Madras High Court
M. Ramasubramani vs The Central Administrative Tribunal on 30 September, 2013
Author: N. Paul Vasanthakumar
Bench: N.Paul Vasanthakumar, M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30-9-2013 CORAM THE HONOURABLE MR. JUSTICE N.PAUL VASANTHAKUMAR AND THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.P.No.16062 of 2010 M. Ramasubramani ... Petitioner Vs. 1. The Central Administrative Tribunal, rep.by its Registrar, Madras Bench, High Court Buildings, Chennai 600 104. 2. The Government of India, rep.by its Secretary to Government, Ministry of Home Affairs, Government of India, New Delhi. 3. The Government of Tamil Nadu, rep.by its Secretary to Government, Home (Pol.IA) Department, Fort St.George, Chennai- 600 009. 4. The Secretary, Tamil Nadu Public Service Commission, Chennai 600 002. 5. The Union Pubic Service Commission, New Delhi, rep.by its Secretary. 6. The Director General of Police, Mylapore, Chennai 600 004. ... Respondents Writ petition filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the entire records pertaining to the passing of the order dated 10.7.2009 made in O.A.No.75 of 2008 on the file of the Central Administrative Tribunal, Madras Bench, the first respondent herein, to quash the same and consequently direct the respondents to alter the date of birth of the petitioner as 3.7.1958 in service records, instead of the existing entry of 14.5.1957 and for other consequential reliefs. For Petitioner : Mr.P.N.Prakasam 1st Respondent : Tribunal For 2nd Respondent : Mr.S.Haja Mohideen Gisthi, SCGSC For Respondents 3&6 : Mr.P.S.Sivashanmugasundaram Special Government Pleader For 4th Respondent : Mr.N.S.Nandakumar For 5th Respondent : No appearance O R D E R
N.PAUL VASANTHAKUMAR, J.
This writ petition is filed against the order passed by the Central Administrative Tribunal in O.A.No.75 of 2008 dated 10.7.2009, dismissing the application filed by the petitioner seeking to quash the order of the Government dated 2.3.2007, rejecting the request of the petitioner seeking alteration of his date of birth from 14.5.1957 to 3.7.1958, in service records.
2. The case of the petitioner before the Central Administrative Tribunal, Madras Bench, was as follows:
(a) Petitioner was directly recruited as Deputy Superintendent of Police (Category-I), selected through the Tamil Nadu Public Service Commission vide G.O.Ms.No.526 dated 5.3.1987. He joined duty on 16.3.1987 and he was conferred IPS on promotion quota on 14.12.1999. His date of birth was entered as 14.5.1957 in the SSLC Certificate and in the School records, while admitting the petitioner by his parents in the school.
(b) According to the petitioner, the petitioner's parents are illiterate, who gave the wrong date of birth while admitting him in school, which was recorded in the SSLC certificate as well as in the service register. The claim of the petitioner is that his actual date of birth is 3.7.1958 and not on 14.5.1957.
(c) Petitioner after joining in the Tamil Nadu Police Department on 16.3.1987, submitted a representation on 21.5.1990 to alter his date of birth in the service register and connected records. According to the petitioner, the said application was rejected on 5.10.1991 without following Rule 49(b) in Part-II of the Tamil Nadu State and Subordinate Service Rules.
(d) Petitioner filed Civil Suit in O.S.No.362 of 1994 on the file of the District Munsif Court, Virudhunagar, for declaring his correct date of birth as 3.7.1958 instead of 14.5.1957. The said suit was decreed in his favour on 17.10.1995 with a direction to the defendants therein to alter the date of birth on or before 17.12.1995. Appeal filed by the defendants therein/respondents herein was dismissed by confirming the decree passed, declaring his date of birth as 3.7.1958.
(e) After the Civil Court decree became final, petitioner submitted representation on 1.2.2000 for alteration of his date of birth, which was rejected by the third respondent herein on 11.4.2001 stating that the Civil Court order do not bind the Government for altering the date of birth of the Government servant, and the Government is not obliged to correct the service records on the basis of Civil Court decree.
