Jagannadha Rao, J.
1. This writ appeal is directed against the judgment of our learned brother Justice P. A. Chowdary in Writ Petition No. 4655 of 1982 dated 6th September, 1982, by which the writ petition was dismissed. This appeal is therefore preferred by the writ petitioner.
2. It is necessary to set out the fairly long history of the case in order to understand the points involved.
3. The petitioner-appellant is presently working as Senior Accounts Officer in South Central Railway, Secunderabad. The petitioner jointed the Nizam Railways dated 1st November, 1939, as a probationary clerk. At the time of joining service he had given his date of birth as 7th March, 1922. The said date was contained in the transfer certificate issued by the Mahboob College, Secunderabad where the petitioner studied upon 6th Form.
4. The Railway Establishment rules were liberalised in the year 1960 giving opportunity to the railway employees to alter the record date of birth. Accordingly the petitioner sent a represented on 1st May, 1961, to correct the date of birth as 5th October, 1924. In part of there said date the appellant enclosed a true copy of the extract from the Birth Register accompanied by an affidavit of his father sworn before the District Magistrate on 4th October, 1954, to the effect that the appellant was born on 5th October, 1924. The appellants father passed away in 1962. The railway authorities sent a reply dated 27th July, 1961, stating that the date of birth in the service register is based on the school certificate and that it cannot be altered as the school certificate is regarded as an authentic document for the purpose. It was also stated that the appellant should explain the reason for the incorrect information furnished at the time of the appointment.
5. The appellant sent a further representation on 20th March, 1973, for which a further reply was sent by the railway administration on 3rd August, 1973, wherein it was started that the railway authorities have extended the time for correction of the date of birth upto 31st July, 1973, and that in the case of the appellant the date given at the time of entry into the school which constitutes a public purpose duly supported by the Matriculation certificate applied. Therefore the request for alteration of the date of birth was rejected. This was followed by another reply dated 18th January, 1974, by the railway authorities where it was stated that the date of birth cannot be altered in view of the date recorded in the transfer certificate issued by the Mahboob College, Secunderabad, as also the School Leaving Certificate issued by the Department of External Studies Mahboob College, Secunderabad dated 22nd June, 1951, etc.
6. The appellant submitted an appeal to the Railway Board through proper channel on 26th June, 1978, but it was not forwarded to the Railway Board but was rejected on 24th February, 1979, stating that the date of birth given in the transfer certificate of Mahboob College, Secunderabad, the Physical Fitness certificate and the School Leaving Certificate have to be given due weight and that there is no strong case for reconsidering the issue. Subsequently another letter was sent on 17th October, 1979, by the Railway Board stating that the request of the appellant cannot be accepted since the date of birth recorded in the service book is strictly in accordance with rules.
7. As the railway authorities in all their replies were adhering to the date 7th March, 1922, recorded in the service book of the appellant on the ground that the school records contained the said date, the appellant appears to have been advised to have the date of birth in the school records corrected. Accordingly the appellant filed O.S. No. 188 of 1979 in the file of III Assistant Judge, City Civil Court, Hyderabad. To the said suit there appellant impleaded the State of Andhra Pradesh represented by the Secretary to the Government, Education Department as the sole defendant. It appears that the railway department filed a caveat in the suit but for some reason or other they did not choose to get impleaded as a second defendant nor did the appellant implead the railway as a second defendant. The suit was hotly contested by the State Government and was dismissed by the trial Court on 29th February, 1980. The appellant filed an appeal which was heard by the Additional Chief Judge, City Civil Court, Hyderabad in A.S. No. 160 of 1980 and the Appellate Court allowed the appeal by its judgment dated 29th December, 1980, granting a decree that the date of birth of the appellant is declared as 5th October, 1924. Thereupon the appellant applied to the Government of Andhra Pradesh, to correct his H.S.L.C. Register by altering the date of birth of 5th October, 1924, in the place of 7th March, 1922. The Government of Andhra Pradesh issued G.O. Ms. No. 396 Education (1) Department dated 1st April, 1981, directing correction of the date of birth as 5th October, 1924, in the H.S.L.C. Register. In the meantime the appellant retired from service on 31st March, 1980, but was allowed to continue till 31st June 1980, but on which date he retired.
