K.R. Radha v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **WEDNESDAY, THE 20TH DAY OF JULY 2016/29TH ASHADHA, 1938** **WP(C).No. 19327 of 2015 (M)** **----------------------------** **PETITIONER:** - **-----------** **K.R.RADHA, AGED 53 YEARS D/O. K.A.RAGHAVAN, OORKOLIL HOUSE, THUYITHARA, NORTH PARAVOOR, PIN-683513.** **BY ADV. SRI.B.RAMACHANDRAN** **RESPONDENTS:** - **------------** **1. STATE OF KERALA REPRESENTED BY SECRETARY, MINISTRY OF SELF GOVERNMENT INSTITUTION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DISTRICT COLLECTOR ERNAKULAM, KOCHI-682021.** **3. THE REVENUE DIVISIONAL OFFICER FORT KOCHI, KOCHI-682021.** **4. THE SECRETARY KUZHUPILLY GRAMA PANCHAYAT, AYAMPILLY-682501.** **5. THE DIVISIONAL ENGINEER KERALA WATER AUTHORITY, ALUVA-683101.** **R4 BY ADV. SRI.B.ASHOK SHENOY R4 BY ADV. SRI.K.V.GEORGE R4 BY ADV. SRI.P.N.RAJAGOPALAN NAIR R4 BY ADV. SRI.P.S.GIREESH R4 BY ADV. SRI.RIYAL DEVASSY R1-R3 BY GOVT PLEADER B/O R5 BY SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-07-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 19327 of 2015 (M)** **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** ## **P1- A TRUE COPY OF CERTIFICATE DATED 21-04-1999.** **P2- A TRUE COPY OF THE 1ST PAGE OF S.S.L.C. BOOK OF THE PETITIONER DATED NIL.** **P3- A TRUE COPY OF THE ORDER DATED 27-04-2015 OF THE 3RD RESPONDENT.** **P4- A TRUE COPY OF THE FORWARDING LETTER DATE 21-05-2015 OF THE 3RD RESPONDENT.** **P5- A TRUE COPY OF THE ORDER DATED 08-06-2015.** **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 19327 of 2015 (M) -----------------------------------------Dated: 20[th] July, 2016 ## **J U D G M E N T** The petitioner was aggrieved with her impending superannuation on 30.06.2015; when the writ petition was filed on 25.06.2015. The petitioner contented that she has applied for correction of date of birth before the R.D.O. and the same has been allowed as per Ext.P3 dated 27.04.2015. The petitioner was granted an interim order on 26.06.2015, in the following manner, on the basis of which she is continuing: “The fifth respondent is directed not to terminate the service of the petitioner until further order from this Court. The right of the petitioner to claim salary for the continuation after 30.06.2015 shall be subject to the final outcome of the writ petition.” **-2-** ## **W.P.(C) No. 19327/2015** 2. The petitioner admittedly entered service as a Part Time Sweeper under the 5[th] respondent on 30.12.1996 and continued as such till 21.07.2005, after which she was confirmed as a Full Time Sweeper. The petitioner had declared her date of birth to be 01.07.1959 before the employer and the service records also showed that date of birth; as was evidenced from the SSLC Book. The petitioner never applied for any correction of date of birth in her service book while she was continuing in employment. Later, the petitioner applied for registration of her date of birth in the Register of Births and Deaths, with huge delay, which was granted as per Ext.P3, directing registration of her date of birth as 01.07.1962. On that basis the petitioner sought for continuation in service. ## **W.P.(C) No. 19327/2015** **-3-** 3. It is trite that with respect to service, especially under the Government, the employer has to go by the date declared by the employee, unless the same is sought to be corrected at a point proximate to the date of entry into service. Admittedly, the service under the respondent authority is governed by the Kerala Service Rules (for brevity KSR) and the Kerala State and Subordinate Service Rules (for brevity KS&SSR), as applicable to the State Government employees. The Government has also brought out G.O. (P) No. 45/91//P&ARD dated 30.12.1991; enabling correction of date of birth within 5 years from the date of entry into service and also only after correction of the Secondary School Leaving Certificate. 4. Useful reference can be made to a judgment of this Court in **Achumma T.V. v. State of Kerala - I.L.R. 2015 (3) Kerala 716** . On facts, therein, the ## **W.P.