B.K.M. Annamma vs State of Kerala and Others

Malimath, C.J.—The appellant reached the age of superannuation as per the date of entry entered in her service register on 26-10-1984.

Having regard to certain provisions persons like the appellant who attained the age of superannuation during the middle of the year are entitled to

continue and actually retire from service on the 31st of March. Accordingly, the appellant became due for retirement on 31-3-1985. The entry in

the service register showing the appellant''s date of birth as 26-10-1929 has obviously been made on the basis of the school register which shows

that that is her date of birth. The appellant made an application to correct the date of birth in the school records/S. S. L, C. As there was delay in

filing that application, the appellant sought for permission to file the application explaining the relevant circumstances justifying such permission

being granted. Permission was duly granted by the Government by its order dated 15-3-1984 to the effect that the appellant''s application for

correction of the date of birth in school records/S. S. L. C. be disposed of on merits with reference to the relevant documentary evidence though

the application was a belated one. That application of the appellant was ultimately allowed and the appellant''s date of birth was directed to be

corrected in the school records/ S. S. L. C. as 21-10-1981 by order dated 8-5-1985, that is after her due date of retirement. Thereafter, the

appellant made an application on 20th May, 1985 to the Government to correct the date of birth in her service register, in accordance with the

correction she has secured in respect of School records/ S. S. L. C. That application of the appellant was rejected by the Government by order

Ext. P2 dated 16-9-1985, on the ground that the application was given on 20-5-1985 after the normal date of retirement as per the original entry.

The appellant challenged this order in O. P. No. 10813 of 1985 under Article 226 of the Constitution. The learned single Judge by his order dated

16th June, 1986 dismissed the petition. The reason given by the learned single Judge is that the application was not filed within the prescribed time

and that therefore the application is liable to be rejected having regard to G. O. (Ms) No. 39/72/PD dated 22-1-1972 and G. O. (Ms). No.

123/75/PD dated 16-6-1975. Hence this appeal. -

The principal contention of Shri Joseph, the learned counsel for the apellant, is that the appellant''s date of birth having been corrected in the

school records/SSLC after condoning the delay in making such application, the Government was bound to correct the entry in the service register

to bring (he date of birth of the appellant in tune with the correction made in the school records/S.S.L.C. In support of this contention, he relied on

the decision of this Court in 1982 KLT 13 between Kunhikrishnan v. State of Kerala. Considering the aforesaid G. O. the Full Bench ruled that on

correction of the date of birth of a private aided school teacher in the shcool records, correction of his date of birth in the service book is

automatic. The said decision was rendered having regard to the provisions of rule 28 of Chapter XIV-A of the Kerala Education Rules as it then

stood. But in the light of the Full Bench decision of this Court the said rule was amended by Notification No. G.O. (P) 54/80/G. Edn. dated 12-5-

1980 published in the Kerala gazette dated 24-6-1980 to make it clear that there cannot be any automatic correction in the service register on the

date of birth being corrected in the school records S.S.L.C. That is clear from the addition of the proviso to rule 28 in the following terms:

�Provided that the date of birth once entered and duly attested by the Educational Officer under rule 29 shall be changed only under sanction

obtained from Government.

This sanction of the Government is necessary for the purpose of correcting the entry in the service register. In other words, the automatic

correction contemplated by the earlier rule is no more available after rule 28 stood amended in the year 1980. The proceedings are governed by

the amended brules as the superannuation, the date when the application was made for correction of the date of birth in the school records/S. S. L.

C. and the application for correcting the date of birth in the service register were all filed long after the amendment came into force. Hence it is not

possible to accede to the contention of the learned counsel for the appellant that the appellant having secured correction of her date of birth in the

school records/S. S. L. C.,. she was entitled to automatic correction of her date of birth in the service register.

It was then contended by Sri. Joseph, the learned counsel for the appellant that the Government was under an obligation to deal with the

application of the appellant in accordance with the Government Order and on the basis of the procedure to be followed in dealing with such

applications. He relied up on the Government Order G. O. (M S) No. /39/ 72/ PD dated 22-1-1972. The relevant portion of the said order is

extracted as follows:

�It is seen that in certain cases applications for corrections of dates of birth are made by Government servants on the eve of their retirement.

Government have examined the matter and are pleased to order that except in exceptional cases where it has been adequately made out that the

concerned officer did not and could not have an opportunity to make his request, requests for correction or alteration of dates of birth of

Government servants will not be allowed within two years of the date of their retirement.

On the basis of this provision, it was contended by Shri Joseph that though the normal rule is to make the application for correction of the date of

birth in the service register two years before the date of retirement, the Government can entertain an application if made within two years from the

date of retirement if there are exceptional circumstances justifying entertaining such an application. It is on that basis that it was submitted that the

order of the Government is one made without considering the case put forward by the appellant for correction of his date of birth. What the order

of the Government, Ext. P2, dated 16-9-1985 states is that the application was given only on 20-5-1985, that is, after the normal date of

retirement as per the original entry and hence the request cannot be considered and rejected in the light of the reasons given in the order of the

Government. It is contended that there is absolutely no consideration of the question as to whether there were exceptional circumstance in this case

entertaining the application of the appellant. Hence it was contended that the order of the Government is made in violation of the order dated 22-1-

1972 as the same has been passed without considering the case of the appellant regarding the existence of exceptional circumstances. But it

appears to us that the appellant''s application was rightly dismissed in limine. No further reasons than the one given were required to be given in

these cases. What the Government Order dated 22-1-1972 states is that the application for correction of the date of birth in the service register

wd! not ordinarily be entertained unless such an application is made at least two years prior to the date of retirement. There is however an

exception to the general rule which says that if the application is made within two years from the date of retirement, such an application can be

considered if there are exceptional circumstances justifying such an order being made. But what is quite clear is that no application is contemplated

by the Government order dated 22-1-1972 for correction of the date of birth after the age of superannuation in accordance with the date of birth

already entered in the service register The question of examining the exceptional circumstances or entertaning a belated application arises only in

cases where such an application is made before retirement and within a period of two years before the date of retirement. If the application is made

after retirement, the question of entertaing the application or considering the existence of exceptional circumstances does not at all arise. That is the

reason why we are inclined to agree with the ultimate conclusion of the learned single Judge that this is not a fit case which merits any elaborate

consideration of the appellant''s application as the application was admittedly filed on 20-5-1985 long after the age of superannuation according to

the date of entry in the service register, as it then stood. Hence it is not possible to accede to the second contention of the appellants counsel sir

Joseph that the Government order is bad for non-consideration of the alleged existence of exceptional circumstances. Before concluding we must

advert to another submission of Sir Joseph, the learned counsel for the appellant namely, that during the period the appellant worked as a teacher

on the strength of the interim order made by this Court, the appellant is entitled to be paid her salary. That is the correct legal position. Hence we

make it clear that the appellant is entitled to be paid the salary and emoluments for the period she has actually worked on the strength of the interim

order made by this court during the pendency of this case, though, the said payment cannot be taken into consideration for the purpose of working

out tie other retirement benefits.

The writ appeal fails and it is dismissed.