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K. Mohammed Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberA.S. No. 7 of 1956 (K)
Judge
Reported inAIR1958Ker1
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9; Constitution of India - Articles 300 and 310
AppellantK. Mohammed
RespondentState of Kerala
Appellant Advocate V.K.K. Menon and; C.S. Padmanabha Iyer, Advs.
Respondent Advocate K.V. Surianarayanan Ayyer, Adv. Geneal
DispositionAppeal dismissed
Cases ReferredZainnudin v. Travancore
Excerpt:
.....india - plaintiff was inspector-general of registration - respondent found certain discrepancy in date of birth of appellant (plaintiff) - whether government empowered to correct discrepancy in departmental record - in case of discrepancy dates furnished by admission registers of educational institutions will be treated as governing dates - respondent empowered to revise or vary any discrepancy in its departmental record. - - this was as per an order dated 16-8-1950 and the plaintiff's attempt to have the matter reconsidered was unsuccessful. this second order was made on 7-12-1950. after waiting for well nigh three years, the plaintiff brought the suit giving rise to this appeal on 10-11-1953 for a declaration that the correct date of his birth was 31-10-1082, m. p-18), conveying..........the department and to his highness the maharaja of travancore that for the purpose of entering the state service the plaintiff had given a wrong age. however, after the integration of the states of travancore and cochin, it came to the notice of the government that in the case of several of their officers there were discrepancies between the ages appearing in their service books and those occurring in the admission registers of the educational institutions where they had their studies. government, therefore, decided that wherever such discrepancies existed, the dates furnished by the admission registers of the educational institutions where the concerned officers had their studies will be treated as the governing dates as to their dates of birth and accordingly issued, under date.....
Judgment:

Koshi, C.J.

1. The plaintiff in O. S. No. 229 of 1953 on the file of the District Court of Trivandrum, has brought this appeal against the judgment and decree of the learned Second Additional District Judge of that Court, dated 14th September, 1956, dismissing the suit. On the date of the institution of the suit on 10-11-1953, the plaintiff was the Inspector-General of Registration for the State of Travancore-Cochin and he now holds that office in the new State of Kerala. He entered the service of the Travancore State on 15-2-1937 as a Sub-Registrar and his date of birth as then entered in the Service Book was 30-10-1082 M. E. The said entry was made accepting the proof furnished by him as to his date of birth in the form of a certified extract from the Birth Register of the Edapally Vadakkumbhagam Paukuty Cutchery. The Government Order in that behalf, dated 10th September, 1937, was made after an enquiry conducted by the officers of the Registration Department, as some complaints happened to be made to the Head of the Department and to his Highness the Maharaja of Travancore that for the purpose of entering the State Service the plaintiff had given a wrong age. However, after the integration of the States of Travancore and Cochin, it came to the notice of the Government that in the case of several of their officers there were discrepancies between the ages appearing in their Service Books and those occurring in the Admission Registers of the educational institutions where they had their studies. Government, therefore, decided that wherever such discrepancies existed, the dates furnished by the Admission Registers of the educational institutions where the concerned officers had their studies will be treated as the governing dates as to their dates of birth and accordingly issued, under date 18-2-1950, what they called a Press Note, as to how that decision will be implemented. The plaintiff's date of birth as entered in his school Admission Register was 3-6-1077 M. E., and his departmental head, the Director of Registration, therefore, called upon him to explain the discrepancy. He maintained that the date furnished by the Birth Register which the Government of Travancore had accepted and entered in his Service Book was the correct date and that even at the time of the enquiry in 1937, he had explained to the authorities how a wrong date happened to be entered in his School Admission Register. The Government however stuck to their Press Note and ordered that the entry as to the date of birth in the plaintiff's Service Book will be altered as 3-6-1077 M. E. in place of 31-10-1082 M. E., the original entry. This was as per an order dated 16-8-1950 and the plaintiff's attempt to have the matter reconsidered was unsuccessful. This second order was made on 7-12-1950. After waiting for well nigh three years, the plaintiff brought the suit giving rise to this appeal on 10-11-1953 for a declaration that the correct date of his birth was 31-10-1082, M. E. and for a mandatory injunction against the Government to cancel the alteration as to his date of birth effected as per Government's order dated 16-8-1950 and to restore the original entry. On the date of the Press Note and when the alteration was effected, the plaintiff was a District Registrar, but by the time of the institution of the suit he had succeeded to the office of the Inspector-General of Registration.

