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General Manager, Eastern Rly and anr. Vs. Kshirode Chandra Khasmobis - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 213 of 1960
Judge
Reported inAIR1966Cal601
ActsConstitution of India - Article 226
AppellantGeneral Manager, Eastern Rly and anr.
RespondentKshirode Chandra Khasmobis
Appellant AdvocateBhabesh Narayan Bose, Adv.
Respondent AdvocateRadha Kanta Mukherjee, Adv.
DispositionAppeal allowed
Excerpt:
- .....of this delay the petitioner having retired under both the dates both on his own as well as on the date of railway administration, it is now beyond the power of this court to grant him any effective relief even if the court were satisfied about the merits of the petitioner's case on age. no discretion under article 226 of the constitution should be used in vain. any writ in such a case will be in vain because no writ or order can give effective remedy to the petitioner. a tendency is growing up in india today to make all kinds of miscellaneous declarations under article 226 of the constitution even when the writs are in vain. we are of opinion that article 226 of the constitution should not be used and was not intended to be used as a medium or means for declaratory orders or declaratory.....
Judgment:

P.BMukharji, J.

1. This is an appeal from an order made by J.P. Mitter, J, making absolute the Rule obtained by the petitioner under Article 226 of the Constitution and setting aside the order of the Railway Administration retiring the petitioner on the 19th October, 1956 as having reached the super-annuation age.

2. The facts of the case may be stated at the outset. The petitioner was appointed as an Assistant in the Traffic Department of the East Indian Railway Company in the Company days on the 22nd April, 1921. The age recorded in his service record then was 19 years 6 months on appointment. The East Indian Railway Company was taken over by the State i.e. by the Government of India on the 1st January, 1925. On the 15th November, 1940 the petitioner made an application stating that his age was 18 years 1 month and 21 days on the date of appointment. This was about 20 years after his joining the service. In that letter, a copy of which has been produced by the petitioner and annexed to his petition, he stated that he joined the service under the Administration on 22nd April, 1921, but unfortunately his age was recorded 19 years 6 months. He, therefore, writes

'Subsequently I discovered from my University Certificate that the actual age on the date of my appointment was 18 years, 1 month and 21 days. I enclose herewith the original University Certificate together with the Admit Card in support of my statement. I shall be highly obliged if you will kindly arrange to have the records corrected accordingly.'

3. The Railway Administration immediately on getting this letter called for an explanation from the petitioner. This letter calling for an explanation was dated 30th November, 1940. In that letter the Railway Administration stated that the date was attested by the petitioner himself. Therefore, an explanation was sought why this wrong date was given at the time and attested by him. It was stated also in that letter that there was no justification for altering the existing record of age. Neither the petitioner gave any explanation nor was the record altered. The matter rested there in 1946. It was revived again in 1946 when the petitioner again wrote to the Railway Administration for correction of his age on the 7th May, 1946. Finally on the 27th June, 1946, the Railway Administration again called for an explanation from the petitioner saying

'You are, therefore, requested to let me know the satisfactory reason as to why you had given the wrong age at the time of your appointment.' The explanation was this time given on the 19th September, 1946 by the petitioner in these terms:

'I beg to state that the original Matriculation Certificate was submitted to the Office with my application for appointment in proof of my age; and I was not aware of any discrepancy till recently when I approached your goodself to rectify the clerical mistake by a fresh submission of duplicate copy of the original Matriculation Certificate.'

To that a reply was given by the Railway Divisional Superintendent on the 30th December, 1946, expressing his inability to rectify the age.

4. Thereafter nothing happened for seven years until in 1953 when the petitioner again applied to the Deputy General Manager, Eastern Railway, for correction of his age. This time he stated that on the 22nd April, 1921 the original University Certificate was taken by the D. T. S. Office for recording age and the certificate was not returned to him and therefore, he was compelled to take a duplicate copy of the University Certificate for the age verification of some Insurance which the petitioner wanted to make. No particulars of the Insurance have, however, been given in the records. The Divisional Superintendent again answered on the 9th May, 1953, stating that the age as recorded in the service sheet could not be altered. The matter again rested there. It was again revived on the 13th January, 1954 when the petitioner wrote to the Deputy General Manager for rectification of his age again repeating the explanation that the original Matriculation Certificate was taken by the D. T. S. Office, Howrah, for--according his age and the Certificate was not returned to him and even saying that 'Apparently it was mislaid'. Again on the 3rd April, 1956 the petitioner applied for rectification of his age on the same ground when he was informed on the 9th October, 1956 that the age as recorded stood and he was to retire on the 19th October.1956. So that on the service record he retired on the 19th October, 1956, the same being his age of superannuation.

5. Although he retired the petitioner did not take any further steps until the 14th June,1957, when he wrote to the Deputy Minister of Railways (Railway Board). According to the petitioner's case he should have retired some time in February, 1958 and not on the 19th October, 1956. But even during the period from the date of 19th October, 1956, when he in fact retired and February 1958, when according to him he should have retired, the petitioner took no steps. He allowed all that time to pass. Thereafter when all effective time has passed and expired he moved this Court under Article 226 of the Constitution and obtained a Rule on the 15th May, 1958. It was this Rule which was made absolute by J.P. Mitter, J. on the 20th January, 1960 against which the Railway has preferred this appeal.

