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S. Selvavinayagam Vs. State of Tamil Nadu Represented by the Secretary to Government, Department of Co-operation and anr. - Court Judgment

LegalCrystal Citation
SubjectService;Civil
CourtChennai High Court
Decided On
Reported in(1986)1MLJ87
AppellantS. Selvavinayagam
RespondentState of Tamil Nadu Represented by the Secretary to Government, Department of Co-operation and anr.
Cases ReferredS.G. Rajan v. The Union of India
Excerpt:
.....they fail to realise the fact that the said government order can have only prospective application or, at any rate, only to persons who had joined service less than five years from the date of the passing of the government order, admittedly a person like the petitioner who joined service in 1947 was not then obliged to file an application for correction of date of birth within a period of five years from the date of joining service. 2475. the government had failed to notice at that time that g. 2475 cannot have application to the case of employees like the petitioner, as they had joined service long before the government order was passed and there was no restriction at that time that applications for altering the date of birth should be made within the prescribed time......and co-operation dated 3.9.1982 and for directions being issued to the respondents to correct the date of birth and thereby enable him to have the benefit of extended service till the date of superannuation as per the corrected age.2. the petitioner joined government service on 19.11.1947. he date of birth was entered in the service register as 10.10.1924. in course of time the petitioner came to be promoted and posted as deputy registrar of co-operative societies. in the year 1967 the petitioner found that his date of birth is 23.8.1926 and not 10.10.1924 as had been wrongly entered in the service register. therefore, he submitted an application on 28,7.1967 to the joint registrar of co-operative societies tiruchirapalli for alteration of date of birth in the service book. by.....
Judgment:
ORDER

1. This writ petition relates to the revision of the date of birth of the petitioner in his service records from 10.10.1924 to 23.8.1926. As the petitioner's attempt to have the age corrected in the service records proved of no avail, he has filed this writ petition under Article 226 of the Constitution of India, praying for the issue of a writ of certiorarified mandamus for quashing the order of the first respondent in G.O.Rt. No. 883 Food and Co-operation dated 3.9.1982 and for directions being issued to the respondents to correct the date of birth and thereby enable him to have the benefit of extended service till the date of superannuation as per the corrected age.

2. The petitioner joined Government Service on 19.11.1947. He date of birth was entered in the service register as 10.10.1924. In course of time the petitioner came to be promoted and posted as Deputy Registrar of Co-operative Societies. In the year 1967 the petitioner found that his date of birth is 23.8.1926 and not 10.10.1924 as had been wrongly entered in the service register. Therefore, he submitted an application on 28,7.1967 to the Joint Registrar of Co-operative Societies Tiruchirapalli for alteration of date of birth in the service book. By proceedings dated 10.8.1967 the Joint Registrar rejected the application. The petitioner submitted a further application on 6.9.1967 for reconsideration of his case. The Joint Registrar recommended the application to the Registrar of Co-operative Societies, Madras and suggested that the petitioner's application may be referred to the Board of Revenue for an enquiry being held. The recommendation was accepted and the Registrar of Co-operative Societies referred the case of the petitioner to the Board of Revenue for investigation. The Board of Revenue in turn referred the matter to the Collector of Tirunelveli. The Collector of Tirunelveli instituted an enquiry and the petitioner produced the relevant records before the enquiry officer. Before the enquiry proceedings were concluded, the Government issued a revised G.O. viz., CO.Ms. No. 2475, Public (Ser-vice-A) Department dated 27.10.1970 to the effect that as a matter of policy it has been decided that all applications for alteration of date of birth received from Government servants after a period of five years after they had entered service should be summarily rejected irrespective of the circumstances under which the delay to seek rectification of mistake had occurred. In view of this G.O. the petitioner's application was rejected without the enquiry being completed and without Government going into the question whether the petitioner's actual date of birth was 23.8.1926 and not 10.10.1924. The order of rejection was communicated to the petitioner on 9.11.1970. He preferred appeals to the Secretary of the concerned Department and the Chief Secretary to Government, but they were turned down.

3. Thereafter the Government passed another order viz., G.O.Ms. No. 1288, Public (Services M) Department dated 21.4.1975. The Government Order stated that any application for alteration of date of birth should be supported by copies of the S.S.L.C. Book, School/College or University records, birth extracts from the records of Local Bodies etc The order also empowered the Heads of Department to correct the date of birth in the service register based upon entries in the S.S.L.C book.