2. The State of Travancore-Cochin was the sole defendant in the suit. The State contended inter alia that the suit was not maintainable, that it was barred by limitation and that the correct date of birth of the plaintiff was 3-6-1077 M. E.

3. The lower Court, after an elaborate trial, found that the suit was not maintainable and accordingly non-suited the plaintiff. The learned trial Judge however found that the suit was not barred by limitation and that the plaintiff's date of birth was 31-10-1082 M. E.

4. While the plaintiff has preferred this appeal against the judgment and decree dismissing the suit, the State has filed an objection memorandum impugning the correctness as to the lower Court's finding on the question of limitation and that relating to the plaintiff's date of birth.

5. The appeal first came up for hearing before a Division Bench of this Court on 3-1-1957 and as per an order of the same date, the learned Judges of the Division Bench referred the case for hearing and disposal by a Full Bench.

Questions relating to the validity of the Travancore-Coching Government's Press Note, dated 18-2-1950, were subjects of decisions by Division Benches of the Travancore-Cochin High Court on more than one occasion and in those cases the said order and governmental action pursuant thereto against the officers concerned in those cases were held to be not only valid but even non-justiciable -- vide Varadaraja v. State of Travancore-Cochin, AIR 1953 Trav-Co 140 (A) & Zainnudin v. Trav.-Co. State, AIR 1954 Trav-Co. 32 : 1954 Ker LT 966 (B). The order referring the case to a Full Bench runs thus:

'In view of the importance of the questions of law raised in this case we consider that it should be heard and decided by a Full Bench, and we therefore refer the case to a Full Bench for that purpose.'

It is clear that the counsel for the plaintiff-appellant desired to canvass the correctness off the above decisions and that induced the Division Bench to refer the case to a Full Bench. (5a) According to the appellant's date of birth as corrected as per the Government's order dated 16-8-1950, he was due to retire on 16-1-1957 (3-6-1132 M. E.). Pursuant to an application made on his behalf (C. M. P. No. 44 of 1957) the Division Bench issued an interim order directing the Government not to retire the appellant from Government service till the disposal of this appeal. In view of this order, at the instance of the respondent-State, the hearing of the appeal was expedited and we heard the case on the 1st of this month.

6. In his argument before us, Mr. V.K. Krishna Menon, learned counsel for the appellant, did not seek to canvass the correctness of the decisions of the Travancore-Cochin High Court dealing with the Press Note dated 18-2-1950 and referred to above. Indeed he conceded that the Travancore Service Regulations, on which the appellant lay much store before the lower Court had no statutory force, that those regulations were mere rules of guidance for the Government and their officers and that their contravention by Government would not give the person aggrieved by such contravention any right of action against the Government before a Civil Court.

This was one of the principal points the two above mentioned cases decided and in view of the concession, we consider it unnecessary for us to consider the question over again. Learned counsel also conceded that the order of the Government of Travancore dated 10-9-1937 (Ext. P-14) accepting to take 31st Eda-vom 1082 M. E., as the date of birth of the plantiff and the Communication from the Palace addressed to the Dewan, dated 5-9-1937 (Ext. P-18), conveying the Maharaja's approval to accept the recommendation of the Dewan to take the above date as the date of birth oi the plaintiff, were like the Press Note of 18-2-1950 (Ext. D-5) mere executive orders and that the fact that the order, dated 10-9-1937, has behind it the approval of the Maharaja, did not clothe the said order with any statutory force. Thus the main contentions raised on behalf of the appellant before the learned Judge below were given the go-by, if we may say so, very rightly.

7. Learned counsel for the appellant stated before us that he pressed only two points in this case. They were :

1. that, though apparently there was discrepancy between the plaintiff's date of birth as entered in his School Admission Register and the original entry in his Service Book, there was really no discrepancy at all and

2. that, in the peculiar circumstances of the case, it was incompetent for the Government to alter their original decision as to the plaintiff's date of birth by the subsequent order dated 16-8-1950, impugned here.

8. On the first point what was contended was that when the Government, after an enquiry conducted by the officers of the Registration Department, decided to treat the date given in the Birth Register viz., 31st Edavom 1082 M. E. as the plaintiff's date of birth, the entry in the School Admission Register would normally have been corrected if the plaintiff had moved the authorities concerned in that behalf and that what they would or ought to have done must really be taken to have been done.