8. After getting the H.S.L.C. Register altered as stated above the appellant submitted a further representation on 2nd April, 1981, to the General Manager, South Central Railway, Secunderabad stating that in the light of the corrected date of birth in the school register the appellant may be permitted to join duty immediately. As there was no reply from the authorities the appellant filed an earlier Writ Petition No. 6104 of 1981 impleading the Union of India represented by the General Manager, South Central Railway, Secunderabad as the respondent. The relief claimed in the said writ petition was for issue of a writ of mandamus directing the respondent therein to reinstate the appellant with effect from 1st July, 1980, and pay the salary and allowance from the date till the date of his retirement based on the altered date of birth. The writ petition was filed on 26th August, 1981 but on 1st September, 1981, the appellant received a letter dated 29th August 1981, from the Railway authorities. In and by the said alter the Railway Board rejected the request of the petitioner for alternative of his date of birth but no reason were given in the said later.
9. The earlier Writ Petition No. 6104 of 1981 was dismissed by the learned Single Judge on the sole ground that the decree of the civil Court was not being on the railway authorities as they were not made parties to the suit and the railway authorities cannot be compelled to implement the decree as they were not bound by the same. Against the said judgment the appellant filed writ appeal No. 626 of 1981 which came up before a Division Bench of this Court and was disposed of on 11th February, 1982. We will advert to the contents of this judgment a little later but suffice it to say that the learned Judges allowed the appeal and quashed the proceedings of the respondent in FA CON 52 dated 29th August, 1981 and directed the respondent to consider the matter afresh and based appropriate orders in the light of the observations made in the said judgment.
10. Consequent to the direction given by the Division Bench of this Court the Railway Board issued its proceedings No. 79/B/(0)113/3 Pt - 'A' dated 1st July, 1982, by which once again the request of the appellant was rejected by the Railway Board. Then the appellant filed W.P. No. 4655 of 1982 for the issue of a writ of certiorari quashing the order of the Railway Board dated 1st July, 1982, and for a direction to the respondents to enter the date of birth of the appellant as 5th October, 1924, in the service register and to reinstate the appellant and pay his salary and other allowances from 1st July, 1980, till his retirements with the consequential benefits. The writ petition was filed on 12th July, 1982. On the basis of alter dated of birth the appellant's date of retirement would be 4th October, 1982 A.N. On that basis the appellant asked for an expeditious hearing for the writ petition. The writ petition came up before out learned brother Justice P. A. Chowdary, and for the reasons given in the judgment under appeal the writ petition was dismissed on 6th September, 1982. It is against that judgment that the present Writ Appeal No. 769 of 1982, is preferred by the writ petitioner and that is how the matter has now come before us.
11. A review of the chronology of events mentioned above would disclose that the appellant's date of birth was registered in the service record on the basis of entry made in the school record as 7th March, 1922. Since 1961 the appellant was requesting the authorities to change the date of birth in view of the birth register extract produced by him containing the date of 5th October, 1924. But the Railway authorities were not prepared to make the necessary amendments on the basis of the birth register extract not because they did not accept it but because they felt found by the entires in the school records as stated by them in their replies dated 27th July, 1961; 3rd August, 1973; 18th January, 1974 and 24th February, 1979. The appellant was therefore advised to have the school records amended on the basis of the birth register extract. Accordingly he filed a civil suit and could secure a decree from the Appellate Court on 29th December, 1980, declaring his date of birth as 5th October, 1924 and the State Government which is party to the said civil suit issued G.O. No. 396 above mentioned on 1st April, 1981 for amending the H.S.L.C. Register accordingly. Once the H.S.L.C. Register was amended the appellant followed it up by a further representation dated 2nd April, 1981 which was rejected on 29th August, 1981 without reasons by the Railway authorities and the said order was quashed by the Court directing fresh disposal, and then the Railways passed the order dated 1st July, 1982.
