1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 18.03.2011 CORAM THE HONOURABLE MR.JUSTICE B.RAJENDRAN W.P.(MD).No.3176 of 2011 and M.P.(MD).Nos.1 of 2011 N.Kamalanathan ... Petitioner Vs 1.The Secretary, Commercial Tax and Registration, Government of Tamil Nadu, Fort.St.George, Chennai-600 009. 2.The Principal Secretary and Commissioner, Commercial Tax, Cheapaukam, Chennai. ... Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus to direct the first and second respondents to consider the petitioner's representation dated 14.12.2010 and 12.03.2011 and to alter and include the petitioners original date of birth as on 14.05.1954 instead of 01.06.1953 in the petitioner's service register duly maintained by the first and second respondents office. For Petitioner : Mrs.R.Jaansirani For Respondents: Mr.S.C.Herold Singh,Govt Advocate ORDER The petitioner has filed this Writ Petition for a Writ of Mandamus to direct the respondents to consider his representations dated 14.12.2010 and 12.03.2011. 2. The petitioner would contend that he is working as an Assistant Commissioner of the Commercial Tax, Karur North. According to him, he joined in service on 30.08.1976 and he has to retire in the month May,2011. His only contention is that even though there is a prohibition seeking alteration of date of birth after five years from the date of entry, he came to know about his wrong date of birth only recently. Therefore, he made representations dated 14.12.2010 and 12.03.2011 to alter and include his original date of birth as on 14.05.1954 instead of https://hcservices.ecourts.gov.in/hcservices/ 2 01.06.1953 in the petitioner's service register duly maintained by the first and second respondents office. Since the representations have not been considered, he has come forward with this Writ Petition for the relief stated earlier. 3. Learned Additional Government Pleader would contend that under the Tamil Nadu State and Subordinate Service Rules, there is a specific bar whereby the Government servant can only seek alteration of date of birth within five years from the date of entry into service. In this case, he has come forward with the present application belatedly. Merely he is seeking a mandamus with an innocuous prayer to consider his representation whereas indirectly he is seeking a virtual order from this Court to consider what could not be considered by the authority concerned. 4. In this connection, he placed reliance upon a Division Bench of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785. In the said decision, following the Supreme Court decision this Court has held that an application that could not even be considered, cannot be directed to be considered by the authority. Therefore, very strongly opposes the application of this nature and the maintainability of the application also. Heard both parties. By consent, the Writ Petition itself is taken up for final disposal. 5. At the outset, the Writ Petition is not maintainable. The Writ Petition though innocuously worded as if it is only for a direction to consider the representation, unfortunately, seeks a direction of this Court to direct an authority who cannot even entertain the application. What could not be entertained by the officer concerned, he is being made to consider by virtue of an order of this Court, which under law cannot be allowed. In this connection, it is worthwhile to mention a Division Bench decision of this Court in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2- L.W.785, to which I was also a party. In the said judgment, we have culled out when Mandamus to be given and on what occasions the innocuous prayer to consider and pass orders on representations leads to drastic consequences. Unfortunately, in spite of the ruling passed, this kind of frivolous petitions are being filed in huge numbers, time and again. The Supreme Court in the case of A.P.SRTC Vs. G.Srinivas Reddy, reported in (2006) 3 SCC 674 = 2006-3-L.W.170, had observed as follows:- “19. There are also several instances where unscrupulous petitioners with the connivance of "pliable" authorities have misused the direction "to consider" issued by court. We may illustrate by an example. A claim, which is stale, time- barred or untenable, is put forth in the form of a representation. On the ground that the authority has not disposed of the representation within a reasonable time, the person making the representation approaches the High https://hcservices.ecourts.gov.in/hcservices/ 3 Court with an innocuous prayer to direct the authority to "consider" and dispose of the representation. When the court disposes of the petition with a direction to "con- sider", the authority grants the relief, taking shelter under the order of the court directing him to "consider" the grant of relief. Instances are also not wanting where authorities, unfamiliar with the process and practice re- lating to writ proceedings and the nuances of judicial review, have interpreted or understood the order "to con- sider" as directing grant of relief sought in the repre- sentation and consequently granting reliefs which other- wise could not have been granted. Thus, action of the au- thorities granting undeserving relief, in pursuance of orders to "consider", may be on account of ignorance, or on account of bona fide belief that they should grant re- lief in view of the court's direction to "consider" the claim, or on account of collusion/connivance between the person making the representation and the authority decid- ing it. Representations of daily-wagers seeking regulari- sation/absorption into regular service is a species of cases, where there has been a large-scale misuse of the orders "to consider". 6. Following the Apex Court's judgment cited supra, a Division Bench of this Court, in M.Ingaci Vs. The Commissioner, Devakottai & Others, reported in 2010-2-L.W.785, had in para 8 observed:- “.... 8. Why we are extracting this judgment in such detail is that we should be aware of the consequences of our order when we direct the authorities to "consider". In the aforesaid situation, if the learned Judge, before directing the authorities to consider, had heard the petitioner herein, then the order of the Division Bench reprimanding the 5th respondent would have been brought to the notice of the learned Single Judge. Some time, we also come across cases where our directions is to an authority who cannot really pass an effective order and the effective order can only be passed by an authority superior to the one to whom we issue directions. Obviously, when the order is not complied with, since it cannot be complied with because of the hierarchy discipline, the officer has to face the contempt. All these can be avoided if we only bear in mind the guidelines given in the above case by the Supreme Court before we direct the respondent to "consider and pass orders". 7. Therefore, this Writ Petition seeking for a Mandamus to consider his representation would not at all arise, as it is clear that what the petitioner could not be achieved before the authorities concerned, he has now termed it in the form of representation and seeking a direction by virtue of an order from this Court. https://hcservices.ecourts.gov.in/hcservices/ 4 In view of the above, this Writ Petition stands dismissed in limine as it is not maintainable. Consequently, the connected miscellaneous petition is closed. No costs. Sd/- Assistant Registrar(C.O) /True Copy/ Sub-Assistant Registrar To 1.The Secretary, Commercial Tax and Registration, Government of Tamil Nadu, Fort.St.George, Chennai-600 009. 2.The Principal Secretary and Commissioner, Commercial Tax, Cheapaukam, Chennai. +One Cc to M/s.R.RAJAGOPAL , Advocate, SR.No.7082 ssm rl/4 c- 25.3.2011 W.P.(MD).No.3176 of 2011 18.03.2011 https://hcservices.ecourts.gov.in/hcservices/