K.M. Mannul v. Ernakulam Regional Co-operative Milk Producers Union Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **TUESDAY, THE 25TH DAY OF JULY 2017/3RD SRAVANA, 1939** **WP(C).No. 17650 of 2017 (E) ----------------------------** **PETITIONER :** **K.M.MANNUL SENIOR SUPERVISOR (P & I), THRISSUR DIARY, ERNAKULAM REGIONAL CO-OPERATIVEMILK PRODUCERS UNION LTD, EDAPPALLY P.O., ERNAKULAM-682024.** ## **BY ADV. SRI.P.N.MOHANAN** **RESPONDENT :** **ERNAKULAM REGIONAL CO-OPERATIVE MILK PRODUCERS UNION LTD., REPRESENTED BY ITS MANAGING DIRECTOR, EDAPPALLY P.O., ERNAKULAM-682024.** **BY SRI.K.ANAND SENIOR ADVOCATE BY ADV. SMT.LATHA ANAND** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/7/2017, THE COURT ON 27-07-2017 DELIVERED THE FOLLOWING:** **bp** ## **WP(C).No. 17650 of 2017 (E)** **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** |**EXHIBIT P1: A TRUE COPY OF THE BIRTH CERTIFICATE**| |---| |**ISSUED BY THE REGISTRAR OF BIRTH AND DEATH**| |**OF CHALAKKUDI MUNICIPALITY.**| |**EXHIBIT P2: A TRUE COPY OF THE PETITION DATED**| |**12.08.2016 FILED BEFORE THE RESPONDENT.**| |**EXHIBIT P3: A TRUE COPY OF THE LETTER DATED 12.10.2016**| |**OF THE RESPONDENT.**| |**EXHIBIT P4: A TRUE COPY OF THE ORDER DATED 17.12.2016**| |**OF THE JOINT COMMISSIONER FOR GOVERNMENT**| |**EXAMINATIONS.**| |**EXHIBIT P5: A TRUE COPY OF THE CORRECTED THIRD PAGE OF**| |**THE SSLC BOOK OF THE PETITIONER.**| |**EXHIBIT P6: A TRUE COPY OF THE REQUEST DATED**| |**18.01.2017 OF THE PETITIONER.**| |**EXHIBIT P7: A TRUE COPY OF THE ORDER DATED 05.04.2017**| |**OF THE RESPONDENT.**| |**EXHIBIT P8: A TRUE COPY OF THE G.O (P)NO.26-91-F &**| |**ARD DATED 27.08.1991.**| |**RESPONDENT(S)' EXHIBITS**<br>**:**<br>**NIL.**| |**//TRUE COPY//**| |**P.A. TO JUDGE**| ## **bp** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.17650 of 2017 ----------------------------------------------Dated this the 28[th] day of July, 2017** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction to the respondent to make correction of his date of birth in the service register as 24.12.1960 instead of 17.01.1960, and to permit him to retire taking his date of birth as 24.12.1960, and for other related reliefs including quashing of Exts.P7 & P8 orders passed by the statutory authorities, whereby the request made by the petitioner was declined and affirmed respectively. Material facts for the disposal of the writ petition are as follows: 2. Petitioner joined in the service of the respondent on 12.08.1991 as Supervisor. At the time of joining service, his date of birth is recorded as 17.01.1960 in accordance with the entry contained in the SSLC book. Later, it is found that the date of birth noted in the SSLC book is not correct in accordance with the birth register of the Chalakkudy Municipality. So petitioner has taken steps to correct his SSLC book by the Joint Commissioner of Examinations. Accordingly, 2 **W.P.(C) No.17650 of 2017** as evident from Ext.P5, the date of birth was corrected in the third page of the SSLC book as 24.12.1960. Thereafter, petitioner made a request to correct his service register before the respondent, and it was turned down by Ext.P7, stating that such application should have been submitted two years before retirement, in the light of Ext.P8 Government Order. According to the petitioner, the said Government Order is applicable only in the case of Government servants. That apart, it is stated that, similar issue was considered by a Division Bench of this Court in _**'The Kannadi Service Cooperative Bank Ltd.** v_ _**. Viswanathan'**_ [1998 (2) KLT 573] and directed to correct the date of birth in the service register untrammelled by Government Orders issued applicable to civil servants, and to grant consequential benefits. Therefore, petitioner seeks to quash Ext.P7 and consequentially to grant all the reliefs in accordance with the correct date of birth contained in Ext.P5 SSLC book. 3. A counter affidavit is filed by the respondent refuting the allegations and claims and demands raised by the petitioner. According to the respondent, the dispute raised by the petitioner is in the realm of service dispute between the 3 **W.P.(C) No.17650 of 2017** petitioner and the respondent, and therefore, the writ petition is not maintainable under Article 226 of the Constitution of India, especially when petitioner has got a clear alternative remedy as per the provisions of Kerala Co-operative Societies Act, 1969. That apart, it is submitted, on 12.08.2016, petitioner submitted Ext.P2 representation to correct the date of birth. The respondent informed the petitioner as per Ext.P3 communication that the application to correct the date of birth cannot be considered by the respondent unless correction is made in the SSLC book. It is submitted further that the corrected birth certificate is dated 06.10.2016. Thereafter, the petitioner approached the Joint Commissioner for Government Examinations, Thiruvananthapuram to correct the date of birth in the SSLC book, and accordingly, as per Ext.P4 order, the date of birth was corrected. However, as per Ext.P7, the correction sought for in the service register was declined, since the same has to be made prior to two years from the date of retirement. Thus, having made the application at the fag end of the career, petitioner's request to correct the date of birth in the service register cannot be acceded to. 4 **W.P.