M. Ramakrishna, J.:—

The petitioner in this Writ Petition under Articles 226 and 227 of the Constitution of India, has sought for the following prayer:—

(a) To call for records from the first respondent relating to the service register of the petitioner:

(b) Issue an order or writ or direction in the nature of writ of certiorari quashing the communication, Annexure-D dated 10.11.1990, issued by the 2nd respondent;

(c) Issue an order or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to enter the date of birth of the petitioner as 25.10.1935 instead of 12.12.1934 in the service register of the petitioner on the basis of the declaration given by the Court of the Munsiff, Kundapur in O.S No. 122 of 1982;

(d) Grant such other relief/s as this Hon'ble Court may deem fit on the facts and in the circumstances of the case including the costs of this Writ Petition.

The petitioner has also sought for an interim order restraining the respondents from retiring him from service on the basis that his date of birth is 12.12.1934 and directing them to continue him in Service till he attains the age of superannuation i.e, on attaining the age of 58 years calculated on the basis that his date of birth was 25.10.1935, pending disposal of this Writ Petition, in the interests of justice.

2. A few facts that are necessary for the disposal of this Writ Petition are as follows:—

Respondent-1 Vishweshwarayya Iron and Steel Limited is a company registered under the Companies Act. It is stated that 40% of the shares of respondent-1 is held by the Government of Karnataka while 60% thereof by the Steel Authority of India, New Delhi. The Steel Authority of India is a Government Company wholly owned and controlled by the Government of India i.e, Ministry of Steel and therefore it is a Government Company as provided under Section 6(1)(vii) of the Companies Act. Therefore, it is stated that respondent-1 is a State or an instrumentality of the State within the meaning of Article 12 of the Constitution.

The petitioner is an employee working therein as Senior Manager, Training and Development. The Head Office of respondent-1 is at Bhadravathi, Shimoga District, Karnataka State. When the petitioner joined the services of respondent-1, his date of birth was entered in his Service Register as 12.12.1934 But it was subsequently noticed that, by mistake, the date of birth was wrongly given as, according to the petitioner, the correct date of birth was 25.10.1935 It is stated that on account of the error committed in the Secondary School Leaving Certificate of the petitioner showing his date of birth as 12.12.1934, the same was continued in all the records of the petitioner including his service register. The petitioner was not aware of this error committed in the entry in the records of respondent-1 when he joined the services. However, the error was brought to his notice when he found his horoscope in the second week of November, 1981 and when the family purohit who conducted thread ceremony intimated to the petitioner that the correct date of birth as found in the horoscope was 25.10.1935 and not the one found in the Secondary School Leaving Certificate. For confirmation, he applied to the Tahsildar concerned for extract of his date of birth and obtained the same on 26.11.1981 which also disclosed his date of birth as 25.10.1935 Therefore, the petitioner issued a notice under Section 80 C.P.C, to the first respondent requesting him to change his date of birth as 25.10.1935 instead of 12.12.1934; but his request was not conceded to and hence he was obliged to file a suit in O.S No. 122 of 1982 on the file of the Court of the Principal Munsiff, Coondapur for a declaration of his date of birth as 25.10.1935 In the said suit, he impleaded the State of Karnataka, the Director of Public Instruction, Department of Public Instruction, Bangalore, the Deputy Director of Public Instruction, Dakshina Kannada, Mangalore and Vishweshwarayya Iron and Steel Limited, Bhadravathi, as defendants 1 to 4 respectively. That suit came to be contested by the defendants. On consideration of the evidence on record, the learned Munsiff decreed the suit as prayed for by his judgment dated 28.6.1985

Later on, however, the petitioner produced a certified copy of the judgment and decree before respondent-1 with a request to correct his date of birth as declared by the Civil Court and to retire him from service accordingly. That request was rejected by respondent-1 by its communication issued as per Annexure-D. Hence this Petition.

3. Respondent-1 contested the Writ Petition by filing a detailed Statement of Objections opposing the prayer of the petitioner.

4. I heard Sri P. Vishwanatha Shetty, learned Counsel appearing for the petitioner and Sri Subba Rao learned Counsel for Sri Prabhakar, learned Counsel appearing for respondent-1.

5. Sri Vishwanatha Shetty submits that the stand taken by respondents 1 and 2 that they could not comply with the decree of the Civil Court in the absence of a direction to do so, is untenable. He further submits that even though the suit was for mere declaration, it is not open to the respondents to refuse to obey the decree on the grounds that consequential relief was not sought for since respondent-1 being a registered Company coming within the purview of Article 12 of the Constitution, it cannot disobey the decree passed by the competent Court. Therefore, he has sought for quashing the communication of respondent-1 made as per Annexure-D and for granting reliefs sought for in the Petition.