4. The petitioner filed W.P. No. 1677 of 1979- in this court to seek the issue of a writ of certiorarified mandamus. The petition was filed against the order of Government, refusing to revise the date of birth of the petitioner on the ground that the application had been made more than five years after the petitioner had joined service. The writ petition was heard by Mohan, J. and the learned Judge, following the ruling in Personnel Officer, Personnel Branch, Southern Railway v. R. Venkatachalam W.A. No. 571 of 1970 held that the proper remedy for the petitioner was by way of a suit in a civil Court and for that reason the learned Judge dismissed the writ petition.

5. The petitioner then filed O.S. No. 759/80 on the file of the Court of the District Munsif, Tirunelveli impleading the Director of School Education, Government of Tamil Nadu as the defendant in the suit. He sought a decree of declaration to the effect that his correct date of birth is 23.8.1926 and not 10.10.1924 as entered in the S.S.L.C. Book. The Director of School Education filed a written statement and contested the suit. But the trial ended in favour of the petitioner and decree was passed on 28.8.1981. The petitioner moved the Director of School Education to implement the decree and make the necessary correction in the S.S.L.C. Book. The Director of School Education complied with the decree of the Court and made the necessary correction in the S.S.L.C. Book.

6. After the date of birth had been corrected in the S.S.L.C. book, the petitioner again approached the Registrar of Co-operative Societies by letter dated 8.12.1981 and requested him to make necessary corrections in the service register in accordance with the corrected date of birth contained in the S.S.L.C book. On 3.9.1982 the Registrar sent a communication to the petitioner reiterating the Government's earlier stand that since the application for alteration of date of birth in the service register had been made beyond a period of five years from the date of entry into service, the application was not sustainable.

7. Before such a communication was sent, the Government had consulted the Tamil Nadu Public Service Commission to find out whether the petitioner had actually joined service in the year 1947 and whether he could have validly entered into service in the year 1947 if his date of birth was 23.8.1926 instead of 10.10.1924. The Service Commission informed the Government that the records of 1947 had been destroyed and, as such, the relevant particulars regarding the petitioner could not be traced. But, it however informed that even if the petitioner had been born on 23.8.1926, he could have been taken in service in 1947 and there would have been no impediment.

8. It is in this background of events, the petitioner has filed this petition praying for the issue of a writ of certiorarified m and a m us.

9. The respondents have filed a counter affidavit and the stand taken therein is that inasmuch as the application for alteration of date of birth had been made beyond the prescribed period of five years set out in G.O.Ms. No. 2475, the rejection of the petitioner's application is perfectly valid in law. In so far as the obtainment of a decree in O.S. No. 759 of 1980 is concerned, the stand of the respondents is that the Registrar, Co-operative Societies was not a party to that suit and hence the decree passed by the civil Court will not be binding on him. Lastly, it is stated that even if the corrected date of birth in the S.S.L.C. Book is the actual date of birth of the petitioner, he is not entitled to seek relief by filing a writ petition. But, on the other hand, he should/ invoke the jurisdiction of the civil court and file a suit and seek reliefs against the Government regarding his extended period of service.

10. Mr. Venkateswara Rao, learned Counsel for the petitioner argued that inasmuch as the petitioner had entered service in 1947 and since there was no G.O. passed at that time that he should apply for alteration of date of birth within the period of five years from the date of joining service,- the petitioner cannot be precluded from making an application on the | sole ground that the application had been made beyond the time limit of five years. His further contention is that even in the earlier G.O.Ms. No. 1166, Public (Service A) Department dated 7.7.1961 a time limit of five years for making an application for alteration of date of birth was prescribed; but the Government realised the position that the G.O. cannot have application to persons who had joined service long before and, therefore, the G.O. itself provided that in appropriate cases an application for alteration of date of birth can be accepted and enquired into and if the materials furnished were correct, the applicant can be given the benefit of alteration of age. Mr. Venkateswara Rao would say that it is with reference to the terms of this G.O. the petitioner had sent the second application dated 6.9.1967 and this was forwarded by the Registrar of Co-operatives to the Board of Revenue and the Board of Revenue directed the Collector of Tirunelveli to hold an enquiry and the Collector had also actually instituted an enquiry. Having gone ' thus far Mr.Venkateswara Rao would say that the enquiry must have been completed and the benefit of the finding should have been given to the petitioner. But the Government wrongly applied G.O. Ms. No. 2475 passed later and rejected the application. The further argument of Mr.Venkateswara Rao is that the petitioner had filed a writ petition, W.P. No. 1677 of 1979 and this Court had directed him to seek remedies in the civil Court and accordingly he had filed a suit in the Court of the District Munsif, Tirunelveli and obtained a decree in his favour. The suit was decided in the presence of the Director of School Education, who represented the interests of the Government in that suit. Therefore, the decree passed in the suit will be binding on all the Departments of the Government and consequently the Registrar of Co-operative Societies is also bound by the judgment and decree. As such, when the Director of School Education corrected the date of birth in the S.S.L.C. book, the Registrar too ought to have corrected the date of birth in the service register and allowed the petitioner to continue in service for the full time.

