A.K. Rath, J
1. This appeal at the plaintiff's instance assails the confirming first appellate judgment of learned Additional District Judge, Jharsuguda in a suit for
declaration that her date of birth in the High School Certificate is wrong.
2. The case of the plaintiff is that she is working as Staff Nurse at Central Hospital under M.C.L. Ib. Valley, Brajrajnagar since 19.8.1991. Her date
of birth was mentioned as 5.7.1966 in the certificate of Diploma in Nursing and Midwifery as well Service Book according to the certificate issued by
the Board of Secondary Education. While appearing in the H.S.C. Examination in the year 1983, she filled up her form mentioning her date of birth as
5.7.1967. But the defendant no. 2, Secretary, Board of Secondary Education, Orissa, Cuttack, wrongly mentioned her date of birth in the certificate as
5.7.1966. In all her certificates right from Class I to I.A., her date of birth has been mentioned as 5.7.1967. The Headmistress of Municipal Girls High
School has given correct date of birth to the defendant no. 2 as admitted by her in her reply to the Advocate's notice. Because of wrong recording of
date of birth in her Service Book, she being a Govt. servant, will be deprived of getting the service benefits and also pensionary benefits at the time of
her retirement. Though she approached the defendant no. 2 for correction of date of birth, but the defendant no. 2 maintained a sphinx like silence.
With this factual scenario, she instituted the suit seeking the reliefs mentioned supra, after serving notice under Sec.80 C.P.C. to the defendants.
3. The defendant no. 1 was set exparte. The defendant nos. 2 and 3 have filed their separate written statements denying the assertions made in the
plaint. The case of the defendant no. 2 was that she filled up the form to appear in the H.S.C. examination mentioning her date of birth as 5.7.1966.
Accordingly, the defendant no. 2 prepared the register. The records have been prepared by the Board in accordance with the Regulation 9 and 25
after receipt of forms duly filled up by the plaintiff. In all the available records, the date of birth of the plaintiff has been mentioned as 5.7.1966.
4. The defendant no. 3 has also filed written statement admitting the plaint averments. It is pleaded that the competent authority has jurisdiction to
correct the error.
5. Stemming on the pleadings of the parties, learned trial court struck four issues. Parties led evidence, oral and documentary. On anatomy pleadings
and evidence on record, learned trial court came to hold that the date of birth mentioned by the defendant no. 2 is correct. The plaintiff failed to prove
that the defendants wrongly recorded her date of birth in HSC Certificate. She had not taken any steps for correction of her date of birth as per
Regulation 39 of the Board of Secondary Education Regulation. The suit was filed after lapse of 20 years after issuance of HSC Certificate. Held so,
it dismissed the suit. The unsuccessful plaintiff challenged the judgment and decree before the learned Additional District Judge, Jharsuguda in R.F.A.
(T.S.) No. 29 of 2005, which was eventually dismissed.
6. Mr. Budhiram Das, learned Advocate for the appellant, submits that in the admission register, the date of birth has been mentioned as 5.7.1967, but
inadvertently the same has been mentioned as 5.7.1966 in the HSC Certificate. Learned trial court is not justified in holding that no notice under
Sec.80 C.P.C. was served. No issue was framed with regard to service of notice under Sec.80 C.P.C. He further submits that the suit is within the
prescribed period of limitation.
7. The plaintiff appeared at the H.S.C. Examination in the year 1983. H.S.C. Certificate was issued to her. Section-VI of the Regulations of the
Board of Secondary Education, Orissa deals with miscellaneous regulations including regulations relating to the conduct of examinations and
disciplinary measures. Regulation 39 of the Board of Secondary Education Regulation, 1955 deals with the date of birth. The same reads as under.
“39. Date of Birth: The date of birth once entered in the Board's records cannot be changed unless it is of the nature of clerical error or printing
mistake. Application for the correction of the date of birth should be made within three years of passing the examination. No change in date of birth
recorded shall be made unless the application for correction is received through the head of the institution concerned within three years of passing the
examination.â€
8. Article 58 of the Limitation Act provides to obtain any other declaration. The period of limitation is three years, when the right to sue first accrues.