6. Sri Subba Rao submits that the Writ Petition itself is not maintainable as this Court in a Petition under Article 226 of the Constitution cannot grant the reliefs of the kind sought for in this Writ Petition and on the other hand it was open to the petitioner to execute the decree against the respondents and get the necessary reliefs obtained. He placed reliance upon the following Decisions:—

(1) 1986 (1) L.L.N, 941;

(2) 1991 (2) L.L.N 5452;

(3) AIR 1991 S.C 22513;

(4) ILR 1987 KAR 18434;

7. In order to appreciate the legal contentions urged by Sri Subba Rao, we must see, first of all, whether the Civil suit as brought by the petitioner was maintainable or not. This question has been elaborately discussed by a Division Bench of this Court in T. Srinivas's case referred to above. In that Judgment, reversing the view taken by the learned Single Judge in State Of Karnataka v. Vishwanatha Rao* . ILR 1985 KAR 2460. which was found to be running counter to earlier decisions, this Court laid down the principle as follows:—

“There is no principle or authority to exclude the jurisdiction of the Civil Courts to grant a declaration regarding the age of a person which is dependent on his date of birth if that declaration is followed by consequential relief. (Please see para-14)

Even assuming for a moment that the relief claimed by the plaintiff was beyond the scope of Section 34 of the Act, Section 34 is not exhaustive of all kinds of declaratory reliefs. In a proper case, therefore, independently of Section 34 of the Act, the plaintiff could have got the relief i.e, the declaration sought for under Section 9 of the Code.”

Ultimately, it was held in T. Srinivas's case that even though there is a statute such as Karnataka State Servants (Determination of Age) Act, 1974 (Karnataka Act No. 22 of 1974), under which an employee working under the State can seek necessary relief, yet a suit in the Civil Court for declaration of age or date of birth could be maintained if the relief claimed does not relate to his conditions of service. Considering the term ‘Civil Nature’ in Section 9 of the Civil Procedure Code and that of ‘Legal character’ in Section 34 of the Specific Relief Act, 1963 (Central Act No. 47 of 1963), this Court held that there is no exclusion of jurisdiction of the Civil Court to grant declaration regarding age followed by consequential reliefs, the declaration being not of event but of legal status. Therefore, jurisdiction of the Civil Court, according to the said decision, is not ousted even by application of the provisions of the Registration of Births and Deaths Act, 1969 and the Rules made thereunder.

8. Admittedly, there are no Statutes, Rules and Regulations or Standing Orders governing the service conditions of the employees of respondent-1 Company. Therefore, the petitioner had no occasion to approach respondent-1 for correction or alteration of his date of birth under such provisions. That apart, even the Karnataka State Servants (Determination of Age) Act, 1974 was not available for a person like the petitioner herein to redress his grievances, respondent-1 being a Company registered under the Companies Act. In that view of the matter, there was no alternative for the petitioner but to approach the common law Court by filing a suit for a declaration of his date of birth. Further respondent-1 having contested the suit by filing statement of objections and participating in the trial, failed to convince the trial Court that the suit as brought by the plaintiff was not maintainable. On the other hand, the trial Court having accepted the case putforward by the plaintiff/petitioner herein decreed the suit and the decree became final and conclusive not having been challenged in appeal. In view of the above, I am of the clear opinion that a suit of declaration of date of birth in a case like this is maintainable.

9. In view of the rival contentions urged by the learned Counsel on both sides, the points that arise for my consideration in this Writ Petition are as follows:—

(1) Whether the Writ Petition as brought by the petitioner under Articles 226 and 227 of the Constitution is maintainable.

(2) Whether the petitioner is precluded, in the absence of specific relief sought for in the suit, from seeking consequential relief flowing from the decree on O.S No. 122 of 1982.

(3) Whether the petitioner has made out a case to quash the impugned communication, Annexure-D.

10. To answer Points 1 and 2, it is better and useful to refer to the Ruling of this Court in Suresh B.N v. Union Public Service Commission & Anr. . 1982 2 KLJ 223.. My learned brother Swami, J., who heard and disposed of W.P No. 24914 of 1981 on 25.3.1982 held on facts as follows:—

“On an earlier occasion when the petitioner appeared for a similar examination in 1979, he gave his date of birth as 1.4.1952 as mentioned in the Secondary School Leaving Certificate and was accepted and entered in the records of the Commission as the date of birth of the petitioner. But, by the time he applied for the 1981 examination, the date of birth of the petitioner came to be declared by a decree of a competent Court as 1.10.1954 to which the Karnataka Secondary Education Board was a party. Accordingly, the Board had corrected the date of birth of the petitioner as 1.10.1954 in the Secondary School Leaving Certificate. It was this corrected certificate which was produced before the U.P.S.C in 1981. The Commission refused to admit the petitioner on the ground that the date of birth could not be changed under R-6 and he was overaged.

