Andhra HC (Pre-Telangana)
Tallapragada Narasimhamurthy vs Director, School Education And Anr. on 5 March, 2003
Equivalent citations: 2003(3)ALD482
JUDGMENT P.S. Narayana, J.
1. The core question raised by Tallapragada Narasimhamurthy, the appellant in the Second Appeal, at present a retired Reader in Department of Sociology, Andhra University, Visakhapatnam is whether the relief of mandatory injunction praying for a direction for the correction of date of birth in service records be negatived despite the fact of being granted the relief of declaration relating to the correct date of birth. The facts in nutshell are as hereunder:
2. Sri Tallapragada Narasimhamurthy, at present a retired Reader in Department of Sociology, Andhra University, Visakhapatnam, had instituted a suit in O.S.No. 25 of 1993 on the file of the Principal District Munsif, Chodavaram against the Director of School Education, A.P., Hyderabad and also the Andhra University, Visakhapatnam represented by its Registrar, arrayed as defendants 1 and 2, for declaration that his correct date of birth is 12.3.1939 and for consequential relief of mandatory injunction directing the defendants to correct his date of birth from 30.7.1934 to 12.3.1939 in the relevant records and for other appropriate reliefs. The parties hereinafter are referred to as plaintiff and defendants. It was pleaded in the plaint that the plaintiff is the son of one late Sri Tallapragada Venkatarao and Smt. Savithramma, and had taken birth on 12.3.1939 at Chodavaram and at that time his father was working as a Overseer at Chodavaram and his date of birth was registered on 11.5.1939 in the Panchayat Register of Chodavaram Gram Panchayat. It was further pleaded that the plaintiff had his Secondary School Education in the Municipal High School, Bheemunipatnam, Visakhapatnam District and his date of birth was wrongly entered in the Secondary School Leaving Certificate as 30.7.1934. It was further pleaded that the Secondary School Leaving Certificate in which the date of birth of the plaintiff was specified so, the declaration was kept blank and the said declaration does not bear the signature of the plaintiffs father and the entry in the said certificate relating to date of birth of the plaintiff is not supported by any evidence. It is also pleaded that the plaintiff came to know recently about his age through his close relatives and family members and thereupon, on verification, was satisfied that his correct date of birth is 12.3.1939 as entered in the Gram Panchayat records and as noted on a paper containing his horoscope. It was also stated that the plaintiff also had issued a notice through his advocate on 16.12.1992 to the defendants requesting them to correct the date of birth and inasmuch as the demand made by the plaintiff was not complied with the present suit was instituted for the reliefs referred to supra.
3. The first defendant alone had filed a written statement denying all the allegations. The first defendant had taken a specific stand that the plaintiff had not followed the procedure as contemplated in G.O. Ms. No. 1263, Education dated 6.5.1961; G.O. Ms. No. 1348, Education, dated 15.12.1981; and G.O. Ms. No. 917, Education dated 6.9.1977 for getting his date of birth altered as claimed in the suit. It was also pleaded in the written statement that the father of the plaintiff being an educated person should have taken steps to rectify the mistake in the date of birth of the plaintiff mentioned in the record at the elementary stage itself. It was also pleaded that the plaintiff after completing his education, was working as Reader in Department of Sociology, Andhra University and as per G.O. Ms. No. 165 (F&P), dated 21.4.1984 the date of birth once recorded in the school and college record shall be final and binding on the employer and no alteration can be effected at a later stage and the claim, if any, pending as on the date of the said G.O., will also be dealt with as per the rules contained in Rules 4 and 5 of the said G.O. and the claim of the plaintiff is belated and not a bona fide one. It was also further pleaded that the plaintiff is put to strict proof of the allegations relating to the mistake of entering his date of birth in the school records. It was also pleaded that in view of the Government Memo No. 6/E.E. 1/ 89-1, dated 20.6.1990 the Civil Court has no jurisdiction to decide the service matters of an employee. The 2nd defendant, the Andhra University, Visakhapatnam was set ex parte.
4. On the strength of the respective pleadings of the parties issues were settled. The plaintiff had examined himself as P.W. 1 and yet another witness as P.W.2. Exs.A1 to A6 were marked on his behalf. On behalf of the defendants none had been examined, but the G.Os. Exs.B1 to B4 were marked. The Court of first instance on appreciation of both oral and documentary evidence had granted the relief of declaration as prayed for, but, however, had arrived at a conclusion that the plaintiff is not entitled for the relief of mandatory injunction. The unsuccessful plaintiff so far as it relates to negativing the relief of mandatory injunction is concerned, had preferred A.S. No. 2 of 1994 on the file of the Subordinate Judge, Chodavaram and the appellate Court by decree and judgment dated 28.7.1994 had dismissed the appeal without costs. The defendants had not preferred any appeal as against the relief of declaration granted in favour of the plaintiff and hence the relief of declaration relating to the date of birth of the plaintiff granted by the Court of first instance, which had not been challenged by the defendants, became final. The plaintiff aggrieved by the judgment and decree of the appellate Court negativing the relief of mandatory injunction had preferred the present Second Appeal.
