# Union of India v. Dr. Lalit Verma and another

- **Citation:** (2008) 1 ILRA 343
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-10-24
- **Case number:** Civil Misc. Writ Petition No.7495 of 2006
- **Bench:** Dr. B. S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-v-dr-lalit-verma-and-another-40984
- **Pages:** 15

## Headnote

Sri. G.K. Singh
Sri. R.N. Singh
Sri. Arun Singhal
Sri. G.S. Hajela
Sri. G.K. Malviya

All
Indian
Services
(Death
cum
Retirement benefit Rules 1958) Rule 16A-change of date of birth-recorded in
school
certificate-service
book-no
reasons shown for alteration of date of
birth-while the claim already rejected in
the year 1988 became final-even if claim
accepted-he will be younger than his
younger
brother-held-cannot
be
changed.

Held: Para 38

Had the case been so, we fail to
understand as what was the occasion for
the applicant-respondent to make an
application for change of his date of birth
in the service record and what was the
occasion for him to file a Civil suit or
seek a writ of mandamus from the
Tribunal to change the date of birth from
01.03.1959
to
13.02.1962.
The
admission of recording of date of birth in
the service record of the applicantrespondent as 01.03.1959 is admitted in
view of the rejection of his application
for correction of date of birth vide order
dated 22.04.1988~,which was never
challenged by the applicant-respondent
and it attained finality. The aforesaid
aspect
of
the
matter
had
been
completely lost sight of by the Tribunal
and, thus, there has been complete
misreading of Rule 16-A (4) of the Rules

## Text

_Characters 0–39,986 of 48,827. This is a partial read: ask again with offset=39986 for what follows._

1 All] Union of India V. Dr. Lalit Verma and another
343
that the conviction still remains, only the
operation of the order and the sentence
remain suspended and that does not
amount
to
temporary
stay
of
the
conviction. Besides that a Constitution
Bench of the Hon'ble Apex Court in the
case
of
K.
Prabhakaran
Vs.
P.
Jayarajan, (2005) 1 SCC 754 in para-42
has held that the suspension is not of
conviction or sentence, but it is only the
execution of the sentence or order which
is suspended and not obliterated.

8. Therefore, in view of the
exposition of law made by the Hon'ble
Apex Court, we do not find any factual or
legal error in the judgment of the Hon'ble
Single Judge. The appeal, being without
merit, is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.10.2007

BEFORE
THE HON'BLE DR. B. S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.7495 of 2006

Union of India

...Petitioner
Versus
Dr. Lalit Varma & another ...Respondents

Counsel for the Petitioner:
Sri. K.C. Sinha
(Assistant Solicitor General of India)

Counsel for the Respondents:
Sri. G.K. Singh
Sri. R.N. Singh
Sri. Arun Singhal
Sri. G.S. Hajela
Sri. G.K. Malviya

All
Indian
Services
(Death
cum
Retirement benefit Rules 1958) Rule 16A-change of date of birth-recorded in
school
certificate-service
book-no
reasons shown for alteration of date of
birth-while the claim already rejected in
the year 1988 became final-even if claim
accepted-he will be younger than his
younger
brother-held-cannot
be
changed.

Held: Para 38

Had the case been so, we fail to
understand as what was the occasion for
the applicant-respondent to make an
application for change of his date of birth
in the service record and what was the
occasion for him to file a Civil suit or
seek a writ of mandamus from the
Tribunal to change the date of birth from
01.03.1959
to
13.02.1962.
The
admission of recording of date of birth in
the service record of the applicantrespondent as 01.03.1959 is admitted in
view of the rejection of his application
for correction of date of birth vide order
dated 22.04.1988~,which was never
challenged by the applicant-respondent
and it attained finality. The aforesaid
aspect
of
the
matter
had
been
completely lost sight of by the Tribunal
and, thus, there has been complete
misreading of Rule 16-A (4) of the Rules
1958. The cumulative effect of the
provisions of Rule 16 ·A (4) of Rules
1958 read with notification dated 17th
December, 1983 makes it abundantly
clear and leaves no room for doubt that
the date of birth given by the applicantrespondent in the first application form
cannot be changed while filling up the
application
forms
for
subsequent
examinations
and
these
forms
in
themselves
are
referable
to
Clause
16A(3) of the Rules 1958 for the purpose
of date of birth of the candidate.
Case law discussed:
AIR 1993 SC 1367, AIR 1993 SC 2647, AIR
1995 SC 850, AIR 1995 SC 1349, AIR 1995 SC
1449, 1995(2) SCC 1494, 1995(2) SCC 98, AIR
1996 SC 1000, 1996(7) SCC 421, AIR 1997 SC
2452, 2000(8)SCC 696, AIR 2001 SC 1666 AIR
2002 SC 509, AIR 2003 SC 4209, 2005(6) SCC
49, 2005(11) SCC 465, 2002(7) SCC 719, AIR
344 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
2005 SC 1868, AIR 1937 PC 101, ILR 97 Cal
849, AIR 1995 SC 1349, 1991(63)FLR 76,
1996(72) FLR 562, 1995(71) FLR 950, AIR
1997 SC 2055, AIR 1943 PC 130, AIR 1957 SC
875, AIR 1974 SC 1791

