D.K Mahajan, J.:— This second appeal is directed against the order of the Senior Subordinate Judge, Amritsar, reversing on appeal, the decision of the trial Court decreeing the plantiff's suit.
2. Darbara Singh plaintiff brought a suit for declaration that he is entitled to continue in Police service till 13th of June, 1969 and his proposed retirement on the basis, that he was born on the 1st of July, 1937 and not on the 13th of June is 1914, was not justified. Therefore, the short question that required determination was, when Darbara Singh was born? The trial Court held that he was born on the 13th of June, 1914 and the entry of birth showing that he was born on the 1st of July, 1907 was wrong. In this view of the matter, the trial Court decreed the suit. The other contentions raised by the defendent were also negatived. On appeal, the learned Senior Subordinate Judge has taken rather a curious view of the matter. He has held that the suit is not maintainable because the claim in suit does not relate to a civil right.
3. He has further held that the order on the question of age is an administrative order and, therefore, the civil Courts have no jurisdiction to entertain any suit in respect of that order. It has been further remarked that the remedy of the plaintiff was under Article 226 of the Constitution of India by way of a writ. Against this decision, the present second appeal has been preferred by the plaintiff.
4. There can be no manner of doubt that the learned Senior Subordinate Judge has greviously gone wrong in his approach to the problem. The question of the date of birth or of a person's age is a matter pertaining to his civil rights. There are a number of rights which can be enjoyed by a person of certain age and there are certain rights which are denied to a person below a certain age. Therefore the question of age is a very vital question relating to the rights of an individual and it cannot be countenanced at all that the civil Courts have no jurisdiction to determine the correct age of an individual. Viewed in this manner, it must also be said that such an order is not an administrative order. In any case, this matter is not res integra. The view I have taken is fully supported by the following decisions:—
(1) Kesava Paniker v. The State . A.I.R 1957 T.C 124.,
(2) The General Manager (Personal Branch) Southern Railway v. S.M Muhamad Yakut . A.I.R 1959 Mad. 88.,
(3) Bhanwar Singh Bhup Singh Rajput v. State of M.P . A.I.R 1983 M.P 335.,
(4) Jyoti Prokash Mittar v. The Hon'ble Mr. Justice H.K Bose, Chief Justice of the High Court, Calcutta . A.I.R 1966 S.C 961.,
5. There is no satisfactory answer to the contention advanced by the learned counsel for the plaintiff, and accepted by me, from the side of the respondents.
6. The only contention, that has been pressed into service, by the learned counsel for the respondents is that a suit for mere declaration does not lie because the plaintiff is not in service and has been retired from the service. It is claimed that he should sue for being reinstated. Service matters have been the subject matter of considerable-litigation in this country and there is not a single case, in which a suit ha? been thrown out on the ground that a suit for mere declaration does not lie. As a matter of fact, that is the only form of relief which has been claimed and granted in such cases. I, therefore, see no reason to hold that a suit for mere declaration, in the circumstances of the present case does not lie. As the Senior Subordinate Judge has not decided the remaining issues, the case will necessarily have to go back to him for decision on the merits.
7. I may also mention that on the finding of the learned Subordinate Judge that the proper remedy of the plaintiff was to move this Court under Article 226 of the Constitution of India, the conclusion that the suit was not competent is not justified. It seems, the learned Subordinate Judge is not aware that the scope of the proceedings under Article 226 of the Constitution and by a regular suit does not differ. Proceedings under Article 226 of the Constitution are proceedings by way of an alternative remedy which is more efficacious than the ordinary remedy of a suit. In both civil rights are enforced or their protection is sought. In fact they are remedies in the alternative with this difference only that the remedy under Article 228 by way of a writ is discretionary whereas that is not the case in a suit.
8. For the reasons recorded above, this appeal is allowed; the judgment and decree of the learned Senior Subordinate Judge is set aside and the case is remitted to him for decision in accordance with law. The costs will be costs in the cause. The parties are directed to appear before the learned Senior Subordinate Judge on 19th December, 1966.
9. Appeal allowed.