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Judgment
Alladi Kuppuswami, J.—These two writ appeals are preferred against the common judgment of our learned brother P.A. Chowdary J. in W.P. Nos. 656 and 662 of 1979 respectively. The two writ petitions were heard together as the facts and circumstances in both the cases were similar and the questions for consideration were the same. The main arguments were addressed by Sri Y. Suryanarayana in W.A. No. 110 of 1979 and Sri P. Ramakrishna Raju who appeared in W.A. No. 134 of 1979 adopted the arguments and submitted that in his writ appeal the decision in W.A. No 110 of 1979 may be followed. It is therefore sufficient to state the facts necessary for the disposal of W. A. No. 110/79. The appellant herein filed a suit, O.S. 53 of 1978 on the file of the District Munsif, Pithapuram for a declaration that the correct date of birth of the plaintiff is 30-4-1925 and not 30-4-1923. On the date of the suit he was working as Block Development Officer, Panchayat Samithi Pithapuram. His case was that his date of birth was wrongly given at the time of admission in the B.H. School, Chodavaram by his father as 30-4-1923. This date of birth was carried into his service register. In December 1977 while his brother was searching his old records he found the horoscope of the plaintiff prepared by Sri Nistala Parvateesam, a Veteran Astrologer of Anakapalle which clearly showed that the appellant''s correct date of birth was 30-4-1925. He, thereupon issued a notice under Sec. 80 C.P.C. to the Government represented by the Collector, East Godavari, but no reply was given. In the meanwhile in the first week of March, 1978 he received a communication, G. O. Rt 174 dated 17-2-1978 through the Collector, East Godavari stating that the plaintiff had to retire by the afternoon of 30-4-1978. The plaintiff made a representation to the Secretary to the Government, Panchayat Raj stating that his correct date of birth was 30-4-1925 and he was entitled to continue in service upto 30-4-4980. A communication was sent to the plaintiff on 21-3-1971 informing him that his request for extension of service beyond 30-4-1978 was rejected. He thereupon filed the suit O.S. 53/78 on the file of the Court of the District Munsif, Pithapuram for a declaration that his correct date of birth was 30-4-1925 and not 30-4-1923 He also prayed for a consequential permanent injunction restraining the defendant from relieving the plaintiff from service on the afternoon of 30-4-1978 in pursuance of GORt. 174 dt. 17-2-78. The first defendant to the suit is the Secretary to the Government, Panchayat Raj, the second defendant is the State of Andhra Pradesh represented by the Collector, East Godavari.
The appellant herein also asked for a temporary injunction restraining the State from relieving him from service on 30-4-1978 and to continue him in service till 30-4-1980. An exparte interim injunction was granted. Thereafter the application was being posted along with the suit. When the application and the suit were pending the first respondent herein, namely, the Collector, East Godavari filed W.P. No. 656/79 praying for the issue of a writ of prohibition or any other appropriate writ or order restraining the District Munsif, Pithapuram who was added as the second respondent to the petition from proceeding with the suit O.S. 53 of 1978 on his file and to declare the proceedings taken so far as invalid and to reject the plaint as he had no jurisdiction to hear the same in view of the Andhra Pradesh Administrative Tribunal Order 1975. It was contended by the petitioner in the writ petition that under clause 6 of the Andhra Pradesh Administrative Tribunal Order 1975 (referred to in this judgment as ''the Administrative Tribunal Order'') the tribunal alone is empowered to exercise all the jurisdiction, powers and authority which immediately before the commencement of the order were exercisable by all courts with respect to appointment, allotment or promotion to any public post, seniority of persons appointed, allotted, or promoted to such post and all other conditions of service of such persons. In view of this provision the civil court had no jurisdiction to entertain the suit or to grant an interim injunction. When the writ petition was heard by our learned brother P.A. Chowdary J. the appellant herein contended inter alia that the High Court had no jurisdiction to issue a writ of prohibition against a subordinate Court. It was further submitted that at any rate the subordinate court had itself the jurisdiction to decide whether it could entertain the suit or not. It was not therefore open to this court to issue a writ of prohibition which would in effect prevent the subordinate Court from deciding whether it had jurisdiction to entertain the suit or not. It was also urged that the first respondent herein has an alternative remedy either by requesting the subordinate court to vacate the interim injunction granted or to prefer an appeal against the order of interim injunction and hence this was not a fit case for exercising the jurisdiction under Art. 226 of the Constitution.