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This writ petition has been filed
challenging the judgment and order dated
10.02.2005 (Annex.5) passed by the
Central
Administrative
Tribunal,
Allahabad Bench, Allahabad (hereinafter
called the 'Tribunal') by which a direction
has been issued by the learned Tribunal to
change the date of birth of the applicant
respondent No.1 (hereinafter called the
applicant-respondent) from 01.03.1959 to
13.02.1962.

2. The facts and circumstances
giving rise to this case are that applicantrespondent filed an Original Application
before the Tribunal seeking a direction to
the respondent-petitioner to make the
aforesaid correction in his date of birth on
the ground that he was born in St.
Stephen's Hospital, Tis Hazari, New Delhi
on 13.02.1962, however, his date of birth
had been recorded as 01.03.1959 in
matriculation certificate in view of the
entries made in the Scholar's register on
the basis of information given by his
grandfather at the time of his admission in
the school. The Central Board of
Secondary Education (hereinafter called
the 'CBSE') issued a certificate in 1975
showing the date of birth of the
application-respondent as 01.03.1959. He
appeared in the Civil Services (Mains)
Examination- 1983 wherein he mentioned
in his application form that his actual date
of birth was 13.02.1962. He was selected
and appointed to Indian Administrative
Service (hereinafter called the 'IAS') in
the year 1984 and allocated the State of
Uttar Pradesh. After completion of
probation
period,
he
made
a
representation
on
07.08.1987
for
correction of his date of birth, followed by
a reminder dated 24.12.1987. The said
representation
was
rejected
by
the
Government of India vide order dated
22.04.1988
and
the
same
was
communicated
to
the
applicantrespondent on 07.10.1989. The applicantrespondent made another representation
dated 26.09.1990 seeking correction of
his
date
of
birth.
As
the
said
representation was not dealt with, he filed
the Original Application No.522 of 1991
before the Lucknow Bench of the
Tribunal, which was later on transferred
to the Allahabad Bench and registered as
Original Application No. 54 of 1999. In
the meanwhile, the applicant-respondent
filed Civil Suit No. 870 of 1993 in the
Court
of
Munsif,
Azamgarh
for
declaration that his correct date of birth
was 3.02.1962. The sole defendant therein
CBSE did not enter appearance. The Civil
Court passed an exparte judgment and
decree dated 06.01.1994 declaring that his
correct date of birth was 13.02.1962 and
not 1st March, 1959. The CBSE was
directed
to
make
necessary
amendment/correction in the certificate.
The CBSE filed an application under
Order 9 Rule 13 of the Code of Civil
Procedure (hereinafter called the 'CPC')
for setting aside the exparte decree,
however, the said application was rejected
vide order dated 02.02.1996. Against the
said order, a revision was preferred by the
CBSE which was also dismissed by the
VIIth
Additional
District
Judge,
Azamgarh vide order dated 06.12.1996
and, in pursuance thereof, appropriate
corrections had been carried out by the
CBSE. Therefore, applicant-respondent
1 All] Union of India V. Dr. Lalit Verma and another
345
was entitled for the benefits of the said
Civil Court's decree.

