# R. S. KALLOLIMATH v. STATE OF MYSORE & ANR

- **Citation:** [1978] 1 S.C.R. 145
- **Court:** Supreme Court of India
- **Decided:** 1977-05-06
- **Case number:** Civil Appeal No. 1659 of 1972
- **Bench:** V. R. Krishna Iyer, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-s-kallolimath-v-state-of-mysore-anr-7255
- **Pages:** 8

## Headnote

Service law-Entry of Government servant's date of birth in service register
revised to an earlier date-Whether State is precluded from refixing wrongly
given dates-Government Notification granting extension of service equal to
half the period of difference between the original. and revised dates-Denial of
extension of service to appellant whether justified.
The appellant gave his date of birth as March 13, 1912, while joining the
service of the Mysore State Electricity Department in November, 1945.
The
date was accepted and entered in the service register, on his producing a horoscope in support of his claim. In or about 1950, the State Government in pursuance of a policy decision, started revising the entries relating to the dates
of birth in case of those of its employees whose service register entries differed
from the dates as recorded in their school or college registers. In the educational
institutions where the appellant had studied, his date of birth was found to be
recorded as January 28, 1904, and the State Government accordingly refixed
the service register entry.
The appellant protested and made several unsuccessful representations.
On August 14, 1958, the State
Government
issued a
Notification directing the grant of extension of service equal to half the period
of difference between the original and revised dates of birth, but on April 1,
1959, the app"ellant received a formal written communication that he had been
retired from service with immediate effect.
The appellant filed a suit against
the order, seeking mandatory injunction directing the Government to accept
his date of birth as originally entered in the service register. In the alternative,
he c1aim';'.d the benefits of the Notification of August, 1958. The trial Court
decreed the suit holding that the Government was not justified in altering his
date of birth o~ the basis of the entries in his college register. It directed the
Government to accept the service register entry. In a State appeal, the High
Court partially upheld the decision, but quashed the direction regarding the
acceptance of the service register entry.
The High Court left it open for the
Government to refix the appelJant's date of birth according to law. An enquiry
was held and the Government again fixed his date of birth- as 28-1-1904. The
appellant's writ petition was dismissed in limine.
Partly allowing the appeal by special leave, the Court,
HELD : ( 1) The State is not precluded merely because of the acceptance
of the date of birth of its employee in
th~- "ervice register from holding an
enquiry if there exists sufficient reasons for holding such enquiry and refixing
his date of birth.
[151 F-G]
State of Orissa v. Dr. (Miss) Binapani Dei & Ors. [1967] 2 S.C.R. 625A.l.R. 1967 SC 1269, followed.
(2) Nothing tangible has been brought to our notice which could have
jwtified the Government to deprive the appellant of the benefit of the clear and
categoric directions contained in its memorandum dated August 14, 1958. The
course adopted by the Government in not allowing the appellant to continue
in service for half of the period of difference between the date of birth as originally recorded in the service register and the revised date of birth, has manifestly
resulted in grave injustice to the appellant. (151 H, 152 B]

## Text

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145
R. S. KALLOLIMATH
v.
STATE OF MYSORE & ANR.
May 6, 1977
(V. R. KRISHNA IYER AND JASWANT SINGH, JJ.]
Service law-Entry of Government servant's date of birth in service register
revised to an earlier date-Whether State is precluded from refixing wrongly
given dates-Government Notification granting extension of service equal to
half the period of difference between the original. and revised dates-Denial of
extension of service to appellant whether justified.
The appellant gave his date of birth as March 13, 1912, while joining the
service of the Mysore State Electricity Department in November, 1945.
The
date was accepted and entered in the service register, on his producing a horoscope in support of his claim. In or about 1950, the State Government in pursuance of a policy decision, started revising the entries relating to the dates
of birth in case of those of its employees whose service register entries differed
from the dates as recorded in their school or college registers. In the educational
institutions where the appellant had studied, his date of birth was found to be
recorded as January 28, 1904, and the State Government accordingly refixed
the service register entry.