Lastly it was urged on the merits that the suit was not one relating to conditions of services as the declaration sought for, viz. that the plaintiff was born not in the year 1923, but in the year 1925 does not touch or pertain to any condition of his service and hence clause 6 of the Tribunal Order did not bar the jurisdiction of the District Munsif. All these contentions were negatived by our learned brother and the writ petition was allowed and the District Munsif was directed to return the plaint for being presented to the proper court. In view of this decision, W. P. No. 662/78 which was an application for the issue of a writ of prohibition praying for a writ directing the Sub-court, Amalapuram not to proceed with another suit of a similar nature was also allowed. The plaintiffs in these two suits have preferred these two appeals against the common judgment in W. P. Nos. 656 of 1979 and 662/79.
Sri Y. Suryarayana has urged the same contentions as were urged before P.A. Chowdary, J.
The first question for consideration is whether this court is empowered to issue writ of prohibition to a subordinate court not to proceed with a suit or any proceeding before it. Under Art. 226 of the Constitution the High Court has the power to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including writs in the nature of habeas corpus, mandamus prohibition etc. The expression ''authority'' used in the Article is wide enough to include any subordinate civil or criminal court. There is no reason to exclude from the purview of Art. 226 the subordinate courts in the Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, the Supreme Court observed that Art. 226 confers on High Courts power to issue appropriate writs to any person or authority within their territorial jurisdiction in terms absolute and unqualified. At page 241 dealing in particularly with writs of prohibition and certiorari, the Supreme Court observed that both these writs have for their object the restraining of inferior courts (underlining is ours) from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions. But there is one fundamental distinction between the two writs, in that they are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the remedy is by way of a writ of prohibition seeking an order forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that case or matter and gives a decision, the party aggrieved would have to move the superior court for a writ of certiorari quashing the decision. From these observations it is clear that the Supreme Court entertained no doubt about the power of the High Court to issue a writ of prohibition or certiorari to an inferior court. In Govinda Menon Vs. Union of India (UOI), the Supreme Court observed that the object of writ of prohibition is to restrain an inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine the courts or tribunals of inferior or limited jurisdiction within their bounds. The most striking instance where a writ was issued in regard to a decree of a subordinate court is provided by State of M. P. vs. Babulal AIR 1977 SC 1718. In that case the State filed an application under Art 226 for a declaration that the suit filed by the respondents was illegal and in violation of the statutory provisions of the Madhya Pradesh Land Revenue Code. In the suit filed by the respondent a compromise was entered into whereby the second respondent transferred his Bhumiswami rights in favour of respondent No. 1 and a decree in terms of the compromise was passed. The State contended that the entire proceedings were in contravention of sub-sec. 6 of Sec 165 of the Madhya Pradesh Land Revenue Code which prohibits the transfer of the right of a Bhumiswami belonging to an aboriginal tribe to a person not such tribe without the permission of a Revenue Officer not below the rank of a Collector and hence the compromise and the decree in terms of the compromise were null and void. The Supreme Court held that one of the principles on which certiorari is issued is where the court acts illegally and there is an error on the face of the record or if the court usurps the jurisdiction, the record is corrected by certiorari, and the case before them was a glaring instance of such violation of law. The Supreme Court therefore directed that certiorari should be issued to quash the judgment and decree passed in the suit. The decision applies with equal force to the case of a writ of prohibition as well, as has been pointed out by the Supreme Court in Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, Both the writs of prohibition and certiorari have the same object of restraining the inferior courts from exceeding their jurisdiction, the only distinction being that they are issued at different stages of the proceedings.
