Nannan Atavalath v. The Principal Secretary, General Education Department, Secretariat, Trivandrum & The Commissioner for Government Examination

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 4205 of 2010(A) ------------------------- PETITIONER(S): --------------- NANNANAN ATAVALATH, VELLOTH GOVINDAN, ATAVILATH HOUSE, PONNIAM P.O., THALASSERY, KANNUR DITRICT. BY ADV. SRI.M.C.RATNAKARAN SMT.M.R.JAYALATHA RESPONDENT(S): - --------------- 1. THE PRINCIPAL SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE COMMISSIONER FOR GOVERNMENT EXAMINATION, POOJAPPURA, THIRUVANANTHAPURAM-12. GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **K.T.SANKARAN, J.** --------------------------------------------W.P.(C).No.4205 of 2010 --------------------------------------------Dated this the 4[th] day of October, 2010 ## **JUDGMENT** The petitioner is working as Branch Manager of Ponniam Service Co-operative Bank Ltd. It is stated that he is the sixth son of Velloth Govindan and Nadayi Devi. According to the petitioner, he was born on 4.1.1955. But, in the school records and SSLC Book, his date of birth was entered as 5.1.1953. The case of the petitioner is that the date of birth was wrongly entered in the school records and SSLC Book. It is stated that the parents of the petitioner were illiterate and they were not aware of the consequence of a wrong date of birth being entered in the school records. The petitioner made an application to correct his date of birth in the school records. That application was rejected by Ext.P2 order dated 2.5.2002 passed by the Commissioner for Government Examinations. The reasons for rejection of the application are the following : “The evidence produced to prove the claim of the petitioner are the documents read WPC 4205/2010 2 as paper 2 to 6. The said documents and the Enquiry Report read as paper 7 have been examined. The request of Sri.Nannanan Atavalath to alter his date of birth from 5.1.1953 to 4.1.1955 has been examined in detail and found that the extract of school admission register read as paper 2 Sri.Nannanan was admitted to Std.I on 2.6.1958. If the correction is allowed he would have his first schooling at the age of 3 years and 5 months. Further the applicant failed to produce all corroborative evidences like birth certificates of his brothers and sisters. In the absence of birth certificates of other members of the family a comparative study is not possible in this case. Therefore, the request of Sri.Nannanan Atavalath to correct his date of birth from 5.1.1953 to 4.1.1955 deserves no merit and hence it is rejected.” 2. The petitioner challenged Ext.P2 order before the Government. The Government passed Ext.P5 order dated 20.12.2002, confirming the order passed by the Commissioner. The petitioner challenged the orders in Writ Petition No.32361 WPC 4205/2010 3 of 2007. This Court directed the Government to reconsider the matter afresh in the light of Exts.P1(4) and P1(5) and also the attendant circumstances and dispose of the matter afresh. It is submitted by the learned counsel for the petitioner that Exts.P1 (4) and P1(5) referred to in Ext.P5 order are respectively Exts.P1(4) Birth Certificate and P1(5) affidavit marked in this Writ Petition. 3. Thereafter, the Government passed Ext.P7 order dated 10.9.2009 rejecting the request for correction of date of birth of the petitioner in the school records and SSLC Book. In Ext.P7 order, it was held that in the affidavit dated 8.9.1999 submitted by the petitioner before the Commissioner for Government Examinations, the date of birth of the petitioner and his brother and sister were noted as “as per Baptism”. That was one of the reasons stated for rejection of the application. The learned counsel for the petitioner submitted that this finding is not correct. In Ext.P1 application, which is a form prescribed, column 3 is Date of Birth as per Baptism. Column 4 is Date of Birth as per Birth Register. The petitioner has shown the date WPC 4205/2010 4 of birth in column 3 and 4 as 4.1.1955. The petitioner is admittedly a Thiyya. In Ext.P7 order, it is said that there could not be any Baptism, in these circumstances. It is true. But, in the affidavit filed by the petitioner before the Commissioner, such a statement is not there, as wrongly mentioned in Ext.P7. In Ext.P1 prescribed form, some dates are mentioned as against the column “Date of Birth as per Baptism”. That by itself is not a ground to reject the application. 4. Another ground stated in Ext.P7 is that the Birth Certificates of the other members of the family were not made available for a comparative study. In Ext.P1 (6) affidavit dated 18[th] May 1999, it is revealed that three children of the parents of the petitioner died after delivery and that the birth or death were not registered. In Ext.P1 (5) Birth Certificate issued under the Registration of Births and Deaths Act, the date of birth of the petitioner is shown as 4.1.1955. The petitioner wants to incorporate that date in the school records and SSLC Book after correction. WPC 4205/2010 5 5. The ground on which the Commissioner rejected the prayer for correction of date of birth as per Ext.P2, and by the Government in Ext.P5 was that if the date of birth as stated by the petitioner is accepted as correct, it would mean that the petitioner was admitted in the school before attaining the age of four years. 6. In **Chandrika A.K. vs. State of Kerala and others (2010(1) KHC 132)** , this Court took the view that rejection of the application on the ground that the applicant had not attained the age of five years as provided in Rule 5 of Chapter VI of KER for admission in the first standard is not a ground for rejection of the application. It was held thus : “It is not the law that when a person's date of birth is allowed to be corrected, the advantage obtained by the said person based on the irregular entry, has to be forfeited. What is provided under the relevant rule is an opportunity to correct the date of birth in the school records on the basis of cogent materials which, if accepted, would lead to the conclusion WPC 4205/2010 6 that the original entry has to be corrected. Going by Rule 3 of Chapter VI KER a facility has been provided to correct the date of birth in the Admission Register and sub-rule (1A) also provides for a facility for correcting the date of birth in school records by the commissioner of Government Examinations. Sub-rule (2) of Rule 3 is important. It provides that “if the authority referred to in sub-rule (1) is satisfied after necessary enquiries that the change applied for could be granted, he will issue an order to make the alteration.......” Therefore, the enquiry is confined to the question whether the original entry requires alteration, in the light of the materials made available by the applicant. If the applicant can conclusively prove that the original entry does not tally with the correct date of birth, based on sufficient materials, power is given to the authority to order an alteration. It is not the law, therefore, that the advantage obtained by the irregular entry, if at all anything is there, will be detrimental to the applicant. The prohibition contained in Rule 5 of Chapter VI have to be understood in the light of the above fact.” WPC 4205/2010 7 7. The reasons stated by the first respondent to reject the application submitted by the petitioner are apparently not correct, going by the records. As held in Chandrika A.K. vs. State of Kerala and others (2010(1) KHC 132), the reasons stated by the Commissioner for rejection is also unsustainable. The Commissioner as well as the Government did not advert to the Birth Certificate issued under the Registration of Births and Deaths Act. In Ext.P6 judgment, a specific direction was issued to consider the Birth Certificate, but the first respondent failed to advert to the Birth Certificate. For the aforesaid reasons, Exts.P2, P5 and P7 orders are quashed. The Commissioner for Government Examinations shall consider the application afresh and pass orders after affording an opportunity of being heard to the petitioner. The Commissioner shall take into account all the relevant facts and the documents produced by the petitioner and shall arrive at a conclusion as to the correct date of birth of the petitioner. The petitioner shall have an opportunity to produce such other evidence and documents as may be relevant before the WPC 4205/2010 8 Commissioner. The Commissioner shall pass orders, as expeditiously as possible and at any rate, within a period of two months from the date of receipt of a copy of the judgment. The Writ Petition is allowed as above. **K.T.SANKARAN, JUDGE** csl