3. The Union of India contested the
application on various grounds, inter-alia,
that the said judgment and decree of the
Civil Court, Azamgarh was not binding
on it as the Union of India was not a party
to tho Suit; the said applicant-respondent
had passed all the examinations, ie.
Higher Secondary, MBBS in 1975 and
1980 respectively showing his date of
birth as 1st March, 1959. The applicantrespondent appeared in the Combined
Medical Services Examination - 1981 and
was selected, however, he did not join the
service. He was selected and appointed in
Indian Police Service (hereinafter called
the 'IPS') in 1983 on the basis of Civil
Services
Examination
1982
and
thereafter, he was selected and appointed
in
Indian
Administrative
Service
(hereinafter called the 'IAS') in 1984 on
the
basis
of
the
Civil
Services
Examination - 1983. Had his correct date
of birth been 13.02.1962, he could not
have even applied what to talk of
selection in the I.P.S. on the basis of Civil
Services
Examination
-
1982.
The
affidavit filed by the petitioner's father
dated 27.08.1965 before the Appropriate
Authority made it Clear that the applicantrespondent has three brothers and sisters.
His sister Kapila was born on 05.03.1955,
his
brother
Rakesh
was
born
on
27.03.1957, the applicant-respondent was
born on 01.03.1959 and his younger
brother Sudhir was born on 14.02.1962.
In case the judgement of the Civil Court is
upheld, the petitioner would be only one
day elder to his younger brother Sudhir.
No satisfactory proof in respect of age of
his younger brother Sudhir Prasad has
bean adduced before this Court. The
application filed by the him for correction
of date of birth was rejected in view of the
provisions contained in sub-rule (1) of
Rule 16-A of the All Indian Services
(Death-cum-Retirement Benefits) Rules,
1958 (herein after called the' Rules 1958'),
which provides that the date of birth once
accepted by the Central Government shall
not be shall not be subject to any
alteration except where it is established
that a bona fide clerical mistake has been
committed in accepting the date of birth
under sub-rule (2) or sub-rule (3) thereof.
Further reliance has been placed upon the
notification issued by the Ministry of
Home Affairs, Department of Personnel
and Administrative Reforms dated 17th
December, 1983, according to which once
a date of birth claimed by a candidate is
entered in the record of the Commission
for the purposes of admission to an
examination, no change shall be allowed
subsequently or at any other examination
of the Commission. Therefore, it had been
contended on behalf of the Union of India
that once he had shown his date of birth in
the Civil Services Examination - 1982 as
01.03.1959, in subsequent examinations,
it could not have been altered or the
applicant-respondent could not have been
permitted to give any other date of birth
or two dates of birth.

4. The Tribunal allowed the Original
Application issuing a mandamus to the
Union of India to alter the date of birth of
the applicant-respondent from 01.03.1959
to 13.02.1962. Hence the present writ
petition.

5. We have heard Shri K.C. Sinha,
learned Assistant Solicitor General of
India for the petitioner; Shri R.N. Singh,
learned Senior Advocate, with Shri Arjun
Singhal, and Shri G.S. Hajela for the
respondents.
346 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
6. The main thrust of the argument
on behalf of the writ petitioner has been
that the judgment and decree of the Civil
Court was not binding on the Union of .
India as it was not a party before the Civil
Court. The territorial jurisdiction of the
Civil Court at Azamgarh to correct the
date of birth in the school certificate
issued by the CSSE at New Delhi
remained doubtful as the applicantrespondent was born in Delhi, got the
education at the School in Delhi. No
cause of action, partly or fully, had arisen
within its jurisdiction and the same was
not examined by the said Civil Court. In
such a fact situation, the exparte judgment
and decree could not be held to be a
judgment in rem in view of the provisions
of Sections 40 and 42 of the Evidence
Act. The judgment and decree had been
obtained on the basis of horoscope which
itself is a document of very weak nature
and any document procured subsequent to
the date of birth entered in the service
book is not worth reliable. The date of
birth is to be corrected at the earliest, i.e.
within a reasonable period from the date
of entry in service. Once the Union of
India has rejected the application for
correction of date of birth in view of the
provisions contained in sub rule (4) of
Rule 16-A of the Rules 1958 vide order
dated
22.04.1988,
the
question
of
entertaining the repeated representations
could not arise as the order of rejection
had been communicated to the applicantrespondent on 07.10.1989. The applicantrespondent did not challenge the order
dated 22.04.1988 at any stage before any
appropriate forum, which had attained
finality and, therefore, the question of
issuing any mandamus by any Court or
Tribunal without setting side" the said
order could not arise. During the
pendency of the Original Application,
there was no occasion for the applicantrespondent to file a Civil Suit and get an
exparte judgment and decree in respect of
the same subject matter and that too
without impleading the Union of India as
a party as it amounted to abuse of process
of the Court. The Tribunal had erred in
holding that the applicant-respondent did
not take any benefit from the date of birth
disclosed in the earlier forms and
applications, as admittedly the applicantrespondent had been appointed to IPS and
remained in active service till the date of
his termination from IPS vide order dated
06.12.1984 for joining in IAS, therefore,
the judgment and order impugned is liable
to be set aside.

7. On the contrary, Shri R.N. Singh,
learned Senior Counsel appearing for the
applicant-respondent has submitted that
insufficiency or inadequacy of evidence
cannot be a ground of judicial review.
Once the Tribunal has examined all the
documents and contentions raised by the
present petitioner, this Court cannot act as
an appellate forum. There was sufficient
material before the Tribunal in addition to
the judgment and decree of the Civil
Court on the basis of which the
application has been allowed. Therefore,
there is no occasion for this Court to
interfere with the findings of fact recorded
by the Tribunal. The petition is liable to
be dismissed.

