Narayanan, K. vs State of Kerala and Others

K.S. Radhakrishnan, J.—Petitioner was working as Senior Auditor in the Office of the Assistant Registrar of Co-operative Societies (Audit), Cherthala. He prays for a writ of mandamus to the first Respondent to correct the date of birth of the Petitioner in his service book in conformity with Exts. P-1 and P-6, and also for a writ of certiorari to quash Ext. P-8.

Petitioner commenced his service on 3rd April 1984. His actual date of birth is 22nd September 1942 (6th Kanni 118 M.E.) evidenced by Ext. P-1 certificate of birth issued u/s 17 of the Registration of Births and Deaths Act, 1969. On receipt of the above mentioned certificate he made an application for correction of his school records in conformity with Ext. P-1. The said application was initially rejected, since it was time-barred, which necessitated filing an application for condonation of delay before the Government. The Government condoned the delay in applying for correction of date of birth in the school records as per Rule 3 of Chapter VI of the Kerala Education Rules vide G.O. (Rt.) No. 5150/93/G. Edn., dated 7th September 1993, evidenced by Ext. P-2. Petitioner again approached the Commissioner for Government Examinations for carrying out the necessary correction in the school records vide his application dated 27th September 1993. Simultaneously he also filed an application, Ext. P-3, before the first Respondent requesting to correct his date of birth in the service records as 22nd September 1942. He has pointed out that he has already filed an application before the Commissioner for Government Examinations to carry out the correction in the S.S.L.C. book in accordance with the certificate of birth obtained by him. He also made yet Anr. request evidenced by Ext. P-4 dated 22nd March 1995 stating that eventhough he submitted application dated 27th September 1993 before the Commissioner for Government Examination to carry out the corrections in his S.S.L.C. book, the same has not been corrected so far. He, therefore, requested the Government to allow him to continue in service in accordance with the correct date of birth, that is 22nd September 1942. While those representations are pending, he received Ext. P-6 order dated 26th June 1995 from the Commissioner for Government Examinations according sanction under Rule 3 of Chapter VI of the Kerala Education Rules to record the correct date of birth of the Petitioner from 4th September 1940 to 22nd September 1942 in the school records and qualification certificate issued to him. A direction was also issued to the Secretary to the Commissioner for Government Examinations to make necessary correction in the entries regarding date of birth in the certificate issued to the Petitioner and tabulation register concerned.

Petitioner, since the receipt of Ext. P-6 order, submitted yet Anr. application dated 27th July 1995 evidenced by Ext.P-7 to the first Respondent to carry out correction in the service records in accordance with Ext.P-6. In the said representation, his earlier applications submitted on 27th September 1993, and 22nd March 1995 were referred to. When the Petitioner was about to retire on superannuation on 30th September 1995, he came across with a communication from the Secretary to Government to the Registrar of Co-operative Societies, Trivandrum, whereby the Government has informed the Registrar that the request of the Petitioner cannot be entertained as per the conditions laid down in the Government order, G.O.(P) No. 45/91/P and ARD, dated 30th December 1991. According to the Government, application of the Petitioner for correction of date of birth in the service book was not seen submitted to the Government within the time stipulated in the Government order, that is before two years from the date of retirement, in accordance with the original entries in the service book. Government, therefore, informed the Registrar that the request of the Petitioner merits no consideration and the same was rejected. Aggrieved by the said communication, which was not officially communicated to the Petitioner, he has filed the present Writ Petition. Petitioner submits that Ext. P-8 is arbitrary and discriminatory. It is also his case that Exts. P-1 and P-6 have got evidentiary value in the matter of correction of date of birth.

Counsel for the Petitioner explains the circumstances under which the wrong entry was crept in his school records. Counsel also referred to Rule 143 of Part III of the Kerala Service Rules and argued that once the school records are corrected, the correction in the service records should be taken as automatic, since those documents are recognised by law as authentic documents for entry in the service records. According to Counsel, when the school records were corrected, automatically the service records should also get corrected.

