Sivakalai Muthu v. The State of Tamil Nadu & Ors.

In the High Court of Judicature at MadrasDated: 20.02.2008CoramThe Honourable Mr.JUSTICE P.K.MISRAandThe Honourable Mr.JUSTICE K.CHANDRUWrit Petition No.21796 of 2003Sivakalai Muthu... Petitioner-vs-1. The State of Tamil Nadu, rep. by its Secretary to Govt., Education Dept., Fort St. George, Chennai.2. The Director of School Education, College Road, Chennai.3. The Chief Educational Officer, Karur.4. The District Educational Officer, Karur.5. The Registrar Tamil Nadu Administrative Tribunal, Chennai.... Respondents PETITION under Article 226 of The Constitution of Indiapraying for the issuance of writ of Certiorarified Mandamus asstated therein.For Petitioner:Mr.M.MuthappanFor Respondents:Mr.S.RajasekarAddl. Govt. Pleader https://hcservices.ecourts.gov.in/hcservices/ O R D E R(Order of the Court was made by P.K.MISRA,J) Heard the learned counsel appearing for the parties.2. The primary issue relates to the question of alteration ofdate of birth of a person in Government employment. The petitionerentered into the Government service on 17.6.1963. At that time,his date of birth was shown as 12.9.1939 in the service records.Subsequently, the petitioner filed O.S.No.313 of 1992 before thelearned District Munsif, Kulithalai, for declaration that hiscorrect date of birth is 29.7.1941 and consequently, for alterationin the service register indicating such correct date of birth. Inthe said suit, the State Government as well as the Deputy DistrictEducational Officer, Karur, were impleaded as defendants. Thecivil Court accepted the contention of the petitioner and decreedthe suit on 26.11.1993. As is the wont in many such matters, theproposal for filing appeal was initiated much after the disposal ofthe suit and ultimately, the appeal was filed with delay of 605days. The I Appellate Court, Kulithalai, predictably did notcondone the delay and accordingly, the appeal was dismissed on11.3.1996 on the ground of limitation. At that stage, the thenSpecial Government Pleader opined that no further appeal need befiled. Armed with the decree of the civil Court, the petitionerfiled O.A.No.7500 of 1997 with a prayer for continuance in serviceby treating the date of birth as 29.7.1941 as per the decree of thecivil Court. The Tribunal, by reasoned order dated 30.9.1997, whichwas also the normal date of superannuation as per the originalentry in the service register, observed that the civil Court had nojurisdiction to deal with such matters and therefore, the decree ofthe civil Court was a nullity and not binding and accordingly, theOriginal Application was dismissed.3. It appears that the petitioner had also simultaneouslymoved the Government for continuance in service beyond the date ofsuperannuation on the basis of the decree of the civil Court andthe Government had passed an order in G.O.Ms.No.418, EducationDepartment, dated 30.9.97 for continuance in service on the verysame day when O.A.No.7500 of 1997 was dismissed by the Tribunal,obviously, presumably unaware of the order passed in the saidOriginal Application. Subsequently, however, when the decision ofthe Tribunal in O.A.No.7500 of 1997 was brought to the notice ofthe Government, G.O.Ms. No.487 was passed on 27.11.1997 recallingthe earlier order relating to continuance in service. Thereafter,the petitioner filed O.A.No.10001 of 1997 for quashing such laterorder of the Government and for a direction to the Government to https://hcservices.ecourts.gov.in/hcservices/ allow him to continue in service as per the date of birth declaredby the civil Court. The said Original Application having beendismissed under the impugned judgment, the present writ petition isbefore this Court.4. It is necessary to note that the first order of theTribunal dated 30.9.1997 in O.A.No.7500 of 1997 was not challengedin the High Court. Even though the learned counsel for thepetitioner states that a review application was filed against suchorder, he is unable to state as to what happened to such reviewapplication nor able to furnish the particulars. 5. In the above background of material facts, the contentionsraised by the petitioner are to the following effect:-1)In view of the decree of the civil Court, which became final having not been challenged, the principle of res judi cata is applicable and the Government is bound to act upon such decree of the civil Court, as the Government was a party to such proceeding ;2)Having extended the services of the petitioner, the Government had no jurisdiction to recall such order and that too, without giving an opportunity of hearing; and3)Since the petitioner had entered into service before the introduction of Rule 49 of the Tamil Nadu State and Service Rules, the period of limitation of five years, as contemplated under Rule 49 is not applicable.6. The first question is as to whether the decree of the civilCourt was binding and was required to be implemented by theGovernment. In this connection, it is necessary to notice thatafter the implementation of the Administrative Tribunals Act, 1985(in short 'the Act'), the State Administrative Tribunal wasestablished in Tamil Nadu with effect from 5.12.1988. Section 28of the Act is to the following effect:-"28. Exclusion of jurisdiction of courts except theSupreme Court under