Reliance was however placed by the respondent on the decision in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, We have gone through the decision carefully and we do not think that the decision supports the contention of the respondent that the High Court has no power under Art. 226 of the Constitution to issue a writ against a Subordinate Court. In a libel case, K M D. Thakersey vs. R.K. Karanjia in the Bombay High Court Tarkunde, J. directed that the evidence of one witness Goda should not be reported. A writ petition to quash the judge''s order was dismissed by the Bombay High Court on the ground that a writ could not issue from a bench of the High Court to another bench or to a single judge of the same court. Thereupon a writ petition was filed by journalists who were affected by the judge''s order under Art. 32 of the Constitution before the Supreme Court contending that the order violated their rights to the freedom of speech and expression guaranteed by Art. 19 (1) (a) and that a writ should be issued quashing the order of the judge. The petition was heard by a bench of nine judges, Gajendragadkar, C.J. and four others by a majority judgment dismissed the petition. Sarkar, Shah and Bachawat, JJ. who delivered a separate concurrent judgment dismissed the petition. Hidayatullah, J., delivered a dissenting judgment allowing the petition. The majority held that Tarkunde J''s order imposed a ban cm the publication of Goda''s evidence only during the trial of the suit. They further observed that the order was passed by Tarkunde J., acting as a judge and just as his order would be binding between the parties and could not be questioned except on appeal, so also an order made by a judge in a judicial proceeding affecting third parties stood in the same position. Assuming that the order incidentally affected the fundamental rights of the petitioners that did not involve a violation of a fundamental right. On the assumption that a fundamental right had been violated, the majority judgment considered whether a writ of certiorari under Art. 32 was available against the High Court. They held that a writ did not lie against an order of the High Court. Thus, it is seen that the Supreme Court was not concerned in that case with the question whether the High Court is entitled to issue a writ of prohibition or certiorari in regard to a proceeding in a subordinate court. The learned counsel for the appellant draw our attention to certain passages which according to him would indicate that a writ of certiorari cannot be issued to quash a decision of a court of inferior jurisdiction. In particular, he drew our attention to paragraph 16 355 where they referred to a passage in Halsbury''s Laws of England to the following effect;
In the case of judgments of inferior courts of civil jurisdiction, it has been suggested that certiorari might be granted to quash them for want of jurisdiction in as much as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior court of civil jurisdiction has been quashed on certiorari, either for want of jurisdiction or on any other ground.
The ultimate proposition is set out in the following terms;-
Certiorari does not lie to judgments of inferior courts of civil jurisdiction.
These observations would indicate that in England the judicial orders passed by Civil Courts of plenary jurisdiction in or in relation to matters brought before them are not held to be amenable to the jurisdiction to issue writs of certiorari.
At any rate it was held by the Supreme Court that the High Court of Bombay cannot be said to be an inferior court. As pointed out by Seervai in his Book ''Constitutional Law of India Vol'' 11, 1009 the attention of the court was not called to the supplement to Halsbury (1965) which showed that the statement quoted above was not correct and that a writ to quash the decision of an inferior court did lie.
In Halsbury''s Laws of England, Fourth Edn., Vol. I paragraph 128, it is stated that the order of prohibition is an order issuing out of the High Court of Justice and directed to an ecclesiastical or inferior temporal court or to the down Court which forbids that court to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land, in paragraph 130 instances where prohibition can be granted against a judge of the inferior court are set out. Thus, it appears that even in England it is now recognised that the writ of certiorari and prohibition can be issued against inferior courts. Seervai in his book "Constitutional Law of India", Second Edn., Vol II, at pages 1009 and 1010 refers to the decision in R.V. Worthington Evans 1959 2-Q B. 145 and other cases where the right to issue a writ in respect of a decision of inferior court was recognised. In R.V. Worthington Evans 1959 2-Q B. 145 it was observed that in a proper case the court has power by certiorari to bring up and quash the order of a country court judge made without jurisdiction in that behalf. Thus, it appears that even in England a writ of certiorari or prohibition can be issued in respect of proceedings in inferior courts. Whatever may be the position in England, there cannot be any doubt that having regard to the wide use of the expression "authority" in Art. 226 of the Constitution the High Court in India have powers to issue writs in respect of proceedings in subordinate courts. The Constitution makers while referring to certain writs by name which were in vogue in England, such as a writ of certiorari, writ of habeas corpus, quo warranto, certiorari and prohibition, were particular that the power of the High Courts should not be confined to the issue of these writs alone. They therefore provided in Act. 226 that the High Court was empowered to issue directions or orders in the nature of such writs also. As pointed out earlier the Supreme Court has through out proceeded upon the footing that the High Courts are entitled to issue writ of certiorari and prohibition against the proceedings of inferior courts. We do not think that the Supreme. Court intended to depart from this accepted position in its decision in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, Our learned brother P.A. Chowdary, J., after referring to the decision in Naresh vs. State of Maharashtra AIR 1967 SC 1 observed that if the matter was governed only by the decision in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, he would have dismissed the writ petition on the ground that the High Court had no jurisdiction. He then observed that as the Supreme Court had issued an order setting aside the decree passed by a Subordinate Judge without jurisdiction in Sakesana Brothers vs. B.C. Banerjee AIR 1977 SC 1718 the only way of reconciling the two decisions was to regard the earlier decision only as relating to orders made by the High Court. We do not share the view taken by P.A. Chowdary, J., that the decision of the Supreme Court in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, is to the effect that the High Court has no jurisdiction to issue a writ in regard to a proceeding before a subordinate court. As we pointed out earner the Supreme Court was concerned with entirely different questions. In this connection it may be noticed that the decision of the Supreme Court in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, has been criticised by Seervai in his book Constitutional Law of India'', at pages 1002 to 1012. In P. Venkata Somaraju and Others Vs. Principal Munsif-Magistrate, Bhimavaram, West Godavari Dist. and Others, Ekbote, J. considered elaborately the question whether a writ of ceruorari lies against the decision of subordinate courts. He held that it is difficult to hold that subordinate civil courts are not inferior courts for the purpose of Art. 226. A court is an inferior court for the purpose of a writ of certiorari or prohibition whenever its jurisdiction is limited. The words of Article 226 are wide enough to include the subordinate civil courts. In principle there is no difference between a subordinate civil court or a criminal court. In both these cases, in appropriate cases, writs mentioned in Art. 226 can issue. The learned counsel for the appellants relied upon the decision in Iswardas S. Lulla vs. Smt. Hari AIR 1962 Mad. 458 in which it was held that Art. 226 does not clothe the High Court with jurisdiction to quash the orders of a subordinate court. This decision was dissented from in P. Venkata Somaraju and Others Vs. Principal Munsif-Magistrate, Bhimavaram, West Godavari Dist. and Others, as laying down the correct law.