The appellant protested and made several unsuccessful representations.
On August 14, 1958, the State
Government
issued a
Notification directing the grant of extension of service equal to half the period
of difference between the original and revised dates of birth, but on April 1,
1959, the app"ellant received a formal written communication that he had been
retired from service with immediate effect.
The appellant filed a suit against
the order, seeking mandatory injunction directing the Government to accept
his date of birth as originally entered in the service register. In the alternative,
he c1aim';'.d the benefits of the Notification of August, 1958. The trial Court
decreed the suit holding that the Government was not justified in altering his
date of birth o~ the basis of the entries in his college register. It directed the
Government to accept the service register entry. In a State appeal, the High
Court partially upheld the decision, but quashed the direction regarding the
acceptance of the service register entry.
The High Court left it open for the
Government to refix the appelJant's date of birth according to law. An enquiry
was held and the Government again fixed his date of birth- as 28-1-1904. The
appellant's writ petition was dismissed in limine.
Partly allowing the appeal by special leave, the Court,
HELD : ( 1) The State is not precluded merely because of the acceptance
of the date of birth of its employee in
th~- "ervice register from holding an
enquiry if there exists sufficient reasons for holding such enquiry and refixing
his date of birth.
[151 F-G]
State of Orissa v. Dr. (Miss) Binapani Dei & Ors. [1967] 2 S.C.R. 625A.l.R. 1967 SC 1269, followed.
(2) Nothing tangible has been brought to our notice which could have
jwtified the Government to deprive the appellant of the benefit of the clear and
categoric directions contained in its memorandum dated August 14, 1958. The
course adopted by the Government in not allowing the appellant to continue
in service for half of the period of difference between the date of birth as originally recorded in the service register and the revised date of birth, has manifestly
resulted in grave injustice to the appellant. (151 H, 152 B]
CIVIL APPELLATE JURISDICTION :Civil Appeal No. 1659 of 1972
(Appeal by Special Leave from the Judgment and Order dated
the 5th July, 1971 of the Mysore High Court in W.P. No. 1662 of
1971).
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146
SUPREME COURT REPORTS
[1978] 1 S.C.R.
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B. P. Singh, for the appellant.
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N. Nettal', for respondents.
The Judgment of the Court was delivered by
JASWANT SINGH, J.-This appeal by Special
leave is
directed
against an order dated July 5, 1971, of the High Court of Mysore
at Bangalore dismissing in limine writ petition No. 1662 of 1971 seeking issuance of a writ quashing order No. P.W.D.IEBS 70
dated
March 31, 1971, passed by the first respondent herein directing that
January 28, 1904, be accepted as the correct date of birth of
the
appellant and the period from January 28, 1959 (the date of
his
attaining superannuation) to March 31, 1959 (when he actually handed over cha!ge of his office) be treated as extension of service.
Briefly stated the facts leading o the appeal are : The appellant
joined service as a Senior Operator in the Department of Electricity
of the State of Mysore on November 23, 1945.
Though in the registers of the school and other educational institutions in which
the
appellant had studied, his date of birth had been recorded as January
28, 1904, he gave March 13, 1912 (AD) as the date of his birth at the
time of his entry into service and produced a horoscope in support
of his representation.
Relying on the horoscope, the Deputy Chief
Electrical Engineer accepted March 13, 1912 as the date of the a ppellant's birth and entry in the service register came to be made accordingly.
In course of time, the appellant was promoted as Assistant
Superintendent, Power and Li!(ht, Mysore.
In or about 1950, the
erstwhile Goverrunent of Mysore in pursuance of the policy decision
taken by it in respect of the dates of birth of Government servants
started revising the entries relating to the dates of birth in case of
those of its employees whose dates as entered in the service register
were different from the entries made in the school or college reg· sters.
