Raghu T.T. Thalakkappil Thattayath v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 20TH DECEMBER 2011 / 29TH AGRAHAYANA 1933 WP(C).No. 26803 of 2011(A) -------------------------- PETITIONER: --------------- RAGHU T.T.THALAKKAPPIL THATTAYATH, E.K.N.NILAYAM,ANAKKARA P.O., PALAKKAD-679 551 WORKING AS HIGHER SECONDARY SCHOOL TEACHER, ECONOMICS, GOVERNMENT HIGHER SECONDARY SCHOOL, NIRAMARUTHOOR, MALAPPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH SRI.K.M.ALEXANDER RESPONDENT(S): - --------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. COMMISSIONER FOR GOVERNMENT EXAMINATIONS PARIKSHA BHAVAN, POOJAPPURA,THIRUVANANTHAPURAM. 3. JOINT COMMISSIONER OF EXAMINATIONS, PARIKSHA BHAVAN, POOJAPPURA,THIRUVANANTHAPURAM-695 001. 4. THE PRINCIPAL, ST.JOSEPH HIGHER SECONDARY SCHOOL, PAVARATTY, THRISSUR-680507 5. KERALA STATE HUMAN RIGHTS COMMISSION REP.BY ITS CHAIRMAN, M.P.APPAN ROAD, VAZHUTHAKKADU, THIRUVANANTHAPURAM-695014 BY GOVERNMENT PLEADER SMT.NISHA BOSE FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **APPENDIX IN W.P.(C)No.26803/2011** ## **PETITIONER'S EXTS:** - EXT.P1: COPY OF THE INSTRUCTIONS REGARDING CORRECTION/ ALTERATION OF THE DATE OF BIRTH IN SCHOOL RECORDS AND QUALIFICATION CERTIFICATE. - EXT.P2:COPY OF THE APPLICATION OF THE PETITIONER AND THE CONNECTED DOCUMENTS MENTIONED IN PARA 8 ABOVE. - EXT.P3:COPY OF THE ACKNOWLEDGMENT GIVEN BY THE 4TH RESPONDENT DATED 30.12.2005 - EXT.P4:COPY OF THE LETTER NO.3X.B5/987/96 DATED 2/2/2006 THE 3RD RESPONDENT JOINT COMMISSIONER. - EXT.P5:COPY OF THE EXPLANATION GIVEN BY THE PETITIONER DATED 21/3/2006 TO EXT.P4 . - EXT.P6:COPY OF THE ORDER NO.K.DIS/EX/B5/987/06 DATED 6/10/2006 THE 3RD RESPONDENT. - EXT.P7:COPY OF THE PETITION GIVEN BY THE PETITIONER TO THE 5TH RESPONDENT. - EXT.P8:COPY OF THE REPORT GIVEN BY THE IST RESPONDENT TO THE 5TH RESPONDENT - EXT.P9:COPY OF THE EXPLANATION GIVEN BY THE PETITIONER TO THE 5TH RESPONDENT DATED 3/12/2007. - EXT.P10:COPY OF THE ORDER DATED 13/2/2008 IN HRMP NO.4061/06 OF THE 5TH RESPONDENT ## **RESPONDENTS' EXHIBITS: NIL** TRUE COPY P.A.TO JUDGE dsn ## **T.R.RAMACHANDRAN NAIR, J.** **-------------------------------------------------W.P.(C)No.26803 of 2011** **-------------------------------------------------DATED THIS THE 20[th] DAY OF DECEMBER, 2011** ## **JUDGMENT** The Writ Petition is filed by the petitioner aggrieved by Exhibits P6 and P10 orders. The matter concerns correction of date of birth of the petitioner. 2. A reading of Exhibit P6 order will show that the view taken therein is that if correction of date of birth is allowed, the applicant will be under aged in the first standard and in the SSLC. It is submitted by the learned counsel for the petitioner that the said reasoning is not correct in the light of the decision of this Court in **Chandrika** v. **State of Kerala 2010(1) KLT 223** and other decisions. 3. The petitioner herein is working as Higher Secondary School Teacher in the Government Higher Secondary School, Niramaruthoor in Malappuram District. He was appointed as such from 29.8.2005. In the SSLC book, his date of birth is given as 20.4.1975 and his actual date of birth is 09.06.1977. 4. After four months of his entry in Government service, W.P.(C)No.26803/11 -2- on 30.12.2005 he applied for correction of his date of birth through proper channel. It is submitted that all the required documents were produced. Certain explanations were sought by the 3rd respondent as per Exhibit P4 communication which was also replied by the petitioner as per Exhibit P5. But, in spite of the same, Exhibit P6 order has been passed, rejecting the application. Aggrieved by the same, the petitioner approached the Kerala State Human Rights Commission, and the order passed therein was not in his favour, as evident from Exhibit P10 order. 5. The learned counsel for the petitioner explained that the proper remedy of the petitioner was to approach this Court and he was wrongly advised to approach the Human Rights Commission and therefore some delay has occurred in filing this Writ Petition. I am satisfied that there is proper explanation by the petitioner. 