N. Surendran v. The State of Kerala and Kerala State Industrial Enterprises Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM MONDAY, THE 24TH DAY OF JUNE 2013/3RD ASHADHA, 1935 WP(C).No. 28328 of 2012 (M) ---------------------------- PETITIONER: --------------- N.SURENDRAN, NADUVILAYIL HOUSE, PANANGAD P.O., BALUSSERY, KOZHIKODE DISTRICT. BY ADVS.SRI.K.RAKESH ROSHAN SMT.THUSHARA.V RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, MINISTRY OF INDUSTRIES, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM PIN - 695 005. 2. KERALA STATE INDUSTRIAL ENTERPRISES LTD., ST.JOSEPH'S PRESS BUILDING, COTTON HILL, REPRESENTED BY ITS MANAGING DIRECTOR THIRUVANANTHAPURAM PIN 695 014. R2 BY ADV. SRI.M.GOPIKRISHNAN NAMBIAR R2 BY ADV. SRI.P.GOPINATH R2 BY ADV. SRI.P.BENNY THOMAS R2 BY ADV. SRI.K.JOHN MATHAI R1 BY ADV. GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28328 of 2012 (M) : 2 : APPENDIX ## **PETITIONER'S EXHIBITS:** EXT.P-1 TRUE COPY OF THE JUDGEMENT DATED 11-4-2012 IN WRIT PETITION NO.1221/2012. EXT.P-2 TRUE COPY OF THE APPOINTMENT ORDER DATED 22-6-2012 BY 2ND RESPONDENT. EXT.P-3 TRUE COPY OF THE BIRTH CERTIFICATE ISSUED BY THE SECRETARY AND REGISTRAR OF BIRTH AND DEATH, PANANGAD GRAMA PANCHAYATH. EXT.P3(a) TRUE COPY OF THE PROCEEDINGS OF JOINT COMMISSIONER FOR GOVERNMENT ORDERING CORRECTION OF DATE OF BIRTH. EXT.P3(b) TRUE COPY OF THE FRONT PAGE OF THE S.S.L.C BOOK OF THE PETITIONER WITH ENDORSEMENT OF CORRECTION. EXT.P-4 TRUE COPY OF THE REPRESENTATION DT.11.9.12 SUBMITTED BEFORE THE 2ND RESPONDENT. EXT.P4(a) TRUE COPY OF THE REPRESENTATION DATED 7.10.2012 SUBMITTED BEFORE THE HONOURABLE CHIEF MINISTER, GOVERNMENT OF KERALA. EXT.P4(b) TRUE COPY OF THE REPRESENTATION DATED ` 14.11.12 BEFORE THE HON'BLE MINISTER FOR INDUSTRIES, GOVERNMENT OF KERALA. ## **RESPONDENTS' EXHIBITS :** ANNEXURE R2(a): TRUE COPY OF THE G.O(P) NO.45/91/P & ARD DATED 30.12.1991 PASSED BY THE FIRST RESPONDENT. ANNEXURE R2(b): TRUE COPY OF THE CIRCULAR NO.4735/ADV C 3/2008/P&ARD DATED 22.08.2008 ISSUED BY THE FIRST RESPONDENT. ANNEXURE R1(a): PHOTOCOPY OF THE G.O.(RT.) NO.2281/G.EDN. DATED 18.06.2011. /True Copy/ P.A to Judge. rv ## **C.K. ABDUL REHIM, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.28328 of 2012** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of June, 2013** ## **J U D G M E N T** The petitioner was an employee of M/s. Kerala Soaps and Oils Limited (hereinafter referred as K.S.O. Ltd.), a public sector undertaking. He joined in service of the said establishment in the year 1982. The said establishment was closed in the year 2001 and the State Government, by virtue of an order passed in the year 2011, had handed over its assets and liabilities to the 2[nd] respondent. In the year 2011, the 2[nd] respondent started a new soap manufacturing unit in the said premise. Some of the employees of the erstwhile K.S.O.Ltd. had approached this court seeking absorption in the 2[nd] respondent. In a writ petition filed by the petitioner along with others, Ext.P1 judgment was passed directing the 2[nd] respondent as follows; - “(a) The competent authority among the respondents and the Managing Director of the Kerala State Industrial Enterprises Limited, Thiruvananthapuram shall take steps to appoint the petitioners in the writ petition, as fresh hands in the new unit of the Kerala State Industrial Enterprises Limited at Kozhikode. W.P.(C)No.28328 of 2012 **-2-** - (b) The entitlement of the petitioners to realise arrears of wages for the period from January 2002 from the second respondent company is left open to be decided in other appropriate proceedings. - (c) The gratuity payable to the petitioners and the amounts standing to their credit in their provident fund accounts shall be settled by the second respondent or the State Government. - (d) The petitioners will not however, be entitled to ex-gratia compensation. - (e) The needful in the matter shall be done expeditiously and in any event within two months from the date on which the petitioners produce a certified copy of this judgment before the Secretary to Government, Industries Department.” 2. On the basis of Ext.P1 judgment the petitioner was appointed in the 2[nd] respondent as Plant Operator with effect from 4.7.2012. In Ext.P2 it is made clear that the petitioner will be accommodated as fresh appointees in the 2[nd] respondent company. After the petitioner got appointment in the 2[nd] respondent, he obtained correction with respect to the entry of the date of birth in his S.S.L.C Book. The correction was sanctioned by the Joint Commissioner of Government Examinations, as per Ext.P3 (a), issued on 13.7.2012. On the basis of Ext.P3 (a) W.P.