This division bench dismissed the writ petition held barred by the principle of res judicata. The petitioner sought correction of date of birth in matriculation and service records. Prior similar litigations preceding dismissal had already concluded. A new birth certificate did not alter the finality of prior judgments.
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF MARCH 2022
BEFORE
HON’BLE MR. JUSTICE MOHAMMAD RAFIQ
CHIEF JUSTICE
&
HON’BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 433 of 2022
Between:-
BALBIR SINGH, S/O MALHAR SINGH, RESIDENT OF VILLAGE CHACK BHATIAN, P.O. GHIALA, TEHSIL & DISTRICT PATHANKOT (PUNJAB), AT PRESENT WORKING IN ENGINEERS INDIA LIMITED, 1 BHIKAJI CAMA PLACE, R.K. PURAM, NEW DELHI-110066
…..PETITIONER
(BY SH. ASHISH JAMALTA, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH THROUGH COLLECTOR, KANGRA AT DHARAMSHALA.
2. CHIEF MEDICAL OFFICER-CUM-DISTRICT REGISTRAR, BIRTHS AND DEATHS, KANGRA, AT DHARAMSHALA.
3. CHIEF REGISTRAR, BIRTHS AND DEATHS-CUMDIRECTOR OF HEALTH SERVICES, SHIMLA-9 FOR STATE OF HIMACHAL PRADESH, AT SHIMLA.
4. REGISTRAR GENERAL OF INDIA, BIRTHS AND DEATHS, UNDER THE REGISTRATION BIRTHS AND DEATHS ACT OF 1969, MINISTRY OF HOME AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI.
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5. SUB DIVISIONAL MAGISTRATE -CUM-MAGISTRATE 1ST CLASS, NURPUR, TEHSIL NURPUR DISTT. KANGRA H.P.
6. EXECUTIVE MAGISTRATE CUM TEHSILDAR, INDORA, DISTT. KANGRA H.P.
7. PUNJAB SCHOOL EDUCATION BOARD, SAHIBZADA AJIT SINGH NAGAR, MOHALI, PUNJAB, THROUGH ITS SECRETARY.
8. ENGINEERS INDIA LIMITED, 1, BHIKA JI, CAMA PLACE, R.K. PURAM, NEW DELHI- 110066, THROUGH ITS CHAIRMAN-CUM-MANAGING DIRECTOR.
9. REGIONAL PASSPORT OFFICE GROUND FLOOR,VIVEKANANDA MARG, BHIKA JI, CAMA PLACE, R.K. PURAM, NEW DELHI- 110066, THROUGH ITS REGIONAL PASSPORT OFFICER.
.....RESPONDENTS
(SH. AJAY VAIDYA, SENIOR ADDITIONAL ADVOCATE GENERAL FOR R-1 TO R-3, R-5 & R-6, SH. BALRAM SHARMA, ASGI FOR R-4 & R-9,
SH. BHUP SINGH THAKUR, & MS. HEENA CHAUHAN, ADVOCATES FOR R-7)
This petition coming on for admission this day,
Hon’ble Mr. Justice Mohammad Rafiq, passed the following:
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O R D E R
This writ petition has been filed by the petitioner-Balbir Singh primarily on the basis of the date of birth certificate now issued to the petitioner by the Registrar, Birth & Death, Gram Panchayat Majra on 02.02.2021. The prayer has been made that respondent No.7 i.e. Punjab School Education Board, may be directed to make necessary corrections in the date of birth certificate of the petitioner in matriculation certificate and respondent No.-8 i.e. Engineers India Limited may also be directed to make corresponding corrections qua petitioner’s date of birth in his service record and EPF/EPS accounts.
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Deaths Act of 1969, Sub-Divisional Magistrate-cumMagistrate First Class Nurpur, Executive Magistrate-cumTehsildar Indora, Punjab School Education Board and the Engineers Indian Limited as defendants and prayed for the same directions as have been prayed for in the present writ petition. The civil suit filed by the petitioner was dismissed by the Court of Civil Judge (Junior Division) Indora, District Kangra, vide judgment and decree dated 22.11.2011. The petitioner then filed Civil Appeal, which was dismissed by the District Judge, Kangra Division at Dharamshala vide judgment and decree dated 05.09.2012. The petitioner then filed Regular Second Appeal No.654/2012, which was also dismissed by this Court vide judgment dated 24.10.2018. It was thereafter, the petitioner filed Special Leave to Appeal(c) No.5607/2019, before the Hon’ble Supreme Court, which too was dismissed vide order dated 01.03.2019 and thereafter Review Petition(c) Diary No.14436/2019 filed by the petitioner was also dismissed by the Hon’ble Supreme Court on 11.07.2019.