(For purposes of convenience, I may state here that no such Rules as has been referred to in U.P.S.C cases are framed by respondent-1 company in the instant case)

HELD the U.P.S.C should accept the date of birth of the petitioner as corrected in the Secondary School Leaving Certificate, having regard to the provisions contained in Rule 6 of the Rules, immediately preceding Note 2 thereof. It was a case to which Note 2 of R-6 of the Rules, was not applicable. It was also not a case in which it could be said that the petitioner wanted to enforce the decree in question against the U.P.S.C, but it was a case in which the petitioner wanted the U.P.S.C to accept the date of birth as entered in the Secondary School Leaving Certificate as per Rule 6 of the Rules.”

11. From the foregoing, it is clear that so long as any specific rule governing correction of date of birth is in force as has been found in U.P.S.C case, such Rule, no doubt, if mandatory, must be complied with. Such a situation however, is not forthcoming in this case.

12. Sri Subba Rao placed strong reliance on the Judgment of the Andhra Pradesh High Court in Venkateswarlu's case referred to above. Choudary, J., referring to the facts in that case held as follows:—

“Appointment of a person into Government service is the result of a contract of service made possible by the acceptance of an offer made by the employee to the employer. One of the important representations constituting that offer made by the employee relates to the date of birth of the employee. It has to be held, therefore, that when the employer accepts that offer and appoints the person to be his employee that contract binds the parties and cannot be altered unless the statute permits such an alteration to be brought about.”

This view runs counter to the law declared by this Court in T. Srinivas's case. Secondly, the question of following the statutory provisions binding the employer and the employee arising out of a contract would not arise in a case like this. Therefore, the view taken by Choudary, J., is of no assistance to the respondents. On the other hand, a Division Bench of the same Court had an occasion to consider similar question in K. Madhava Shastry v. Director, Post Graduate Centre, Anantapur . 1981 1 Andhra Weekly, Reporter 126.. The main question that arose there for consideration was whether the employer could ignore the decree for want of a direction to rectify the date of birth as declared in the decree in the service register of the employee and whether the Writ Petition as brought by the employee for a direction to honour, respect and implement the decree was maintainable. Jeevan Reddy, J., as he then was, speaking for the Bench held following the view taken by the Supreme Court in Babubhai v. Nandalal . AIR 1974 SC 2105., as follows in paragraph-16:—

“16. Bearing the above principles in mind let us see whether the present Writ Petition is his by the rule contained in Order 2 Rule 2, Civil Procedure Code. The relief sought for in this Writ Petition is not for correction of the service record. Had that been the case, the bar may have been attracted. But, in this Writ Petition, the petitioner is only seeking for a direction to the respondent to honour, respect and implement the decree of the Civil Court. While we agree that no plaintiff can achieve indirectly what he could not achieve directly by camouflaging the reliefs or by a clever and ingenious draftsmanship, we are not satisfied that the present case is of a like nature. We are, therefore, not satisfied that this Writ Petition is either barred or is liable to be dismissed on the ground that the petitioner is seeking to obtain a relief herein he could not obtain by way of a suit.”

13. To arrive at the above conclusion, Their Lordships of the Division Bench placed strong reliance upon the Ruling of the Supreme Court in Bahubai's case referred to above. In that case, more or less identical question arose before the Supreme Court. In that Judgment, Their Lordships of the Supreme Court have observed as follows:—

“…… A Writ Petition under Article 226 is essentially different from a suit and it would be incorrect to assimilate and incorporate the procedure of a suit into the proceedings of a petition under Article 226. The High Court is not deprived of its jurisdiction to entertain a petition under Article 226 merely because in considering the petitioner's right of relief, questions of fact may fall to be determined. In a petition under Article 226 the High Court has jurisdiction to try issues both of fact and law. When the petition raises complex questions of fact, which may for their determination require oral evidence to be taken, and on that account the High Court is of the view that the dispute should not appropriately be tried in Writ Petition, the High Court may decline to try a petition. If, however, on consideration of the nature of the controversy, the High Court decides, that it should go into a disputed question of fact and the discretion exercised by the High Court appears to be sound and in conformity with judicial principles, the Supreme Court would not interfere in appeal with the order made by the High Court in this respect. AIR 1970 SC 802, Rel. on”

(emphasis supplied)

14. Therefore in view of the Ruling of the Supreme Court, having regard to the provisions of Section 141 C.P.C, there is no bar for this Court to grant reliefs, in exercise of the powers under Article 226, in favour of the petitioner, if he deserves.

