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K. Kochupadmanabhan Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1971)IILLJ257Ker
AppellantK. Kochupadmanabhan
RespondentThe State of Kerala and ors.
Cases ReferredSukumaran v. D.S.P.
Excerpt:
- - it appears that in the case of a person like the petitioner, the authority competent to sanction the alteration of the date of birth in the admission register is the second respondent. it cannot, therefore, be said that the second respondent failed or neglected to perform any public duty. on the whole, i am satisfied that this is not a fit case for exercise of my jurisdiction under article 226 of the constitution......entered in his service book can apply on the day previous to his retirement to have the date of birth corrected; and the government would then be obliged to deal with it forthwith before he retires, or to continue him in service pending determination of that matter. it may even be open for a government servant who has retired from service to find out the mistake occurred in his date of birth in the service book, apply for its rectification and reinstatement in service on the basis of the correct date of birth. any right that a person has got, in the absence of statutory provision in that respect, should be exercised within a reasonable time. there is nothing in the service rules, nor is there any other statutory provision, obliging the government to entertain at any time an.....
Judgment:

M.U. Isaac, J.

1. The petitioner was a Sub-Registrar in the Department of Registration of the State Government. His date of birth as entered in his service book is 19-3-1090 M.E., according to which he would retire on 4-11-1969 on his completion of 55 years of age. Sometime before he was due to retire, the petitioner noticed that his correct date of birth was 19-3-1092 M.E., and that he was due to retire only on 4-11-1971. He wanted to apply to the Government for correcting his date of birth in the service book, for which he thought that it was necessary to attach a certified extract of the relevant entry in the admission register of the school in which he was first admitted. Accordingly, he made an application on 28-12-1968 to the second respondent, the Commissioner for Government Examinations, Trivandrum for getting an extract of the above admission register. The second respondent issued a memo Ext. P-2 dated 19-1-1969 to the fourth respondent, the Headmaster, L.P. School, Kaikkara, wherein the petitioner was first admitted for education, requesting the fourth respondent to issue an extract of the said register relating to the admission of the petitioner. The petitioner had also moved the Assistant Educational Officer, Warkala for the same purpose, who had also addressed the the fourth respondent to issue to the petitioner the relevant extract from the school admission register. Ext. P-3 dated 5-3-1969 is a letter from the fourth respondent to the Assistant Educational Officer in this matter. It states that the relevant admission register had become very old, that there was no entry in letters of the petitioner's date of birth in the register, that the entry in figures were mutilated, and that it was not possible under the circumstances to issue an extract of the register relating to the admission of the petitioner. The matter seems to have been taken up by the petitioner again with the second respondent. Ext. P-4 dated 1-11-1969 is a communication addressed by the second respondent to the Assistant Educational Officer requiring him to make available to the second respondent the relevant admission register for verification. It was then getting too late for the petitioner to wait for the reply of the second respondent, as he would retire within 3 days. So he filed this original petition on 3-11-1969 for a writ of mandamus or appropriate writ, direction or order to command the second respondent to perform the statutory function of making the necessary alterations as contemplated in Rule 3 of Chapter VI of the Kerala Education Rules, 1959 and also to command the third respondent, the Inspector-General of Registration, for directing continuance of the petitioner in service till he attained the age of 55. He also filed an application to stay his retirement till the disposal of the O.P. That was not successful; and he retired on 4-11-1969.

2. The petitioner had filed an application before the first respondent, the State of Kerala, on 3-9-1969 to call for the relevant records and correct his date of birth in his service book as claimed by him. That application was dismissed by the first respondent by its order Ext. P-5 dated 29-10-1969, stating that the above application could not be entertained in the light of G.O. Ms. 345/Public (Services-B) Department dated 27-6-1962. The petitioner states that he got Ext. P-5 on 7-11-1969. Then he moved a petition for amendment of the original petition by incorporating a prayer to quash Ext. P-5 on the ground that the aforesaid G.O. dated 27-6-1962 was unconstitutional and invalid.

3. Rule 3 in Chapter VI of the Kerala Education Rules relates to the alteration of date of birth of a pupil in the admission register. It appears that in the case of a person like the petitioner, the authority competent to sanction the alteration of the date of birth in the admission register is the second respondent. Exts. P-2 and P-4 show that he has been taking the necessary steps in the matter of the petitioner's application for correction of the date of birth. It cannot, therefore, be said that the second respondent failed or neglected to perform any public duty. Ext. P-4 is dated 1-11-1969 and this writ petition was filed on 3-11-1969. In these circumstances the petitioner's prayer for issuing a writ of mandamus or other direction to the second respondent to perform any statutory function under Rule 3 in Chapter VI of the Kerala Education Rules cannot be sustained. The petitioner will however be at liberty to pursue the matter with the second respondent who I am sure will deal with and dispose of the same according to law.