(f) The Director of School Education, changed the date of birth in the school records as per the Civil Court decree. The petitioner was conferred IPS on 14.12.1999 on promotion quota, he again submitted a representation to the respondents on 17.2.2003, which was replied by the third respondent on 14.11.2003 stating that his request was rejected by the Government.
(g) Aggrieved over the said order dated 14.11.2003 passed by the third respondent, petitioner has filed O.A.No.725 of 2005 before the Central Administrative Tribunal and the Tribunal set aside the order dated 14.11.2003 by order dated 17.11.2006 and directed to reconsider the request and pass appropriate speaking order in accordance with law.
(h) Pursuant to the said order of the Central Administrative Tribunal dated 17.11.2006, a further representation was submitted by the petitioner on 12.2.2007, which was rejected by G.O.Ms.No.131, Home (Pol.I.A.) Department, dated 2.3.2007, against which O.A.No.75 of 2008 was filed before the Central Administrative Tribunal contending that no personal hearing was given before rejecting the request to alter the date of birth; that the original date of birth being made based on the information of his illiterate parents, the same may not be conclusive proof when credible evidence are made out for correction of date of birth; and that the Government ought to have corrected the date of birth entry in the service register, particularly when the Civil Court has declared his correct date of birth as 3.7.1958.
3. The said application was resisted by the respondents 2 to 4 and 5 by filing counter affidavit, contending as follows:
(i) Within five years of his entry into service, petitioner applied for alteration of date of birth, that was on 21.5.1990 with birth certificate issued by the Sub-Registrar, Vathalakundu. In the birth certificate the date of birth is shown as 3.7.1958 for the birth of a female child to the parents of the petitioner. Petitioner contended that his parents have only three sons and no daughter. Therefore the mention in the date of birth certificate as female child, was a mistake. The said explanation having been found not convincing, petitioner's request was rejected by the Director General of Police by order dated 5.10.1991.
(ii) Petitioner, without challenging the said order, filed a suit for declaration to declare his date of birth as 3.7.1958 instead of 14.5.1957, in O.S.No.362 of 1994 before the District Munsif Court, Virudhunagar. The said suit was decreed on 17.10.1995.
(iii) It is further stated in the counter affidavit that the Civil Court was not having any jurisdiction after the formation of the Tamil Nadu State Administrative Tribunal, which was formed with effect from 12.12.1988 under Section 15 of the Administrative Tribunals Act, 1985, and therefore the request seeking correction of date of birth in the Service Register was rejected by G.O.Ms.No.758 Education, Science and Technology (E1) Department, dated 25.10.1996.
(iv) A further representation submitted on 1.3.2000 was also rejected by the Government in letter dated 11.4.2002. reiterating the stand that the Civil Court order do not bind the Government regarding alteration of date of birth and the Government were not obliged to alter the service records on the strength of the Civil Court decree.
(v) A further representation was submitted on 17.2.2003 to the Government enclosing photo copies of the SSLC certificate and mark sheet with correction of date of birth as 3.7.1958 instead of 14.5.1957 and requesting the Government to alter the Service Register on the strength of the corrections made in the School certificate.
(vi) The petitioner having been selected to IPS cadre on promotion from the State cadre as per Rule 16A of the All India Service (Death-cum-Retirement Benefits) Rules, 1958, the Government of Tamil Nadu referred the matter to the Government of India, Ministry of Home Affairs for advise by letter dated 6.8.2003, for which a reply was given by the Ministry of Home Affairs, New Delhi, on 3.11.2003 stating that the State Government has to examine the case with regard to the documents produced as per the provisions of law and on receiving the said reply again the request was rejected by order dated 14.11.2003.
(vii) The said order was challenged in O.A.No.725 of 2005 on the ground that no reason was stated and the Central Administrative Tribunal by order dated 17.11.2006 directed to reconsider the request of the petitioner and pass a speaking order. Thereafter the Government examined the relevant records and rejected the request by passing G.O.Ms.No.131 Home (Pol-IA) Department, dated 2.3.2007. The said order refers to several judgments of the Supreme Court.