12. Before adverting to the contentions of the parties in detail, it is necessary to advert to the observations made by the Division Bench of this in W.A. No. 626 of 1981. Before the Division Bench it was contended on behalf of the appellant that once the school register has been altered, the authorities should have made the necessary amendments in the service record to and that the order dated 29th August, 1981, did notice any reasons. On behalf of the railway it was contended that the decree of the civil Court is not binding on the railway as it is not a party thereto and that in view of rule 145(3)(iii) of the Railway Establishment Code the application for change of date of birth cannot be entertained after the time stipulated therein and that in any event the decree should be considered only as a piece of evidence and that the authorities have not applied their mind to the points raised by the appellant and that the orders for the railways dated 29th August, 1981, cannot be interfered with. After adverting to the said contentions this Court observed as follows :
'We refrain from going into several contentions and also the decision cited on either side in the view we are taking in this appeal. The order dated 29th August, 1981, does not contain any reasons whatsoever, though there is wealth of background preceding the latest letters dated 2nd April, 1981 and 3rd July, 1981, sent by the petitioner the impact of the supervening circumstance of the passing of the decree and the consequent G.O. and also the applicability of rule 145(3)(iii) of the Railway Establishment Code and the binding nature of the decree in the absence of impleading the railways authorities as party and other aspects should have been consider and the decision should have been arrived at jacked up by reasons. The order dated 29th August, 1981, is bald except stating that the question has been examined carefully and it has not been sufficiently reflected in the order whether all the aspects as stated above have been examined and considered .....
In the circumstances stated above, the order No. F.A/Con/52, date 29th August, 1981, is quashed and the respondent is directed to consider the matter afresh and pass appropriate orders in the light of the observations made above.'
13. A reading of the above judgment would disclose that this Court clearly stated in its judgments that : (i) the impact of the supervening circumstances of the passing of the decree and the consequent G.O.; (ii) the applicability of rule 145(3)(iii) of the Railway Establishment Code; (iii) the binding nature of the decree in the absence of impleading the railway authorities as a party to the suit and (iv) other aspects should have been considered by the Railway authorities by giving reasons.
14. Now the Railway authorities have passed the impugned order dated 1st July, 1982 stating : (1) that the appellant had mentioned different dates at various stages as being the dates on which he realised the mistake regarding the correct date of birth, that at one state he stated that he realised the mistake at the time of his marriage in 1947, but later he sated that he realised the mistake for the first time after joining the railways etc., and therefore he made inconsistent statements; (2) that the appellant did not implead the railway as a party to O.S. No. 188 of 1979, City Civil Court, Hyderabad and that if he had impleaded the railways as a defendant the railways would have brought to the notice of the Court that the appellant had given inconsistent statements as to the time of discovery of mistake; and (3) the railway would have submitted to the Court that the horoscope cannot be taken as reliable because it can be prepared at any time to suit the needs of the particular situation and ordinarily oral evidence can be hardly useful to determine the correct age of a person.
15. At this stage it is necessary to set out sub-clause (3) of rule 145 of the Indian Railway Establishment Code, Vol. I, which is the relevant rule made under the proviso to Art. 309 of the Constitution of India.
'(3) The date of birth as recorded in accordance with these rules shall be held to be binding and no alteration of such date ordinarily be permitted subsequently. It shall however, be open to the President in the case of a gazetted railway servant, and a General Manager in the case of a non-gazetted railway servant to cause the date of birth to be altered.
(i) where in his opinion it had been falsely stated by the railway servant to obtain an advantage otherwise in admissible provided that such alteration shall not result in the railway servant being retrained in service longer than if the alteration had not been made, or
(ii) where in the case of illiterate staff, the General Manager is satisfied that a clerical error has occurred, or
(iii) where a satisfactory explanation which should not be entertained after completion of the probation period of three years service, whichever is earlier of the circumstances in which the wrong date came to be entered is furnished by the railway servant concerned, together with the statement of any previous attempts made to have the records amended.'
16. It is common ground that subsequently by letter No. E(NG)II-9 BR/1 dated 4th August, 1972, the Railway Board permitted representations against the date of birth be if made upto 31st July, 1973, in respect of railway servants, who were already in employment on 3rd December, 1971, and that the said letter applied to the petitioner-appellant.
