O. Gangadharan v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : **THE HONOURABLE MR. JUSTICE K.T.SANKARAN** THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 **WP(C).No. 15696 of 2008(R)** **--------------------------** PETITIONER: ----------------- O.GANGADHARAN, AGED 54, S/O.K.VELU NAIR, HEADMASTER, S.A.U.P.SCHOOL, CHELODE, NILAMBUR SUB DISTRICT, MALAPPURAM DISTRICT. BY ADV. SRI.V.A.MUHAMMED ADV. SRI.K.E.HAMZA RESPONDENTS: ------------------------ 1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, - GENERAL EDUCATIONAL DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, NILAMBUR. 4. THE MANAGER, DEVADHAR SCHOOL, KERALA, MANNATHIPOIL P.O., PIN-679 332. - BY GOVT. PLEADER ADV. SHRI A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## K.T. SANKARAN, J. ............................................................................ W.P.(C) No. 15696 OF 2008 ............................................................................ **Dated this the 29[th] May, 2008** ## J U D G M E N T Learned Government Pleader takes notice for respondents Nos. 1 to 3. Since the presence of the 4[th] respondent is not required for the disposal of the Writ Petition, notice to the 4[th] respondent is dispensed with. In the nature of the dispute involved in the case and in view of the fact that if a stay is granted the determination of the dispute will be prolonged indefinitely which ultimately may give an undue benefit to the petitioner, it is better and ideal to dispose of the Writ Petition itself . It is conceded by all the parties that the Writ Petition can be disposed of on the basis of the records available. 2. The petitioner is the Headmaster of S.A.U.P. School, Chelode. The date of birth entered in his S.S.L.C. book and in the service book was 01.06.1953. According to the petitioner his real date of birth is 25.02.1954. The petitioner applied to the Commissioner for Government Examinations, Thiruvananthapuram for correction of date of birth in the S.S.L.C.book. The Commissioner passed Ext.P1 order dated 23.03.1991 according sanction under Rule 3 of Chapter VI of K.E.R. to correct the date of birth of the petitioner from 01.06.1953 to 25.02.1954 in the school records and in the qualification certificate issued to him. 3. According to the petitioner he submitted Ext. P2 application dated 12.06.1991 addressed to the Secretary to the Government, General Education Department through proper channel to correct his date of birth in the service book, in terms of Ext.P1 order correcting his date of birth from 01.06.1953 to 25.02.1954. It would appear that the Assistant Educational Officer who received Ext.P2 application, erroneously granted the **2** ## W.P.(C) No. 15696 OF 2008 relief and corrected the date of birth in the service book of the petitioner as 25.02.1954. The Assistant Educational Officer has put his signature and seal on 21.06.1991 in the service book endorsing such correction. The relevant page of the service book is marked as Ext.P3. 4. It is stated in the Writ Petition that the Superintendent, Office of the A.E.O., Nilambur, after verifying the service book of the petitioner, orally informed the petitioner to produce a copy of the order of the Government according sanction to correct the date of birth in the service book of the petitioner. The petitioner states that he believed that since the the Assistant Education Officer has already corrected the date of birth in the service book, nothing further has to be done by him. It is further stated that since no order was available with the petitioner, the petitioner made a representation dated 29.02.2007 to the Government to ratify the action of the Assistant Educational Officer in entering the correct date of birth of the petitioner in the service book. The Government disposed of the representation as per Ext. P4 dated 18.12.2007. The order reads as follows: _“I am to invite your attention to the reference cited and to inform that you have not applied for change of date of birth in the Service Book within the time limit specified in the Government Order cited._ _Your request does not merit consideration and it is therefore rejected.”_ 5. On receipt of Ext. P4 order, the petitioner submitted Ext. P5 representation to the Government requesting to ratify the action of the Assistant Educational Officer in correcting the date of birth in the service records. Ext.P5 representation was submitted through proper channel. The Assistant Educational Officer, on receipt of Ext. P5 W.P.(C) No. 15696 OF 2008 **3** forwarded the same to the Deputy Director of Education, Malappuram along with Ext.P6 covering letter dated 29.01.2008. In Ext.P6, it is admitted that the Assistant Educational Officer has carried out the correction in the service book of the petitioner on the basis of the order passed by the Commissioner for Government Examinations according sanction to correct the date of birth of the petitioner. It is also stated in Ext.P6 that correction in the service book was made without getting orders from the Government and that it was a mistake committed by the Assistant Educational Officer due to ignorance. It is requested in Ext.P6 that the action of the Assistant Educational Officer may be ratified by the Government. The Deputy Director of Education, Malappuram to whom Ext. P5 was forwarded along with Ext.P6 covering letter, passed Ext. P7 order dated 12.02.2008 stating that since the Government has already informed the petitioner that the application for correction of date of birth in the service records could not be allowed as application for the same was not filed within time, Ext.P5 cannot be forwarded to the Government. The Assistant Educational Officer has made an endorsement in Ext. P7 that in view of the order passed by the Deputy Director of Education, Malappuram, the petitioner shall submit the pension proposal on the ground that he has to retire from service on 31.05.2008. Ext.P7 was received by the petitioner on 25.03.2008. Even before the receipt of Ext.P7, the petitioner submitted a representation to the Honourable Chief Minister pointing out his grievances and for taking appropriate action to ratify the action of the Assistant Educational Officer in carrying out the correction in the service book of the petitioner . 6. The reliefs prayed for in the Writ Petition are the following: - _“a) Issue a Writ of mandamus or other appropriate Writ order or direction calling for the records leading to issuance of_ W.P.