Haridasan.T v. Government of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 2ND DAY OF DECEMBER 2013/11TH AGRAHAYANA, 1935 WP(C).No. 29415 of 2013 (B) ---------------------------- PETITIONER(S): ## ----------------- HARIDASAN.T, AGED 55 YEARS S/O. UNICHUNDAN T., KARIKAMPARAMBU HOUSE, VALLIKUNNU KADALUNDY NAGARAM (VIA), MALAPPURAM-673 314. BY ADVS.SRI.P.SANJAY SMT.A.PARVATHI MENON RESPONDENT(S): ------------------- ## 1.GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT THIRUVANANTHAPURAM-695 001. 2. COMMISSIONER OF GOVERNMENT EXAMINATION PAREEKSHA BHAVAN, THIRUVANANTHAPURAM-19. 3. UNIVERSITY OF CALICUT THENHIPALAM P.O., MALAPPURAM REPRESENTED BY ITS REGISTRAR. R1,2 BY GOVERNMENT PLEADER SMT.LOWSY A. R3 BY SRI.SANTHOSH MATHEW, SC,CALICUTY UTY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-12-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 29415 of 2013 (B) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------- - P1 : COPY OF THE BIRTH CERTIFICATE ISSUED BY THE VALLIKUNNU GRAMA PANCHAYAT EVIDENCING THE ACTUAL DATE OF BIRTH AS 30.9.1958. - P2 : COPY OF THE 1ST PAGE OF THE SSLC BOOK SHOWING THE WRONG DATE OF BIRTH AS 1.12.1957. P3 : COPY OF THE LETTER NO.59461/G2/06/G.EDN. DTD.1.11.2006. P4 : COPY OF THE LETTER NO.63534/G2/06/G.EDN. DTD.25.11.2006. P5 : COPY OF THE LETTER NO.31857/G2/08/G.EDN. DTD.11.6.2008. P6 : COPY OF THE LETTER NO.31857/G2/08/G.EDN. DTD.15.10.2008. P7 : COPY OF THE LETTER NO.22739/G2/09/G.EDN. DTD.27.5.2006. P8 : COPY OF THE ORDER NO.K.DIS/EX/B5/39177/2004/CGE DTD.6.4.2006. P9 : COPY OF THE APPLICATION TO THE 1ST RESPONDENT DTD.1.11.2013. RESPONDENT(S)' EXHIBITS:NIL ----------------------------------- //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.29415 OF 2013 ==========================** Dated this the 2[nd] day of December, 2013 ## **JUDGMENT** The petitioner was appointed as Peon under the third respondent-University on 23.2.2004. Subsequently, he was promoted to the post of Clerical Assistant. He was due to retire from service on 30.11.2013. He moved this Court by the filing the captioned writ petition seeking quashment of Exts.P3, P4, P6 and P7 and seeking a declaration that he is entitled to get his date of birth corrected in the light of Ext.P1 birth certificate and for a further direction to the third respondent to permit him to continue in service until the superannuation period calculated from the date of birth evidenced from Ext.P1. According to the petitioner, at the time of admission in the school, his uncle mistakenly gave his date of birth as 1.12.1957 instead of 30.9.1958. Obviously, at the time of entry in service on 23.2.2004, his date of birth was recorded in the service register as **W.P.(C).29415/13** 2 1.12.1957 based on his school records. After joining duty, on 13.10.2006, the petitioner submitted an application for correction of the date of birth in his school records before the Hon'ble Chief Minister with a copy of the same to the Minister for Education along with Ext.P1 certificate. Obviously, the same was transmitted to the competent authority and as per Ext.P3, the request of the petitioner was rejected. In fact, a perusal of Ext.P3 would reveal that the request of the petitioner for condoning the delay in submitting the application for correction of date of birth was rejected and consequently, he was informed that his request for correction of date of birth in the school records could not be entertained. Ext.P3 is dated 1.11.2006. The petitioner has not challenged Ext.P3 and allowed it to become final. The contention of the petitioner based on Ext.P8 is that the action in rejecting his application is discriminatory. According to the petitioner, in the case of another employee, as per Ext.P8, the delay in the matter of submission of application for correction of date of birth was condoned and in terms of the provisions under Rule 3 Chapter VI of the Kerala Education Rules, sanction was accorded to correct the date **W.P.(C).29415/13** 3 of birth of the said employee. According the petitioner, in the light Ext.P8, there is no reason for discriminating him and his request in Ext.P9 for correction of date of birth in the school records is liable to be considered. It is further submitted that Ext.P9 is pending and therefore, the respondents may be directed to consider Ext.P9 in the light of Ext.P8. 