(C) No.17650 of 2017** 4. It is also stated that the petitioner has more than 25 years of service and he did not take care to make any request sufficiently earlier to the date of his retirement, and the petitioner has not assigned any sufficient reasons for the delay occurred in seeking correction of the SSLC book earlier. It is also stated that the baptism certificate based on which petitioner effected the correction of date of birth is something which has been in petitioner's possession, and therefore, the petitioner cannot turn around and say that he was not aware of his correct date of birth earlier. That apart, it is stated that the sole reason assigned for the delay that his contemporaries have about one more year in service after petitioner's retirement, he noticed the wrong date of birth, cannot be sustained, being highly improbable, and it will not stand the test of reason and logic. 5. It is also submitted that as per Note to Rule 197 of the Kerala Co-operative Society Rules, 1969, the date of birth of an employee shall be the one in his SSLC book. However, the same does not mean that an employee who has reached the fag end of his career, could change the date of birth in his SSLC book, and that too, based on the new correction of date **W.P.(C) No.17650 of 2017** 5 of birth as entered in the SSLC book. Therefore, according to the respondent, petitioner is not entitled to get any relief as is sought for in the writ petition. 6. Heard learned counsel for the petitioner and the learned counsel appearing for the respondent. Perused the documents on record and the pleadings put forth by the respective parties. 7. Learned counsel for the petitioner has invited my attention to a Division Bench judgment of this Court in _**'The Kannadi Service Co-operative Bank Ltd.'** (supra),_ to canvass the proposition that once the date of birth is corrected in the SSLC book, it has to be carried out in service records, and also for the proposition that any executive order issued in respect of Government servants even if it is found applicable to Co-operative Societies' employees, cannot alter the statute as contained in Rule 197. It is true that it is held therein that the Government Order does not apply to the employees of the Cooperative Societies and they are governed by the provisions of Rule 197 on correction of date of birth, and therefore, the Government Orders referred to therein will not apply to a Cooperative society. 6 **W.P.(C) No.17650 of 2017** 8. So also, learned counsel has invited my attention to the judgment of this Court in ' _**C. Viswanathan v. Joint Registrar of Co-operative Societies & Ors.**_ ' [1998 (1) KLJ 683] and _**'Sudhakaran B.B. v. State of Kerala & Ors.'**_ [2016 (1) KLJ 19], wherein the Division Bench judgment was followed and held that consequent to the correction carried out in the SSLC book following the due process, petitioner therein is entitled to get the service book corrected. 9. On the contrary, learned counsel for the respondent has invited my attention to Chapter VI of Kerala Education Rules, which deals with admission, transfer and removal of pupils, and specifically to Rule 3, which deals with Alternation of Date of Birth etc:, which read thus: _“_ _**3. Alternation of Date of Birth etc** :- (1) The name of a pupil, his religion and his date of birth once entered in the Admission Register shall not be altered except with the sanction of the authority specified by Government in this behalf by notification in the Gazette. Applications for such alterations and corrections should be submitted by the parent or guardian, if the pupil is still on the rolls of any school and by the pupil himself if he is not on the rolls of any school. All such applications shall be forwarded through the Headmaster with satisfactory evidence. [Court fee stamps to the value of One Rupee shall be affixed on such application]._ _(1A) A time limit of fifteen years from the date of leaving the school or the date of appearing for the S.S.L.C Examination for the last time whichever is_ **W.P.(C) No.17650 of 2017** 7 _earlier is fixed for entertaining requests for correction of date of birth in school records by the Commissioner of Government Examinations._ _**Note** :- The Government shall consider requests for condonation of delay in making application for correction of date of birth in school records, in deserving cases, on merits, provided that the applicant is within 50 years of age as per the original entry in the school records.”_ 10. Therefore, according to the respondent, going by the provisions of the Kerala Education Rules, as per sub-rule (1A) of Rule 3 of Chapter VI, a time limit of fifteen years from the date of leaving the school or the date of appearing for the S.S.L.C Examination for the last time, whichever is earlier, is fixed for entertaining requests for correction of date of birth in school records by the Commissioner of Government Examinations. Therefore, the petitioner has not undertaken any such exercise in contemplation of the law. Even assuming so, even going by the Note provided to Rule 3 therein, the Government is vested with powers for condonation of delay in making application for correction of date of birth in school records, in deserving cases, on merits, provided that the applicant is within 50 years of age as per the original entry in the school records. Therefore, according to the learned counsel for the respondent, the petitioner has not made any 8 **W.P.