to be taken into consideration. In the above decision, in paragraph 7 of the judgment, Their Lordships have held thus:-
'An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others, waiting for years below him for their respective promotions, are affected in this process. Some are likely to suffer irreparable injury in asmuch as because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever cases are not unknown when a when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If, no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the lime, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many eases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The Court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie, evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior. (Italics supplied)
Their Lordships also deprecated the practice of any public servant approaching a Court on the eve of retirement for change of date of birth in service books. In that case, in paragraph 8 of the judgment. Their Lordships have held thai 'if there is no rule or order prescribing any period, then the court or tribunal has to examine, why such application was not made, within a reasonable time after joining the service'. In paragraph 9 of the judgment. Their Lordships have further held that the court or the tribunal concerned should be more cautious because of the growing tendency amongst a section of public servants, to raise such a dispute, without explaining as to why this question was not raised earlier'
17. Taking into consideration the above decision (i.e.. Secretary and Commissioner, Home Department and others v. R.Kirubakaran, : (1994)ILLJ673SC , I am of the view that while granting the declaratory relief, the law declared by the Honourable Supreme Court in the above case also will have to be taken into consideration. If a declaration is granted, whether it will have a chain of reaction and how far the service benefits of the particular incumbent's immediate juniors will be affected, is a matter of great importance. It is true that in the plaint, plaintiff has alleged that there will not be any chain of reaction. I do not think that the said allegation could be accepted. Merely because plaintiff has waived his right to get promotions, and at present he is discharging his duties as Deputy Manager, that does not follow that his immediate subordinates/juniors are not entitled to occupy the post on ihe date of his retirement. Plaintiff also will have to explain the long delay from 1962 till 1996. i.e., nearly 36 years in not initiating any steps for getting the date corrected in the service Records. In this issue I am concerned only with the question whether the discretionary relief could be granted or not. It should not be understood that Ex. A-3 is fully correct, or on that basis, it cannot be concluded that plaintiff was born only on 13.7.1941.
18. Apart from the same, while granting the relief of declaration, this Court also will have to consider whether the principle, of estoppel prevents the plaintiff from getting such a relief. In the decision reported in Union of India v. C.Rama Swamy and others : 3SCR760 of the judgment. Their Lordships have held thus:-
'In matters relating to appointment to service various factors are taken into consideration before making a selection or an appointment. One of the relevant circumstances is the age of the person who is sought to be appointed. It may not be possible to conclusively prove that an advantage had been gained by representing a date of birth which is different than that which is later sought to be incorporated. But it will not be unreasonable to presume that when a candidate, at the instance, communicates a particular date of birth mere is obviously his intention that his age calculated on the basis of that date of birth should be taken into consideration by the appointing authority for adjudging his suitability for a responsible office. In fact, where maturity is a relevant factor to assess suitability, an older person is ordinarily considered to be more mature and. therefore more suitable. In such a case, it cannot be said that advantage is not obtained by a person because of an earlier date of birth, if he subsequently claims to be younger in age after taking that advantage. In such a situation, it would be against public policy to permit such a change to enable longer benefit to the person concerned. This being so, we find it difficult to accept the broad proposition that the principle of estoppel would not apply in such a case where the age of a person who is sought to be appointed may be a relevant consideration to assess his suitability'.
19. In Commer. of Police v. Bhagwan V. Lahane : AIR1997SC1986 , Their Lordships held that unless the plaintiff proves that there is want of case on the part of some other person or that it was due to obvious clerical error, a correction should not be permitted to be made. In paragraph 6 of the judgment, Their Lordships have held thus:- (Relevant portion):
'.... Admittedly, the School Leaving Certificate was produced by the respondent and the entry in the service book was made on the basis of the date of birth mentioned therein. As he failed to show that the said entry was made due to want of care on the part of some other person or that it was an obvious clerical error, the Tribunal ought not to have directed the appellant to correct the same.'