Consequently the appellant was also called upon by the State Government to furnish information regarding the educational instit>1tions
where he had studied.
On the appellant's supplying the requisite information, the State Government made inquiries from the heads of
the various institutions in which the appellant had prosecuted
his
studies and on coming to know that his date of birth as entered in
the registers of the institutions was January 28, 1904, it accepted that
date as the correct date of the appellant's birth and informed
the
Accountant General, the Chief Electrical Engineer of Mysore and the
appellar.t accordingly on June 26, 1954.
The appellant thereupon
raised a protest and made representations to the concerned authorities against the alteration in the date of his birth contending that the
date of birth declared by him at the time of his joining the State service was absolutely correct.
On the matter being put up before the
Minister for Industries and Electricity, he directed that the appellant
be asked to see him on November 16, 1955. to put forth his case
before him together with evidence, if any.
Though
the
aopellant
could not apoear before the Minister on November 16, 1955,
he
did aopear before him on December 12, 1955 when the latter after
hearing the former recorded the following note on the concerned
file:-
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R. s. KALLOLIMATH v. MYSORE (Jaswant Singh, J.)
147
"Sri
R. S.
Kallolimath,
Assistant
Superintendent,
Power and Light, Mysore, bas submitted a memorandum
through the Chief Electrical Engineer praying that his date
of birth may kindly be accepted as 23rd December, 1912
instead of 28th January, 1904 as already ordered by Government.
He submits that 23-12-1912 is the date given
by him in his application for appointment and that it ha!
been changed to 28-1-1904 on the basis of the information
furnished by the College in which he studied. It is asserted that when he was called upon to furnish evidence in the
matter, he had only his horoscope written in Marathi and
that he was not able to lay his figure (written in pencil as
finger above) on other collateral evidence available in his
family records.
He says that subsequently, he had been
able "to get the original declaration made by Sri Dundappa
Kadeppa Jotwar (his patron and benefactor) before the
Magbtrate of Terdal Taluk, Sangli State.
The
original
declaration has been produced.
This declaration before
the Magistrate was made on 4-2-1941, and long before Sri
Kal!olimath got into service.
According to the declaration
the date of birth is 23-12-1912.
There is no reason to
doubt the bona fides of this declaration made before the.
Magistrate in 1941 since it has happened long before the
officer entering into service.
This cannot be said to have
been fabricated.
The date of birth in the declaration agrees
with the date of birth given in the application for appointment. It is also corroborated by the horoscope.
This is
a circumstance which makes out a prima facie case for reconsideration of the question. It may be placed before the
Council for consideration."
On October 23, 1956, a communication appears to have
been
addressed on behalf of the Government to the Chief Electrical Engineer stating that there was no material for reconsideration o!
the
decision taken by the Government with reQard to the appellant', age.
A copy of this communication was also despatched to the appellant
on October 29, 1956. Despite this intimation, the appellant kept
on making further representations requesting the Government not to
alter the date of his birth as entered in the service register but the
same did not evoke any response.
9n the formation of the Mysore Electricity Board, the appellant'!
services were lent _to the Board with effect from September 30, 1957.
Shortly thereafter 1.e. on October 8, 1957, he was promoted M Finl:
Grade Superintendent in the scale of Rs. 550-840 and was posted
to the Bangalore Power and Light Civil Area, Bangalore-I.
On June 14, 1958, the appellant received a communication from
the Chief Electrical Engineer informing him that he would be attainin_g the age ~f sl'.pern:muation on January 28, 1959, in accordance
with the entries. m his ~ollege r~gister. The appellant
thereupon
v.:rote to the 0llef Electrical Engmeer on July 4, 1958, stating that
his representation to the State Government was still pending and that
the order was not binding on him.
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SUPREME COURT REPORTS
(1978] 1 S.C.R.
By notification dated August 14, 1958, the State
Government
directed that "all such Government servants whose date of birth have
been revised to an earlier date consequent on the policy of the Government of the former Mysore State to review the dates of birth of
all servants as set out in D.O. letter No. 12255-12325/CB.121-50-98
dated 20 March, 1950 and Official Memorandum No.