Learned counsel for the petitioner has argued that the present writ petition has been filed by the petitioner on the basis of new cause of action, which has arisen on account of issuance of new birth certificate to him by
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Registrar, Birth & Death, Gram Panchayat Majra. The said certificate has been issued by Secretary Gram Panchayat Majra. Besides that, learned counsel for the petitioner has raised a fresh argument by placing on record a communication dated 8/15.02.1999 (Annexure P-32) whereby in similar circumstances prayer made by one K.C. Joseph for change of his date of birth was accepted by respondent No.8, which is the employer of the petitioner also. The petitioner has been in this manner subjected to discriminatory treatment.
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change of date of birth made in the case of some other employees of respondent No.8 allegedly made in the year 1999 would also be barred by the principle of res judicata, as has rightly been argued that not only the petitioner impleaded all those respondents as defendants in the civil suit that he filed, but the prayers made in the civil suit also substantially similar to the once, which have been made in the present petition, as is evident from the perusal of the prayer clause of the plaint which reads as under:-
“In view of the above noted facts and circumstance it is therefore prayed that a decree for declaration to the effect that the plaintiff is entitled to get his birth entry recorded in the Birth Register kept in the office of the Chief Medical Officer cum District Registrar, Births and Deaths, Kangra situated at Dharmsala, the defendant number 2 and further entitled to get his Date of birth certificate showing the date of birth of the plaintiff as 2304-1964 on the basis of application dt. 09.05.2007 filed to the defendant number 5 & 6 with consequential relief of Mandatory Injunction directing the defendant number 1 and 3 to issue the date of birth certificate showing the date of birth of the plaintiff as 23-04-1964 under the provisions of RBD Act 1969 and further the defendant number 7 be directed to issue Matriculation Certificate under roll number 303819 passed in March, 1981 to the
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plaintiff showing the date of birth of the plaintiff as 23-041964 on the basis of date of birth certificate issued by defendant number 2 and further the defendant number 8 be directed to effect change in the service record pertaining to the date of birth of the plaintiff as per date of birth certificate issued by the defendant 2 be passed in favour of the plaintiff and against the defendants with costs in the interest of justice.”
We are surprised how the birth certificate has
now been issued to the petitioner by the Secretary Gram Panchayat Majra when the petitioner failed to secure such relief not only from the Civil Court of the first instance, as well as first appeal and second appeal before this Court, but also from the Hon’ble Supreme Court. This would be a matter of inquiry, for which purpose copy of this order be forwarded to Deputy Commissioner, District Kangra. However, issuance of new date of birth certificate cannot be taken as the sufficient basis for ignoring the judgments and decrees passed by the Civil Court in Civil Suit as well as first appeal and second appeal, which have been upheld by the Hon’ble Supreme Court as this writ petition would be barred by principle of res judicata. The argument of discrimination also would not be available as the same would be barred by principle of
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constructive res judicata, sought to be built on the basis of communication dated 8/15.02.1999.
With regard to the judgments cited by learned counsel for the petitioner suffice it to say that the same cannot be examined on account of the writ petition being barred by principle of res judicata.
In view of the above, we find no merit in the
present writ petition and the same is dismissed.
Pending miscellaneous applications, if any, shall also stand disposed off accordingly.
( Mohammad Rafiq ) Chief Justice
( Jyotsna Rewal Dua ) Judge
7th March 2022 (rohit/vs)
3 issues framed by the court
Whether the writ petition is barred by the principle of res judicata given the petitioner filed a substantive suit and special leave petition covering similar prayers previously.
Whether the issuance of a new birth certificate after a final Supreme Court holding constitutes a fresh cause of action overcoming the bar of litigation.
Whether an alleged discriminatory treatment to other employees serves as valid grounds to bypass the principle of constructive res judicata.
Balbir Singh
State of Himachal Pradesh through Collector, Kangra
Chief Medical Officer-cum-District Registrar, Births and Deaths, Kangra
Chief Registrar, Births and Deaths-cum-Director of Health Services, Shimla
Registrar General of India, Births and Deaths
Sub Divisional Magistrate-cum-Magistrate 1st Class, Nurpur
Mohammad Rafiq
Jyotsna Rewal Dua
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