6. In the counter affidavit filed by the 3rd respondent, it is stated in paragraph No.5 that the petitioner left the school in March 1992 and preferred the proposal within the time limit. In paragraph No.7 of the counter affidavit it is stated relying upon W.P.(C)No.26803/11 -3- Rule 5(1) of Chapter VI KER, that a child should have completed five years of age at the time of admission in Std.1 and as per Rule 10(B) of Chapter VI KER, a child should have completed 15 years of age at the time of first appearance of SSLC examination. As per the above Rule, the applicant is under aged in the first standard and in the SSLC. 7. The question is whether the said reason is correct or not. In **K.K.Nandakumaran** v. **Joint Commissioner for Government Examinations, Trivandrum (1976 KLN 178)** , this Court has taken the view that such a view cannot be justified. The said view was followed in **Chandrika's** case also **2010(1) KLT 223** . Therein this Court held thus in paragraph No.17: **“** 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 that the original entry has to be corrected. Going by R.3 of Chap.VI K.E.R. a facility has been provided to correct the date of W.P.(C)No.26803/11 -4- birth in the Admission Register and sub-r.(1A) also provides for a facility for correcting the date of birth in school records by the Commissioner of Government Examinations. Sub-r.(2) of R.3 is important. It provides that “if the authority referred to in sub-r.(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 R.5 of Chap.VI have to be understood in the light of the above fact.” The above judgment has become final as the Writ Appeal filed against the same was dismissed and a Special Leave Petition filed before the Apex Court was also dismissed. 8. Again the very same issue was considered in **Kotnis** v. **State of Kerala (2010(4) KLT 447)** and the position was reiterated by relying upon **Chandrika's** case (supra) and it was W.P.(C)No.26803/11 -5- ## held thus in paragraph No.7: “ Rule 5 does not govern R.3. R.3 can be invoked to correct the date of birth and if an order is passed by the Commissioner to that effect, the correct date of birth could be entered in the school records, notwithstanding that the result of such correction would disclose the admission of the pupil contrary to R.5. The maximum consequence that may occur on such correction would be denial of promotion as envisaged under R.10B. R.10B cannot be invoked in the present case, as the proviso therein applies and since the applicant had completed his course and passed the SSLC Examination. If so, the consequence as provided in R.10B cannot be a ground for denial of correction of date of birth, if otherwise the applicant is entitled to the relief. When the authority arrives at the satisfaction, as is referred to in sub-r.(2) of R.3, it mandatorily leads to correction of the date of birth. The relief, which the applicant is legitimately entitled to get, cannot be denied by the authority, by importing R.5 of Chapter VI of the Kerala Education Rules while considering an application under R.3 of the said Chapter”. The dictum laid down in these decisions will squarely apply here. Therefore, going by the above principles laid down by this Court, the petitioner is entitled to succeed in the Writ Petition, as Exhibit P6 cannot be supported. Hence Exhibit P6 is quashed. W.P.(C)No.26803/11 -6- The Writ Petition is allowed. There will be a consequential direction to the 2nd and 3rd respondents to consider the application of the petitioner for correction of his date of birth in the SSLC book on its merits based on the materials produced by him and any other materials which he may wish to produce, within five months from the date of receipt of a copy of this judgment, after notice to the petitioner. No costs. ## Sd/-( **T.R.RAMACHANDRAN NAIR** , **JUDGE)** dsn