(C)No.28328 of 2012 **-3-** order necessary correction was effected in the S.S.L.C Book. The petitioner made an application to the 2[nd] respondent to correct the date of birth in his service records, on the basis of the correction effected in the S.S.L.C Book. Since the said request submitted on 11.9.2012 (Ext.P4) was not considered, he had approached various authorities in the Government. In the meanwhile he retired from service on 30.11.2012. In this writ petition the petitioner is seeking for a direction to the 2[nd] respondent to effect correction in the service records with respect to the date of the birth and to allow continuance in service. 3. In the statement of the 2[nd] respondent it is mentioned that employees of erstwhile K.S.O. Ltd were offered a voluntary retirement scheme in the year 2011. Except few employees of the said establishment had opted such VRS. The petitioner was one among the 12 employees who had not taken VRS and demanded employment under the 2[nd] respondent. In view of Ext.P1 judgment he was accommodated as a fresh hand under the 2[nd] respondent. W.P.(C)No.28328 of 2012 **-4-** Contention of the 2[nd] respondent is that, as per Ext.R2 (a) Government order, correction of date of birth in the service records cannot be permitted since the petitioner has not applied for such correction within five years of the entry into service. Ext.R2 (b) circular issued by the Government is also pointed out to the effect that application for correction of date of birth shall be entertained scrupulously adhering to the conditions in Ext.R2 (a) order. Therefore it is contended that no correction of date of birth can be effected in the service records of the petitioner. 4. Contention of the petitioner is mainly two folded. According to him, the appointment under the 2[nd] respondent was made only in the year 2012 as a fresh appointment. Therefore the application for correction of date of birth is well within the time limit stipulated in the Government order. Secondly it is contended that the time limit stipulated in the Government order is not applicable to the 2[nd] respondent and hence the rejection based on the said order cannot be sustained. W.P.(C)No.28328 of 2012 **-5-** 5. Heard; counsel for the petitioner, learned Standing Counsel and learned Government Pleader appearing on behalf of the respondents. 6. It is pertinent to note that the date of birth entered in the S.S.L.C Book and in the service records of the petitioner was 27.11.1954. He had passed S.S.L.C in the year 1975 and entered in the service of the K.S.O. Ltd. in the year 1982. Thereafter he got appointment under the 2[nd] respondent in the year 2012 at a time when he was about to retire within a short period. The petitioner sought correction of date of birth in the S.S.L.C Book only on 10.05.2012, i.e. about 37 years after passing of S.S.L.C. Admittedly he was in the service of the erstwhile K.S.O.Ltd from 1982 till the company was closed down in the year 2001. But he had never taken any steps to get the S.S.L.C Book corrected or to apply for correction in the service records. Only in the year 2012 he made an application for correction in the S.S.L.C Book. Even when he entered in the service of the 2[nd] respondent during pendency of the W.P.(C)No.28328 of 2012 **-6-** application for correction of date of birth in the S.S.L.C Book, he had never raised any objection regarding entry of his date of birth. His date of birth in the service records of the 2[nd] respondent was entered on the basis of the entries contained in the service records of the petitioner in the erstwhile establishment. Only at the fag end of the carrier the petitioner made an application for correction of the date of birth. Whether such an application need be entertained, is the question. 7. Contention of the petitioner that his application for correction of date of birth is within the time, because his appointment in the 2[nd] respondent was a fresh appointment, cannot be countenanced. It is clearly evident that the directions contained in Ext.P1 judgment (which is extracted above) will show that the appointment in the 2[nd] respondent was only by way of a direction to absorb the petitioners on the basis of their previous employment. Eventhough this court directed to treat it as a fresh appointment, denying benefits due for the intermittent period, it is in the manner W.P.(C)No.28328 of 2012 **-7-** of a direction for absorption. Terms and conditions of Ext.P2 appointment will also indicate that the petitioner was absorbed subject to the condition that the absorption will be treated only as a fresh appointment. It is pertinent to note that, but for employment of the petitioner in the erstwhile establishment, he would not have got employment under 2[nd] respondent at the age of 58 years. Therefore, for all purposes the appointment can only be considered as a continuation of employment. Therefore contention that the application was made within five years of his date of joining the service in the 2[nd] respondent cannot be accepted. 