Kunhikrishnan vs State of Kerala and Others

The judgment of the court was delivered by George Vadakkel. - The Petitioner was born on 13th November 1918. By a clerical mistake his date of birth was shown in his Teachers'' Training Certificate as 6th September 1916. Consequently, his service book also shows his date of birth as 6th September 1916. By an order of 3rd November 1977, the Commissioner for Government Examinations directed correction of the mistaken entry of his date of birth in the Teachers'' Training Certificate, and this has been done. Ext. P-1 Teachers'' Training Certificate now shows the Petitioner''s date of birth as 13th November 1918. However, his application for correcting his date of birth entered in his service book was rejected by the Government as per Ext. P-2 proceedings on the ground that the application in that behalf was filed out of time. Petitioner prays for a writ of certiorari quashing Ext. P-2 order and for a writ of mandamus directing the Government to correct the entry relating to his date of birth in his service book from 6th September 1916 to 13th November 1918 and to pay the Petitioner all salary and allowances on the basis of such correction.

At the time this writ petition was filed the Petitioner was the Headmaster of the Aided School under the management of the 3rd Respondent. He retired from service on 31st March 1979. Thus his date of superannuation was reckoned on the basis that his date of birth is 13th November 1918. He continued in service till then by virtue of interim orders passed by this Court and subject to the conditions imposed thereby that he will not be entitled to any pay until further orders. After his retirement this Court directed to fix the Petitioner''s pension subject to the first result of this Original Petition, excluding the last two years of his service. It has been stated in the affidavit in support of C.W.P. 21079 of 1981 filed on behalf of Respondents 1 and 2 that this has been done, though not within the time stipulated in that behalf by this Court.

Chapter XLV of the Kerala Education Rules, 1959 prescribes the conditions of service of aided school teachers. Rule 28 in Part A thereof requires that the date of birth of the teacher shall be entered on page 1 of his service book. The Note thereto says that ''the date of birth shall be that in the School Admission Register, Matriculation Book or S.S.L.C. Book''. It is the Petitioner''s case that his correct date of birth is 13th November 1918. Though he has not produced the School Admission Register, Matriculation Book or S.S.L.C. Book to substantiate the same, his statement that his date of birth is 13th November 1918 is not disputed. He has produced Ext. P-1 Teachers Training Certificate which as corrected shows his date of birth as 13th November 1918. This we assume was on the basis that the date of birth of the Petitioner as shown in the Admission Register and his Matriculation or S.S.L.C. Book, as the case may be is 13th November 1918. Therefore we proceed on the basis that this is the date of birth of the Petitioner as shown in the Admission Register and the Matriculation Book or the S.S.L.C. Book, as the case may be. If so that shall be the date of birth entered on page 1 of his service book.

Respondents 1 and 2 contend that the Petitioner''s application dated 26th November 1977 for correction of his date of birth in the service book was belated. They rely on G.O. (MS) No. 39/72/PD., dated 22nd January 1972 and G.O. (MS) No. 123/75/PD., dated 16th June 1975, as per both of which, such request unless made before two years of his date of retirement on the basis of the date of birth already entered in the service book, shall not, normally, be allowed. The learned Advocate General also pointed out that as per these Government orders correction of date of birth in the school records would not oblige the Government to correct the date of birth entered in the service book and that these two Government orders have been made applicable to teachers of private aided schools by G.O. Ms. 139/760/Edn., dated 17th July 1976. This is the only contention urged before us in support of Ext. P-2 order.

The Government Orders referred to above cannot override the statutory rules in the Kerala Education Rules, 1959. The Note to Rule 28 in Chapter XIV-A of the aforesaid rules is part of Rule 28, in Tara Singh and Others Vs. State of Rajasthan and Others, the Supreme Court said:

The notes are promulgated with the rules in exercise of legislative power. The notes are made contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The real purpose of the notes is that when rules are silent the notes will fill up gaps.

What the Note to Rule 28 in Chapter XIV-A requires is that the date of birth entered in the Admission Register or one or the other of the books mentioned therein shall be entered in the service book. There is no merit in the contention advanced on behalf of Respondents 1 and 2.

In Chirutkakutty v. Stated 1976 K.L.N. 235 (Case No. 203), O.P. No. 5527 of 1975 short notes where of is reported in 1976 K.L.N. 235 our learned brother Narendran, J., held that in view of the Note to Rule 28 in Chapter XIV-A in the Rules, on correction of the date of birth of a private aided school teacher in the school records mentioned above, correction of his date of birth in the service book is automatic. We are in full agreement with this construction placed on Rule 28. However, the learned Judge rested the decision in that case on the fact that the two Government Orders of 22nd January 1972 and 16th June 1975 would govern only Government servants and not private aided school teachers. Presumably G.O. Ms. 139/76/Edn., dated 17th July 1976 was not brought to the notice of the learned Judge-the decision in Chiruthakutty''s case 1976 K.L.N. 235 (Case No. 203) was on 15th November 1976. Taking note of the Government order of 17th July 1976, a Division Bench of this Court said in State of Kerala v. Ulahannan 1977 KLT 620 that the two earlier Government Orders have been made applicable to private aided school teachers and therefore, those Government orders govern the correction of date of birth of such a teacher in his service book. This decision did not consider the effect of the Note to Rule 28 in Chapter XIV-A. We, therefore, So not think, with respect that, the Ulahannan''s case(3) lays down the correct law.

The Petitioner is entitled to have the relief mentioned above. We quash Ext. P-2 order. We also direct Respondents 1 and 2 to correct the Petitioner''s date of birth from 6th September 1916 to 13th November 1918 in his Service Book. It is declared that he continued in service till 31st March 1979 lawfully and that he is entitled to have all consequential monetary benefits, before and after his retirement, on that basis. The said Respondents shall pass appropriate orders as regards the monetary benefits the Petitioner is entitled to within a period of three months thereof and thereupon shall pay to him arrears of such benefits, if any, that have become due by then less any amount that has been paid to him in that behalf. This writ petition is allowed as aforesaid. The parties shall suffer their costs.