In the result we are of the view that the High Court is empowered to issue a writ of prohibition to subordinate courts restraining them from proceeding with a suit or any other proceeding if the court has no jurisdiction to entertain the said suit or proceeding.
The next contention that was raised was that the civil court itself has jurisdiction to decide whether it can entertain a suit or a proceeding. It was therefore, open to the court below to frame an appropriate issue whether the suit or injunction petition was maintainable and give its decision on that question. It is therefore not open to the High Court at this stage to issue a writ of prohibition restraining the subordinate court from proceeding further with the suit. We do not see any merit in this argument also. It is no doubt true that the court below had jurisdiction to consider the question whether it had no jurisdiction to entertain the suit or not. But that circumstance will not preclude the High Court from considering in a proceeding under Art. 226 whether the civil court was competent to entertain the suit or proceeding. If the High Court is satisfied that the court had no jurisdiction to entertain the suit or proceeding at all, it would be the right and duty of the court to issue an appropriate writ restraining the subordinate court from exercising the jurisdiction which it did not have. If the argument of the learned counsel on this aspect were to be accepted, it would amount that the High Court can in no case issue a writ of prohibition. As pointed out by the learned Advocate General it is well settled that any court or tribunal before which a proceeding is instituted has got the jurisdiction to decide whether the proceeding could be entertained by it. If the contention of the appellant that because the court or the tribunal has jurisdiction to go into that question it is not open to the High Court to issue a writ of certiorari is accepted it will lead to an absurd result that in no case can the High Court issue a writ of prohibition, even in the case of a Tribunal. We have therefore no hesitation in rejecting this contention also.
Finally it was contended that even assuming that this court is entitled to issue a writ of prohibition it should not exercise its power under Art. 226, as the State has several remedies open to it. It could nave applied to the court below to vacate the exparte injunction, it could have appealed against the exparte order or interim injunction or against the final order it the court refuses to vacate the same. If ultimately the court held that it bad jurisdiction to entertain the suit it is open to the State to prefer an appeal against the said judgment. It is true that these remedies are open to the State, but having regard to the peculiar circumstances of the case we cannot say that the learned Judge was wrong in exercising his discretion under Art. 226 and issuing a writ of prohibition. The suit was filed a few days before the date on which the plaintiff had to retire according to the service register and the plaintiff asked for an injunction restraining the Government from terminating his service on the ground of superannuation and to continue him in service. An exparte injunction was granted and the application was being posted with the suit. The result is that even after his retirement according to his service records he was required to be continued in service. This naturally affected a chain of promotions of persons below him. It would take considerable time before the suit is disposed of. If, ultimately the Court comes to the conclusion that the suit is not maintainable in view of the Administrative Tribunal Order and dismisses the suit, the decree would be practically infructuous as by that time the plaintiff would have served until the date of retirement according to his horoscope. On the other hand, by reason of the writ of prohibition, the plaintiff would not suffer any serious loss or hardship. He would have to apply to the Administrative Tribunal and ask for an appropriate relief. Even if ultimately it is found that his age was wrongly recorded and could not be retired on 30-4-1978 he would be entitled to all the salary and other allowances as if he were in service. We are therefore not persuaded to hold that the learned Judge exercised his discretion improperly under Art. 226 of the Constitution. Apart from this, it is well settled that in the case of a writ of prohibition the court will not be fettered by the fact that an alternative remedy exists to correct the absence or excess of jurisdiction or that an appeal lies against the absence or excess. (Vide Halsbury''s Laws of England. Four in edition paragraph 130.)