The right to sue first accrued to the plaintiff when she received the H.S.C. certificate.
9. In Khatri Hotels Pvt. Ltd. v. Union of India (2011) 9 SCC 126, the apex Court held:
“30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act.
The word “first†has been used between the words “sue†and “accruedâ€. This would mean that if a suit is based on multiple causes of
action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right
will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to
sue first accrued.â€
10. The apex Court in the case of Board of Trustees of Port of Kandla v. Hargovind Jasraj, 2013 (3) SSC 182 held:
“22. The expression right to sue has not been defined. But the same has on numerous occasions fallen for interpretation before the Courts. In State
of Punjab v. Gurdev Singh (1991) 4 SCC 1, the expression was explained as under:
“6………. The words “right to sue†ordinarily mean the right to seek relief by means of legal proceedings. Generally, the right to sue accrues
only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means. The suit must be instituted when the right asserted
in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted.â€
11. Rule 65 of the Orissa General Financial Rules (Vol.1) provides that every person on entering Government service shall declare his/her date of
birth which shall not differ from any such declaration expressed or implied for any public purpose before entering service. The date of birth shall be
supported by documentary evidence such as Matriculation Certificate, Municipal Birth Certificate and entered in his/her service record. No alternation
of the date of birth of Government servant shall be made except in case of clerical error without prior approval of the State Government. An
application for effecting a change in the date of birth shall be summarily rejected if (a) filled after five years of entry into Government service, or; (b)
the change would so lower the applicants age that he/she would have been ineligible to appear in any of the academic or recruitment Examinations in
which he/she had appeared or for consideration for appointment to any service or post under the Government.
12. Even if, it held that the notice under Sec.80 C.P.C. was served on the defendants, but then the suit is liable to be dismissed on the ground of
limitation. Furthermore, the Service Book of the plaintiff has not been exhibited. The same has been purposefully withheld. When the Service Book is
opened, the plaintiff must have countersigned on the same.
13. The apex Court in the case Birad Mal Singhvi v. Anand Purohit, 1988 Supp SCC 604 : AIR 1988 S.C. 1796, held that to render a document
admissible under Section 35 of the Representation of the People Act, 1951, 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 entry relating to
date of birth made in the school register is relevant and admissible under Section 35 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 the material on which the age was recorded. It was
further held that if the entry in the scholar's register regarding date of birth is made on the basis of information given by parents, the entry would have
evidentiary value but if it is given by a stranger or by someone else who had no special means of knowledge of the date of birth, such an entry will
have no evidentiary value. Merely because the documents such as extract of School Register, mark list or certificate of Education Board etc. are
proved, it does not mean that the contents of documents are also proved. Mere proof of such documents would not tantamount to proof of all the
contents or the correctness of date of birth stated in the documents.
(emphasis laid)
14. Exts.3, 4 & 5 in no case can be regarded as entries made in the school admission register. The certificates issued by the
Headmaster/Headmistress of the school purported to be based on the entry made in the school admission register. Relevant school admission registers
have not been called for, nor any such official of the school has been summoned to produce the schools admission registers to give authenticity to the
certificates granted by the Headmaster/Headmistress of the schools. These certificates cannot be treated as entries made by such public servants in
due discharge of their duties in the registers or records maintained by such schools. Therefore, Exts.3 to 5 cannot be taken to be proved under Sec.35
of the Evidence Act. Furthermore, the in-charge Headmistress of Govt. Girls High School, who has signed the written statement on behalf of the
defendant no. 3, has also not come forward to prove that the date of birth of the plaintiff was 5.7.1967. The pleading is not proof.
15. As a sequel to the above discussion, the appeal fails and the same is dismissed, since the same does not involve any substantial question of law.