8. We have considered the rival
submissions made by learned counsel for
the parties and perused the record.

9. So far as the issue of correction of
date of birth is concerned, the law is
crystal clear as the said issue has been
examined by the Courts time and again.
1 All] Union of India V. Dr. Lalit Verma and another
347
10. It is settled proposition of law
that the date of birth entered in the service
record cannot be corrected at a belated
stage. Where the date of birth entry
remains in existence for a long time, the
same does not require to be disturbed on
any ground whatsoever. The onus is on
the employee-applicant to prove about the
wrong recording of his date of birth in his
service record by adducing irrefutable
evidence. Court has to insist for clear,
clinching and unimpeachable evidence in
this regard because the relief sought by an
employee, if granted, may entail chain
reaction hampering promotional prospects
of junior officers and may cause an
irreparable injury to them. (Vide Union of
India Vs. Harnam Singh, AIR 1993 SC
1367; Secretary & Commissioner, Home
Deptt. & Ors. Vs. R. Kirubakaran, AIR
1993 SC 2647; Chief Medical Officer Vs.
Khadeer Khadri, AIR 1995 SC 850;
Union of India & Ors. Vs. Kantilal
Hematram Pandya, AIR 1995 SC 1349;
Burn Standard Co. Ltd. & Ors. Vs.
Dinabandhu Majumdar & Anr., AIR 1995
SC 1499; Collector of Madras and another
Vs. K. Rajamanickam (1995) 2 SCC 98;
Union of India & Ors. Vs. Saroj Bala
(Mrs), AIR 1996 SC 1000; Union of India
Vs. Ram Suia Sharma (1996) 7 SCC 421;
State of Orissa & ors. Vs. Shri Ramanath
Patnaik, AIR 1997 SC 2452; G.M. Bharat
Coking Coal Ltd. West Bengal Vs.
Shib·Kumar Dushad & ors., (2000) 8 SCC
696; Hindustan Lever Ltd. Vs. S.M.
Jadhav & Anr., AIR 2001 SC 1666;
Cement Corporation of India Ltd. Vs.
Raghbir Singh & Anr., AIR 2002 SC 509;
State of U.P. Vs. Smt. Gulaichi, AIR 2003
SC 4209; State of U.P. & Anr. Vs. Shiv
Narain Upadhyaya, (2005) 6 SCC 49; and
State of Gujarat Vs. Vali Mohd. Dosabhai
Sindhi, AIR 2006 SC 2735.

11. In U.P. Madhyamik Shiksha
Parishad Vs. Raj Kumar Agnihotri,(2005)
11 SCC 465, the Apex Court held that an
application for correction of date is to be
dealt with giving strict adherence to the
Rules, if any, framed in this regard and
particularly in respect of limitation etc.

12. In State of Madhya Pradesh &
ors. Vs. Mohan Lal Sharma, (2002) 7
SCC 719, the Hon'ble Supreme Court
held that while examining the issue of
correction of date of birth, the Court must
be very slow in accepting the case of
applicant if issue has been agitated at a
much belated stage and it must examine
the pros and cons involved in the case
even if not raised by the parties. In the
said case the Tribunal had allowed
application for correcting the date of birth
placing reliance on the Horoscope and a
certificate issued by the retired Head
Master of the School showing a different
date of birth. The Apex Court reversed the
said judgment observing that if it was
allowed the applicant would have joined
the service when he was less than 18
years of age, and therefore, accepting
such an application would amount to
sanctifying his illegal entrance in service.
The Court further observed that no
reliance could be placed upon the said
certificate and Horoscope at all.

13. In State of Punjab Vs. Mohinder
Singh, AIR 2005 SC 1868, the Supreme
Court held that horoscope is a very weak
piece of material to prove age of a person.
A very heavy onus lies on the person,
who wants to press it into service, to
prove its authenticity. It requires to be
proved in terms of Section 32 (5) of the
Evidence Act by examining the person
having special means of knowledge as
regards authenticity of date, time etc.
348 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
mentioned therein, and in that context,
horoscopes
have
been
held
to
be
inadmissible for proof of age. For that
purpose, reliance has been placed by the
Hon'ble Supreme Court on the judgments
in Mt. Biro Vs. Atma Ram & Ors., AIR
1937 PC 101 and also on the judgment of
the Calcutta High Court in Satish
Chandra, Mukhopadhyaya Vs. Mohindra
Lal Pathak, ILR 97 Cal 849.

14. In Union of India Vs. Kantilal
Hemantram Pandiya, AIR 1995 SC 1349,
the Hon'ble Supreme Court held that the
Court must be very vigilant in placing
reliance on a document or certificate of
date of birth which had been brought into
existence for the benefit of the pending
proceedings
as
the correctness and
genuineness of such a certificate is not
free from doubt and the same might have
been obrained for getting the relief by
such an applicant. Similar view has been
reiterated in R.S. Mehrotra Vs. Central
Government Industrial Tribunal, 1991
(63) FLR 76; Maharastra State Electricty
Board Vs. Sakharam Sitaram Shinde,
1996
(72)
FLR
562;
and
Nagar
Mahapalika Bareilly Vs. Labour Court,
Bareilly & Anr., 1995 (71) FLR 950.