(C) No. 19327/2015** **-4-** Court specifically noticed that the employee had approached the authorities for correction of date of birth well within time; but, the authorities made the petitioner therein run from pillar to post. Eventually, though the date of birth was corrected in the S.S.L.C. Book, the Government rejected the claim to correct the date of birth in the service book, on the ground that the petitioner therein was to retire soon; which was interfered with, on the unique facts emanating. Paragraph 11, dealt with the precedents on the subject; which is extracted hereunder: “11. The same view has been consistently taken by the Supreme Court in subsequent years as well, as is evident from a reading of the judgments in State of U.P. and others v. Gulaichi (Smt) [2003) 6 SCC 483]; State of Punjab and others v. S.C.Chadha [(2004) 3 SCC 394] and State of Maharashtra and another v. Gorakhnath Sitaram Kamble and others **-5-** ## **W.P.(C) No. 19327/2015** [(2010) 14 SCC 423]. The general principle that can be culled out from the said decisions is that ordinarily, an application for correction of date of birth in service records should not be entertained, if preferred by an employee at the fag end of his service. The said rule, however, is not without exceptions, and in cases where there is clear, clinching and unimpeachable evidence to show that the date of birth of an employee has been wrongly entered in his service record, and a denial of permission to correct the said record would tantamount to a denial of justice to the employee, courts have permitted such correction of the service record [See: State of U.P. And another v. Shiv Narain Upadhyaya [(2005) 6 SCC 49]; State of Gujarat and others v. Vali Mohd. Dosabhai Sindhi [(2006) 6 SCC 537]; State of Madhya Pradesh and others v. Premlal Shrivas [(2011) 9 SCC 664] and Bharat Coking Coal Limited **-6-** ## **W.P.(C) No. 19327/2015** and others Chhota Birsa Uranw [(2014) 12 SCC 570]”. 5. Hence, the general principle is that no application for correction of date of birth in service records should be entertained at the fag end of the service of an employee, except in circumstances where there is clear, clinching and unimpeachable evidence to show that the date of birth of the employee has been wrongly entered in the service records. It cannot also be done at the fag end of the service of an employee. 6. G.O. (P) No. 45/91/P&ARD dated 30.12.1991 specifically takes into consideration the fact that, a person realises his date of birth the moment he gets his S.S.L.C. or secures extract from the school admission register, which is used for registering his name in the Employment Exchange or applying for higher studies or an employment. Since, the date of birth entered in the Service Book is after full realisation of the various ## **W.P.(C) No. 19327/2015** **-7-** incidence of service, based on such declaration, and the same is continued over a long period, there is no rationale in allowing the correction at all. However, an opportunity is granted to very government employee to seek for correction of date of birth within five years of first entry into service. The correction also has to be sought for, after correcting the certificate, which was relied upon to initially register the date of birth in the service records. Here, no such correction has been made and the S.S.L.C. Book, which was relied on by the petitioner at the time of entry into service, has not been corrected. 7. The petitioner has not followed the procedure prescribed within time and has merely sought for registration of her date of birth just prior to her superannuation. The application to register was also made before the RDO and not to her employer. The ## **W.P.(C) No. 19327/2015** **-8-** SSLC Book, relied on by herself, to gain entry into service also is not seen corrected. The date of birth, as indicated in the Register of Births and Deaths cannot, hence, enure to her benefit to continue in employment, after her superannuation date, as per the service records. The writ petition, hence, is liable to be dismissed. 8. The learned Counsel for the petitioner, then, claims that at least the salary be paid to her for the period she worked. It is to be noticed that the interim order dated 26.06.2015 specified that the right of the petitioner to claim salary would be dependent upon the final outcome of the writ petition. In such circumstance, the petitioner took the risk of continuing in employment on the contentions raised in the above writ petition. If the writ petition is dismissed, even going by the interim order, the petitioner could not claim any salary. Hence, ## **W.P.(C) No. 19327/2015** **-9-** the petitioner's claim for salary is declined, as a consequence of the rejection of the writ petition. In such circumstance, the writ petition is devoid of merit and the same is dismissed. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 21/7/16