Sivakalai Muthu vs The State of Tamil Nadu and Others

P.K. Misra, J.—Heard the learned Counsel appearing for the parties.

The primary issue relates to the question of alteration of date of birth of a person in Government employment. The petitioner entered 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 the learned District Munsif, Kulithalai, for declaration that his correct date of birth is 29.7.1941 and consequently,

for alteration in the service register indicating such correct date of birth. In the said suit, the State Government as well as the Deputy District

Educational Officer, Karur, were impleaded as defendants. The civil Court accepted the contention of the petitioner and decreed the suit on

26.11.1993. As is the wont in many such matters, the proposal for filing appeal was initiated much after the disposal of the suit and ultimately, the

appeal was filed with delay of 605 days. The I Appellate Court, Kulithalai, predictably did not condone the delay and accordingly, the appeal was

dismissed on 11.3.1996 on the ground of limitation. At that stage, the then Special Government Pleader opined that no further appeal need be

filed. Armed with the decree of the civil Court, the petitioner filed O.A. No. 7500 of 1997 with a prayer for continuance in service by treating the

date of birth as 29.7.1941 as per the decree of the civil Court. The Tribunal, by reasoned order dated 30.9.1997, which was also the normal date

of superannuation as per the original entry in the service register, observed that the civil Court had no jurisdiction to deal with such matters and

therefore, the decree of the civil Court was a nullity and not binding and accordingly, the Original Application was dismissed.

It appears that the petitioner had also simultaneously moved the Government for continuance in service beyond the date of superannuation on

the basis of the decree of the civil Court and the Government had passed an order in G.O. Ms. No. 418, Education Department, dated 30.9.97

for continuance in service on the very same day when O.A. No. 7500 of 1997 was dismissed by the Tribunal, obviously, presumably unaware of

the order passed in the said Original Application. Subsequently, however, when the decision of the Tribunal in O.A. No. 7500 of 1997 was

brought to the notice of the Government, G.O. Ms. No. 487 was passed on 27.11.1997 recalling the earlier order relating to continuance in

service. Thereafter, the petitioner filed O.A. No. 10001 of 1997 for quashing such later order of the Government and for a direction to the

Government to allow him to continue in service as per the date of birth declared by the civil Court. The said Original Application having been

dismissed under the impugned judgment, the present writ petition is before this Court.

It is necessary to note that the first order of the Tribunal dated 30.9.1997 in O.A. No. 7500 of 1997 was not challenged in the High Court.

Even though the learned Counsel for the petitioner states that a review application was filed against such order, he is unable to state as to what

happened to such review application nor able to furnish the particulars.

In the above background of material facts, the contentions raised 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; and

3) 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.

The first question is as to whether the decree of the civil Court was binding and was required to be implemented by the Government. In this

connection, it is necessary to notice that after the implementation of the Administrative Tribunals Act, 1985 (in short ''the Act''), the State

Administrative Tribunal was established in Tamil Nadu with effect from 5.12.1988. Section 28 of the Act is to the following effect:

Exclusion of jurisdiction of courts except the Supreme Court under Article 136 of the Constitution. - On and from the date from which any

jurisdiction, powers and authority becomes exercisable under this Act by a Tribunal in relation to recruitment and matters concerning recruitment to

any Service or post or service matters concerning members of any Service of persons appointed 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 or matters concerning such recruitment or such service matters.

By the time of filing of the suit in the year 1992, obviously the Act was in existence and the Tribunal was in place. In such view of the matter,

obviously, the jurisdiction of the civil Court was expressly excluded u/s 28 of the Act. In this context, it is also interesting to note that in the suit, a

specific prayer had been made by the petitioner regarding the correction of date of birth in the service register. Obviously, this suit was directly in

relation to matters concerning members of any service and therefore, there cannot be any escape from the conclusion that in view of Section 28 of

the Act, the civil Court had no jurisdiction. This was precisely the findings of the Tribunal on earlier occasion as per order dated 30.9.1997 in O.A.

No. 7500 of 1997, which also, in the absence of any further challenge, became final.

Learned Counsel for the petitioner, however, submitted that even assuming that the order of the civil Court was erroneous, such decision could

have been corrected by filing an appeal and since the appeal was barred by limitation, the decree of the civil Court had become final.

As early as in 1954, the Apex Court in the case of Kiran Singh and Others Vs. Chaman Paswan and Others, , has observed that,

It is a fundamental principle well-established that a decree passed by a Court without jurisidction 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.

In fact, the above decision of the Supreme Court had been continuously followed for more than five decades by different courts and there cannot

be any doubt on this principle categorically laid down by the Supreme Court.

