The General Manager (Personnel Branch) Southern Railway, Park Town, Madras and Another vs S.M. Muhammad Yakub

P.V. Rajamannar, C.J.—We are in entire agreement with the learned Judge, Panchapakesa Ayyar J. that enough has been made out to

direct an enquiry into the matter after notice to the respondent. It cannot be denied that the respondent''s rights have been affected, though there

was an attempt by learned counsel for the appellants before us to show that the respondent had no right to agitate before the court. If the

respondent''s correct date of birth was 1908, then, certainly, he has got a right to remain in service till 1963.

It is therefore clear that the respondent is aggrieved and his rights have been infringed, and we have no doubt whatever that the most efficacious

remedy is by way of an application under Article 223 of the Constitution. Learned counsel for the railway authorities contended that a suit was the

proper remedy. We do not wish to say more than that we are extremely surprised at the contention.

It is quite clear from the records that there are two dates of birth entered in the service registers of the railway authorities. One gives the date as

1902 and the other as 1908. It was also admitted that in the latest individual service register prepared in 1947 the entry first made was 1908 but

subsequently it was corrected to 1902. It is said this was done because there were entries in other registers which convinced the officer concerned

that 1902 was the correct year.

It is not for us to say, nor this court called upon to do so, which of the two dates is correct. Indeed all that the learned Judge has done is to direct

an enquiry. It is not the case of the railway authorities that there was an enquiry or that there was any notice to the respondent before the entry was

altered in 1947 into 1902. We can see no conceivable and proper objection to an enquiry.

It was also contended by learned counsel for the appellant that a writ of mandamus was not the proper relief, hut that he should have prayed for

a writ of certiorari. In the first place we are not impressed by the technical name given by a party to the relief which he seeks from this court under

Article 226. That article is a new provision and it is well established that the relief which can be granted under Article 226 is very much wider than

the relief which a court of Kings Bench in England could give by issue of prerogative writs.

In the second place, we cannot agree with the learned counsel for the appellant that a writ of certiorari would be proper. There was no judicial

order passed by the railway authorities which could properly be the subject-matter of a writ of certiorari. The order was really an administrative

order retiring the respondent from service from a particular date. In our opinion the writ of mandamus was the most appropriate relief, and as the

writ now only directs the railway authorities to make an enquiry we see no objection to the form of the petition. We have already disposed of the

contention that a suit is the proper remedy.

It was urged by Mr. Govindaraja Aiyangar for the appellant that the respondent was guilty of delay and laches. We cannot agree. Admittedly it

was some lime in 1955 that the respondent was apprised of the fact that he had to retire in 1957. According to him, he immediately protected by a

letter addressed to the Personnel Officer of the Southern Division of the railways, a copy of which petition he sent to the General Manager,

Madras, and followed with another appeal on 20-11-1956, this time addressed to the General Manager, Madras direct.

Mr. Govindaraja Aiyangar said that these two letters were not received by the authorities. As to that we have only the statement in an affidavit filed

in this court by the Divisional Personnel Officer, Southern Railway, who stated in the affidavit that these representations were not received at the

Divisional Superintendent''s Office, Tiruchirapalii. This does not dispose of the two letters addressed to the General Manager, Madras. There is no

denial on record that these were not received by the General Manager. Be that as it may, admittedly there were other letters of protest in 1957.

To these letters in 1957 there was no reply. The only explanation given is, action was being taken and old records were being traced to verify the

correctness of the petitioner''s contention. We are clearly of opinion that the respondent was not guilty of any unreasonable delay or laches on his

part.

We must confers that we are unable to understand why the railway authorities should fight shy of compliance with the order made by a learned

Judge of this Court directing an enquiry into the matter after notice to the respondent, when admittedly such an enquiry was never made before.

The appeal is dismissed.