(C) No.17650 of 2017** endeavour to get the SSLC book corrected by providing sufficient application before the Government, as is provided in the Notes also. 11. Learned counsel has also invited my attention to the judgments of the apex court in ' _**Union of India v. Harnam Singh**_ ' [1993 (2) SCC 162], and ' _**Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg & Another**_ ' [2010 (6) SCC 482] to canvass the proposition that belated steps undertaken by the applicant to correct the date of birth, that too, after several decades, cannot be entertained at the fag end of the service. Learned counsel has further invited my attention to a Division Bench judgment of this Court in W.A.No.2586 of 2015 dated 04.11.2016, wherein also, this Court, after elaborate consideration of the issues, has held that the date of birth cannot be corrected during the fag end of the service career. 12. Having regard to the facts and circumstances and legal contentions raised by the respective counsel, the sole question to be considered is whether any manner of interference is warranted to Ext.P7 order. The fact discussion made above would make it clear that even though petitioner 9 **W.P.(C) No.17650 of 2017** was in service for a period of 25 years, he has chosen to file the application for correction of the SSLC book only 11 months prior to his retirement. Ext.P4 order, whereby the correction was granted is dated 17.12.2016. Ext.P2 application submitted by the petitioner before the respondent is dated 12.08.2016 and Ext.P3 order is passed by the said authority on 12.10.2016, and finally after all the exercises, correction in the SSLC book was carried out only on 17.12.2016. True, petitioner has a contention that Ext.P8 Government Order is not applicable to the petitioner being a Co-operative society employee guided by Rule 197 of the Rules, 1969. 13. So far as the correction of date of birth is concerned in the SSLC book, petitioner is guided by Chapter VI of the Kerala Education Rules, and as pointed out above, petitioner has no case that petitioner has submitted any application in accordance with Rule (3) and the Note thereto. Moreover, a close scrutiny of the judgments relied on by the petitioner, would show that the Courts considered the issue thereunder bearing in mind the correction in accordance with law. Therefore, even if the law with respect to nonapplicability of the Government Order to an employee of a Co- **W.P.(C) No.17650 of 2017** 10 operative Society enures to the benefit of the petitioner, the relevant provisions of the Kerala Education Rules apply and therefore, petitioner has not submitted any application for correction of date of birth in accordance with law. 14. I find force in the contention advanced by learned counsel appearing for the respondent relying on the judgments of the apex court, and the relevant provisions of the Kerala Education Rules. So also, learned counsel has invited my attention to the judgment of the apex court in ' _**Bhavnagar University v. Palitana Sugar Mill Pvt. Ltd. & Others**_ ' [2003 (2) SCC 111] and specifically to paragraph 59, which read thus: _“59. A decision, as is well-known, is an authority for which it is decided and not what can logically be deduced therefrom. It is also well-settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. [See Smt. Ram Rakhi vs. Union of India & Ors. (AIR 2002 Delhi 458], Delhi Administration (NCT of Delhi) vs. Manoharlal [AIR 2002 SC 3088], Haryana Financial Corporation and Anr. v. M/s. Jagdamba Oil Mills & Anr. [JT 2002 (1) SC 482] and Dr. Nalini Mahajan etc. vs. Director of Income Tax (Investigation) & Ors. [(2002) 257 ITR 123].”_ 15. Moreover, even though the relief sought for by the petitioner appears to be innocuous, in reality it is not so, since the continuance of the petitioner in service will materially **W.P.(C) No.17650 of 2017** 11 affect the promotional avenues and prospects of his juniors. Having evaluated the fact circumstances in the judgments relied on by the learned counsel for the petitioner, in my considered opinion, the case on hand, takes a clear turn by virtue of the case put forth by the respondent, based on Rule 3 of Chapter VI of the Kerala Education Rules. 16. Taking into account the conspectus of the judgments, reckoning the law, and the factual circumstances, I have no hesitation to hold that petitioner has failed to succeed in establishing any arbitrariness, illegality or unfairness, justifying interference in Exts.P7 and P8 orders passed by the respective statutory authorities, invoking the power conferred under Article 226 of the Constitution of India. Resultantly, writ petition fails, accordingly the same is dismissed. Sd/- **SHAJI P. CHALY JUDGE** St/19.07.2017