17. It is contended by Sri S. Dasratharama Reddy, learned Counsel for the appellant, that in spite of the earlier judgment of this Court in Writ Appeal No. 626 of 1981 the respondents have not considered the relevant facts but have applied irrelevant considerations. He contended that the fact that different dates were given as being the dates on which the appellant realised the mistake cannot be a relevant grounds for rejecting the extract of the date of birth, the amended H.S.L.C. Register or the decree of the civil Court. He also contended that in the civil suit filed by the appellant for a declaration as to the correct date of birth the railway was not a necessary party and that such declarations can be obtained for purposes of various enactments under which one may have to prove his date of birth and not necessarily for the purpose of service, and that the decree was passed after full contest and it was only in the Appellate Court that the appellant was able to get a decree in his favour which cannot be termed as collusive, and that the contention of the Railway Board that if it had been made a party to the suit it would have brought to the notice of the Court that the appellant had given different dates as being the dates on which the realised the mistake cannot be accepted as the said factor would not be relevant if once the Court is satisfied about the genuineness of the birth extract produced by the appellant. He also contended that through the decree of the civil Court is not binding on the railways it is a relevant piece of evidence which cannot be ignored and that it is not the contention of the railways that the birth extract is false or that he decree is collusive. He also contended that there railways made much of the horoscope as they could not say anything against the genuineness of the birth extract or the validity of the decree or the amended school register and that the railways were ignoring the important material placed before them and were referring to irrelevant or unimportant issues.
18. On the other hand, Sri. V. Venkataramanaiah, the learned Counsel for the Railways contended that the respondents have passed the order assigning reasons the adequacy or sufficiency of which cannot be gone into in writ jurisdiction, that the respondents must be taken to have considered the judgment of the civil Court and the provisos of rule 145(3), and that in any event, the writ petitioner is guilty of laches.
19. In recent times, the scope of the writ of certiorari have very much changed. In fact judicial statements on matters of public law if made before 1950 are likely to be misleading guide to what the law is today. The former and stricter rules have been greatly relaxed. Now the 'record' includes not only the formal order but all those documents which appear to be the basis of the decision. If a tribunal bases its decision on extraneous considerations which it ought not to have taken into account or fails to take into account a vital consideration which it ought to have taken into account, then its decision may be quashed by certiorari. No tribunal has any jurisdiction to be influenced by extraneous considerations or to disregard vital matters, for it amounts to a clear error of law apparent on the face of the 'record'. The reason is that it is not a decision 'according to law' especially when the error appears from document properly before the Court or by legitimate inferences therefrom.
(Per Lord Denning in Baldwin & Francis Limited v. Patent Appeal Tribunal (1959) A.C. 663; (1959) 2 All E.R. 433 (H.L.) Rex v. Northumbuland Compensation Appeal Tribunal, (1959) All E.R. 122; (1952) 1 K.B. 338 (C.A.), Inland Revenue Commissioner v. National Federation of Self Employed and Small Business Limited (1971) 2 All E.R. 93; (1981) 2 W.L.R. 722 (H.L.) R. v. Prestion Supplementary Benefits Appeal Tribunal Exparte Moore (1975) 2 All E.R. 807; (1975) W.L.R. 624 (C.A.), R. v. Crown Court at Kinghth Bridge (1981) 3 All E.R. 417 (Q.B.D.).
The same principle have been accepted by the Supreme Court.
In Hindustan Steel Ltd. v. A. L. K. Roy [1970-I L.L.J. 228], His Lordships Justice Shelat, stated :
'There is ample authority to the effect that if a statutory tribunal exercises its discretion on the basis of irrelevant consideration or without regard to relevant considerations, certiorari may properly issue to quash its order (see S. A. De. Smith, Judicial Review of Administrative Action 2nd Edition pages 324-325).'
and again High Lordships Justice Bhagwathi rules in Kays Concern v. Union of India, : 3SCR1042 , as follows :
'The appellants brought this advertisements to the notice of the Central Government .... Even so, the Central Government failed to take into consideration this advertisement ... and made its order ... In complete disregard of it ..... This was clear non-application of mind on the part of the Central Government to a very material circumstances .... The order of the Central Government therefore, suffers from a patent error, and it must be quashed.'