(viii) The principal contention of the Government of Tamil Nadu in the Counter affidavit is that the petitioner has prayed for correction of date of birth on the basis of Civil Court decree, which is not binding on the Government as jurisdiction of Civil Court to entertain such suits of Government servants was ousted from the date of constitution of the Tamil Nadu Administrative Tribunal with effect from 12.12.1988 and the correction made in the SSLC book based on Civil Court decree obtained by a Government Servant will not confer any right to the petitioner, as the claim of the petitioner was rejected as early as on 5.10.1991, which was not challenged before any forum. It is also the contention of the State Government that as per Rule 16A of the above referred Rules, the Central Government cannot entertain an application for alteration of date of birth. Therefore Correction of date of birth of a Police Officer after he was promoted to the IPS cadre, is not permissible.
4. The Central Administrative Tribunal considered the rival contentions and dismissed the original application noticing the fact about the rejection of application submitted within five years, on 5.10.1991, 11.4.2002 and lastly on 2.3.2007, while the petitioner was in service of the State Government and as per Rule 16A of the All India Service (DCRB Rules), 1971, the date of birth as declared by a person in the application for recruitment to the service shall be accepted by the Central Government and as per Rule 16A(4), the date of birth as accepted by the Central Government is not subject to any alteration, except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3). The Tribunal also relied on the judgment of the Supreme Court reported in AIR 1997 SC 2055 (Union of India v. C.Ramaswamy) and dismissed the application, against which this writ petition is filed.
5. Mr.P.N.Prakasam, learned counsel appearing for the petitioner argued the grounds raised in the original application and heavily relied on the Civil Court decree rendered in O.S.No.362 of 1994 dated 17.10.1995 to sustain the contention of the petitioner seeking alteration of date of birth in the Service Register. The learned counsel submitted that the date of birth entry made in the birth certificate, that is 3.7.1958, instead of mentioning the sex as 'male' it was wrongly mentioned as 'female', which is a clerical mistake, and the mistake is bound to be corrected based on the judgment of the Civil Court, which has gone through the merits of the contentions and declared the date of birth of the petitioner, particularly after the entry made in the school certificates were corrected in terms of the Civil Court decree.
6. Mr.P.S.Sivashanmugasundaram, learned Special Government Pleader appearing for the State Government submitted that the Civil Court decree is not binding on the Government as the Tribunal constituted under the Administrative Tribunals Act, 1985, with effect from 12.12.1988 alone has got jurisdiction to decide the service disputes, including correction of date of birth in the Service Register of Government Servant and therefore the Civil Court judgment will not bind the State Government in that regard.
7. Mr.S.Haja Mohideen Gisthi, learned Senior Central Government Standing Counsel appearing for the Central Government submitted that once the person entered into the service of the Government of India, i.e, after being conferred IPS on promotion, his date of birth entry cannot be corrected as per Rule 16A other than clerical mistakes and therefore the order of the Tribunal is perfectly in order.
8. We have considered the rival submissions made by the respective counsels.
9. Petitioner was admitted in School by giving his date of birth as 14.5.1957. Petitioner passed SSLC in March, 1974. Therefore when the petitioner appeared for the SSLC examination (11th standard) in March, 1974 his age was 16 years. If 3.7.1958 is taken as date of birth as contended by the petitioner, petitioner ought not have completed 15 years at the time of writing SSLC examination (11th Standard) in March, 1974. It is a fact that for admitting a student in the first standard, the student should have completed 5 years of age. Thus, while writing 11th standard examination, the student should have completed 16 years of age, and not 15 years of age.
10. It is not the case of the petitioner that for writing SSLC examination in March 1974, he had obtained exemption for not completing the required age of 16 years, as provided under the Tamil Nadu Educational Rules.
11. The petitioner joined in the Tamil Nadu Government Police Service on 16.3.1987. Petitioner applied for correction of date of birth from 14.5.1957 to 3.7.1958 by submitting an application on 21.5.1990, that is within five years from the date of entry into the service, relying upon Rule 49(b) of the Tamil Nadu State and Subordinate Service Rules. The said request was rejected by the Government by order dated 5.10.1991. Thus, it is evident that the request made by the petitioner seeking correction of date of birth in the Service Register having been made within five years, was considered on merits and rejected. The said order was not challenged by the petitioner before the competent forum/Court.