6. The appeal, in our opinion, must succeed. In the first place there is no explanation for the inordinate delay. According to the petitioner himself he knew exactly what was the fact in 1940. From 1940 to 1956 for a period of really 16 years he did not enforce his rights although he was told from the beginning that his service record could not be corrected, what is worse, that even after his retirement on the 19th October, 1956, he did not move the Court and did not do so even within the period of time for which he claimed that his service should be extended namely February, 1958. He allowed that time to expire and moved the Court when the Court could not grant any effective relief.

7. The respondent petitioner's case before the Court was that his Matriculation Certificate was lost because of a fire in the Netrakona High School. This statement, the respondent made in his petition under Article 226 of the Constitution on the 15th April, 1958, and affirmed it as true to his knowledge. The statement is obviously proved false by the petitioner's own statement to the Divisional Superintendent dated the 19th September, 1946 saying that he submitted the Matriculation Certificate to the office at the time of application for appointment in proof of his age and his statement in the letter dated the 23rd April, 1953 to the Deputy General Manager stating that the original certificate was given to the D. T. S. Office as mentioned above which he repeated in his letter dated the 13th January, 1954 to the Deputy General Manager. Now both these statements could not be true. Either the Matriculation Certificate was burnt by fire at Netrokona High School as he states in the petition under Article 226 of the Constitution or he submitted his Matriculation Certificate to the D. T. S. Office. Apparently the Railway Administration was not satisfied with this explanation. Even inthe affidavit-in-reply the petitioner has not given any explanation whatever to say why such contradictory statements have been made by him.

8. We are of the opinion that the inordinate delay extending over 20 years or even more is a ground on which discretion to issue a Writ in favour of this petitioner should not be used. Generally the discretion under Article 226 of the Constitution should be used in favour of the vigilant and not the indolent. By saying vigilant we do not mean the militant who is straining at every moment and at every stage but reasonably vigilant. This Writ is not for a Rip Van Winkle who wakes up after about 40 years at worse (from 1921 to 1958) or for a period of about 20 years at best (from 1940 to 1958). In denying the Writ in this case this court is not moved by any petty consideration of any technical delay or any point of technical limitation. It is moved by more fundamental and substantial considerations. By reason of this delay the petitioner having retired under both the dates both on his own as well as on the date of Railway Administration, it is now beyond the power of this Court to grant him any effective relief even if the Court were satisfied about the merits of the petitioner's case on age. No discretion under Article 226 of the Constitution should be used in vain. Any writ in such a case will be in vain because no writ or order can give effective remedy to the petitioner. A tendency is growing up in India today to make all kinds of miscellaneous declarations under Article 226 of the Constitution even when the writs are in vain. We are of opinion that Article 226 of the Constitution should not be used and was not intended to be used as a medium or means for declaratory orders or declaratory reliefs declaring acts and orders invalid even though no relief could be granted to the petitioner. The Court under Article 226 of the Constitution should not issue writs of consolation or writs propounding theories and theses. That is not the function, scope and purpose of Article 226 of the Constitution. For instance in this case there can be no writ to re-instate the petitioner into service any more. The only use which the petitioner would make of any declaration if this Court chose to make it, will be to enable him to found a claim for salary and pension on the basis of the disputed period and sue upon it. For that purpose the petitioner could have filed a suit for wrongful and premature retirement. This Court is of the opinion that Article 226 of the Constitution should not be allowed to be abused for such collateral purpose to be utilised as a foundation for subsequent claims in future legal proceedings. Wide as the connotation of the words 'directions' or 'orders' in Article 226 of the Constitution is, we do not consider them so wide as to include declarations for foundations of future claims which can be appropriately decided in more appropriate proceedings. This is not saying that any adequate alternative relief will defeat the constitutional remedy under Article 226 of the Constitution. Rather it is that the other relief is the only relief and Article 226 is neither the proper nor the adequate relief

9. On the records and on the merits we are not satisfied that the petitioner respondent hassucceeded in establishing his age on the basis of the Matriculation Certificate. In the first place the identity of the Matriculation Certificate and the alleged loss of the original on contradictory grounds put forward at different times throw a grave doubt on the authenticity of the certificate and it is not possible for this Court to say that in those circumstances the Railway Administration was not justified in refusing to accept the Matriculation Certificate in this particular case. It is necessary to emphasise that the Railway has its own Rules on the date of birth and the Matriculation Certificate does not hold the exclusive sway in that field. That Rule is Rule 144. The special features of Rule 144 is that every person, on entering railway service, shall declare his date of birth. That declaration was made by the petitioner in this case. The second important feature is that when a person enters service is unable to give his date of birth but gives his age then he should be assumed to have completed the stated age on the date of attestation. In this case the date of birth enters the age and not the date of birth, apparently under Rule 144(2)(b) which permits this course. This also provides for attestation. The petitioner attested. The Amendment of Rule 144 which is now Rule 145 was relied upon by the petitioner to suggest that the Matriculation Certificate should have been taken as food by the Railway Administration. On behalf of the Railway objection has been raised about the applicability of the amended Rule because it came into force in 1957 or 1956, and it was said that the order retiring him had already been made and in fact the petitioner has already retired. Therefore, this amendment could not retrospectively be made applicable to him. We need not decide the point. Quite apart from that question even the amendment provides that the explanation must be satisfactory and must be given 'ordinarily within a reasonable time' after joining the service explaining the circumstances in which the wrong date came to be entered. Now that test of the amendment is not satisfied in the facts of this case as stated above. Therefore, even if amended Rule applied that would not help the petitioner respondent.

10. For these reasons this appeal must be allowed and the order of the learned Judge is set aside.

11. There will be no order as to costs.

Masud, J.

12. I agree.


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