4. The next question for consideration is whether G.O. Ms. 345/Public (Services-B) Department dated 27-6-1962, on the basis of which the petitioner's application for correction of his date of birth was rejected by Ext. P-5 is valid. A copy of this G.O. has not been produced; but it appears at page 61 of the Government publication under the style 'Important Orders on Miscellaneous Subjects issued by the Government'. It reads:--

G.O. Ms. No. 345 Public (Services-B) Department, dated 27th June, 1962.

Abstract.--Public Services--Correction of date of birth noted in Service Books--Further clarification--Issued.

Read.--G.O. Ms. No. 867/Public (Services-C) Department, dated 23rd September, 1961.

Order

In continuation of the G.O. cited, the Government clarify that correction of date of birth in the service books in respect of Government servants who entered service in the former Travancore-Cochin State before 1st August 1950 will be allowed only if the correction is not to the advantage of the person concerned. In the case of all others, correction of date of birth in the service books will be considered by Government on the merits of each case.

(By Order of the Governor)

T. Krishnan Nair,

Additional Secretary.

Counsel for the petitioner contends that a Government servant has got a right to continue in service until he actually attains the age of superannuation, and that if the date of birth entered in the service book is wrong he has got the right to get it corrected. In support of that contention, he relied on a decision of this Court in Sukumaran v. D.S.P., Kozhikode (1971) K.L.T. 188, There is no dispute that every Government servant has the right to continue in service till he attains the age of superannuation according to the service rules, and that this is a valid civil right. Ordinarily the entry in the service book relating to date of birth is binding on the Government servant; and his retirement on superannuation would be on the basis of that date. It is the normal right of any person who commits a mistake to correct it; rather it would be his duty to do so. In the same way, a Government servant would have the right to correct a mistake in the entry of his date of birth or other particulars in the service book. But that right is not an absolute right. It may be barred by estoppel, any prescribed period of limitation or other conditions, lapse of time or other circumstances. I am unable to accept the contention that a mistake can be corrected at any time irrespective of such inhibitions. If it were so, a Government servant, who would retire on a particular date on the basis of the date of birth entered in his service book can apply on the day previous to his retirement to have the date of birth corrected; and the Government would then be obliged to deal with it forthwith before he retires, or to continue him in service pending determination of that matter. It may even be open for a Government servant who has retired from service to find out the mistake occurred in his date of birth in the service book, apply for its rectification and reinstatement in service on the basis of the correct date of birth. Any right that a person has got, in the absence of statutory provision in that respect, should be exercised within a reasonable time. There is nothing in the service rules, nor is there any other statutory provision, obliging the Government to entertain at any time an application to correct the entry relating to date of birth. In my opinion, it is the right of the Government, and of any employer to say, in the absence of a statutory obligation, that it would not entertain any such application, or that it would be entertained only subject to conditions, if any, laid down in that respect. The Government may direct that those employees who have been already given opportunities to correct their dates of birth in the service books would not be given any further chances, or that applications for correction of dates of birth would not be entertained, unless submitted within a certain period before the date of superannuation on the basis of the existing entry in the service books. The impugned Government order extracted above only lays down one such condition. It provides that Government servants who entered service in Travancore-Cochin State before 1st August, 1950 will not be allowed to correct their dates of birth to their advantage. I do not find any reason why the Government should not have the right to prescribe such a condition in respect of the class of Government servants mentioned therein.

5. The above G.O. is also attacked on the ground that it is violative of Article 16 of the Constitution in so far as the fixation of the date of 1st August 1950 in the said G.O. has no reasonable basis and that it is discriminatory. Such a point has not been taken in the petition. A person who attacks any statutory provision, order or executive act on the ground of discrimination must allege and establish facts to make out that ground. There is no material before me to show any discrimination; and the attack on the impugned G.O. on this ground cannot, therefore, be sustained. The learned Government Pleader submits that persons who entered service in Travancore-Cochin State before 1-8-1950 form a separate class by themselves in the matter of availability of opportunity to correct the dates of birth in service books, since that class of persons had been given sufficient opportunities before the impugned G.O. was issued, to correct their dates of birth. If that be so, there is sufficient justification for the above classification.

6. There is another difficulty in granting any relief to the petitioner in this case. The petitioner has already retired on 4-11-1969; and even according to his case he would retire on 4-11-1971, if he continued in service. There is only a few months more to reach that date. This writ petition was filed only on 3-11-1969. Even if Ext. P-5 is quashed and the Government is directed to make an enquiry as to the correct date of birth, it may not be ordinarily possible for the enquiry to be concluded before 4-11-1971. In the light of what the fourth respondent has stated regarding the condition of the school admission register containing the entry relating to the petitioner's admission to the school, it is doubtful whether any useful evidence would be available from that register. In that case, the petitioner may have to adduce other evidence; and he has not so far referred to any such evidence. Even if he succeeds to get the date of birth corrected as claimed by him, it is very doubtful whether he may be entitled to reinstatement in service, in view of the fact that it is now almost two years since he has retired. On the whole, I am satisfied that this is not a fit case for exercise of my jurisdiction under Article 226 of the Constitution. In the result I dismiss this writ petition. In the circumstances of the case there will be no order as to costs.


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