12. At this juncture, it is relevant to note that the Administrative Tribunals Act, 1985 was enacted to settle the service disputes of the Government Servants. The State Administrative Tribunal was created/constituted by the State Government in terms of Section 15 of the Administrative Tribunals Act, 1985, with effect from 12.12.1988. As per section 15(1) of the Act, the Administrative Tribunal of the State shall exercise all the jurisdiction, powers, and authority exercisable immediately before that day on and from the appointed day, by all courts (except Supreme Court). All recruitments and matters concerning recruitment to any civil service of the State or to any civil post under the State, are to be raised before the State Administrative Tribunal. Even pending matters, which were filed before this Court or Civil Courts, were deemed to be transferred under Section 29 of the Act, except the appeals pending before the High Court. Thus, it is evident that on and after 12.12.1988, any dispute of State Government Servants can be agitated only before the State Administrative Tribunal till the abolition of Tamil Nadu State Administrative Tribunal.
13. The correction of date of birth in the Service Register is also a service related issue, as Rule 49 contemplates correction of date of birth of a Government Servant. Relevant portion of Rule 49(a) and (b) of the Tamil Nadu State and Subordinate Service Rules reads as follows, "49. Alteration of date of birth.- (a) If at the time of appointment, candidate claims that his date of birth is different from that entered to his S.S.L.C. or Matriculation Register or school records, he shall make an application to the Tamil Nadu Public Service Commission in cases where the appointment is made in consultation with the Commission and in other cases to the appointing authority stating the evidence on which he relies and explaining how the mistake occurred. The application shall be forwarded to the Board of Revenue for report after investigation by an officer not below the rank of a Deputy Collector and, on receipt of the report, the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall decide whether the alteration of date of birth may be permitted or the application may be rejected:
Provided that in case of candidate who was born outside the State of Tamil Nadu the investigation through the Board of Revenue shall be dispensed with and the Tamil Nadu Public Service Commission or the appointing authority, as the case may be, shall examine and scrutinise the records that may be produced by the candidate and shall decide whether the alteration of date of birth may be permitted or the application may be rejected.
(b) After a person has entered service, an application to alter the date of his birth as entered in the official records shall be entertained only if such an application is made within five years of such entry into service. Such an application shall be made to the authority competent to mark an appointment to the post held by the applicant at the time of his application and shall be disposed of in accordance with the procedure laid down in sub-rule (a)."
Admittedly, petitioner applied for correction of date of birth in his service register under that provision on 21.5.1990 while in Government service, which was rejected on 5.10.1991. Ignoring the said statutory bar to go before any other forum regarding service disputes, the petitioner has chosen to approach the Civil Court by filing O.S.No.362 of 1994 before the District Munsif Court, Virudhunagar, and prayed for declaration to declare his date of birth as 3.7.1958 instead of 14.5.1957, which has been entered into in the SSLC certificate, and also for an order of perpetual injunction restraining the defendants in the suit from interfering with his Government service. In the said suit the State Government; the Director General of Police; TNPSC; the Director of School Education; and Sub-Registrar, Vathalakundu, Madurai, were shown as defendants. The respondents herein contested the suit stating that the date of birth alteration sought for in the Service Register was rejected in the year 1991 itself. Petitioner also stated in the plaint that he was in the service of the Tamil Nadu State Government.
14. The Civil Court, which was not vested with the jurisdiction to entertain the said suit on and from 12.12.1988, granted a decree on 17.9.1995 in the suit filed in the year 1994. Based on the Civil Court decree, the petitioner again submitted representation to alter the date of birth before the respondents, which was rejected by the State Government in its order dated 11.4.2002, clearly stating that Civil Court order does not bind the Government and therefore the Government are not obliged to alter the Service Register on the basis of Civil Court's decree. The said order was not challenged by the petitioner.
15. In G.O.Ms.No.758 Education, Science and Technology (E1) Department, dated 25.10.1996, the Government clearly stated that correction to be made in the SSLC Book and the correction to be made in the service register of a Government Servant are different issues and correction of date of birth in the service register has to be examined under Rule 49 of the Tamil Nadu State and Subordinate Service Rules and the Tamil Nadu Administrative Tribunal is competent to entertain any request from the Government Servant. In spite of the said Government Order, the petitioner chose to approach the Civil Court and obtained a decree.