I heard Counsel for the Petitioner at length and the learned Government Pleader. I am not inclined to accept the contentions raised by learned Counsel for the Petitioner. It is true that the Petitioner has obtained Ext. P-1 certificate of birth issued u/s 17 of the Registration of Births and Deaths Act, 1969, where in his correct date of birth is shown as 6th Kanni 1118. M.E. (22nd September 1942). The Commissioner for Government Examinations also issued Ext. P-6 wherein also he had considered various documents and came to the conclusion that the correct date of birth of the Petitioner is 22nd September 1942. Exts. P-1 and P-6 have got great evidentiary value. But that will not suffice. Government has issued G.O. (P) No. 45/91/P and ARD, dated 30th December 1991 whereby the Government reviewed its earlier circular issued with regard to correction of date of birth in the service records. The said order was issued by the Government laying down various guidelines in view of the growing tendency on the part of the Government employees to get date of birth corrected when they are about to retire from service. It will be noted that one realises his date of birth on a number of occasions in his life, i.e., the moment he gets his S.S.L.C. or secures extract from school admission register, when he registers his name in the employment exchange, applies for higher studies or furnishes the date of birth in the very application that leads to his entry in Government service. Therefore the Government felt that there is no rationale in allowing the correction of date of birth in the service records at all times. While issuing the abovementioned order, Government felt that opportunity should be granted during the initial periods of one''s service to make corrections in bona fide cases. The Government, therefore, decided to adopt the system followed by the Government of India in this matter. They accordingly issued the order in modification of the existing orders that applications for correction of date of birth if any needed in the case of a Government employee shall hereafter be made within five years of one''s entry in service. In the case of those who have already crossed this limit, one year time from the date of this order shall be allowed, provided they apply beyond the two year preceding retirement, reckoned with reference to the date of birth as recorded in the service book. It was also pointed out by the Government that the applications for correction of date of birth in service book shall be submitted to Government in the Administrative Department concerned through proper channel. Government also stated that applications for condonation of delay and for entertainment of applications in relaxation of the condition regarding time limit shall be summarily rejected. A direction was issued to various departments that appointment orders issued in future should also mention the time limit provision as per this order for correction of date of birth so that new entrants to service should not complain later that they were not aware of this provision. In accordance with the above-mentioned Government order, Ext. P-8 communication was issued by the Secretary to Government to the Registrar of Co-operative Societies rejecting the request of the Petitioner for correction of date of birth. I find no illegality in the said order. It has also been stated in Ext. P-8 that the application for correction of date of birth is also nor seen submitted by the Petitioner within the time limit prescribed, that is, before two years of date of his retirement. In the light of the positive averment in Ext. P-8 that no application has been submitted within the time limit, it is not possible to believe that the Petitioner had, in fact, submitted Ext. P-3 application before the first Respondent in time.

The Supreme Court in the decision in Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, , white considering rules 49 and 49A of the Tamil Nadu Service Manual, which are the provisions in respect of alteration and correction of date of birth, held that whenever any application is filed by person governed by those service rules, procedures prescribed therein have to be strictly followed, including the time limit prescribed for making such an application. In Anr. decision of the Supreme Court in State of T.N. Vs. T.V. Venugopalan, at 305 held that the object of the rule or statutory instructions issued under proviso to Article 309 or orders issued by the Government under Article 162, for the correction of date of birth entered in the service record, is that the Government employ if he has any grievance in respect of any error of entry of date of birth, will have an opportunity, at the earliest, to have it corrected. Its object also is that correction of the date of birth beyond a reasonable time should not be encouraged. Permission to reopen accepted date of birth of an emloyee, especially on the eve or shortly before the superannuation of the Government employee, would be an impetus to produce fabricated record. The Supreme Court also cautioned various Courts that the Courts should be slow in entertaining applications unless proper evidence of unimpeachable nature is produced. The Supreme Court in Secretary and Commissioner, Home Department and others Vs. R. Kirubakaran, held that an application for correction of date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. Any such direction for correction of date of birth of the public servant concerned has a chain reaction, inasmuch as Ors. waiting for years, below for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case on the basis of materials which can be held to be conclusive in nature is made out the Court or the Tribunal should not issue a direction on the basis of materials which make such claim only plausible. It is pointed out that before any such direction is issued, the Court or the Tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant to prove about the wrong recording of his date of birth in his service book.

In the instant case, it has been categorically stated in Ext. P-8 communication that the Petitioner has not submitted the application in time in accordance with the Government order. Assuming for argument sake that Ext. P-3 has been submitted, it cannot be said to be an application in the eye of law. Firstly, the Petitioner has not produced any evidence in support of his application. Mere submission of an application without materials of documentary evidence cannot be taken as a proper application within the meaning of the Government orders. The Government servant even if is eligible to file an application and if he has filed the application in time, he should produce all materials and relevant documents which are essential for carrying out the correction. Mere submission of a letter or application without any evidence is not an application to be entertained. In that view of the matter also, the application submitted by the Petitioner without any evidence cannot be entertained. In the instant case, Petitioner was to retire on 30th September 1995 and he has approached this Court on 27th September 1995, and the matter came up for admission on 28th September 1995. In other words, he has approached this Court at the fagend of his career. Therefore, there is no justification to entertain this Writ Petition in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India.

For the abovementioned reasons, there is no merit in this Petition. It is accordingly dismissed.