15. In Union of India Vs. C. Rama
Swami & Ors., AIR 1997 SC 2055, the
Apex Court considered the application of
the provisions of Rule 16-A of the Rules
1958 while examining a similar issue and
held that the date of birth as recorded in
the service book as declared by an officer
in the application for recruitment has to
be accepted as correct by the Central
Government and, this can be altered only
if under sub-rule (4) of the Rules 1958, it
is established that a bona fide clerical
mistake had been committed in accepting
the date of birth and once an application
has been rejected, it would be a case that
there was no bona fide clerical mistake
which had been committed. The Court
further held as under:-

"In such a case, even in the absence
of a statutory rule, like Rule 16-A, the
principle of estoppal would apply and the
authorities concerned would be justified
in declining to alter the date of
birth..........Once having secured entry into
the service, possibly in preference to
other candidates, then the principle of
estoppal would clearly be applicable and
relief of change of date of birth can be
legitimately denied."

16. In view of the above, the law can
be summarised that an application for
correcting the date of birth can be
entertained at the initial stage of service
and if any statutory Rule/Executive
Instructions/Government Order provides
for
a
limitation
within
which
the
application can be entertained, it is not
permissible for the employer to entertain
the application after expiry of the said
limitation. There must be evidence of
unimpeachable character to support the
application.
Horoscope
or
certificate
issued by the third parties should not be
preferred over the date of birth mentioned
in the school certificates. Documents
prepared/procured at a stage subsequent
to joining the service should not be relied
upon without examining their genuineness
as there is always a possibility of
fabricating the documents to support a
bogus claim by an employee. Such an
application is liable to be rejected, if as
per the correction sought, entry of the
applicant in service itself becomes bad, ie.
being minor or below the age prescribed
in the relevant Rules. The onus to prove
1 All] Union of India V. Dr. Lalit Verma and another
349
about the wrong recording of the date of
birth is always on the employee-applicant.
Rule 16-A of the Rules 1958 reads as
under:-
"16-A Acceptance of date of birth-
16A
(1)
For
the
purpose
of
determination
of
the
date
of
superannuation of a member of the
service, such date shall be calculated with
reference to the date of his birth as
accepted by the Central Government
under this rule.
16A(2) In relation to a person
appointed, after the commencement of the
All
India
Services
(Death-cumRetirement Benefits) Amendment Rules,
1971
(a) Indian Administrative Service
under clause (a) or clause (aa) of sub-rule
(1) of rule 4 of the Indian Administrative
Service (Recruitment) rules, 1954; or
(b) the Indian Police Service under
clause (a) or clause (aa) of sub-rule (1) of
rule 4 of the Indian Police Service
(Recruitment) Rules, 1954; or
(c) the Indian Forest Service under
clause (a) or clause (aa) of sub-rule (2) of
rule 4 of the Indian Forest Service
(Recruitment) Rules, 1966;
the date of birth as declared by such,
person in the application for recruitment
to the service shall be accepted by the
Central Government as the date of birth of
such person.

16A(3) In relation to a person to whom
sub-rule (2) does not apply, the date of
birth as recorded in the service book or
other
similar
official
document
maintained by the concerned government
shall
be
accepted
by
the
Central
Government, as the date of birth of such
person.
16A(4) The date of birth as accepted by
the Central Government shall not be
subject to any alteration except where it is
established that a bona fide clerical
mistake has been committed in accepting
the date of birth under sub-rule (2) or (3).

17. The relevant part of the
notification dated 17th December, 1983
which provides for rules for competitive
examination - Civil Services Examination
to be held by Union Public Service
Commission, provides as under:-

"The date of birth accepted by the
Commission is that entered in the
Matriculation
or
Secondary
School
Leaving Certificate or in a certificate
recognised by an Indian University as
equivalent to Matriculation or in an
extract from a Register of Matriculates
maintained by a University, which extract
must be certified by the proper authority
of the University or in the Higher
Secondary or an equivalent examination
certificate. These certificates are required
to be submitted only at the time of
applying for the Civil Services (Main)
Examination.
No other document relating to age
like horoscopes, affidavits, birth extracts
from Municipal Corporation, service
records and the like will be accepted. .
Note 1. - .........
Note 2.- Candidates should also, note
that once a date of birth has been claimed
by them and entered in the records of the
Commission for the purpose of admission
to an Examination, no change will be
allowed subsequently or at any other
Examination of the Commission."

18. In the instant case, the
petitioner's date .of birth had been shown
in all the school registers as 1st March,
1959, he filled up his application form
pertaining
to
Indian
Civil
Services
350 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
examination -1982 showing his date of
birth as 1st March, 1959. Even after
joining the service, his first objection was
filed in 1987 and it was rejected. The said
applicant-respondent did not challenge the
said order dated 22.04.1988 and the same
attained finality. Therefore, there was no
question to entertain any representation
subsequent thereto.