11. In support of his contention Mr. Venkateswara Rao placed reliance on two decisions. The first is reported in T. Pandurangam v. The General Manager, South Central Railway, Secunderabad (1983) All. W.R.36. That was a case where a railway employee sought alteration of his date of birth in service register. The railway authorities declined to alter the date of birth. The employee filed a suit and obtained a decree against the Secretary, Education Department and then had his date of birth corrected in the S.S.L.C. book. On the strength of the material, he again sought an alteration of the date of birth in the service register. The railways would not relent. The employee filed a writ petition, which was dismissed by a single Judge and thereafter he took up the matter in writ appeal. A Division Bench of the Andhra Pradesh High Court held that even though the decree passed by the Civil Court would not be binding on the Railways, as they were not made a party to the suit, still the decree would be a relevant and weighty piece of evidence in favour of the employee and as such, it is entitled to serious consideration at the hands of the Railways. Eventually the Court quashed the order of the Railways and directed the authorities to consider the matter afresh and pass suitable orders.

12. The second decision cited is reported in Suresh, L.N. v. Union Public Service Commission and Anr. (1982) 2 K.L.J 223 : (1982) 2 S.L.R. 521. That case related to a candidate who wanted to sit for an examination conducted by the Union Public Service Commission. He sought eligibility for appearing for the examination on the basis of a corrected entry in the school leaving certificate. The Union Public Service Commission refused to take note of the school leaving certificate and grant permission to the candidate to sit for the examination. A learned single Judge of the Karnataka High Court has held in that case that the Union Public Service Commission was bound to accept the revised date of birth as entered in the second school leaving certificate and permit the candidate to appear for the examination,

13. Opposing the arguments of Mr. Venkateswara Rao, the learned Government Advocate reiterated the objections put forth in the counter affidavit and stated that the application was belated, that secondly the civil court decree would not be binding on the Registrar and that thirdly the writ Court is not the appropriate forum for the petitioner to seek remedies. By way of authority for his contentions the learned Government Advocate referred to the decision of a Bench of this Court in W.A. No. 571 of 1970 and the Order of Mohan, J, in S.G. Rajan v. The Union of India owning Southern Railway and Anr. W.P. No. 4621 of 1982 wherein the learned Judge has applied the ratio laid down in W.A. No. 571 of 1970.

14. On a careful consideration of the matter, I find that the age-old principle that each case has to be decided on its own merits cannot be more aptly applied to any case than to this case. It is true that the petitioner had originally given his date of birth as 10.10.1924 when he entered service. Subsequently in the year 1967 he had sought correction of his age. His application, though originally rejected, was later taken up for consideration and an enquiry was ordered to be held in accordance with the terms of G.O. Ms. No. 1166; while the enquiry was in progress, the petitioner's application was dismissed in limine on the ground that G.O. Ms. No. 2475 has superseded the earlier Government Order and in terms of it any application received after a period of five years from the date of joining service for alteration of date of birth cannot be entertained. Though the respondents place reliance on this Government Order, they fail to realise the fact that the said Government Order can have only prospective application or, at any rate, only to persons who had joined service less than five years from the date of the passing of the Government Order, Admittedly a person like the petitioner who joined service in 1947 was not then obliged to file an application for correction of date of birth within a period of five years from the date of joining service. Such being the case, the petitioner's application cannot be turned down on the ground that in terms of the Government Order passed in 1970, his application is not maintainable.

15. The second aspect to be noticed is that when G.O. Ms. No. 2475 was passed, the petitioner's application for alteration of date of birth was actually pending enquiry . by the Board of Revenue through the Collector of Tirunelveli. The proceedings started in accordance with the earlier Government Order ought to have been continued and given a finality on merits. The Government ought not to have terminated the proceedings in the middle and rejected the application on account of the embargo contained in G.O.Ms. No. 2475.

