P. Sankaran v. The State Of Kerala — 1990 DIGILAW 418 (KER)

JUDGMENT K.A. Nayar, J. 1. The prayer in the Original Petition is for a writ of certiorari to quash Ext. P12 order refusing to correct the date of birth of the petitioner in the service records and also to declare that the petitioner is entitled to get his date of birth corrected in the service records as 24-8-1936. There are also other reliefs prayed for. 2. Petitioner is an employee of the respondent working as Administrative Assistant in the office of the Conservator and Custodian of vested forests, Olavakkot, Circle, Kozhikode. His date of birth entered in the service book is 15-8-1935. But according to him, his real date of birth is 24-8-1936 and g the date of birth entered in the service book is a mistake. He realised this mistake some time in August, 1987 and made a request by Ext. P1 to correct his date of birth in the service records as 24-8-1936. But Ext. P1 was returned stating that the request for correction of the date of birth will be considered only on correction of the date of birth entered by the Commissioner for Government Examinations in the S. S. L. C. Book of the petitioner. Thereafter, he took steps to get the date of birth in the S. S.L. C. Book corrected. For that purpose, the procedure mentioned in Chap.6 R.3 of the Kerala Education Rules had to be complied with. Petitioner took steps in this regard to get the delay condoned in making the application for q correction of the date of birth and thereafter got the date of birth corrected in the S. S. L. C. Book, as 24-8-1936. Ext. P5 dated 30-9-1988 is the order correcting the date of birth in the S. S. L. C. Ext. P5 was received by the petitioner only on 5-10-1988. Since it was apprehended that the two year period prior to retirement before which applications for correction of date of birth in the service book should be submitted would expire if the petitioner awaited the receipt of the order allowing correction, petitioner made an application, by way of abundant caution, on 5-8-1988. That application is Ext. P6. Petitioner is due to retire from service according to the existing entries in the service books on 31-8-1990 and therefore, Ext. That application is Ext. P6. Petitioner is due to retire from service according to the existing entries in the service books on 31-8-1990 and therefore, Ext. P6 application for correction of date of birth made on 5-8-1988 is well within time, viz., D before two years prior to retirement. After getting the date of birth corrected in the S. S. L. C. Book, petitioner forwarded the same by Ext. P7 dated 10-10-1988. The purport of Ext. P7, as will be seen, is to forward the corrected copy of the S. S. L. C. book supplying the evidence in support of Ext. P6. The Government rejected the request by Ext. P8 dated 21-4-1989 on the ground that Ext. P6 application for correction of the date of birth is not accompanied by corrected copy of the S. S. L. C. Book, and therefore, only Ext. P7 of 10-10-1988 can be treated as valid application. That application cannot be considered on the merit as the same is filed within two years of the date of superannuation. This order of the Government was the subject matter of O. P. No. 5157 of 1989 1 before this Court. The grievances of the petitioner was considered by this Court in Ext. P9 judgment. This Court noted that even though the petitioner made the application for correction of date of birth on 24-8-1987 and a second petition on 5-8-1988, the Government rejected the same on the ground that the date of birth was corrected in the S. S. L. C. Book only subsequently. The contention of the petitioner at that time was that the stand taken by the Government that the application must accompany the corrected copy of the S. S. L. C. Book was not correct in view of the decision reported in Prabhakaran Nair v. State of Kerala ( 1990 (1) KLT 858 ) and also the judgment in O. P. No. 8041 of 1989. This Court held that the application for correction of the date of birth submitted more than two years prior to the date of retirement will have to be entertained. There is nothing in those decisions to support the stand taken by the Government Pleader that such an application for correction of date of birth should be submitted more than two years prior to retirement, accompanied by the S. S. L. C. Book as corrected. There is nothing in those decisions to support the stand taken by the Government Pleader that such an application for correction of date of birth should be submitted more than two years prior to retirement, accompanied by the S. S. L. C. Book as corrected. The decision in Prabhakaran Nair's case referred to above was affirmed by a Division Bench of this Court in the judgment in W. A. No. 198 of 1990. In the decision reported in 1990 (1) KLT 858 the learned single Judge observed: "......... I do not find anything in the relevant Government Orders, which justified the stand now taken by the Government in Ext. P11, that the application for correction of the date of birth submitted more than two years prior to the date of retirement would not be entertained