5. Sri D. V. Seetarama Murthy, the learned Counsel representing the appellant plaintiff had submitted that inasmuch as the relief of declaration relating to the correct date of birth of the plaintiff had been granted and the said judgment and decree, of the Trial Court became final, the plaintiff is definitely entitled to the consequential relief of mandatory injunction to carry out the necessary corrections in the relevant service records. The learned Counsel also submitted that the 2nd defendant, in fact, had not contested the matter at all and the first defendant having filed the written statement had kept quiet. But, however, the G.Os were marked as Exs.B1 to B4 and it is not clear from record how these G.Os were marked. The learned Counsel also submitted that none had been examined on behalf of the defendants. In the light of the declaratory relief granted by the Court of first instance, which became final, there cannot be any dispute that the correct date of birth of the plaintiff is 12.3.1939. The learned Counsel further submitted that the only question that has to be decided in the present second appeal is whether the plaintiff is entitled to the consequential relief of mandatory injunction as prayed for or not? And in fact, this is the only substantial question of law which may have to be answered in the present second appeal.
6. The learned Counsel had taken me through the findings recorded by both the Courts below and had submitted that the appellate Court had totally erred in arriving at a conclusion that the G.Os. applicable in the case of Government Servants automatically are applicable even in the case of employees of the University. In the alternative, the learned Counsel also submitted that even otherwise since the 2nd defendant had not contested the matter at all, and no evidence was adduced on behalf of the first defendant, arriving at such a conclusion is definitely unsustainable. The learned Counsel also had placed a strong reliance on certain decisions, which would be referred to infra.
7. Per contra, Sri Rajendra Prasad, the Counsel representing the 2nd defendant/ 2nd respondent, the Andhra University (in short hereinafter referred to as 'University' for the purpose of convenience) had made the following submissions:
8. The learned Counsel submitted that the G.Os prescribed the procedure and it is not in dispute that the procedure had not been followed by the plaintiff. The learned Counsel meticulously had taken me through the procedure, which has to be followed for getting the date of birth altered in service records by the University employees. The learned Counsel had taken me through the findings, which had been recorded by the appellate Court relating to the same. It was further contended that in the facts and circumstances of the case, it is immaterial whether any witnesses were examined or not on behalf of the defendants since it is only relating to the procedure to be followed as specified by the G.Os. which had been marked and relied upon even before the Court of first instance. The learned Counsel also further submitted that granting declaratory relief relating to a date of birth is definitely something different from granting the relief of mandatory injunction to alter or to carry out the said date of birth in the service records of University employees. The learned Counsel further had drawn my attention to Section 39 of Specific Relief Act, 1963 and had contended that in the light of the language of Section 39 of the aforesaid Act when a particular thing has to be done by the plaintiff in accordance with the procedure or law and the same was not done, there cannot be a relief of mandatory injunction giving a direction to the University to carry out the alteration of the date of birth in pursuance of the declaratory relief. In other words, the contention is that declaratory relief relating to the date of birth may be for several purposes. But so far as direction to carry out the correct date of birth in service records of the University is concerned, it stands on a different footing and there is no legal obligation on the part of the University to carry out such alteration of date of birth and hence though certain findings recorded by the appellate Court are not happily worded, in substance the judgment and decree of the appellate Court confirming the judgment and decree of the trial Court so far it relates to negativing the relief of mandatory injunction is concerned, is liable to be confirmed even in the second appeal. While concluding, the learned Counsel also had relied on certain decisions to the effect that at any rate, the relief of mandatory injunction now prayed for cannot be said to be a bona fide relief inasmuch as the plaintiff had approached the Court almost at the fag end of his service.
9. The factual matrix as reflected from the respective pleadings had been narrated above and the same need not be repeated again. The only substantial question of law which arises for consideration in the present second appeal is as specified hereunder:
"Whether the plaintiff is entitled to the relief of mandatory injunction - a consequential or ancillary relief in view of the declaratory relief relating to the date of birth granted in favour of the plaintiff by the Court of first instance"?