Article 136 of the Constitution. - Onand from the date from which any jurisdiction, powers andauthority becomes exercisable under this Act by aTribunal in relation to recruitment and mattersconcerning recruitment to any Service or post or service https://hcservices.ecourts.gov.in/hcservices/ matters concerning members of any Service of personsappointed to any Service or post, no court except, -(a)the Supreme Court; or(b)any Industrial Tribunal, Labour Court or other authority constituted under the Industrial Disputes Act, 1947 (14 of 1947) or any other corresponding law for the time being in force,shall have, or be entitled to exercise any jurisdiction,powers or authority in relation to such recruitment ormatters concerning such recruitment or such servicematters.By the time of filing of the suit in the year 1992, obviously theAct was in existence and the Tribunal was in place. In such viewof the matter, obviously, the jurisdiction of the civil Court wasexpressly excluded under Section 28 of the Act. In this context,it is also interesting to note that in the suit, a specific prayerhad been made by the petitioner regarding the correction of date ofbirth in the service register. Obviously, this suit was directlyin relation to matters concerning members of any service andtherefore, there cannot be any escape from the conclusion that inview of Section 28 of the Act, the civil Court had no jurisdiction.This was precisely the findings of the Tribunal on earlier occasionas per order dated 30.9.1997 in O.A.No.7500 of 1997, which also, inthe absence of any further challenge, became final.7. Learned counsel for the petitioner, however, submitted thateven assuming that the order of the civil Court was erroneous, suchdecision could have been corrected by filing an appeal and sincethe appeal was barred by limitation, the decree of the civil Courthad become final.8. As early as in 1954, the Apex Court in the case of KiranSingh v. Chaman Paswan (A.I.R. 1954 SC 340), has observed that, "It is a fundamental principle well-established that adecree passed by a Court without jurisidction is anullity and that its invalidity could be set up wheneverand wherever it is sought to be enforced or relied upon,even at the stage of execution and even in collateralproceedings." In fact, the above decision of the Supreme Court had beencontinuously followed for more than five decades by differentcourts and there cannot be any doubt on this principlecategorically laid down by the Supreme Court. https://hcservices.ecourts.gov.in/hcservices/

9. Learned counsel for the petitioner further contended thatthe question regarding the jurisdiction of the civil Court had alsobeen raised before the trial Court and the trial Court hadspecifically negatived such contention and it held that civil Courthas jurisdiction in the matter. This contention of the learnedcounsel for the petitioner again holds no water in view of thedecision of the Supreme Court in Mathura Prasad v Dossibai (A.I.R.1971 S.C. 2355), wherein it was held thus:"9. A question of jurisdiction of the Court, or ofprocedure, or a pure question of law unrelated to theright of the parties to a previous suit, is not resjudicata in the subsequent suit. Rankin, C.J., observedin Tarini Charan Bhattacharjee's case, ILR 56 Cal 723 -(AIR 1928 Cal 777),"The object of the doctrine of res judicata is not tofasten upon parties special principles of law asapplicable to them inter se, but to ascertain theirrights and the facts upon which these rights directlyand substantially depend; and to prevent thisascertainment from becoming nugatory by precluding theparties from reopening or recontesting that which hasbeen finally decided."A question relating to the jurisdiction of a Court cannotbe deemed to have been finally determined by an erroneousdecision of the Court. If by an erroneous interpretationof the statute the Court holds that it has nojurisdiction, the question would not, in our judgment,operate as res judicata. Similarly by an erroneousdecision if the Court assumes jurisdiction which it doesnot possess under the statute the question cannot operateas res judicata between the same parties, whether thecause of action in the subsequent litigation is the sameor otherwise."(emphasis supplied)10. Applying the above test, even the conclusion of the civilCourt that it had jurisdiction cannot be held to operate as resjudicata in the subsequent proceedings as it relates to erroneousdecision on the question of jurisdiction. As a matter of fact,when the civil Court decree was pressed into service before theTribunal, it was categorically held by the Tribunal that in view ofSection 28 of the Act, the civil Court did not have anyjurisdiction. It is also interesting to note that such decision of https://hcservices.ecourts.gov.in/hcservices/ the Tribunal had subsequently become final. Therefore, evenassuming that there was an earlier decision of the civil Court, thesubsequent decision of the Tribunal, which, admittedly, had thestatutory jurisdiction in the matter, would obviously operate asres judicata and not the decision of the civil Court.11. The next question raised by the learned counsel for thepetitioner is to the effect that the order of the civil Courthaving been accepted by the Government and the services having