20. Even though I have held that the plaintiff is not entitled to get a declaration, I am bound to answer the question whether the suit is barred by limitation. In the earlier portion of this judgment, I have said that laches by themselves may, in certain circumstances, disentitle the plaintiff from getting declaratory relief. Even if the suit is not barred by limitation, laches by themselves may be a ground to refuse the relief. But, on going by the admitted facts, I feel that the suit is barred by limitation also. It is admitted by both sides that Article 113 of the Limitation Act will apply. Under that Article, time begins to run i.e. starting point under the Limitation Act is when the right to claim accrues. It is well-settled that the right to sue means a right to any relief, i.e., a right to prosecute by law; to obtain relief by legal procedure. In other words, the right to sue accrues when a cause of action arises. In order that the right to sue is there, first, there must be a substantive right to assert the claim,and secondly such a right must; have been infringed or must be threatened to be infringed. Infringement or a threat of infringement constitutes a cause of action and gives a right to sue. It is also well-settled under Article 113 of the Limitation Act that time would start from the time of first accrual of the cause of action. In this case, I have already stated that was declared, by the Honourable Supreme Court in the decision reported in Secretary and Commissioner, Home Department and others v. R.Kirubakaran, 1994 Suppl. (1) SCC 155 wherein their Lordship have said that if there is no rule or order fixing the period, the Tribunal or Court will have to examine whether such an application was made within a reasonable time after joining the service. It cannot be disputed that it was the plaintiff who gave the date of birth as 16.2.1940 when he joined the service. Of course, the said representation was made since in the school records his date of birth was entered as 13.7.1941. It is also admitted that as per the Service Register, the petitioner will have to retire at the age of 60. As per service conditions of the State Bank of India officers, Officers who have joined the Banking Service, as Officer or as ordinary employee prior to 19th July 1969, the age of retirement is 30 years of pensionable service or 30 years of service or 58 years of age, which occurs first, and subject to the Explanation he will be entitled to continue till the age of 60 years. We have already stated that on the basis of the recommendation of the Review committee, petitioner was allowed to continue till the age of 60 years. The fact that he is bound to retire at the age of 60, is a fact known to him. It is also admitted in the plaint itself that as per the horoscope, his date of birth is 13.7.1941. But, according to him, it was misplaced and the same could be found out only in the first week of January 1993. Even though he has stated that as per the horoscope, his date of birth is 13.7.1941, that horoscope was not filed before the trial Court. On the basis of the horoscope, he filed a suit also, bearing SR.No. 528117 of 1993, which was not pursued. In paragraph 6 of the plaint, namely, the cause of action paragraph, plaintiff has said that in the first week of January, 1993, plaintiff traced his original horoscope, and on 6.2.1993, plaintiff issued notice to the first defendant under Section 80, C.P.C. He also says that the cause of action arose on 27.3.1993 when he obtained the birth extract from the Arkkonam Municipality. Merely because the plaintiff obtained birth certificate on a particular day, that cannot give him a right to sue or a cause of action. Right to sue or cause of action arises when plaintiffs right is infringed by any act or omission on the part of the defendant. In this case, defendant has already declared that the plaintiff has to retire as per service records at the age of 60. This fact is known to the plaintiff right from the date of his joining in service. Plaintiff cannot choose a particular date and put forward a claim that the cause of action arose only on that date, unless it has something to do with the act or omission on the part of the defendant. Even in January, 1993. when the plaintiff instituted the suit, he knew that the cause of action had arisen atleast on that date. The present suit was filed three years after the institution of the earlier suit. The present suit was filed on 3.9.1996. I hold that the suit is hopelessly barred by limitation.
21. The further question that arises for consideration is, whether the lower appellate Court was right in holding that Ex.A-3 Birth Certificate could be accepted. It is stated in the plaint that it was the plaintiff's paternal uncleGopannah Naidu, Palanipet. Arkkonam, who admitted him in school, and he gave the date of birth as 16.2.1940. It is admitted by P.W.1 himself that his father died only in the year 1980 and his mother died in the year 1986. The best evidence to prove that it was his uncle who admitted him in school, is the Admission Register which must contain entries pertaining to the admission of plaintiff. That evidence is lacking. When father is a live, under normal circumstances, it is the father who takes the child to the school. Normally the actual date of birth is given at the time of admission. If any other relative is taking the pupil for admission and particulars are furnished, that can also be only on the basis of some information from either of the parents. The lower appellate Court, in its judgment, has held that it is common ground that when the parents are not alive, close relatives use to admit the child in school and they give the date of birth convenient to them, and such a thing would have happened in the plaintiff's case also. This finding of.the lower appellate Court is patently incorrect since the father died only in 1980 and the mother died only in the year 1986. In the plaint also, there is no reference that he is the only son of his parents. Only during the course of his examination, and that too through P.W.2 it was stated that plaintiff is the only son of his parents. P.W.2 does not even belong to the same community, and he cannot be treated as a person having special means of knowledge to know about the relationship, nor about the date of birth. P.W.3 is also not a relative. The best evidence to prove whether the parents had other children and regarding the date of birth will be other close relations of the plaintiff. Ex.A-3 only shows that a boy was born on 13.7.1941 and the parents are Muthu Naidu and Govindammal. Their permanent address is mentioned as Bol Naidu Ward. Whether the parents of the plaintiff ware residing in that address during the relevant time, there is absolutely no evidence. Learned Senior Counsel for appellant also submitted that EX.A-3 Certificate was issued by the sub Registrar, who is not competent to issue such certificate. Learned Counsel brought to my notice G.O. Ms. No.659, Health and Family Department, dated 15.3.1977 issued by the Government of Tamil Nadu under sub-section (1) of section 7 of Tamil Nadu Registration of Births and Deaths Act, 1969 (Act 18 of 1969). As per the said Notification, I do not find that the sub Registrar is competent to issue the Certificate. Learned Senior Counsel for the first respondent submitted that the Certificate was issued by the Sub Registrar, and the same was taken for granted. He also placed before me another Certificate issued by a Sub Registrar in regard to some other person. On going by the Notification dated 15.3.1977, I do not find that the Sub Registrar is authorised to issue such certificates. But that is not relevant to be considered. Apart from the evidence of the plaintiff nobody identifies that the child born on 16.2.1940 is the plaintiff. Mere production of birth certificate is not sufficient. When the identity of the person is challenged, mere production of an extract from the Birth Register will not be sufficient to hold that it relates to the plaintiff. It is true that Birth Certificate is a relevant piece of evidence, but the same is not conclusive proof as regards the identity of the person, unless better evidence As adduced, she mere production of a Birth Extract cannot be said as irrefutable proof.