19. So far as the issue of repeated
representations
are
concerned,
a
Constitution Bench of the Hon'ble Apex
Court in Rabindra Nath Bose & Ors. Vs.
Union of India & Ors., AIR 1970 SC 470,
while considering the case of repeated
representations, held as under:-

"He says that the representations
were being received by the government
all the time. But there is a limit to the time
which can be considered reasonable for
making
representations.
If
the
Government
has
turned
down
one
representation, the making of another
representation on similar lines would .not
enable the petitioners to explain the
delay."

20. In Swatantar Singh Vs. State of
Haryana & Ors., AIR 1997 SC 2105,
while dealing with a similar case as is in
hand, the Hon'ble Apex Court held as
under:-

"The
Appellate
Authority
duly
considered and rejected the contention of
the petitioner. Repeated representation
could render little service. Rejection,
therefore, is neither arbitrary nor illegal"

21. In view of the above, we fail to
understand that in case the applicantrespondent did not challenge the order
dated
22.04.1988
passed
by
the
Government of India, how he could
submit further representation and how the
exparte judgment and decree of the Civil
Court could help him, particularly in view
of the fact that the Union of India was not
impleaded as party. Our view stands
fortified by the judgment of the Hon'ble
Supreme Court in Director of Technical
Education & Anr. Vs. Smt. K. Sitadevi,
AIR 1991 SC 308 wherein the Court has
categorically held that the judgment and
decree of a Civil Court was not binding
on the Department for the reason that it
was not a party to the Suit. The said
judgment of the Hon'ble Supreme Court
was followed by the Division Bench of
this Court in Prof. Mohd. Zameeruddin
Siddiqui Vs. Executive Council, Aligarh
Muslim University, Aligarh & Anr., 1996
(1) ESC 239. This Court also held that in
such a fact situation, it becomes the duty
of the party to furnish particulars
regarding the date of birth of his other
family members as in the said case, this
Court refused to accept the averments
made on behalf of the petitioner therein as
he would become younger to his younger
brother as per the date of birth shown in
the the service book of his younger
brother. The said judgment has been
upheld by the Hon'ble Supreme Court as
is evident from the judgment in Mohd.
Zameeruddin Siddiqui Vs. Executive
Council Aligarh Muslim University &
Anr, (2000) 9 SCC 48.

22. The question of binding nature
of the certificate duly corrected by the
CBSE on the basis of judgment and
decree of the Civil Court is also not
reliable/worth
consideration
for
the
simple reason that we are very much
doubtful about the territorial jurisdiction
of the Civil Court at Azamgarh as neither
the
said
applicant-respondent
got
1 All] Union of India V. Dr. Lalit Verma and another
351
education in the said district or in the
State of Uttar Pradesh or the CBSE was
having any office at Azamgarh. More so,
in view of the provisions contained in
Section 20 CPC, the Court may not have
jurisdiction as no cause of action, partly
or fully, had arisen within its territorial
jurisdiction. It is beyond our imagination
as for what purpose, the suit had been
filed in 1993 when the applicantrespondent had already filed the Original
Application before the Tribunal in 1991
and
even
in
that
application,
the
applicant-respondent did not ask for
quashing of the order of the Government
of India dated 22.04.1988.

23. The provisions of Sections 41 to
43 of the Evidence Act make it clear that
if a judgment of the Court is a judgment
in rem, it is binding in subsequent
proceedings on that issue though the
parties may not be the same. But if it is a
judgment in personam, it does not have
any
binding
effect
in
subsequent
proceedings. This issue was considered by
the Privy Council in Mahomed Saddique
Yousuf Vs. Official Assignee of Calcutta,
AIR 1943 PC 130, wherein it was held
that in proceedings of insolvency, an
order passed on adjudication is of a
binding nature being a judgment in rem
and a person, who may not be a party in
the
insolvency
proceedings,
cannot
challenge the said order for the reason
that the order of adjudication was
conclusive in nature and cannot be
disputed.

24. In Surinder Kumar & ors. Vs.
Gian Chand & ors. AIR 1957 SC 875, the
Hon'ble Supreme Court held that probate
of the Will operates as a judgment in rem,
therefore, the objection that the parties in
any subsequent proceedings were not
parties to it, is not sustainable because of
the nature of the judgment.

In Gurdit Singh & Ors. Vs. State of
Punjab & Ors., AIR 1974 SC 1791, the
Supreme Court explained as under:-

"A judgment of a court is an
affirmation, by the authorised societal
agent of the State, speaking by the
warrant of law and in the name of the
State, of the legal consequences attending
of proved or admitted state of facts. Its
declaratory,
determinative
and
adjudicatory function is its distinctive
characteristic. Its recording gives an
official certification to a pre-existing
relation or establishes a new one on preexisting grounds."