(C) No. 15696 OF 2008 **4** _Exhibits P4 and P7 and quash the same._ _b) Issue a Writ of mandamus or other appropriate Writ order or direction commanding the 1[st] respondent to ratify the action of the 3[rd] respondent correcting the date of birth of the petitioner in the S.B. as 25.02.1954 instead of 01.06.53 on the basis of correction made in his S.S.L.C. Book in terms of Exhibit P1._ _c) Direct the 1[st] respondent to effectively consider and pass appropriate orders upon Exhibits P5 and P8 after affording an opportunity of being heard to the petitioner within a time limit. Till the disposal of Exhibits P5 and P8, the petitioner may be permitted to continue in service._ _d) Pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case. “_ 7. Heard. Ext. P4 order was passed by the first respondent on an erroneous impression that the application for correction of date of birth was submitted only on 29.02.2007. This is not correct. In fact, the petitioner had submitted the application for correction of date of birth in the service records on 12.06.1991 and the request was granted by the Assistant Educational Officer on 21.06.1991 though he had no jurisdiction to do so. The petitioner did not make a request to the Assistant Educational Officer to make the correction of date of birth in the service records. The application submitted by the petitioner was addressed to the Government. The mistake was committed by the Assistant Educational Officer by not forwarding the application to the Government. Anyhow, the petitioner cannot be faulted for the mistake committed by the Assistant Educational Officer. The petitioner cannot also be faulted for not **5** ## W.P.(C) No. 15696 OF 2008 approaching the Government again with an application for correction of date of birth since he had already obtained the requisite relief by getting necessary entires made in the service book. 8. Since Ext.P4 order is passed without considering any of the relevant facts and disregarding Exhibit P2 dated 12.06.1991 and even without considering the fact that the date of birth was already corrected in the service record, I am of the view that Ext. P4 is liable to be quashed. 9. Ext.P5 application was submitted by the petitioner praying that the action of the Assistant Educational Officer in correcting the date of birth of the petitioner in the service book may be ratified. Ext. P5 is addressed to the Secretary to the Government, Public Administration Department. The Assistant Educational Officer forwarded the application to the Deputy Director of Education, Malappuram. The Deputy Director of Education passed Ext. P7 order stating that the application cannot be forwarded to the Government as Government had already passed an order . The Deputy Director of Education has no jurisdiction to say, what order the Government would pass on Ext.P5 application. It is for the Government to consider and decide as to whether the action of the Assistant Educational Officer can be ratified or not. Therefore, Ext. P7 order passed by the Deputy Director of Education is illegal and without jurisdiction. Accordingly, Ext. P7 is also liable to be quashed. 10. Since Ext.P4 and P7 are quashed, the matter requires to be considered by the Government. Since the entries made in the service book correcting the date of birth at the instance of the Assistant Educational Officer is not a complete and final disposal of the application filed by the petitioner for correction of date of birth, the application has to be disposed of by the Government. The Government has not so far **6** ## W.P.(C) No. 15696 OF 2008 disposed of the application on the merits. Therefore, it is necessary that the Government shall consider Ext.P2 application on the merits. Simply because the petitioner submitted a representation dated 29.02.2007, it cannot be assumed or taken that the petitioner had submitted the application for correction of date of birth in the service records only on that date. The representation made by him on 29.02.2007 is not the original application but a representation for ratifying the action of the Assistant Educational Officer. The Government shall dispose of the request for correction of date of birth in the service records taking Ext.P2 as the application and taking that the said application was submitted on 12.06.1991. The Government shall also consider the request to ratify the action of the Assistant Educational Officer. 11. Learned Government Pleader submitted that the original of Ext. P2 is not available . Learned counsel for the petitioner submitted that he is not in possession of the original of Ext.P2 application and that he cannot be expected to be in possession of the same since the application was disposed of by the Assistant Educational Officer. Most probably, the application must be in the office of the Assistant Educational Officer. At any rate, the Government shall treat the copy of the representation produced along with the Writ Petition as the application. The petitioner shall furnish a copy of the Writ Petition to the Government within a period of three weeks for the effective consideration of the application for correction of date of birth. 12. The learned Government Pleader submitted that the Supreme Court has time and again reiterated that the correction of date of birth cannot be allowed on an application submitted by the person concerned at the fag end of his service. I am not unaware of the decision of the Supreme Court reported in _**State of Gujarat vs. Vali Mohmmed**_ **( [2006] 6 SCC 537 = 2006 (3) KLT S.N. 61 Case No. 83)** . I am of the **7** ## W.P.(C) No. 15696 OF 2008 view that on facts, the case on hand stands on a different footing. 13. The learned Government Pleader submitted that the Government had filed an affidavit before this Court in a Writ Petition stating that the applications for correction of date of birth would not be entertained by the Government in cases where the applications were filed after the cut off date. That affidavit has no relevance here. The petitioner had submitted the application for correction of date of birth long before the issuance of G.O.(P) NO.45/91/P & ARD dated 30.12.1991. As per the Government order dated 30.12.1991, the last date for submitting the application was 30.12.1992. In the case on hand, the application was submitted on 12.06.1991. Therefore, I am of the view that the mere fact that the Government had filed an affidavit before this court would not dis-entitle the Government in considering Ext.P2 application on the merits. The Government shall dispose of the application for correction of date of birth as expeditiously as possible, at any rate, within a period of three months from today, after affording an opportunity of being heard to the petitioner. Till the disposal of the application for correction of date of birth by the Government, the petitioner shall be permitted to continue in service . However, the petitioner will not be entitled to receive the salary and allowances till the disposal of application for correction of date of birth by the Government. The Writ Petition is disposed of accordingly. K.T. SANKARAN, JUDGE. lk