In the light of the aforesaid legal position, we shall consider the validity of the impugned order passed by the respondents. We will first advert to the three irrelevant considerations relied upon by the Railways. (i) Rule 145(3)(iii) requires an explanation regarding the circumstances in which the wrong date came to be 'initially entered' in the service record. Instead of that, the railways have laid stress on the inconsistent statements as to the point to time when the appellant came to relise the mistake. This is not what the Rule requires. In the context of the Rule, the above aspect stressed by the railways is obviously irrelevant. (ii) The Railways have not contended that the decree of the civil Court was obtained by fraud of collusion. However the argument that, if impleaded, they would have told the civil Court about the inconsistency in the dates on which they appellant realised the mistake is equally irrelevant as long as they do not say that basis of the judgment is wrong or that the birth extract should not have been relied upon by the civil Court. (iii) When the appellant has produced more important document i.e., the amended school register and the civil Court's judgment the railways erred in merely referring to the horoscope for the purpose of rejecting it. Thus the three reasons given by the railways in their order are indeed irrelevant to the point in question.
20. Coming to the omission of the vital documents, the Railways failed to give any effect to the amended school register, which according to their earlier replies, was the foundation for the service register. Nor has the railways stated why a bonus fide decree of a civil Court not stated by them to have been obtained by fraud or collusion should not be relevant, even though it is not inter parts. Their Lordships of the Supreme Court have held that a judgment not inter parts is relevant under S. 13, Evidence Act, as a transaction 'recording' the right claimed. Vide Sital Das v. Sant Ram : AIR1954SC606 . See also the ruling of the Andhra Pradesh High Court in Sivaramabrahman v. Satyanarayanna : AIR1967AP181 .
21. Omitting thus to consider the amended school register and the decree would clearly amount to a patent error of law apparent on the face of the 'record' as held by us above and also to an act in excess of jurisdiction in the words of Lord Denning in Baldwin & Francis Ltd. v. Patent Appeal Tribunal (1959) A. C. 563; (1959) All E.R. 33. The respondents' Counsel fairly stated and, rightly in our opinion, that these aspects cannot be said to have been expressly considered by the respondents unless of course they are to be implied. For same reasons the respondents cannot be said to have acted in accordance with the judgment in the earlier writ appeal.
22. We shall now proceed to consider the reasons given by our learned brother Justice Chowdary. The first reason given was that the appellant could not make reported representations after the rejection to the plea of laches raised even before us by the learned Counsel for the railways. As the outset we wish to point out that in the impugned order, the Railways themselves have not reasoned that the writ petition is bad on the ground of laches or lapse of time. Their Lordships of the Supreme Court have pointed out in Mohinder Singh Gill and another v. The Chief Election Commissioner, : 2SCR272 , as follows :
'When a statutory functionary makes an order based on certain ground, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, gets validated by additional grounds later brought out.'
Their Lordships followed the observations of Bose, J., in Gardhandas Bhnji's case, : 1SCR135 .
23. The second reason given by the learned Judges is that the appellant is bound by the date of birth entered in the service record in view of rule 145(3) while it is not clear what was meant by this, it may be noticed that rule 145(3)(iii) itself enables the appellant to ask for a change of the date.
24. The third reason given by our learned brother is that the judgment in suit not being a judgment in rem was not binding on the railways under S. 41, Evidence Act. Here we wish to point out that it is not the case of the appellant that the judgment in the suit is binding on the railways. His case is that it is very important document forming part of the 'record' and the respondent cannot brush it aside especially when they do not say that it is obtained either collusively or fraudulently. In view of the judgment of the Supreme Court in Sital Das v. Sant Ram and the Andhra Pradesh High Court in Sivaramabraham v. Satyanarayana, the judgment in the suit is certainly relevant even though it is not inter partes as a 'transaction' in which the right is recognised.