10612-50/
A.P.S. 21-51-6 dated 4 November, 1952, should be granted extension of service equal to half the period of difference between the
date of birth as originally indicated in the Government records and
the revised date of birth."
On March 30, 1959, when the appellant was serving as Executive
Engineer at K.G.F. he was informed by the Chief Electrical Engineer
on telephone that he had been retired from service with immediate
effect and that he should hand over charge of his office.
On April l,
1959, the appellant received a formal written communication from
the Chief Electrical Engineer reiterating that he bad been retired
from service with immediate effect.
Aggrieved by this order,
the
appellant filed a writ petition, being writ petition No. 524 of 1959,
in the High Court of Mysore challenging the action of the Government.
At the hearing of this petition on December 13, 1961, counsel for the appellant made a statement before the court withdrawing
the petition 'without prejudice to the other remedies that might be
available to his client not only by way of institiJtion of a suit but also
under the Official Memorandum issued by
the
Government
on
August 14, 1958.' The petition was accordingly permitted to
be
withdrawn.
On March 28, 1962, the appellant filed a suit against
the first respondent seeking :
" (a) a declaration that he still continued in service and
was entitled to all the benefits of his service, and that
the communications dated June 14, 1958 and April
1, 1959 were invalid and were liable to be quashed.
(b) issue of a mandatory injunction directing the Government to accept the date of birth as entered in the
service register as the date of bis birth, to work
out the date of bis attaining superannuation accordingly, and to refrain from accepting or relying on
the entry found in the College Register as the date
of his birth and to pay all such amounts or emoluments as might be found due to him (the appellant) including the emoluments which he was legitimately entitled by way of increments, promotion
etc ..
( c) In the alternative, the appellant prayed for issue
of a mandatory injunction directing the Government
to implement the communications dated August 14,
1958 issued in their No. GAD 3 DTB 58 and to
pay to him all such amounts or emoluments as might
be found due to him including the emoluments by
way of increments, promotions etc."
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R. s. KALLOLIMATH v. MYSORE (Jaswant Singh, !.)
149
The suit was contested by the State Government inter alia on the
grounds that mere entry of the date of birth in the service register of
the appellant at the time of his appointment was not conclusive and
that the Government had power and authority to alter the date if it
was subsequently found to be incorrect, that the date accepted
by
the Government, viz., January 28, 1904 was the one which was found
in the registers of the institutions in which the appeijant had studied;
that the Government order dated August 14, 1958, did not enable
the appellant to claim extension of service as of right and that the
suit was barred by time.
On a consideration of the evidence adduced before it, the trial
court decreed the suit vide its judgment dated March 31, 1965 holdA
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ing that the suit was within time and that the Government onler dated
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April 1, 1959, retiring the appellant from service without giving him
a prior show cause notice and without affording him an opportunity
to rebut the case of the State violated the service rules and the principles of natural justice and was invalid.
It further held that though
the Government had power to review or alter the dat~ of birth and
was not estopped from examining, reviewing or altering the apoellant's
date of birth, it was not justified in altering his date of birth on the
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basis of the entry in his college register which could not be accepted
as final.
It, however, observed that the appellant was not entitled
to the benefit of Government Order dated August 14, 1958. Aggrieved by this judgment and decree, the State preferred an appeal to the
High Court which was partially accepted vide judgment dated September 20, 1968. While upholding the part of the judgment and decree
of the trial court which declared that the decision of the Government
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fixing the appellant's date of birth as January 28, 1904 and the Government order dated April 1, 1959 retiring the appellant from service
was invalid and the appellant was still in service on the date of the
suit, the High Court quashed that part of the judgment and decree
of the trial court which directed the State Government to accept the
date of birth as entered in the service register as the correct date.
