State of Kerala vs Gopalan Chettiar

M. Jagannadha Rao, C.J.—This is an appeal preferred by the Government .against the judgment of the learned Single Judge allowing the writ petition, O.P. 3712 of 1993-P dated 6th April 1993. The matter relates to change of date of birth of the writ Petitioner in the service records.

Writ Petitioner''s date of birth was originally registered in the service book as 20th February 1938. He would have completed 55 years in the normal course on 19th February 1993 and would have had to retire oh 28th February 1993, being the end of the month. It appears, that he raised a claim that the date of birth as recorded in the S.S.L.C. book is not correct and is required to be changed from 20th February 1938 to 13th March 1939. For the aforesaid purpose, he filed an application on 30th January 1991 (Ext. P-4) before the Secretary to Government. However, subsequently the Transport Commissioner, Trivandurm returned the said application of the writ Petitioner with the following endorsement on 2nd April 1991 as per Ext. P-5.

Government have returned your application for want of correction in the S.S.L.C. Book. The application also returned herewith.

Subsequently, the writ Petitioner got the S.S.L.C. Book corrected on 11th November 1992 and has filed second application, Ext. P-6 on 1st December 1992 stating that he was enclosing the Certificate of birth issued by the Parur Municipality as per Annexure I, that the Tahsildar had issued an identification certificate as per Annexure II and that he is swearing to an affidavit that he is the fifth child of his parents, as per Annexure III. He also stated that by the order of the Government dated 26th February 1990. Government had condoned the delay in applying for correction of date of birth in the S.S.L.C. Book, that he applied for correction of the same and so producing as Annexures I to III on 19th July 1990. He also stated that since the Commissioner for Government Examination did not pass any order, he applied for correction of date of birth in the Service Book on 30th January. 1991, that by letter dated 2nd April 1991 the Transport Commissioner had returned his application for want of correction in the S.S.L.C. Book on the basis of the Government, letter dated 22nd March 1991. He further submitted that his original application dated 30th January 1991 and the copy of the letter dated 2nd April 1991 are being re-submitted by him as Annexures IV and V. He then stated that the Joint Commissioner for Government Examination has rejected his application by order, dated 4th March 1991, that on appeal, the Government by order dated 26th May 1992 remitted back the case to the Commissioner for fresh consideration and accordingly the Commissioner, by order dated 18th November 1992, allowed his application and ordered correction of the date of birth from 20th February 1938 to 13th March 1939 in the school records. The original of the above order he filed as Annexure VI. Accordingly, he got his S.S.L.C. Book corrected and, the corrected S.S.L.C. Book was submitted as Annexure VII. After stating so he said that he was entitled to be continued in service beyond 28th February 1993, which was the date on which he would have otherwise had retired according to the original entry in the Service Book. He also referred to the judgments of this Court in Prabhakaran Nair v. State of Kerala 1990 (1) KLT 858 and V. Ramachandran Nair Vs. State of Kerala and Others, and submitted the second application of 1st December 1992 with all the above details. In the last paragraph of the above said application, dated 1st December 1992, he specifically mentioned as follows:

Under these circumstances, I respectfully submit that my application filed on 30th January 1991, which is also produced along with this application favourably and to correct my date of birth in the Service Book as 13th March 1939. I also respectfully prayed that early orders may be passed in view of the fact that I have only 3 months to retire.

In reply to the above said elaborate representation, Ext. P-6, dated 1st December 1992, Government issued final orders as per Ext. P-7 dated 27th February 1993 stating that as per the Circular No. 11980/SC3/87/P and ARD., dated 3rd December 1987 request made by employees to Government for the correction of date of birth in their Service Register before two years of their retirement based on the correction of date of birth passed by the Commissioner for Government Examinations will be considered and decided on merits. It further stated as follows:

In para 2(ii) of G.O. (P) 26/91/P and A.R.D. dated 27th August 1991 also it is specifically ordered that the application for correction should be supported by attested copies of S.S.L.C./S.S.C. Book or extract of school records whichever is applicable, as corrected. As such an application with documents as corrected i.e., application dated 1st December 1992 in this case alone can be considered as a valid application. Therefore, your application for correction of date of birth is not entertainable and hence declined.

From the facts above stated, it is clear that initially the Respondent-writ Petitioner submitted an application on 30th January 1991, well before the period of two years from the date of his retirement as per the original entry in the service records. That application was returned by order dated 2nd April 1991 stating the said application was not accompanied by corrected S.S.L.C. Book. Thereafter lie submitted the same on 1st December 1992 along with the necessary documents. That application dated 1st December 1992 was rejected by the impugned orders on 27th February 1993 as per Ext. P-7 holding that Government cannot consider the earlier application dated 30th January 1991 as a valid application and that the only valid application is the one dated 1st December 1992 inasmuch as that alone was accompanied by the necessary documents, but that as the same was filed within two years from the date of retirement, the same had to be considered as time barred.

The learned Single Judge who went into this question relied upon the decision of this Court in Prabhakaran Nair v. State of Kerala 1990 (1) KLT 858 and came to the conclusion that the earlier application dated 30th January 1991, even, though it is not accompanied by corrected S.S.L.C. Book, cannot be treated as an invalid application.