Learned Counsel for the petitioner further contended that the question regarding the jurisdiction of the civil Court had also been raised before

the trial Court and the trial Court had specifically negatived such contention and it held that civil Court has jurisdiction in the matter. This contention

of the learned Counsel for the petitioner again holds no water in view of the decision of the Supreme Court in Mathura Prasad Bajoo Jaiswal and

Others Vs. Dossibai N.B. Jeejeebhoy, , wherein it was held thus:

A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not

res judicata in the subsequent suit. Rankin, C.J., observed in Tarini Charan Bhattacharjee and Others Vs. Kedar Nath Haldar,

The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their

rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by

precluding the parties from reopening or recontesting that which has been finally decided.

A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an

erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata.

Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute the question cannot operate as res

judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.

Applying the above test, even the conclusion of the civil Court that it had jurisdiction cannot be held to operate as res judicata in the

subsequent proceedings as it relates to erroneous decision on the question of jurisdiction. As a matter of fact, when the civil Court decree was

pressed into service before the Tribunal, it was categorically held by the Tribunal that in view of Section 28 of the Act, the civil Court did not have

any jurisdiction. It is also interesting to note that such decision of the Tribunal had subsequently become final. Therefore, even assuming that there

was an earlier decision of the civil Court, the subsequent decision of the Tribunal, which, admittedly, had the statutory jurisdiction in the matter,

would obviously operate as res judicata and not the decision of the civil Court.

The next question raised by the learned Counsel for the petitioner is to the effect that the order of the civil Court having been accepted by the

Government and the services having been extended, there was no justification on the part of the Government to recall such order and that too,

without complying with the principles of natural justice. There is no dispute that at one stage, the Government obviously on the basis of the decision

of the civil Court had extended the services of the petitioner. But, it is equally obvious that at that stage, the Government was not aware of the

pendency of O.A. No. 7500 of 1997 and on 30.9.1997, the date on which the Government passed the order of extension of service, the Tribunal

had decided the matter against the present petitioner and dismissed such O.A. Therefore, when the aforesaid aspect was brought to the notice of

the Government, it had rightly recalled its earlier order. The question of affording any opportunity to the petitioner at that stage did not arise. It is

not a case where any disciplinary proceeding had been initiated, so that there was any necessity of complying with the principles of natural justice.

What the Government has done was merely implementing the order passed by the Tribunal, which was the competent forum in such matters. In

such peculiar circumstances, the contention of the petitioner that principles of natural justice having not been complied with, the subsequent order

passed by the Government is illegal cannot be accepted.

That apart, we have specifically posed the question as to what would be the stand of the petitioner, if such an opportunity would have been

given. Law is now well settled that even where opportunity has not been given at the initial stage, the post decisional opportunity can be availed. In

the instant case, the matter came up before the Tribunal in the subsequent application in O.A. No. 10001 of 1997 and even at that stage, whatever

the petitioner could have projected was available to him. Moreover, since there is no dispute as to the factual position, the compliance of principles

of natural justice would have been only an empty formality. Therefore, the second contention raised by the petitioner is also not acceptable.

The third contention of the petitioner is to the effect that since the petitioner had entered into service before the introduction of Rule 49 to the

Tamil Nadu State and Subordinate Service Rules, such period of five years as contemplated under the said Rule, could not be applied. For the

aforesaid purpose, the learned Counsel for the petitioner relied upon a Division Bench decision of this Court in Government of Tamil Nadu v. S.

Marimuthu 2003 (2) CTC 103. In the said decision, the suit was filed in 1981 when there was no Tribunal nor the Administrative Tribunals Act

was in existence. Obviously, therefore, the civil Court has jurisdiction in such matters. Thus, the question in the instant case did not arise in that

case. Moreover, the learned Counsel appearing for the petitioner has fairly brought to our notice that the amendments, which were relied upon by

the Division Bench, were subsequently considered by the Supreme Court in State of T.N. Vs. T.V. Venugopalan, , wherein the Supreme Court

observed as follows:

In Union of India Vs. Harnam Singh, , when Fundamental Rule 56(m) was amended and substituted Note 5 in 1979 prescribing a period of five

years to seek alteration of the date of birth from the date of coming into force of these rules, this Court harmoniously interpreted the rule and held

that the employee who was in service as on that date, will be entitled to seek correction of date of birth within five years from 1979. In that

context, this Court held that:(SCC page 167, Paragraph 7)

A government servant who has declared his age at the initial stage of the employement is, of course, not precluded from making a request later on

for correcting his age. It is open to a civil servant to claim correction of his date of birth, if he is in possession of irrefutable proof relating to his date

of birth as different from the one earlier recorded;....

should make application within a period of five years from the date the rule had come into force and if he had not done, he was not eligible and

was not entitled to correction. In that case, in view of the inordinate delay, the application for correction of date of birth was rejected.

...

As held by this Court in Harnam case, Rule 49 is to be harmoniously interpreted. The application for correction of the date of birth of an in-

service employee should be made within five years from the date when the Rules had come into force and if no application is made, after expiry of

five years, the government employee loses his right to make an application for correction of his date of birth....

For the aforesaid reasons, we do not find any merit in any of the contentions raised by the petitioner. The writ petition, is accordingly,

dismissed. No costs.