16. Further representation made was also rejected on 14.11.2003, which alone was challenged in O.A.No.725 of 2005 before the Central Administrative Tribunal and the Tribunal remanded the matter for fresh consideration. In the order of the Tribunal dated 17.11.2006, the earlier rejection order dated 11.4.2002 has not been referred at all. After the said order passed by the Tribunal, petitioner's claim was again rejected by the Government by a speaking order through G.O.Ms.No.131 Home (Pol.IA) Department dated 2.3.2007, stating that the date of birth entry in the Service Register can be considered only under General Rule 49 of the Tamil Nadu State and Subordinate Service Rules and the application submitted by the petitioner was rejected repeatedly and after he being promoted to the IPS Cadre, for correction of date of birth Rule 16A(4) of the All India (DCRB) Rules, 1971 is applicable and unless there is a clerical mistake, no alteration is permissible under the said rule. Therefore, the request of the petitioner, who is an IPS Officer seeking alteration of date of birth, was rejected.
17. The only ground urged before this Court is that the Civil Court having declared the date of birth of the petitioner as 3.7.1958, which was also carried out in the SSLC book of the petitioner by the Director of School Education, the respondents are bound to alter the date of birth in Service Register as if it is a clerical error. Rule 49A of the Tamil Nadu State and Subordinate Service Rules and Rule 16A of the All India Service (DCRB) Rules, 1971 are relevant to be stated here. Rule 49A reads as follows:
"49A. Correction of date of birth.- After a person has entered service, if it is found that his date of birth entered in his Service Register is different from that entered in the Secondary School Leaving Certificate Book, which may be due to some clerical error or otherwise wrong entries, application for correction of such wrong entries shall be made to the appointing authority. Such corrections in the official records can be made straightaway by the appointing authorities."
Rule 16A of the All India Service (DCRB) Rules, 1971, reads as follows:
"16A. Acceptance of date of birth. (1) For the purpose of determination of the date of superannuation of a member of the service, such date shall be calculated with reference to the date of his birth as accepted by the Central Government under this rules.
16A(2) In relation to a person appointed, after the commencement of the All India Services (Death-cum-Retirement Banefits) Amendment Rules, 1971.
a) Indian Administrative Service under clause (a) or clause (aa) of sub-rule (1) of rule 4 of the Indian Administrative Service (Recruitment) Rules, 1954: or,
b) the Indian Police Service under clause (a) or clause (aa) of sub-rule (1) of rule 4 of the Indian Police (Recruitment) Rules, 1954: or
c) the Indian Forest Service under clause (a) or clause (aa) of sub-rule (2) of rule r of Indian Forest Service (Recruitment) Rules, 1966 the date of birth as declared by such person in the application for recruitment to the service shall be accepted by the Central Governmentas the date of birth of such person.
16A(3) In relation to a person to whom sub-rule ( 2) does not apply, the date of birth as recorded in the service book or other similar official document maintained by the concerned Government shall be accepted by the Central Government as the date of birth of such person.
16A(4) The date of birth as accepted by the Central Government shall not be subject to any alteration except where it is established that a bona fide clerical mistake has been committed in accepting the date of birth under sub-rule (2) or (3)."
18. It is an admitted fact that the date of birth entry made in the SSLC/School certificate was corrected as per the Civil Court decree. As rightly contended by the State, the Civil Court has no jurisdiction to entertain the suit regarding service matters, including alteration of date of birth, more particularly when the petitioner has prayed for permanent injunction restraining the Department from causing any hindrance to petitioner's job till the Department correct his date of birth as 3.7.1958. The said prayer in the suit is not maintainable, after constitution of the State Administrative Tribunal with effect from 12.12.1988, at least till the abolition of the Tribunal in the year 2004.