The High Court also set aside the judgment and decree of the
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trial court in so far as it directed the Government to pay all such
sums or emoluments as might be found due to the appellant including
the emoluments as he might be ultimately entitled· to by way
of
increments etc. on the groun_d that an equally efficacious relief could
be obtained by filing a suit and there was no prayer in the plaint
for a specific amount by way of arrears of salary.
With regard to
the alternative relief sought by the appellant, the High Court obserG
ved as follows :
"The alternative prayer for the issue of a mandatory injunction \vith a direction to Government to implement the
communication (sic) of the Government dated 14-8-1958
does not arise for consideration in view of the fact that the
order of the Government has been declared invalid."
The first respondent then made an application to the High Court
for review of its aforesaid judgment and decree which was disposed of
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SUPREME COURT REPORTS
[1978) 1 S.C.R.
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by the Court on July 3, 1970. The material portion of the order
of the High Court disposing of the review application runs thus :--
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"Consequently, it was held that the plaintiff respondent
was entitled to a declaration that he was still in service on
the date of the suit.
But that declaration can only be understood as declaring that in the absence of lUIY refixation
of the date of birth of plaintiff respondent by the Government, the plaintiff respondent must be deemed to be in service on the date of the suit.
The above said declaration
cannot be understood to meltll that the Governor cannot
refix the date of birth of the plaintiff-respondent, according to law.
We consider that this clarification is sufficient
and no further order is necessary on
the above
review
petition."
Pursultllt to the observations made by the High Court on Sept.ember 8, 1970 (while disposing of another writ petition (No. 1354 of
1969) filed by the appellaut) to the effect that the Government's
power to hold an enquiry into the correctness of the date of birth of
a Government servant did not come to an end with the retirement of
the Government servant from service, the Government vide order No.
PWDIIEBS/70 dated November 18, 1970 directed Shri T. S. Narayana Rao, Joiut Secretary to Government of Mysore, General Administration Department, to make an enquiry for the purpose of determining the correct date of birth of the appellant.
The Enquiry
Officer accordingly held an enquiry and submitted his report to the
Government, the operative portion whereof runs thus :-
"I have carefully considered the oral and documentary
evidence placed before me on behalf of Government. Shri
Kallolimath, in his declaration dated 21-4-1950 (ExhibitH) admitted that he studied in Karnatak School, the Wilsom
College and the Royal Institute. The years of his stay in
these Institutions are also indicated there.
The Re)!isters
of these Institutions for the relevant periods are produced
by appropriate authority and brought on record.
The
entries therein very clearly and uniformly indicate that the
date of birth furnished by Sri Kallolimath right through
his scholastic career was 28-1-1904.
Evidently, he never
disputed this date, which he certainly would have done had
a mistake occured, particularly so if his date of birth, as
now claimed by him, was 13-3-1912.
The difference being very nearly eight years he would be the first to get it
rectified.
The circumstances clearly indicate that his date
of birth is 28-1-1904 and not 13-3-1912.
On the basis of the evidence placed before me, I have
no hesitation in coming to the conclnsion that the correct
date of birth of Shri R. S. Kallolimath i• 28th January, 1904.
I record my finding accordingly."
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R. s. KALLOLIMATH v. MYSORE (laswant Singh,/.)
151
Thereafter the State Government vide its order No. PWD/IEBS/70
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dated March 31, 1970 accepted the findings of the Enquiry Officer
observing and directing as follows :-
"He (the Enquiry Officer) has found that the correct
date of birth of Shri R. S. Kallolimath is 28-1-1904.
Government has considered the records. From the entries
in the registers of the educational institutions where, admittedly, Shri R. S. Kallolimath studied and the other circumstance it is clear that Shri R. S. Kallolimath's date of birth
is 28-1-1904 and not 13-3-1912 as had been entered in his
service register.
Government records its finding accordingly and directs
that 28-1-1904 be accepted as the correct date of birth of
Shri R. S. Kallolimath.