25. In State of Bihar & ors. Vs.
Sri Radha Krishna Singh & ors., AIR
1983 SC 684, the Hon'ble Supreme Court,
while considering the Scope of provisions
of Sections 13 and 41 to 43 of the Act, to
prove the admissibility of judgment,
observed as under:-

"Some courts have used Section 13
to prove the admissibility of a judgment
as coming under the provisions of Section
43...... We are, however, of the opinion
that where there is a specific provision
covering the admissibility of a document,
it is not open to the court to call into aid
other general provisions in order to make
a particular document admissible. In other
words if a judgment is not admissible as
not falling within the ambit of Sections 40
to 42, it must fulfil the conditions of
Section 43 otherwise it cannot be relevant
under Section 13 of the Evidence Act.
The words 'other provisions of this Act'
cannot cover Section 13 because this
352 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
section does not deal with judgments at
all.
It is also well settled that a judgment
in rem like judgments passed in probate,
insolvency, matrimonial or guardianship
or other similar proceedings, is admissible
in all cases whether such judgments are
inter parties or not. In the instant case,
however, all the documents consisting of
judgments filed are not judgments in rem
and, therefore, the question of their
admissibility on that basis does not arise.
As mentioned earlier, the judgments filed
as Exhibits in the instant case, are
judgments in personam and, therefore,
they
do
not
fulfil
the
conditions
mentioned in Section 41 of the Evidence
Act.

The Court further summarised the
law as under:-

(1)
A
judgment
in
rem
e.g.
judgments or orders passed in admiralty,
probate proceedings, etc., would always
be admissible irrespective of whether they
are inter parties or not.
(2) Judgments in personam not inter
parties are not at all admissible in
evidence except for the three purposes
mentioned above.
(3)
On
a
parity
of
aforesaid
reasoning, the recitals in a judgment like
findings given in appreciation of evidence
made
or
arguments
or
genealogies
referred to in the judgment would be
wholly inadmissible in a case where
neither the plaintiff nor the defendant
were parties.
(4)
The
probative
value
of
documents which, however ancient they
may be, do not disclose sources of their
information
or
have
not
achieved
sufficient notoriety is precious little.
(5)
Statements,
declarations
or
depositions, etc., would not be admissible
if they are post litem motam."

26. While deciding the said case, the
Court
took
into
consideration
the
judgments
in
Kesho
Prasad
Singh
Bahadur Vs. Bhagjogna Kuer, AIR 1937
PC 69; and Coco-cola Company of
Canada Ltd. Vs. Pepsi-Cola Company of
Canada Ltd., AIR 1942 PC 40.

27. In Raje Anandrao Vs. Shamrao
& ors., AIR 1961 SC 1206, the Supreme
Court held that suit under Section 92 of
the Code is of public nature and unless the
scheme of administration or modification
thereof regarding administration of the
temple not affecting the private rights of
Pujaris who are not parties to the suit, is
binding on them. Similar view has been
reiterated in Ahmed Adam Sait & ors. Vs.
M.E. Makhri & ors., AIR 1964 SC 107,
observing that when a representative suit
is brought and decree is passed in such a
suit, law assumes that all persons, who
have the same interest as the plaintiffs in
the representative suit, were represented
by the said plaintiffs and, therefore, are
constructively barred, by the res-judicata,
from re-agitating the matters directly or
substantively in issue in the said suit. A
similar rule follows if the suit is either
filed or defended under O. 1 R. 8 of the
Code. In that case, persons either suing or
defending an action are doing so in a
representative capacity and, so, the decree
passed in such a suit binds all those whose
interests were represented either by the
plaintiffs or by the defendant.

28. In Sunni Central Board of Waqf,
U.P. Vs. Sirajul Haq Khan & ors., AIR
1954 All. 88, a Division Bench of this
Court held that a suit under Section 92 of
1 All] Union of India V. Dr. Lalit Verma and another
353
the Code can be maintained only in
respect of public trust of a permanent
character and the judgment in such a suit
would be a judgment in rem and not a
judgment in personam. Therefore, such a
judgment is admissible in any other
subsequent suit and it is not open to any
party to challenge the permanent public
nature of the trust.

29. In Vempa Sunanda Vs. Vempa
Venkata Subbarao, AIR 1957 AP 424, the
Division Bench of Andhra Pradesh High
Court held that a decree dissolving a
marriage determines the status of the
parties and is equivalent to a judgment in
rem.

