BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16/08/2011
CORAM
THE HONOURABLE MR.JUSTICE P.JYOTHIMANI
AND
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
W.A.(MD).No.172 of 2009
Sankaran ... Appellant
Vs.
1.Tamil Nadu State Transport
Corporation (Madurai) Ltd.,
Through its Managing Director,
Bye Pass Road, Madurai-625 010.
2.The General Manager,
Tamil Nadu State Transport
Corporation (Madurai) Limited,
Tirunelveli Division, Vannarpettai,
Tirunelveli. ... Respondents
PRAYER
Writ Appeal is filed under Clause 15 of the Letters Patent against the
Order dated 12.02.2008 made in W.P.(MD).No.1146 of 2008 on the file of this
Court.
!For Appellant ... Mr.Sankaran
Party-in-person
^For Respondents ... Mr.K.Mahendran
Special Government Pleader
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:JUDGMENT
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[Judgment of the Court was delivered BY P.JYOTHIMANI, J]
The Writ Appeal is directed against the order of the learned Single
Judge dated 12.02.2008 made in W.P.(MD)No.1146 of 2008, by which, the learned
Single Judge has dismissed the Writ Petition filed by the appellant on the
ground that he has entered into service in the year 1972. However, he has chosen
to make application for change of date of birth only in the year 1992, i.e.,
after 20 years. The appellant had joined in the services of the Transport
Department, which was under the control of the Government, in the year 1967 and
subsequently, when the present State Transport Corporation was constituted, he
has opted to join in the Corporation in the year 1972. Before joining in the
Transport Department, it is stated that the appellant was in the military
services. As per records from the military services, his date of birth has been
entered as 24.10.1937. However, when he joined in the Transport Department in
the year 1967, his date of birth has been entered as 02.06.1935. It is the case
of the appellant that while his correct date of birth was 24.10.1937, as it is
found in the military records, it has been wrongly entered in his Service
Register under the Transport Department as "02.06.1935". It appears that the
appellant has approached the civil Court by filing a suit in O.S.No.526 of 1992
before the learned District Munsif, Tirunelveli, specifically praying for a
declaration that his date of birth is 24.10.1937 and also for a direction
against the Transport Corporation to alter the date of birth in the Service
Register as 24.10.1937. That decree for declaration as well as mandatory
injunction was granted in his favour, by an elaborate judgment of the trial
Court on 29.06.1993. Admittedly, as against the said judgment, the Transport
Corporation has filed an appeal in A.S.No.53 of 1993 and that appeal came to be
dismissed by the first appellate Court on 19.09.1994. It is now stated that as
against the judgment of the first appellate Court, the Transport Corporation has
filed a Second Appeal before this Court and that came to be dismissed for
default.
2. On a perusal of the order of the learned Single Judge, against
which, the present Writ Appeal is filed, it is seen that the learned Single
Judge proceeded as if the decree obtained by the appellant in O.S.No.526 of 1992
was actually relating to declaration of his date of birth. On the other hand,
the decree is not only for the relief of declaration but also for the relief of
mandatory injunction to alter his date of birth in the Service Register as
24.10.1937. Taking into consideration that his date of birth is 02.06.1935, the
appellant was retired from service on 30.06.1993. However, it is the case of the
appellant that by considering his correct date of birth as 24.10.1937, he should
have deemed to have been retired only on 31.10.1995 and the Writ Petition was
filed for the purpose of payment of salary between 30.06.1993 and 31.10.1995 and
that came to be rejected by the learned Single Judge on the ground that as per
the Fundamental Rules, if a person wants to alter the date of birth in the
Service Register, the same shall be done within five years from the date of
entry in the service and on the facts of the present case, such application has
been filed after 20 years.
3. On the factual matrix, we are satisfied that inasmuch as there is
a decree of mandatory injunction to alter the date of birth of the appellant in
the Service Register as 24.10.1937, certainly the respondents have duty to
implement the said decree. Admittedly, such decree of mandatory injunction has
not been given effect to. However, taking note of the fact that the appellant
has not actually served between 30.06.1993 and 31.10.1995, we are of the view
that in the interest of justice, during the said period, he should be granted
50% of the back wages.
4. Accordingly, the order of the learned Single Judge stands set
aside and the Writ Appeal stands partly allowed with a direction against the
respondents to pay 50% of the back wages for the period between 30.06.1993 and
31.10.1995 and such amount shall be paid to the appellant, within a period of
twelve weeks from the date of receipt of a copy of this judgment. It is needless
to state that during the said period, whatever salary the appellant has
received, the same shall stand deducted. No costs.
S