We regret we cannot find any warrant for such a contention either on the facts of the case or on the law applicable to it. Exts. P-14 and P-18 are very guarded in their words. The latter states :

'......in the circumstances, His Highness the Maharaja has been pleased to approve of your recommendation that the date of birth of Mr. K. Muhammad B. A., Sub-Registrar, First Grade, may be taken as the 31st Edavom 1082 M. E.'.

Ext. P-14 is also in similar language; the relevant portion reads:

'In the circumstances, Government sanction the date of birth of Mr. K. Muhammad B. A., Sub-Registrar, First Grade being taken as the 31st Edavom 1082 M. E.'.

The use of the words 'being taken as' in these two documents, is in our opinion, not without significance. Even otherwise, the effect of the Government's order was only that in respect of all future Government transactions the date entered in the Service Book will be considered to be the date of birth of the officer concerned. We are not aware of any rule or other provision of law enjoining any public authority to accept that date as the plaintiff's date oi birth.

The Department of Education is governed by its own rules and our attention was not invited to any rule making it incumbent on the department to alter the registers maintained by the department to conform to Service Book entries or to entries in Birth Registers. Some support was sought to be gained for the argument from certain observations of Bell J. (sitting alone) in Ramamurthy v. Director of Public Instruction, AIR 1944 Mad 187 (C).

It is unnecessary to quote those observations here as recently a Division Bench of the Madras High Court consisting of Rajamannar C. J. and Rajagopala Ayyangar J. had disapproved of the very observations of Bell J. on which counsel depended before us -- vide Director of Public Instruction v. Mohandas, (S) AIR 1955 Mad 639 (D). We are in respectful agreement with the view expressed by the Division Bench concerning the observations of Bell J. and hold that the first point raised before us on behalf of the appellant cannot be sustained.

9. In his argument relating to the second point, learned counsel for the appellant did not contend that Government had no authority or power to vary one executive order by another. In that respect the correctness of the decisions in Varadaraja v. State of Travancore-Cochin (A) and Zainnudin v. Travancore-Cochin State (B), was not disputed.

What was attempted was to distinguish this case from the earlier of the two cases mentioned above, on the ground that with respect to the plaintiff's date of birth there was once an enquiry by the Department concerned and as the Government had taken a decision as the result of that enquiry, it was not open to them to vary that by a subsequent order. Such an enquiry and decision were absent in Varadaraja v. State of Travancore-Cochin (A).

We cannot agree that there is any such rule that the executive Government cannot revise or vary its orders even when the original order is after an enquiry unless it be an enquiry as contemplated by any statutory provision. Mr, Krishna Menon, however, invited our attention to certain observations of Lord Roche in R.T. Rangachari v. Secretary of State, AIR 1937 PC 27 (E).

Pending an enquiry against the appellant in that case on certain charges of irregular and improper conduct in the execution of his duties as a Police Officer, he was allowed to retire on an invalid pension and he drew the pension allowed to him for a few months. Afterwards, the successor in office of the officer who decided to retire the appellant on an invalid pension found that the report of the enquiry on the charges framed against the appellant was very damaging to him and that officer first suspended the grant of pension and afterwards passed orders dismissing the appellant from service. After setting out the facts of the case Lord Roche summed up the position in these terms :

'In these circumstances the case becomes a case in which after Government Officials duly competent and duly authorised in that behalf have arrived honestly at one decision, their successors in office, after the decision has been acted upon and is in effective operation, purport to enter upon a reconsideration of the matter and to arrive at another and totally different decision.'

We cannot find in the above any enunciation of a principle or rule of guidance even. It only embodies the learned Lord's evaluation of the situation that confronted the Judicial Committee in that case. We cannot accede to the view that these observations would constitute authority for the proposition contended before us. It may also be pointed out that in Zainnudin v. Travancore-Cochin State (B), there was a prior enquiry and decision as we have in this case. The second point must also, therefore, fail.

10. No other point was urged before usin the appeal. It was admitted that no question of violation of the principles of naturaljustice was involved here and it was also admitted that nothing turned on the fact that thelower court had found that the original entryin the Service Book represented the correctdate of birth of the plaintiff since Governmenthad always the right to fix any fresh age forsuperannuation or to decide the mode of proofof the age of their officers. We are not, therefore, called upon to examine the question asto the correct date of birth of the plaintiff orthe question as to limitation, findings on bothof which have been sought to be impugned inthe memorandum of objection filed by the respondent State.

11. The appeal fails in the result and we dismiss it with costs. The interim order made on 3-1-1957 on C. M. P. 44 of 1957 will stand vacated. Order accordingly.


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