30. Therefore, it depends upon the
nature of the proceedings and where the
matters are of public nature, the judicial
decision may be evidence though not
conclusive of what they say, but where
the matters are not of public nature,
such evidence is not admissible as
having binding effect. Therefore, decree
like declaration of marriage as or nullity
in probate or insolvency proceedings,
determination
of
customary
rights,
being matters of public nature, the
judgments are in rem and, therefore,
may be admissible but where the
question of status of joint family or a
suit for restitution of conjugal right,
order in lunacy, judgment under Section
42 of the Specific Relief Act or
declaration of a person to be a partner in
a firm or proceedings of partition suit or
in case of adoption, as the judgments
are not of a public nature, the same are
in personam and the judgments are not
admissible if the parties are not the
same.

31. A judgment in rem means an
adjudication pronounced upon the status
of a person or thing, by a competent
court to the word generally. But it is not
conclusive
proof
of
the
facts
constituting the reasons for the decision.
In such circumstance, the order is
conclusive only as regards the status but
not as regards the grounds on which it is
based.

32. Section 41 of the Evidence Act
deals with the judgment in rem. Section
42 of the Evidence Act deals with
matters relating to public nature and
forms. The exception in the general
principle of res judicata is partially
embodied in Section 11 of the Code of
Civil Procedure.

33. However, in Smt. Satya Vs.
Teja Singh, AIR 1975 SC 105, the
Supreme Court placing reliance upon its
earlier judgment in R. Viswanathan Vs.
Rukn-Ul-Mulk Syed Abdul Majid, AIR
1963 SC 1, held as under: -

"Section 41 of the Indian Evidence
Act provides, to the extent material, that
a final judgment of the competent court,
in
the
exercise
of
matrimonial
jurisdiction, is conclusive proof that a
legal character, which it confers or takes
away, accrued or ceased at the time
declared in the judgment for that
purpose. But the judgment has to be of
a competent court, i.e. a court having
jurisdiction over the parties and the
subject matter. Even a judgment in
rem is, therefore, open to attack on
the ground that the Court, which gave
it, had no jurisdiction to do so."
(Emphasis added).
354 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
34. In the instant case the Tribunal
referred to the issue in a cursory manner
but did not examine it in an appropriate
manner as to whether the Court had
jurisdiction to entertain the suit.

35. The specific plea taken by the
Union of India before the Tribunal had
been that in case the applicant's date of
birth was 13.02.1962, he was ineligible to
appear in the examination of the CBSE in
1975 at the age of 13 years or the Medical
College
or
for
the
Civil
Services
Examination - 1982 for the reasons that
for each examination, a minimum age has
been prescribed. The Tribunal has made
an observation that even if there was a bar
for appearing in the CSSE prior to
completing a particular age, the Board
could have relaxed the age and the Union
of India failed to produce any specific
Rules prescribing the minimum age for
appearance in the said examination. It was
the duty of the applicant-respondent to
prove his case by adducing sufficient
material and to provide the Rules. The
Tribunal has also brushed aside another
averment, that is, in case his date of birth
was 13.02.1962, he could not apply for
the Civil Services Examination - 1982 as
he was selected and remained in active
service of IPS till 06.12.1984, without
dealing with it. The Tribunal failed to
appreciate that applicant-respondent, had
challenged his date of birth recorded in
the service records and therefore, the onus
to prove the issue was on him and not
upon the Union of India. The Tribunal
erred in not appreciating that the case of
the applicant had to stand on its own legs
and not on the discrepancies/deficiencies
in the evidence of the opposite party.

36. Petitioner has filed the copy of
the
affidavit
filed
by
applicantrespondent's father in 1965 showing the
dates of birth of all his four children,
according to which his younger brother
Suresh Prasad was born on 14.02.1962
and, thus, his date of birth could not be
13.02.1962. This has not properly been
explained/denied
by
the
applicantrespondent as it has been stated that the
issue was not agitated before the Tribunal.
In reply to the averments made in
paragraphs 23 and 24 of the writ petition,
he has explained that the affidavit given
by his father was wrong as no child was
born on 14.02 1962. In support of his
averments, he has filed the copy of the
certificate issued by the Head Master of
the
Sainik
School,
Nagrota
dated
13.01.2006, according to which his
younger brother Sudhir Prasad joined the
said School on 18.09.1972 in sixth class
and his date of birth was 14.02.1963. He
left the said school in 1980 after passing
the examination of 11th class. The
applicant-respondent has not filed any
certificate or copy of the school register
where his younger brother was initially
admitted in class one. Therefore, the
documents cannot be relied and it does
not appeal to reason that the affidavit
given by his father, who was a teacher,
could be false.

37. It is not disputed that in the form
submitted by the applicant-respondent in
the examination of 1982, he had shown
his date of birth as 1st March 1959 and
that in case his date of birth was
13.02.1962, he was ineligible to appear in
the Civil Services Examination-1982
being below 21 years of age. Once the
applicant-respondent joined the service in
pursuance of the said application form
and enjoyed the benefit thereof, there was
no
occasion
for
him,
under
any
circumstance, to seek change in his date
1 All] Union of India V. Dr.