10. The plaintiff claims his correct date of birth to be 12.3.1939. The plaintiff had examined himself as P.W.1 and P.W.2 also was examined. Ex.A1 is the extract of the birth register of Gram Panchayat, Chodavaram, issued by the Executive Officer of the Gram Panchayat dated 27.10.1992. Ex.A2 is the S.S.C. Certificate, Ex.A3 is the horoscope of Tallapragada Venkata Rao's 2nd son, stating as Narasimha Murthy. Ex.A4 is the notice got issued by the plaintiff. Exs.A5 and A6 are the letters. As against this evidence let in by the plaintiff, G.O. Ms. Nos. 1263, 898, 165 and 430 of the respective dates specified were marked as Exs.B1 to B4. Except marking of these documents, no other evidence was let in on behalf of the defendants. The Court of first instance framed as many as three issues; the first relating to declaration and the second relating to the relief of mandatory injunction and the first relief was granted and the second relief was negatived. In K Madhadeva Sastry v. Director, Post-Graduate Centre, Ananthapur, , where the suit was instituted against the Director of the Post-Graduate Centre, Ananthapur, who was the petitioner's employer and the only relief sought for in the suit was a declaration that the correct date of birth of the petitioner was 29.12.1921 and not 1.6.1919, it was held that reasonably and realistically speaking, there could have been no purpose behind the suit except binding the respondents to the declaration and thereby obtain the benefit of extended service and the plaint allegations made the said objective clear and it was also held that the said suit was not a suit governed by Section 34 of the Specific Relief Act and hence the suit for bare declaration without a consequential relief was certainly maintainable in law, and the stand taken by the Director that because there was no further direction to him to correct the service record and therefore, he would still act upon the entries in the service record as they stood and retire the petitioner, was an unjustifiable one which a public authority could not be heard to say. In Ishar Singh v. National Fertilizers, , it was held that a civil suit by an employee before superannuation relating to the correction of date of birth is not barred by Section 2(a) of the Industrial Disputes Act, 1947. It was held in Md. Mil Khan v. G.K. W. Ltd., , that a suit for declaration for rectification of date of birth or to restrain employer from giving effect to erroneous entry recorded in books affecting the right of the plaintiff and for such necessary declarations as envisaged under the provisions of the Specific Relief Act is definitely maintainable. It was observed in State of Karnataka v. T, Srinivas, , a suit for declaration of the correct date of birth is maintainable in Civil Court since birth of a person is not merely an event, but confers a status. The Court of first instance, in fact, had granted the relief of declaration relating to the correct date of birth and the said relief became final.
11. Now the question is relating to the second limb, that is, the relief of mandatory injunction. The procedure in detail to be followed for getting the alteration of the date of birth is as specified in Exs.B1 to B4. All the procedural details need not be dealt with elaborately and in fact, clear findings had been recorded in this regard by the appellate Court. There cannot be any controversy that the plaintiff who was the Reader in Department of Sociology at the relevant point of time in the University also is bound to follow the said procedure. As can be seen from the date of the institution of the suit and also the age of the plaintiff, there cannot be any controversy that the plaintiff had approached the Court at the belated stage stating that at some function the information relating to the real date of birth was brought to his notice and then on verification, the plaintiff had secured the relevant records. In G. Malakonda Reddy v. Andhra Bank Officers Union, Hyderabad, (FB), a Full Bench of this Court held that a suit for correction of date of birth filed at the fag end of the career of the plaintiff is not maintainable. The Apex Court also had laid down that such correction of date of birth at the fag end of the career is not maintainable or at any rate, such relief cannot be granted. While rendering the above judgment, the Division Bench of this Court relied upon the various decisions of the Apex Court reported in Secretary and Commissioner, Home Department v. R. Kirubakaran, AIR 1993 SC 2642, Burn Standard Co. Ltd. v. Dinabandhu Majumdar, , Union of India v. Harnam Singh, . In Swadeshi Cotton Mills v. Sultan Ahmed, 2003 All.LJ 278, also the same view was expressed by Allahabad High Court.
12. Apart from this aspect of the matter, the unsuccessful plaintiff in both the Courts below had preferred the second appeal praying for the relief of mandatory injunction. If the relief as prayed for is granted, it will definitely amount to directing the University to alter or carry out date of birth now declared in disregard to the procedure prescribed by Exs.B1 to B4. The direction of this nature by way of mandatory injunction, in my considered opinion, cannot be granted for the reason that it will amount to directing the University to violate the procedure that is to act in violation of law which is not permissible. Section 39 of the Specific Relief Act, 1963 dealing with mandatory injunctions reads as hereunder:
"when, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the Court is capable of enforcing, the Court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts."
13. It is needless to say that grant of mandatory injunction is a discretionary relief.
Apart from this aspect of the matter, the other essential ingredient is "to prevent the breach of an obligation". In the instant case, in my considered opinion, in view of Exs.B1 to B4 there is no obligation much less a legal obligation on the part of the University to alter or carry out the date of birth as declared in the declaratory relief. On the contrary, carrying out such alternation in the service records will amount to perpetuating unlawful acts which is contrary to the procedure as specified by Exs.B1 to B4. Unless and until, those procedural requisites are held to be otherwise bad, the plaintiff is bound to follow the said procedure. Hence, since the plaintiff himself had not satisfied this legal obligation of complying with the procedural formalities as specified by the G.Os referred to supra, the relief of mandatory injunction prayed for cannot be granted by this Court though the declaratory relief relating to the date of birth granted by the Court of first instance become final. It is not doubt very unfortunate, but the law is otherwise and in view of the peculiar facts and circumstances, the second appeal is devoid of merits.
14. Accordingly, the Second Appeal is dismissed, but, however, inasmuch as the defendants virtually had never contested the matter except making certain legal submissions, this Court makes no order as to costs.