19. The Supreme Court in the decision reported in AIR 1997 SC 2055 : (1997) 4 SCC 647 (Union of India v. C.Rama Swamy) considered a similar claim under Rule 16A and in paragraph 18 explained the meaning of "bona fide clerical mistake", which reads as follows:
"18. Sub-rule (1) of Rule 16-A states that for the determination of the date of superannuation the date is to be calculated with reference to the date of birth as accepted by the Central Government under this Rule. The use of the word accepted in sub-rule (1) is indicative of the fact that except in a case where there may be a correction on account of bona fide clerical mistake having occurred the Central Government accepts, and does not determine, the date of birth in the manner specified in sub-rule (2) and sub-rule (3). Sub-rule (2) is applicable to a person appointed after commencement of the All India Services (Death-cum-Retirement Benefits) Amendment Rules, 1971. According to this the date of birth of the appointees as declared in their applications for recruitment shall be accepted by the Central Government as the date of birth of such persons. The effect of this is that at least as far as post-4-12-1971 appointees are concerned the question of the Central Government accepting any date of birth other than that indicated in the application for recruitment to the service does not arise. The implication of this clearly is that with the insertion of new Rule 16-A(2) there would be no occasion for the Central Government to even entertain an application for alteration in the date of birth, as the Government is enjoined to accept only that date which is declared by such person in his application for recruitment. This of course is subject to the limited circumstances under which correction can be effected under sub-rule (4) of Rule 16-A, namely, in cases where a bona fide clerical mistake had occurred in accepting the date of birth under sub-rule (2) or sub-rule (3)."
It was also held therein that mistake must have happened at the time of employment by noting the date of birth contrary to records. In this case the date of birth in service register was entered as per SSLC Certificate, which is a public document. In paragraph 22 of the decision the Hon'ble Supreme Court held thus, "22. It was faintly submitted that on the basis of the birth certificate obtained from the Sub-Registrars Office by the respondent as well as his horoscope it should be held that there was a bona fide clerical mistake and, therefore, the date of birth could be corrected. We are unable to accept the submission. Bona fide clerical error would normally be one where an officer has indicated a particular date of birth in his application form or any other document at the time of his employment but, by mistake or oversight a different date has been recorded. In the present case admittedly the date of birth indicated in the application form filled in for the purpose of taking the competitive examination was that of 17-6-1939. This date was then incorporated in his descriptive roll kept in his service record and this was duly signed by the respondent. Admittedly the respondent also believed this to be his correct date of birth, therefore, it was not a case where the date of 17-6-1939 had been incorrectly recorded in the service-book as a result of any bona fide clerical mistake. In fact in his original representation it was not even suggested by the respondent that there had been any clerical mistake. The positive case put forth by the respondent was that it is after the demise of his mother that he had discovered that his real date of birth was 15.6.1941 and not 17.6.1939."
(Emphasis Supplied)
20. Further, the petitioner has not chosen to challenge the rejection of alteration of date of birth request by order dated 5.10.1991. The only basis on which the date of birth alteration is sought for and was pursued before the Tribunal is based on the Civil Court decree. The validity of the order passed by the Civil Court is collaterally challenged by the Government both before the Tribunal and in this writ petition by the respondent.
21. The issue regarding the validity of a decree passed by the Court, which is not vested with jurisdiction was dealt with in the following decisions:
(a) The Supreme Court in the decision reported in AIR 1953 SC 33 (Srimati Raj Lakshmi Dasi v. Banamall Sen) held that if a matter is exclusively triable by a special Tribunal or a special Court, if decided by any other Court, the said order cannot be treated as a decision to attract the principle of resjudicata.
(b) The Hon'ble Supreme Court in the decision reported in AIR 1954 SC 340 (Kiran Singh v. Chaman Paswan) in paragraph 6 held thus, "6. ......... the position in law is when a court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position. It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties. If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgment and decree would be nullities. ....."
(Emphasis Supplied)
(c) In 1974 II LLJ 206 (Workmen, Cochin Lighterage Corporation v. Paul Abrao) the Division Bench of Kerala High Court held that the order passed by the Civil Court will not constitute res judicata in labour matter, which is exclusively triable by the Industrial Tribunal. In the said judgment the Division Bench of the Kerala High Court held that a matter which is specially within the jurisdiction of the Industrial Tribunal cannot be decided by a civil court notwithstanding the comprehensive conferment of jurisdiction on the civil Courts by section 9 of CPC.
(d) The above said position is reiterated in the decision reported in AIR 1975 SC 2238 (Premier Automobiles v. K.S.Wadke).