2. I have heard the learned counsel for the petitioner, the learned Government Pleader and the learned standing counsel appearing for the third respondent. Evidently, the petitioner retired from service on 30.11.2013. As noticed hereinbefore, the petitioner filed this writ petition with the aforementioned prayers only on 28.11.2013. The pleadings in the writ petition itself would undoubtedly reveal that the petitioner is yet to get his date of birth corrected in his school records. There cannot be any doubt with respect to the position that even in a case where the date of birth is corrected in the school records the concerned employee cannot, as a matter of right, claim for carrying out a corresponding correction of **W.P.(C).29415/13** 4 the date of birth in the service register unless such application is submitted in accordance with the provisions and within the time stipulated therefor. In the context of the request of the petitioner for correction of date of birth in the school records, the provisions under Rule 3 of Chapter VI of the KER assumes relevance. Going by Rule 3 (1A), a time limit of 15 years from the date leaving the school or the date appearing for the SSLC Examination for the last time whichever is earlier is fixed for entertaining the requests for correction of date of birth in the school records by the Commissioner of Government Examinations. True that note thereunder empowers the Government to condone the delay in making the application for correction of date of birth in the school records. In other words, the note provides an exception to Rule 3(1A). A perusal of the note thereunder would reveal that condonation of delay in making application, rather, granting exception to the provisions under 3(1)A is permissible in deserving cases on merits, if the concerned applicant is within the age limit of 50 years as per the original entry in the school records. Thus if a person has crossed the age of 50 years as per the original entry in **W.P.(C).29415/13** 5 the school records going by Rule 3 note 3(1)A, there is no question of condoning the delay in making application for correction of date of birth by invoking the power thereunder. When that be the statutory provision, the question is whether Ext.P8 would confer any right on the petitioner to seek for correction of his date of birth. In the light of the aforementioned provisions, it can only be said that it is an order passed ignoring the specific provisions under the KER and in such circumstances, the petitioner cannot be heard to contend that there is invidious discrimination as the concept of Article 14 is a positive one and there is no equality in the matter of illegality. As noticed hereinbefore, in this case, the petitioner has already retired from service on 30.11.2013 based on his date of birth recorded in the service register. In the decision in **State of M.P. v. Premlal Shrivas [2011(4) KLT SN 53 (case No.57) SC]** the Hon'ble Supreme Court held that if the request for correction of date of birth is made after lapse of long time beyond the time fixed by his employer, he could not as a matter of fact claim correction even if he got good evidence to establish that the recorded date of birth is erroneous. That apart, even **W.P.(C).29415/13** 6 when the date of birth in the school records is corrected, an employee who fails to submit an application for correction of date of birth within the stipulated time cannot, as a matter of right, claim for correction of date of birth in the service register as the authorities are not under obligation to carry out the corresponding correction in the service register in respect of an employee who fails to put in an application within the time stipulated for correcting the date of birth. In view of the settled position of law, the request of the employee for correction of date of birth cannot be entertained. In this case, the petitioner moved this Court on 28.11.2013 and he was to retire from service on 30.11.2013 and in fact, retired from the service of the third respondent on 30.11.2013. In such circumstances, I am of the view that there is no merit in the writ petition and accordingly, it is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).29415/13** 7 **C.T. RAVIKUMAR, J.** **W.P.(C).29415/13** 8 **JUDGMENT September, 2010**