16. Thirdly, it has to be pointed out that the petitioner approached this Court earlier and he had been directed to file a suit. No doubt, what the Court meant was that the petitioner should seek all the reliefs he sought for in the writ petition before the civil court. The direction of Mohan, J. cannot be construed to mean that it was confined to the filing of a suit only for getting the date of birth corrected in the S.S.L.C book. The direction was for the filing of a comprehensive suit viz., the correction of date of birth in the S.S.L.C. book and in terms thereof the correction of the date of birth in the service register and the grant of privileges and rights flowing therefrom. Be that as it may, the petitioner had filed a suit against the Director of School Education and obtained a decree. The validity of the decree cannot be questioned, because it is not a collusive decree or a decree vitiated by any other infirmity. The decree, though not a decree in rem, is fully binding on the Director of School Education and it was on account of that he had ordered alteration in the S.S.L.C. book of the petitioner's date of birth. The respondents are not entitled to say that since the Registrar was not a party to the suit, the decree would not be binding on him. It may be that the decree does not have executable force against the Registrar. But even so, as the decree of Court was passed against the Government of Tamil Nadu represented by the Director of School Education, the Registrar is bound to. give due weight to the decree and act upon it unless for compelling reasons, which would stand in the way of the decree and its consequences being given effect to.

17. To this extent, the decisions cited by Mr. Venkateswara Rao lend force to the petitioner's case.

18. Turning now to the authorities quoted by the Government Advocate, it is no doubt true that this Court has held that in all such cases the proper forum for granting relief is the civil Court and not a writ Court. But the ratio laid down in those cases cannot be mechanically or blindly applied to all cases irrespective of any special features in those cases. In this case, no doubt, the petitioner can be asked to once again file a suit against the Registrar and seek appropriate reliefs. But then the question for consideration is whether the facts of this case call for such a direction being given to the petitioner.

19. The special features of this case with reference to which I have earlier observed that each case has to be decided on its merits are as follows:

1. The petitioner had applied for alteration of date of birth as early as in 1967. It is not a case of the petitioner seeking the relief just at the fag-end of his official career i.e. just a few months or 1 or 2 years before the age of retirement. On account of that factor, the petitioner's case gains credence by way of bona fides.

2. The petitioner's application was entertained and an enquiry was ordered and it was actually under way when an order of rejection was passed in terms of G.O. Ms. No. 2475. The Government had failed to notice at that time that G.O.Ms. No. 2475 cannot have application to the case of employees like the petitioner, as they had joined service long before the Government Order was passed and there was no restriction at that time that applications for altering the date of birth should be made within the prescribed time.

3. The petitioner had earlier approached this Court for relief and he had been directed to /file a suit. He had accordingly filed a suit, though not in the manner contemplated by this court. Even so, the decree obtained by him against the Director of School Education is a valid decree and its effect cannot be lost sight of.

4. In terms of the decree, the Director of School Education has altered the date of birth in the S.S.L.C. book. Unless for competing reasons, the Registrar cannot refuse to take, that factor into consideration and deny relief to the petitioner.

5. While filing this writ petition, the petitioner had also obtained an order of injunction from being superannuated from service in terms of the original date of birth contained .in the register. Consequently, he has been allowed to be in service and he has now attained superannuation as per the revised date of birth.

On account of that fact it will constitute unnecessary hardship to the petitioner if he is called upon to file a suit again and seek relief which will now stand confined only to payment of pension and gratuity in terms of the extended period of service.

20. On account of these special features, I am of the view that a rule should be issued to the petitioner in terms indicated below. The impugned order of the first respondent in G.O. Rt. No. 883, Food and Co-operation dated 3.5.1982 will stand quashed. Now that the petitioner has retired from service, the respondents will take the peculiar features of the petitioner's case into consideration and pass suitable orders in the changed circumstances of the case viz. whether the petitioner should be deemed to have validly been superannuated on 31.8.1984 and whether he should be granted retirement benefits on that basis. The respondents are given six months time from the date of receipt of a copy of this order to pass suitable orders on the pension papers of the petitioner to the light of the observations contained in this order.

21. To the extent indicated above, the writ petition will stand allowed. But, there will be no orders as to costs.


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