22. In Union of India v. Harnam Singh : (1994)ILLJ318SC . Their lordships have held thus:-
'..... A Government servant who makes an application for correction of dateof birth beyond the time, so fixed, therefore, cannot claim, as a matter of right,the correction of his date of birth even if he has good evidence to establish thatthe recorded date of birth is clearly erroneous. The law of limitation mayoperate harshly but it has to be applied with all its rigour and the courts ortribunals cannot come to the aid of those who sleep over their rights and allowthe period of limitation to expire. Unless altered, his date of birth as recordedwould determine his date of superannuation even if it amounts to abridging hisright to continue in service on the basis of his actual age. A public servant maydispute the date of birth as entered in the service record and apply for itscorrection but till the record is corrected he cannot claim to continue in serviceon the basis of the date of birth claimed by him.'
When the plaintiff himself was remaining silent for more than 30 years, and he has also allowed the Review Committee to permit him to continue after completion of 58 years on the basis of the existing records, Ex.A-3 alone will not be sufficient to hold that it is an irrefutable proof as is required under law.
23. In Kirubakaran's case., 1994 Suppl. (1) SCC 155. Their Lordships also held in paragraph 8 of the judgment that even if any correction could be made, that must be based on materials placed by Government Servant from which irresistible conclusion follows that the date of birth recorded in the service book was incorrect. In this connection, it may also be said that when the plaintiff filed the earlier suit, though returned, he did not rely on the birth register extract but he relied only on the horoscope. Only when he filed the present suit, he thought of making his claim on the basis of Ex.A-3, which according to me, is not sufficient to hold as irrefutable proof, nor can it be said that on the basis of Ex.A-3, an irrefutable conclusion could be arrived that the date of birth recorded in the service records is not correct. I hold that the judgment of the lower appellate Court relying only on Ex.A-3 and declaring that the date of birth' is 13.7.1941 is not proper. The lower appellate Court has not taken into consideration the relevant Section of the Evidence Act or the law declared by the Honourable Supreme Court.