25. The forth reason given by the learned Judge is based upon the judgment in Gabriel v. District Manager, A.P.S.R.T.C. (1981) 2 A.P.L.J. 364 rendered by himself where it was ruled that when the date of birth is accepted by the employer and employee as part of a contract, the employee cannot ask the Court to alter the date against the will of the employer as it amounts to the Court making a new contract. In that case the learned Judge was considering certain administrative G.Os issued by the governmental or administrative authorities enabling the change of date of birth already accepted. Assuming that the matter pertains to the filed of contract and not to status, we are concerned here with a statutory provision contained in rule 145(3) made under the proviso to Art. 309 of the Constitution and not administrative orders. We are of opinion that in a case where a statutory provisions enables the change of the date of birth entered in the service register, both the parties i.e., the employer and the employees will be equally bound by it for, the contract, if any, is also that the parties will be mutually governed by the rules. Hence the case in Gabriel v. District Manager A.P.S.R.T.C. it clearly distinguishable. We should not understood as learned Judge therein treating the basis of relationship as one of contract and not of status. Whether the relationship of status does or does not supersede the contract as the status is governed by rules, and whether the administrative instructions can be taken to be in the nature of an offer by the employer for change of the contract by novation and and consequent action of the employee as an acceptance thereof remain to be considered in an appropriate case.
26. The question arises as to what is the ultimate relief that the appellant should be granted in view of the long history and exceptional circumstances of the case. The above facts would show that the petitioner has been struggling since 1961 to have the revised date of birth recorded in the service register, but all his efforts have been in vain. He sent his application in time according to the rules and the authorities informed that they would go by the school register and the appellant had taken follow-up action in filing a suit and getting a Government Order issued by amending the school register. But still the railway authorities have been reluctant to accede to the requests of the appellant. The matter has already come twice to this Court in writ petition and in writ appeal. In these circumstances we fell it appropriate to follow the following principle enunciated by Prof. De. Smith in his 'Judicial Review of Administrative Action (4th Ed. 1980 at page 341).'
'It is now open to a Court when granting certiorari to remit the matter to the authority with a direction to reconsider and to decide in accordance with findings of the Court. Apart from this, the role of the Courts is limited to ensuring that discretion has been exercised accordingly to law. If, therefore, a party aggrieved by the exercise of discretionary power seeks an order of mandamas to compel the authority to determine the matter on the basis of legally relevant consideration, the proper form of the mandamus will be one to her and determine according to law though by holding inadmissible the considerations on which the original decision was based the Court may indirectly indicate the particular manner in which the discretion ought to be exercised. In practice the frontier between control of legality and control of the actual exercise of discretion remains indeterminate, for the Courts are sometimes observed to cross the boundaries that they have set to their own jurisdiction.'
The railway authorities while reconsidering the matter shall have regard to the following facts viz., that the appellant has been struggling from the year 1961 to have his service record amended and that the respondents have repeatedly in formed him that they only go by the school register, that the appellant had filed his representation in time and in continuation of the replies given by the respondents had filed a suit and obtained the decree from the Appellate Court for correction of the date of birth and the Government of Andhra Pradesh accordingly corrected the same by issuing a Government Order, that it has not been the case of the respondents that the said judgment and decree was collusive or fraudulent, that the said judgment and decree are important features of evidence which cannot be lightly ignored by the respondents as done earlier and that they should be given due weight. It may be noted that even if the appellant's contention is accepted, he is to be treated as retired from service with effect from 4th October, 1982, i.e., even if the amended date of birth is to be accepted by the respondents. While it is true that the Courts are averse to encourage alterations of dates of birth of service-personnel when they raise such questions on the eve of their retirements there are cases like the present where applications for revision are made in time and in this case they were made in 1961 while the appellant's retirement, according to the original date of birth, would be 31st March, 1980. That would mean that he had raised the issue atleast 20 years before the original date of super-annuation. We are therefore treating this as an exceptional case especially when the respondents have failed to apply their mind to the facts of the case in spite of the directions issued in the earlier writ appeal (W.A. No. 626 of 1981).
27. We, therefore, set aside the judgment under appeal and allow the writ appeal and issue a writ of certiorari quashing the order of the Railway Board in No. 79/E(O)II/3/3 Pt 'A' dated 1st July, 1982, with a direction to the respondents to dispose of the matter afresh within a period of three months from the date of receipt of this order in the light of the observations contained in this judgment. The appellant will be entitled to his costs.