8. It is to be noted that the 2[nd] respondent is an establishment fully owned by the Government. Service conditions with respect to employees of the 2[nd] respondent does not provide any provision for correction of date of birth in the service records. Contention of the petitioner is that since the conditions of service of the employees of the 2[nd] respondent is not governed by provisions of the Kerala Service Rules Ext.R2 (a) and R2 (b) Government orders are W.P.(C)No.28328 of 2012 **-8-** not applicable. If that be so, it is to be observed that declaration of age made at the time of entry into service is conclusive and binding on the employer, unless it is proved that there is any provision in the service conditions governing correction of such entries. Therefore, I am of the view that the 2[nd] respondent was right in taking a stand that the general orders issued by the Government with respect to correction of date of birth in service can be applied with respect to employees of the 2[nd] respondent. In view of my findings as above, it is to be noted that the application submitted by the petitioner at the fag end of his carrier cannot be entertained and the restrictions imposed under Ext.R2 (a) and R2 (b) are applicable. 9. In this regard learned counsel for the petitioner had pointed out a decision of the Hon'ble Supreme Court in **Mohammed Yunus Khan v. U.P. Power Corporation Ltd and Ors. [2009 KHC 4038]** it is held therein that, when it is shown that the mistake in the entry regarding date of birth in the service records was not known to an W.P.(C)No.28328 of 2012 **-9-** employee at any earlier point of time, stipulation regarding a time frame for filing an application cannot be accepted in view of the fact that there is no existence of any statutory rule fixing such a time frame. But in the case at hand it is not a mistake of entry in the service records which is committed, which was not within the knowledge of the petitioner. Hence the dictum has no application. 10. Learned Standing Counsel appearing for the 2[nd] respondent had drawn my attention to decision of the Hon'ble Supreme Court in **Punjab & Haryana High Court at Chandigarh v. Megh Raj Garg & Anr. [(2010) 6 SCC** **482]** . It is a case where the application for correction of date of birth made to the university after ten years of entering into judicial service was granted and corresponding change of date of birth was recorded in the matriculation certificate. But on the application for correction of date of birth in the service book, Government in consultation with the High Court rejected the prayer. The High Court held that the rejection of correction is W.P.(C)No.28328 of 2012 **-10-** illegal and void. The provision concerned in the relevant rules had stipulated a time limit of two years for correction of entry in the service records with respect to date of birth. The Hon'ble Supreme Court held that declaration of age made at the time of entry into government service is convulsive and binding on the Government. Therefore the Government or the High Court have no power or authority to entertain a representation made after more than 12 years of entering into service, for correction of date of birth. The Hon'ble Supreme Court reversed the findings of the High Court and uphold the refusal made for correction of date of birth. In another decision of Hon'ble Supreme Court in **State of Madhya Pradesh and Ors. v. Premlal Shrivas [(2011) 9 SCC 664]** it is held that change of date of birth in service records at the fag end of the carrier can be permitted only in exceptional cases, by irrefutable proof. The Hon'ble apex court held that the court or tribunal should be loath to allow correction of date of birth in service records of incumbent at the fag end of his carrier, unless it ## W.P.(C)No.28328 of 2012 **-11-** is satisfied by irrefutable proof of date of birth and that real injustice has caused to the incumbent and claim is in accordance with the procedure prescribed. It is further held that the Government servant cannot claim correction of date of birth as a matter of right after a lapse of time fixed by the employer, even if he has got evidence to establish erroneous entry. 11. From the legal precedents remaining settled as above and considering the factual circumstances involved in this case, I am of the considered opinion that nonconsideration of the request for correction of entry in the service records with respect to the date of birth is not illegal, erroneous or unreasonable. Accordingly, the writ petition fails on merits and the same is hereby dismissed. Sd/- **C.K. ABDUL REHIM, JUDGE** //True copy// P.A. TO JUDGE Shg/ W.P.(C)No.28328 of 2012 **-12-**