Consequently the date of his attaining superannuation would be 28-1-1959.
As he was actually retired on 31st March, 1959, the period from 28-1-1959
to 31-3-1959 is treated as extension of service.
Pension,
gratuity and other retirement benefits which have to be settled on the aforesaid basis have, it is ascertained from the
Mysore State Electricity Board, where he had been working
since the formation of the Board, been settled.
Shri R. S.
Kallolimath is entitled to only such amounts as have been
so settled.
Payment in terms thereof less amounts, if any,
already drawn, shall be authorised and it is ordered accordingly."
The appellant challenged the above order before the High Court
by means of writ petition No. 1662 of 1971, which, as already stated,
was dismissed in limine on July 5, 1971.
Dissatisfied with this order,
the appellant applied to the High Court for grant of certificate
of
fitness to appeal to this Court under Article 13 3 (I) of the Constitution which was rejected by the High Court vide order dated March 3,
1972.
Thereupon the appellant applied to this Court under Article
136 of the Constitution for special leave to appeal which was granted.
This is how the case is before us.
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We have heard the learneq counsel for the parties.
Although in
view of the decision of this Court in State of Orissa v. Dr. (Miss)
Binapani Dei & Ors.
(1967) 2
S.C.R. 625=A.I.R. 1967
S.C.
1269, it can no longer be disputed that the State is not precluded merely because of the acceptance of the date of birth of its employees in
the service register from holding an enquiry if there exist sufficient
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reasons for holdin~ such enquiry and refixing his date of birth, it passel! our comprehension as to why after granting an extension of service
to the appellant presumably in terms of its
Memorandum
dated
August 14, 1958, the Government retraced its steps and suddenly
terminated the services of the appellant on March 31, 1959.
Nothing tangible has been brought to our notice which could have iustified
the Government to deprive the appellant of the benefit of the clear ~nd
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categoric directions contained in its aforesaid memorandum where it
was clearly laid down that "all such Government servants whose dates
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SUPREME COURT REPORTS
(1978] 1 S.C.R.
of birth have been revised to an earlier date consequent on the policy
of the Government of the former Mysore State to review the dates of
birth of all Government servants as set out in Demi Official letter No.
12255-12325/CE.121.50-98 dated 20th
March, 1950 and Ofiicial
Memorandum No. 10612-50/R.P.S.21-51-6 dated 4 November, 1952,
should be granted extension of service equal to half the period of difference between the date of birth as originally indicated in the Government records and the revised date of birth .... "
The course adopted
by t.'1e Government in not allowing the: appellant to continue in service for half of the period of difference between the date of birth as
originally recorded in the service register and the revised date
of
birth has manifestly resulted in grave injustice to the appellant. This
is, therefore, a pre-eminently fit case in which the High Court instead
of dismissing in a summary manner the writ petition No. 1662 of 1971
which raised substantial questions of law and fact should have heud
it on merits and enforced the directions contained in the aforesaid
Memorandum dated August 14, 1958.
As the impugned order which
seems to have been passed by the High Court without the consideration which it merited has undoubtedly resulted in gross injustice. We
allow the appeal in part and instead of remanding the case and asking
the High Court to proceed with the writ petition and dispose it of after
a regular hearing which is bound to involve undue delay, prolong the
agony of the appellant and lay the parties under unnecessary additional
monetary burden and thus tend to retard the course of justice,
we
direct the State Government to allow all the monetary benefits in terms
of its aforesaid Memorandum dated August 14, 1958 which but for
the order dated April 1, 1959 would have been available to the appellant.
In the circumstances of the case, the appellant shall also be
entitled to costs from the first respondent which we assess at Rs. 1000.
In conclusion, we may observe in passing that we are constrained
to give the above relief to the appellant as despite sufficient opportunity
allowed to the respondents, they have not so far accepted the offer
made by the appellant at our suggestion which may have been more
beneficial to them.
M.R.
Appeal allowed in part.
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