unless it is accompanied by the S. S. L. C. Book as corrected. If that be so, Government is bound to consider Ext. P6 supplemented by Exts. P9 and P10 as sufficient compliance with the requirement of producing the S. S. L. C. Book as corrected for enabling the Government to pass orders on the application for correction of the date of birth in the service book." In W. A. 198 of 1990 the Division Bench held: "......... We see no good ground to interfere with the finding of the learned single Judge that the application filed by the respondent for correction of date of birth in his service register was wrongly rejected by the Government and that the said application was well within time." Therefore, by Ext. P9 judgment this Court quashed Ext. P8 order of the Government refusing to consider the petitioner's request for correction of the date of birth in the service book and directed the respondent to consider Ext. P6 afresh in the light of the observations contained in that judgment as well as in the decision reported in Prabhakaran Nair v. State of Kerala 1990 (1) KLT 858 , O. P. 4081 of 1989 and also W. A. No. 198 of 1990. Since, according to the existing date of birth the petitioner will have to retire on 15-8-1990 on the basis that the petitioner's date of birth is 15-8-1935, this Court directed appropriate orders to be passed before 20-8-1990 and the decision communicated to the petitioner before 25-8-1990. Thereafter the respondent passed Ext. Since, according to the existing date of birth the petitioner will have to retire on 15-8-1990 on the basis that the petitioner's date of birth is 15-8-1935, this Court directed appropriate orders to be passed before 20-8-1990 and the decision communicated to the petitioner before 25-8-1990. Thereafter the respondent passed Ext. P12 order by which the Government refused the request of the petitioner to entertain the application on the same ground as stated in Ext. P8 that the application for correction of the date of birth has not been made with substantive evidence to prove the correct date of birth within the stipulated period. Petitioner challenges Ext. P12 order in this Petition. 3. Admittedly, an application for correction of date of birth has been made by the petitioner by Ext. P6 dated 5-8-1988. That application was well within time, viz. more than two years before the date of retirement. Evidence in support of the application warranting correction of date of birth has been produced later. In this case, the evidence was the S. S. L. C. Book as corrected. Petitioner obtained the same only on 5-10-1988. Petitioner did everything he could to get the date of birth in the S. S. L. C. Book corrected so as to enable him to apply for correction in the service book within time, viz. more than two years before the date of retirement. When correction in the S. S. L. C. Book was not forthcoming, he made an application, Ext. P6, within time to get the date of birth corrected in the service book in O. P. No. 10208 of 1990 this Court observed: " ............ Nothing prevented the petitioner from filing the application on a date prior to two years from the date of retirement according to service records, intimating the Government that her application for correction in the S. S. L. C. Book was pending before the Commissioner, and that she would produce orders correcting the date of birth in the S. S. L. C. Book as and when the Commissioner passed final orders in accordance with the Rules." Government Pleader relied on Ext. P3 circular dated 3-12-1987 and another circular dated 24-10-1988, Ext. R1(a), clarifying Ext. P3 circular. In Ext. P3 circular it is stated that: "......... P3 circular dated 3-12-1987 and another circular dated 24-10-1988, Ext. R1(a), clarifying Ext. P3 circular. In Ext. P3 circular it is stated that: "......... Correction of age in the S. S. L. C. Book/S. S. C. Book passed by the Commissioner for Government Examinations will not be automatically followed by the correction of date of birth in the Service Register and requests for correction of date of birth in the Service Register made within two years of the retirement of the Government Servant warranting condonation of delay should not be entertained even when the correction is requested on the basis of correction made in the S. S. L. C. Book. Requests made by the employees to the Government in concerned Administrative Departments for the correction of date of birth noted 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 and existing orders". The clarificatory circular Ext. R1(a) states that: "......... In the circumstances, Government wish to make it clear that the employee has to apply for correction of date of birth, if any, two years before his/her retirement based on the original entry in the Service Book." The first of these circulars had been the subject matter of O. P. No. 5074 of 1988 and O. P. No. 6630 of 1990. The latter Original Petition was disposed of by this Court by the decision reported in V. Ramachandran Nair, v. State of Kerala ( 1990 (2) KLJ 335 ) in which this Court held: "......... a Government servant whose date