beenextended, there was no justification on the part of the Governmentto recall such order and that too, without complying with theprinciples of natural justice. There is no dispute that at onestage, the Government obviously on the basis of the decision of thecivil Court had extended the services of the petitioner. But, itis equally obvious that at that stage, the Government was not awareof the pendency of O.A.No.7500 of 1997 and on 30.9.1997, the dateon which the Government passed the order of extension of service,the Tribunal had decided the matter against the present petitionerand dismissed such O.A. Therefore, when the aforesaid aspect wasbrought to the notice of the Government, it had rightly recalledits earlier order. The question of affording any opportunity tothe petitioner at that stage did not arise. It is not a case whereany disciplinary proceeding had been initiated, so that there wasany necessity of complying with the principles of natural justice.What the Government has done was merely implementing the orderpassed by the Tribunal, which was the competent forum in suchmatters. In such peculiar circumstances, the contention of thepetitioner that principles of natural justice having not beencomplied with, the subsequent order passed by the Government isillegal cannot be accepted. 12. That apart, we have specifically posed the question as towhat would be the stand of the petitioner, if such an opportunitywould have been given. Law is now well settled that even whereopportunity has not been given at the initial stage, the postdecisional opportunity can be availed. In the instant case, thematter came up before the Tribunal in the subsequent application inO.A.No.10001 of 1997 and even at that stage, whatever thepetitioner could have projected was available to him. Moreover,since there is no dispute as to the factual position, thecompliance of principles of natural justice would have been only anempty formality. Therefore, the second contention raised by thepetitioner is also not acceptable.13. The third contention of the petitioner is to the effectthat since the petitioner had entered into service before theintroduction of Rule 49 to the Tamil Nadu State and Subordinate https://hcservices.ecourts.gov.in/hcservices/ Service Rules, such period of five years as contemplated under thesaid Rule, could not be applied. For the aforesaid purpose, thelearned counsel for the petitioner relied upon a Division Benchdecision of this Court in Government of Tamil Nadu v. S.Marimuthu(2003 (2) CTC 103). In the said decision, the suit was filed in1981 when there was no Tribunal nor the Administrative TribunalsAct was in existence. Obviously, therefore, the civil Court hasjurisdiction in such matters. Thus, the question in the instantcase did not arise in that case. Moreover, the learned counselappearing for the petitioner has fairly brought to our notice thatthe amendments, which were relied upon by the Division Bench, weresubsequently considered by the Supreme Court in State of Tamil Naduv. T.V.Venugopalan [(1994) 6 SCC 302], wherein the Supreme Courtobserved as follows:-"5. In Union of India v. Harnam Singh [(1993), 2 SCC162], when Fundamental Rule 56(m) was amended andsubstituted Note 5 in 1979 prescribing a period of fiveyears to seek alteration of the date of birth from thedate of coming into force of these rules, this Courtharmoniously interpreted the rule and held that theemployee who was in service as on that date, will beentitled to seek correction of date of birth within fiveyears from 1979. In that context, this Court held that:(SCC p.167, para 7)" A government servant who has declared his age at theinitial stage of the employement is, of course, notprecluded from making a request later on forcorrecting his age. It is open to a civil servant toclaim correction of his date of birth, if he is inpossession of irrefutable proof relating to his dateof birth as different from the one earlierrecorded; ..."should make application within a period of five yearsfrom the date the rule had come into force and if he hadnot done, he was not eligible and was not entitled tocorrection. In that case, in view of the inordinatedelay, the application for correction of date of birthwas rejected.6. ....7. As held by this Court in Harnam case, Rule 49 isto be harmoniously interpreted. The application forcorrection of the date of birth of an in-service employee https://hcservices.ecourts.gov.in/hcservices/ should be made within five years from the date when theRules had come into force and if no application is made,after expiry of five years, the government employee loseshis right to make an application for correction of hisdate of birth. ..." 16. For the aforesaid reasons, we do not find any merit in anyof the contentions raised by the petitioner. The writ petition, isaccordingly, dismissed. No costs.sraSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To 1. The Secretary, State of Tamil Nadu, Education Dept., Fort St. George, Chennai.2. The Director of School Education, College Road, Chennai.3. The Chief Educational Officer, Karur.4. The District Educational Officer, Karur.5. The Registrar Tamil Nadu Administrative Tribunal, Chennai.1 cc to Mr.T.Ayngaraprabhu, Advocate, SR.93661 cc to Government Pleader, SR.9173sj (co)dv/18.3.W.P.No.21796 of 2003