It is this view of the learned Single Judge that is challenged in the appeal.

Learned Additional Advocate General, representing the Appellants, referred to the new Government order dated 27th August 1991, which is specifically referred to in the impugned order, Ext. P-7, passed by the Government on, 27th February 1993 while treating the first petition of the Respondent-writ Petitioner as not in order and that the second application dated 1st December 1992 was time barred. It will be useful to refer to the material portion of the said Government Order No. G.O. (P) 26/91/P and ARD., dated 27th August 1991. Paragraph 2(ii) of the same reads as follows:

The application for correction should be supported by attested copies of S.S.L.C./S.S.C. Book or extract of school records whichever is applicable, as corrected.

In this connection, it will be useful to refer to Instruction 1(i) below Rule 143 in Part III of the Kerala Service Rules. The said Instruction reads as follows:

In the case of persons who have attended a recognised school/college, the school leaving certificate or an authenticated extract of the admission register of the school or college where the employee last studied.

Rule 143 deals with the mode of making entries in the Service Book with regard to date of birth.

We shall first deal with the decision of this Court in Prabhakaran Nairs'' case 1990 (1) KLT 858. That judgment was rendered on 31st January 1990 by a learned Single Judge of this Court and the learned Judge based his decision on the G.O. of the Government dated 3rd November 1975 and came to the conclusion that an application which was not accompanied by the S.S.L.C. or S.S.C. Book or extract of school record could not be treated as an invalid application. On the facts of that case, the application was returned and it was also mentioned that it could be re-submitted. The learned Judge, therefore, held that the said application was a valid application having been filed in time. There was no question of treating the date of re-submission of the said application as the date on which correction is sought in the service records. The said judgment was affirmed in W.A. 198 of 1990 dated 21st March 1990 by a Division Bench of this Court. The said decision was also followed by one of us (Sreedharan, J.) in V. Ramachandran Nair Vs. State of Kerala and Others, wherein reference was made of the Government circular dated 31st December 1987 issued by the Government. On a consideration of the language of the said circular, it was held that the application which was not accompanied by the S.S.L.C./S.S.C. Book could not be treated as an invalid application.

Learned Additional Advocate General, however, submits that these two decisions of this Court, of which the first was followed by the learned Single Judge in the present case, cannot be availed by the writ Petitioner inasmuch as Ext. P-7 order of the Government is based upon a fresh Government Order issued on 27th August 1991 which, in paragraph 2(ii), requires that any valid application should be accompanied by the attested copies of the S.S.L.C./S.S.C. Book or extract of school records. In our view, the submission, though attractive, cannot be accepted on the facts of the present case. Here, the position is that the first application by the writ Petitioner was itself submitted on 30th January 1991, well before the period of two years from the date of his retirement and as per the decisions of this Court referred to above, the said application must be treated as a valid application even though it was not accompanied by the necessary documents. In fact, if the Government had passed an order of rejection on the said application of 30th January 1391, it would have been open to the writ Petitioner to have it quashed in the same manner as it was quashed in the above said decisions. Further, the word ''returned'' used in the order dated 2nd April 1991 is significant and that would mean that the Government never wanted to .treat that application as rejected. ''Returned'' could only mean for purposes of representation by rectifying the defects in the said application. It cannot be said that the Government was not aware of the difference between ''rejection'' and ''return''. In fact, the decision of this Court in Praphakaran Nair''s case 1990 (1) KLT 858 (supra) which was rendered on 31st January 1990 points out the distinction and that decision was rendered long before 2nd April 1991 when the order of ''return'' was made in the present case. We are, therefore, clearly of the view that the return of the application dated 30th January 1991 on 2nd April 1991 would result in creating a vested right in the writ Petitioner to represent the same and, claim that the date on which the application was originally presented, namely, 30th January 1991 was the date of his application for purposes of limitation. If that be so and the application dated 30th January 1991 could not be, treated as an invalid application as the applicant has a vested right to have the case decided after resubmitting the application along with corrected S.S.L.C. Book, the subsequent administrative order [G.O. (P) No. 26/91/P and ARD., dated 27th August 1991] could not have any effect on the vested rights of the writ Petitioner. The said Government Order would, obviously not apply to cases where applications earlier submitted had been returned before 27th August 1991 and were resubmitted though after 27th August 1991.

For the aforesaid reasons, we are of the view that even on a consideration of the legal effect of the Government order dated 27th August 1991, the order of the learned Single Judge can be sustained in view of the rights which vested on the writ Petitioner before 27th August 1991 on the facts of this case.

The writ appeal fails and it is accordingly dismissed. However, the fact remains that the writ Petitioner has since retired from service on 28th February 1993. Therefore, inasmuch as Ext. P-7 is now quashed, the Government will have to pass fresh orders on Ext. P-6 application in accordance With law and in the light of the observations contained in this judgment. The time limit fixed by the learned Singly Judge will be extended by One month from the date of receipt of a copy of this Judgment.