The last contention is that the learned judge erred in holding that the suit was not maintainable in a civil court having regard to clause 6 of the Administrative Tribunal Order.
It has already been noticed that it is the exclusive jurisdiction of the tribunal under clause 6 in regard to appointment etc. and all other conditions of service. In the plaint, two reliefs are asked for. The first is for a declaration to the effect that the correct date of birth is 30-4-25 but not 30-4-1923. The second is to grant a permanent injunction restraining the defendants and their men from relieving the plaintiff from service on 30-4-1978 since he is having the right to continue in service till 30-4-1980, There cannot be any doubt that the second relief asked for relates to his condition of service as his prayer is that he is entitled to continue in service till 30-4-1980 and that he ought not be relieved from service on 30-4-1978. The civil court is not entitled to grant this relief and the suit to this extent is not maintainable in the civil court and the plaintiff has to seek his remedy only before the Administrative Tribunal. We however agree with the contention of the learned counsel for the appellant that the suit in so far as it prays for a declaration that the correct date of birth of the plaintiff is 30-4-1925 but not 30-4-1923 cannot by itself be regarded as a suit relating to the condition of service of the plaintiff. All that the plaintiff asks in that prayer is that the civil court should give a declaration that his date of birth is 30-4-1925. This is certainly within the jurisdiction of the Civil Court It may be that the date of superannuation would directly depend upon his date of birth, but that is no ground for holding that a suit for a declaration that a person was born on a particular date is related to a condition of service. It is no doubt true that in this particular case the immediate cause for filing the suit was threat on the part of the Government to retire him on 30-4-73. But it is not difficult to visualise a suit for declaration that a person was born on a particular date which has no reference at all to any condition of service. We may give a few instances. The plaintiff may be interested in having his date of birth decided so that he may be in a position to marry as the law prohibits a person below a particular age from marrying. He may be interested in having his date of birth decided in order to acquire a right to vote as the law provides the minimum age for exercising his light of vote. Similarly, a number of instances can be given where a plaintiff may require the civil court adjudicate upon his date of birth for the reasons totally unconnected with the condition of service. A suit therefore for declaration that a person was born on a particular date cannot by itself be regarded as a suit relating to the condition of service. It was argued that as the alteration of the date of birth, if effected by the civil court will have the effect of interfering with the right of the State to superannuate the plaintiff on the basis of his service record and the matter is one dealing with a condition of service. We are afraid that we are unable to agree with this contention. The suit in so far as it relates to the claim of the plaintiff for a declaration that his date of birth is 30-4-1925 cannot by itself be regarded as one relating to condition of service. It cannot therefore be said that the suit as a whole is not entertainable. We are however of the view that the civil court cannot grant the relief of injunction restraining the Government from relieving the plaintiff from service on 30-4 1978 as contained in paragraph 14 (b). If it cannot grant the main relief in the suit, it follows that in the interlocutory application for a temporary injunction the court below was not entitled to grant an exparte interim injunction. In Halsbury''s Laws of England, Fourth Edition Vol. 1, paragraph 133 it is pointed that where proceedings in an inferior court are partly within and partly, without its jurisdiction Prohibition lie will file against doing what is in excess of jurisdiction. Where part only of a party''s request for a prohibition proves to be well founded, the court will if the matter is divisible limit the prohibition to that part.
In Shewpujanrai Indrasanrai Ltd. Vs. The Collector of Customs and Others, the Supreme Court at page 855 observed as follows;
It is well settled that where proceedings in an inferior court or tribunal are partly without its jurisdiction, prohibition will lie against doing what is in excess of jurisdiction.
We therefore direct that there will be a writ of prohibition, prohibiting the court below from proceeding with the suit in so far as it relates to prayer (b) of paragraph 14 of the plaint.
As far as the application for exparte interim injunction in which exparte interim order has been passed we direct that such proceeding and the order made therein should be quashed as having been made without jurisdiction. There will be a similar order in regard to O.S. 45/78 Sub-Court, Amalapurem and in regard to the exparte interim injunction order in the said suit.
It is open to the plaintiff in each case to proceed with the suit for a declaration that his date of birth is 30-4-1925 if be is so advised. We do not propose to express any opinion whether such a suit for a bare declaration is maintainable in view of the provisions of the Specific Relief Act, as that will be decided by the court below during the course of the suit.
In view of the above, the writ appeals are allowed to the extent indicated above. There will be a direction not to retire the appellants till the expiry of two weeks from today so as to enable them to approach the Tribunal and obtain necessary orders.