24. Next I will consider the question whether the plaintiff is entitled to have the date of birth corrected in the service record even if the correct date of birth is 13.7.1941 as alleged by plaintiff i.e. substantial question of law. Learned Senior Counsel for the appellant submitted that there are no Rules or Regulations for considering the correct date of birth, but they have to rely only upon Circulars issued by the Bank from time to time. Learned senior Counsel argued on the basis of the judgment reported in Nagpur Improvement Trust v. Yadaorao Jagannath Kumbhare and others : AIR1999SC3084 that when there are no Rules or Regulations governing the service conditions of the employees, the executive instructions and/or decisions taken administratively would operate the field, and in this case, Circulars have been issued. Reliance was placed on Exs.B2 to B4 for the said purpose. Learned Senior Counsel for first respondent also did not dispute the. said legal position, submitted by the learned Senior Counsel for appellant. He only submitted that the Rules haveno application so far as the plaintiff is concerned since he joined the service long prior to Exs.B2 to B4. I do not think that the said submission of the learned Senior Counsel for respondent would be accepted. While considering the scope of Exs.B2 to B4, the purpose for which they were issued has to be taken into consideration. It is clear from the various circulars that the Bank wanted to streamline the procedure. From Ex.B2, it is clear that the Bank was receiving various queries as to whether the date of birth of an employee as entered in the records could be changed at the request of the employee. So, it is clear from the above discussion, that the Circular was intended to apply even as regards employees who are already in service, and not regarding persons who are intended to be appointed. As per the said Circular, it was decided that once the date of birth furnished by the employee at the time of his appoinlment is accepted, the same shall not be subject to any alteration. It is clear from Ex.B2 that the Bank wanted to apply the Circular to all employees who are already in service. Ex.B4 is a Circular dated 27.5.1996 and Ex.B3 is dated 8.5.1986 covering the same subject. In Ex.B3, there is a reference to the request made by the employee to change the date of birth. Considering the same, the Circular was issued stating that once a date of birth is entered in the Service Register and it is accepted, the same shall not be subject to any alteration. Regarding the proof of age also, the Matriculation or SSLC certificate granted by the Government or appropriate Authority shall be considered as proof of age of the employee. Clauses (a) and (b) enable the Bank to rely on Birth Register Extract or Baptism Certificate. But the same is not to be relied on when there is a Matriculation Certificate or School Leaving Certificate. This is clear from the Circular wherein it is said that while documents mentioned in clause (a) should be insisted in all cases, resort to other cases could be made only in exceptional cases, and that too where the candidates may not have passed at least Class VIII from a recognised school. From this Circular, it is clear that the Bank can rely upon only on a Certificate already produced by the employee and not on the Birth Certificate. The application i.e. Ex.B2 to B4 depend on the date when the issue is raised. The argument that it applies only to employees who have joined service after Ex.B2 to B4 cannot be accepted.
25. It is clear from Ex.B2 to B4, which are various Circulars, that the correction of date of birth is not automatic merely on the correction of age in SSLC. The Circulars say that when an employee has furnished records relating to the date of birth at the time of his appointment arid the same is accepted and entered in the service records, the same should not be subject to any alteration. It is clear from the said clause that the date of birth once accepted is not liable to be corrected at all. Ex.Bl to B3 will apply to all employees including those who were already in, service when the Circulars were issued. It is also clear from Ex.B2 to B4 that the Circulars were issued only to deal with the procedural matters. The age is not liable to alteration or correction once it is accepted by the employee and the Authority. At the time of appointment, the employee will have to specify his age on the basis of the Matriculation Certificate or SSLC, and in its absence, on the basis of Birth Certificate or Baptism Certificate wherein the candidate has not passed Class VIII from any Recognised School. Once it is made, the age is not liable to be corrected.Hence, even if date of birth is corrected in the SSLC certificate, that may not be a reason to change his service register.
26. The mere correction in the Matriculation Certificate or SSLC will not result in the consequential correction in the Service Records regarding the date of birth. I have already extracted the relief sought for in the plaint. The plaintiff wanted issuance of mandatory injunction directing the defendants to amend the date of birth. Mandatory injunctions are issued under Section 59 of the Specific Relief Act. Section 59 reads thus:-
'When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts,'
27. What is meant by 'obligation'? Under Section 2(a), 'obligation'includes every duty enforceable by law. As per Ex.B2 to B4, the seconddefendant cannot even consider the question regarding correction of age. Thecirculars bind both the plaintiff and defendants. If a decree is granted, that willamount to compelling the defendant to act against its own Circulars, thevalidity of which is not questioned by any one. So long as the Circulars are inforce, it cannot be said that the defendant has an obligation towards theplaintiff to correct the age.
28. I hold that the plaintiff is not entitled to get any mandatory injunction so long as Ex.B2 to B4 Circulars issued by the appellant are binding on the Bank as well as the Staff.
29. The above findings are sufficient to hold that the Judgment of the lower appellate Court is not correct and I set aside the same. But, before parting with the case, I must also take note of the decision reported in Union of India v. Saroj Bala : (1997)IIILLJ299SC also. The facts therein are similar. At the fag end of his career, on the basis of Birth Certificate issued by the Registrar as in this case, an employee wanted to correct the service records. The same was granted by the Tribunal. The same was questioned, before the Honourable Supreme Court. Their Lordships set aside the older of the Tribunal and held, when the employee nimself has given the date of birth in the service records and it has remained undisputed for 181/2 years, the subsequent discovery about the date of birth on the basis of Birth Certificate cannot be a ground to have the service register corrected. Paragraphs 3 to 5 are relevant for our purpose, and they read thus,
'3. Shri R.S.Suri, the learned counsel appearing for the respondent, contended that the birth certificate given by the Registrar do indicate that her date of birth is 5.4.1950 and that the mother had filed an affidavit in support thereof. It is also sought corroboration from the date of birth certificate of her elder sister and due to close proximity of six months between the birth of two children, it would not be possible that the respondent would have been born. He also relied upon the horoscope prepared to prove her dale of birth.