of birth has been entered in the school records, is entitled to get the date corrected in the service records if he can adduce satisfactory evidence to prove that the date entered in the school records is not the correct one. This right of a Government servant is independent of the correction of the date of birth in the school records. The correction of the date of birth in the school records can only be treated as a piece of evidence to support his claim that the date entered in the service records is not the correct one. This right of a Government servant is independent of the correction of the date of birth in the school records. The correction of the date of birth in the school records can only be treated as a piece of evidence to support his claim that the date entered in the service records is not the correct one. Viewed in this light, the fact that the petitioner got the date of birth corrected in the school records within two years of the date of his retirement is of no consequence and that fact cannot stand against his claim for correcting the date of birth in the service records because, as per Ext. P9, he had filed the application for correction On 3-9-1987 prior to two years of the date of retirement as per the date entered in the service records. As per the date entered in the service records he was to retire only on 30-9-1989. So the application was filed beyond the two years of his retirement and it cannot be summarily rejected as barred by limitation as per the circular." The second clarificatory circular only makes it clear that the employees have to apply for correction of date of birth two years before the date of retirement based on the original entry in the service book. 4. An individual can have only one date of birth. S. S. L. C. Book, Birth Register, etc. are all forms of evidence regarding date of birth. The enquiry should be what is that one date of birth attributable to any particular individual. This question as to what exactly is the date of birth of the individual will have to be proved before the authority. The application for that purpose should necessarily precede the proof. The application should be made two years before the date of retirement based on the date of birth originally entered in the service records. Once such an application is made, it is a matter of proof before the authority to accept the evidence adduced before him. In this case, the application has been made well before two years prior to retirement. The evidence has been adduced, viz. the S. S. L. C. Book as corrected. Instead of S. S. L. C. Book in some, cases the evidence may take the form of horoscope, Birth Register, etc. In this case, the application has been made well before two years prior to retirement. The evidence has been adduced, viz. the S. S. L. C. Book as corrected. Instead of S. S. L. C. Book in some, cases the evidence may take the form of horoscope, Birth Register, etc. There is no requirement that these document must be produced along with the application. Normally, I would have remanded the case for fresh consideration. But in this case, it is unnecessary to do so as the facts are not in dispute. Date of birth of the petitioner was originally entered in the service book based on the entry in the S. S. L. C. Book. Therefore, when the date in the S. S. L. C. Book is corrected, similar correction will have to be carried out in the service book also if the application for the same is made within time. 5. It is submitted that during the pendency of this Original Petition petitioner retired from service on superannuation on 31-8-1990. Since I hold that the petitioner is, entitled for correction of the date of birth in the service records as 24-8-1936 based on such correction in the S. S. L. C. Book, the petitioner will be entitled to continue in service till 31-8-1991. Petitioner happened to retire from service on 31-8-1990 because of the delay in disposing of this Original Petition. No person should be prejudiced because of the delay in Court and actus curiae neminem gravabit. The Supreme Court in the decision reported in John Singh v. Sukh Pal Singh (JT 1989 (3) SC 582) observed: "......... There is no higher principle f or the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim; Actus curiae neminem gravabit." 6. In the circumstances of the case, I direct the respondent to correct the date of birth of the petitioners in his service records as 24-8-1936, to reinstate the petitioner in service with continuity of service forthwith and to continue him in service on the basis that his correct date of birth is 24-8-1936. In the circumstances of the case, I direct the respondent to correct the date of birth of the petitioners in his service records as 24-8-1936, to reinstate the petitioner in service with continuity of service forthwith and to continue him in service on the basis that his correct date of birth is 24-8-1936. Petitioner is also entitled to all service benefits during the period he was out of employment. The Original Petition is allowed as above. In the circumstances of the case, there will be no order as to costs.