15. Indeed, Rule 39 of the Karnataka High Court Writ Proceedings Rules, 1977 provides as follows:—

“39. Application of the High Court of Karnataka Rules, etc.- The provisions of the High Court of Karnataka Rules, 1959, the rules made by the High Court of Karnataka under the Karnataka Court Fees and Suits Valuation Act, 1958, and the provisions of the Code of Civil Procedure, 1908, shall apply, as far as may be, to proceedings under Article 226 and/or Article 227 and writ appeals in respect of matters for which no specific provisions is made in these rules.”

16. The Explanation found underneath Section 141 C.P.C, reads as follows:—

“In this Section, the expression “proceedings” includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.”

In view of this Explanation inserted by Section 47 of Act 104 of 1976 with reference to Rule 39 of the Writ Proceedings Rules extracted above, it is made clear that this Court, in exercise of the powers under Article 226, can consider and grant reliefs sought for in a case like this by applying the provisions of the Writ Proceedings Rules as held by the Supreme Court in Bahubhar's case. Precisely this is the view taken by the Division Bench in K.M Shastry's case. In that view of the matter, following the principles of the Supreme Court and that of the Division Bench of the Andhra Pradesh High Court, I am clearly of the view that the contentions urged by Sri Subba Rao, learned Counsel for the respondents, cannot be accepted. Therefore, the reliance placed by him on the Decision in Damodaran v. E.I.D Parry (India) Ltd. would also not assist him because the facts and circumstances arising therein are different from the facts and circumstances arising in this petition.

17. Lastly Sri Subba Rao submitted that the Writ Petition is barred by time. He submitted that the Ruling of the Supreme Court in Ghanshyam Das Gupta v. Anant Kumar Sinha will have to be applied for upholding his contention. In that case, the Supreme Court was considering the question of executability of the decree made by the Civil Court. The Supreme Court held in that case as follows:—

“……. The numerous rules of O. 21 of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the Civil Court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judges being entrusted exclusively with administration of justice is expected to be better. It is difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can be justified. The Writ Petition filed by members of the tenant's family claiming that the eviction decree passed against the tenant alone is not binding upon them, as they (petitioners) along with the tenant constitute a joint family and they are as such tenants in their own right, ought to have been rejected on ground of alternative remedy.”

18. That is a case where a tenant challenging the decree passed against him by the Rent Court under the Rent Control Act sought reliefs under Article 226. In such a situation, the Supreme Court has rightly held that such a Writ Petition cannot be maintained as against the decree passed by the Rent Court against the tenant. The principle laid down in that case cannot be applied to the facts of this case as that Decision was rendered based upon the peculiar facts and circumstances arising in that case which are different from that of the present case. Therefore, that Judgment is of no assistance to Sri Subba Rao. In deed, the contention of Sri Subba Rao as to the delay in filing the present Writ Petition is based upon the fact that the decree in O.S No. 122 of 1982 was passed in the year 1982 whereas the Writ Petition was filed in the year 1990. This submission will have to be noticed only for being rejected because the petitioner has not challenged the judgment and decree as he is the decree-holder. What he has challenged in this Writ Petition is the endorsement, Annexure-D, issued by respondent-1 on 10.11.1990 refusing to comply with his request to obey the decree and aggrieved by the said endorsement, he has filed this Writ Petition on 23.12.1990 Therefore, there is absolutely no delay in filing this Writ Petition, if the date on which the endorsement was issued was taken into account. In that view of the matter, there is no force in this submission of Sri Subba Rao.

19. Sri Subba Rao also placed reliance on the Judgment of this Court in W.P No. 19786 of 1983 rendered by Rama Jois, J., as he then was, on 18.11.1983 It is seen by a perusal of the order that the workman petitioner therein was given an endorsement by respondent-1 herein rejecting his prayer for alteration of his date of birth. The petitioner did not challenge that endorsement in the appropriate forum. Seven years thereafter, he filed the said Writ Petition and hence this Court rightly rejected the Writ Petition on the ground of laches. The facts and circumstances arising therein are entirely different from the facts and circumstances arising in this Writ Petition. Therefore, that Decision is of no assistance to the respondents herein.

20. No other contentions are urged.

21. In the result and for the reasons stated above, I make the following

This Writ Petition is allowed with costs. The endorsement impugned herein at Annexure-D is hereby quashed. The respondents are hereby directed to correct the date of birth of the petitioner in his service register as declared in the decree and retire him from service accordingly. Advocate's fee is Rs. 1,000/-.