(e) In (2004) 8 SCC 706 (N.Viswamitra v. Yadav Sadashiv Mule (Dead) through Lrs.) in paragraph 9 the Supreme Court held thus, "9. The main question which arises for our consideration is whether the decree passed by the trial court can be said to be null and void. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is a nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings."
(Emphasis Supplied)
(f) In (2008) 7 SCC 748 (Deepak Agro Foods v. State of Rajasthan), it is held that the order passed without jurisdiction renders the order void ab initio because absence of jurisdiction goes to the root of the matter and such a defect is not curable at all.
(g) The above principle is reiterated in the latter decision of the Supreme Court reported in AIR 2011 SC 514 (Sarup Singh v. Union of India).
(h) The Division Bench of this Court in the decision reported in 1993 WLR 517 (St.Antony Teacher Training Institute for Women, etc. v. State of Tamil Nadu, etc. and Others) and 1993 WLR 534 (Little Flower Teacher Training Institutes for Men and Women, v. The State of Tamil Nadu) considered the issue as to whether the Civil Court can direct grant of the order of recognition to Teachers Training Institutes. The Division Bench, following the judgment of the Supreme Court reported in AIR 1954 SC 340 (Kiran Singh v. Chaman Paswan) held that as the decree of the Civil Court is a nullity, it cannot be enforced in any forum. In paragraph 4 of of the judgment (St.Antoy's Case), the Division Bench held thus, "4. In short, the petitioner's contention is that the decree of the civil court having become final, the respondents are bound to grant permanent recognition to petitioner to comply with the conditions and rules framed in G.O.Ms.No.536 dated 17.5.1989. We are unable to accept this contention of the petitioner for two reasons. (1) The decree passed by the civil Court is a nullity in so far as it directs the authorities to grant recognition to the petitioner on the footing that the petitioner is a minority institution. As stated already, the court did not consider the question whether the petitioner had satisfied the rules as they existed at that time to obtain recognition. Moreover, S.53 of the Tamil Nadu Recognised Private Schools (Regulation) Act, 1973 provides that no civil Court shall have no jurisdiction to decide or deal with any question which is by or under this Act required to be decided or dealt with by any authority or officer mentioned in the Act. The question whether an institution is entitled to recognition and whether the institution has complied with the requirements of the rules has to be decided only by the authorities specified in the Act and the rules framed thereunder and not by the civil Court. Thus, the jurisdiction of the civil court being barred, neither the District Munsif, Ambasamudram nor the Subordinate Judge, Tirunelveli had the jurisdiction to decide the question of grant of recognition. It is well settled by several decisions of the Apex court that if a court lacks jurisdiction totally, any decree or passed by the court is a nullity and it cannot be enforced in any court of law. It has been held that such a nullity can be pleaded at any stage of any proceeding and even collaterally in other courts. In Kiran Singh v. Chaman Paswan (AIR 1954 SC 340) the Supreme Court has observed as follows:
"It is a fundamental principle well-established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is fought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
Hence, the petitioner is not entitled to get a Mandamus from this Court directing the respondent to give effect to the decree passed by the Civil Court in the aforesaid proceedings."
22. Thus, it is beyond doubt that the alteration of date of birth in the SSLC certificate based on the civil Court decree can be ignored by the respondents by treating the decree passed by the Civil Court as void, as nullity of the decree can be pleaded at any stage of any proceeding and even collaterally in other courts. If we ignore the said correction made in the school certificate based on the civil Court decree, there is no other material available to prove the petitioner's date of birth as 3.7.1958.
23. For the foregoing reasons, we are of the firm view that the petitioner cannot rely upon the decree passed in O.S.No.362 of 1994 to seek correction of his date of birth in the Service Register and the Department has rightly rejected the said request, which was affirmed by the Central Administrative Tribunal.
There is no merit in the writ petition and consequently the same is dismissed. No costs.
Index : Yes/No. [N.P.V.,J] [M.M.S., J.]
Internet : Yes/No. 30th September, 2013
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N. PAUL VASANTHAKUMAR, J.
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M.M.SUNDRESH, J.
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Pre-Delivery Order in
W.P.No.16062 of 2010
30-9-2013