4. We are wholly unable to appreciate the stand of the respondent. Therespondent's parents are not illiterate. She is a well educated one. Shecompleted in All India Civil Services Examination. Her date of birth was registered in the University to be 4.4.1949. On that basis, she appeared for the examination, sought selection and accordingly she was selected. The said date has been entered in the service record and remained undisputed for 18-1/2 years. Subsequently it appears that she discovered in a talk with her sister that her date of birth is incorrect. Then enquiries were made and birth certificate obtained which mentioned the birth of the child and the parentage of the respondent. Horoscope was also sought to be set up to corroborate those circumstances.
5. It is unthinkable that having been born in an educated family and having remained in service for 18 years she discovered that her dale of birth is wrong. Under these circumstances, the Tribunal was wholly unjustified and' obviously illegal in allowing the application and directing correction of the date of birth. Though Mr. Suri sought to bring to our notice that she made her representation in the year 1981, it is of little importance for disposal of the matter on merits. (Italics is supplied)
30. From the above decision, it is clear that mere production of a Birth Certificate cannot be a ground to grant any relief to the plaintiff. Learned Senior Counsel for the first respondent relied on the decision reported in Ishar Singh v. National Fertilizers : AIR1991SC1546 and also on the decision reported in K.M.Sastry v. Director, Post Graduate Centre, Anantapur : (1982)ILLJ66AP . Learned counsel also made a reference to a judgment rendered by me in C.Packiam v. The II Additional District Judge, Tiruchirapalli and others, W.P.No.14108 of 1998 dated 21.10.1998.
31. From the decision of the Honourable Supreme Court as well as Andhra Pradesh High Court (referred to supra), it is clear that the suit is maintainable and it is not barred under Section 9 of the Civil Procedure Code. The question whether the plaintiff is entitled to a relief is entirely a different matter, arid it depends upon the facts and circumstances of each and every case. The decision rendered by me in C.Packiam v. The II Additional District Judge, Tiruchirapalli and others, W.P. No.14108 of 1998 is also not in any way helpful to the plaintiff. In that case, I have followed the decision of the Supreme Court reported in Birad Mal Singhvi v. Anand Purohit : AIR1988SC1796 , wherein their Lordships considered the evidentiary value of the School Register while considering the question regarding age. In para 15 of the Judgment, their Lordships have held thus,
'.. Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact, and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entryrelating to date of birth made in the school register is relevant and admissible under Section 55 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded ...'
There the correctness of the entries made in the School Register was the matter in issue. In this case, the entries made in the School Register are admitted. The plaintiff wants to disprove the same on the basis of a Birth Certificate, which I have held in the earlier portion of this Judgment as not conclusive. When the entries in the School Register are admitted, and the identity of the person is also not in dispute, I do not think that the plaintiff can seek help from the decision rendered by me in C.Packiam v. The II Additional District Judge, Tiruchirapalli and others, W.P.No. 14108 of 1998.
32. It was represented by learned Senior Counsel for the first respondent that pursuant to the decision of the lower appellate Court, the Government has already corrected the age and produced before me the order dated 12.1.2000, It was also represented that the Government i.e, the 2nd respondent herein has not filed an appeal and consequently the correction entered in the service records must be binding on the Government, i.e. the 2nd respondent. Both these submissions are without any merits. When it is found that the plaintiff is not entitled to get any declaration and when an appeal was filed by one of the defendants affected by the decision, any correction or change will be subject to the result of appeal. In this case, the appellant is seriously affected person and any correction of age in the date of birth is not automatic and the service registers are also not liable to be corrected for that reason. The plea is, therefore, rejected.
33. I am well aware of the constrains under Section 100 of Code of Civil Procedure. When the lower appellate court has not taken into consideration the law declared by the Honourable Supreme Court, and also the relevant provisions of law, this Court is duty bound to rectify the error committed by the lower appellate court. Hence I am not violating the statutory provisions of Section 100, Code of Civil Procedure.
34. In the result, all the questions of law are found in favour of the appellant, and the Judgment and decree of the lower appellate court in A.S.No.149 of 1999 on the file of III Additional City Civil Court, Madras are set aside and that of the trial court in O.S.No. 3752 of 1996 on the file of V Assistant City Civil Court, Chennai are restored. The suit filed by plaintiff is dismissed with costs. The appellant is also entitled to costs in this second appeal. C.M.P.No.1458 of 2000 is also closed.