Mary v. Commissioner for Government Examinations — 1991 DIGILAW 248 (KER)

Judgment :- Bhat, Ag.C.J. Appellant is working as a P.O. teacher in a Government school. Her date of birth is shown in school records and in service records as 20-3-1937 in which case she completes 55 years of age on 19-2-1992. According to the appellant, her correct date of birth is 25-10-1939 in which case she completes 55 years of age on 24-10-1994. Going by R.60(c) of Part! of the Kerala Service Rules (for short' the rules'), in the former case she would continue in service till 31-3-1992 and in the latter case she would be entitled To continue in service till 31-3-I995. On 21-10-1989 she submitted an application before the first respondent, Commissioner for Government Examinations stating forth her stand and seeking correction of the date of birth in the school records. The first respondent allowed her request tinder Ext. P1 order on 29-3-1990. On 30-3-1990 appellant submitted Ext.P2 application before the second respondent, Commissioner and Secretary to Government of Kerala, General Education (L) Department praying that consequential correction may be made in the service records. That request was rejected by the second respondent under Ext.P3 order dated 24-7-1990 on the ground that her application was not made prior to two years before the date of retirement, namely, 19-2-1992 and, therefore, was belated and there arc no exceptional circumstances warranting condonation of delay. On two occasions she sought review of the order and on both the occasions her request was rejected as seen from Exts. P 3 and P8. Thereupon she filed O.P. 2193 of 1991 seeking to quash Exts.P3, P8 and P8 and seeking a writ of mandamus directing the respondent to allow Ext. P2 application and correct her date of birth in the service records. The learned single judge who heard the Original Petition took the view that since the appellant would complete 55 years of age on 19-2-1992 she has to retire from service on superannuation on 29-2-1992 and since the application was filed on 30-3-1990 it was well within two years prior to the date of retirement and the view taken by the Government is correct. Accordingly the writ petition was dismissed. Hence this appeal. 2. Appellant is governed by the Kerala Service Rules. Compulsory retirement is dealt within Chapter VIII of Part 1 of the Rules. rule 60 lays down the dates on which government employees of various categories are to retire. Accordingly the writ petition was dismissed. Hence this appeal. 2. Appellant is governed by the Kerala Service Rules. Compulsory retirement is dealt within Chapter VIII of Part 1 of the Rules. rule 60 lays down the dates on which government employees of various categories are to retire. Sub-rule (a) is the general provision which states that 'except as otherwise provided in these rules the date of compulsory retirement of an officer shall take effect from the afternoon of the last day of the month in which he attains the age of 55 years'. Sub-rule (b) deals with officers in I he Last Grade Service on 7-4-1970. According to this sub-rule such officers will retire on the afternoon of the last day of the month in which they attain the age of 60 years provided that this benefit will be available to them only as long as they continue to be in the Last Grade Service as defined in Rule 12. Sub-rule (c) deals with teaching staff of all educational institutions. According to this sub-rule, 'the teaching staff of all educational institutions who complete the age of 55 years during the course of an academic year shall continue in service till the last day of the month in which the academic year ends. They shall be entitled to the benefits of increments and promotion which fall due, before the last day of the month in which they attain the age of 55 years, but they shall not be eligible for increment or promotion during the period of their service beyond such date'. It is unnecessary to refer to the other details in the sub-rule. The second paragraph of sub-rule(c) indicates that 'if the day on which the teaching staff attain the age of 55 years falls within the period of one month beginning with the day of re-opening of the institutions they shall cease to be on duty with effect from the date of such re-opening and they shall be granted additional leave from the date of re-opening to the last day of the month in which they attain the age of 55 years'. According to the third paragraph of sub-rule (c), 'if they are eligible to continue in service till the close of the academic year under the 1st paragraph of this sub-rule they shall be granted additional leave from the date of closing for vacation till the last day of the month when the date of closing is earlier than the last day of the month'. 3. There are eleven notes to Rule 60. Notes 1 and 2 deal with officers of Last Grade Service and teaching staff who complete 55 years of age on 4-5-1967 or attain the age of 55 years within a period of three months from that date. Note 7 indicates that completion of 55 years in service is in the afternoon and not in the forenoon and that a person whose date of birth is first of July completes his 55th year on 30th June and since the latter date is the last day of the month in which he completes the 55th year, on first of July he is on his 56th year and that day is a non-working day for him, he shall cease to be in service on and from 1st July. Note 8 states that a teacher whose dale of birth is first July and who attains the age of 55 years shall not continue in service till the end of the academic year except in the case specified therein. Note 10 indicates that 'last day of the month' means the last day of the month in Christian Era. Note 11 states that in cases where the academic year in respect of the institutions under the Director of Public Instruction is extended beyond the 31st of March in any year, the leaching staff of such institutions who are allowed to continue in service beyond the date of superannuation under sub-rule (c) shall retire on the last day of March itself. 4. A close study of R.60 of the Rules indicates that while sub-rule (a) deals with the generality of the cases, sub-rule (b) deals with officers on Last Grade Service on 7-4-1970 and sub-rule (c) deals with teaching staff of all educational institutions. The general rule, namely, the one contained in sub-rule (a) prescribes that the date of retirement'shall take effect from the afternoon of the last day of the month in which the officer attains the age of 55 years. The general rule, namely, the one contained in sub-rule (a) prescribes that the date of retirement'shall take effect from the afternoon of the last day of the month in which the officer attains the age of 55 years. Under sub-rule (b) the officers dealt with thereunder will retire on the afternoon of the last day of the month in which they attain the age of 60 years provided that this benefit will be available to them only as long as they continue to be in the Last Grade Service as defined in Rule 12. Under sub-rule (c), the officers contemplated therein will continue in-service still the last day of the month in which the academic year ends. Those who do not attract sub-rule (c) or sub-rule (b) will come under sub-rule (a) since the latter is the general provision. The Rule thus cakes of three different dales, namely, the dale on which an officer completes 55 ye;....;, the dale of superannuation and the date of actual retirement. Except in rare cases no officer retires on the day on which he completes 55 years. The date of superannuation and the date of retirement for the purpose of sub-rule (a) is the last clay of the month in which an officer attains the age of 55 years. But for sub-rule (c) teaching staff of educational institutions also would be governed by sub-rule (a). It is only by virtue of sub-rule (c) that an exception is carved out in regard to teaching staff of all educational institutions and they are allowed to continue in service till the last day of the month in which the academic year ends. The scheme of the Rule and the various notes would indicate that an academic year is ordinarily taken to be the year ending with 31 si March. We say so because note 11 lakes care of an extraordinary contingency where the academic year is extended beyond 31st March. 5. A teacher in an educational institution governed by the Rules will ordinarily retire only on 31st March of the year in which he completes 55 years, though exceptionally he may retire on the last day of the month in which he completes 55 years. It is clear that the date on which an officer completes 55 years can never be regarded as the date of superannuation, under any circumstances. It is clear that the date on which an officer completes 55 years can never be regarded as the date of superannuation, under any circumstances. What can be said at best is that the last day of the month in which an officer completes 55 years is the date of superannuation. But, nevertheless the date of his retirement is the 31st of March of the academic year. 6. The question of correction of date of birth in school records and service records is dealt with in various Government Orders. They are G.O.(P) 344/65/PD dated 27-3-1965, G.O.(MS) 39/72/PD dated 22-1-1972, G.O.(MS) 123/75/PD dated 15-6-1975 and G.O.(P) 260/75/PD dated 3-11-1975. All these Government Orders are referred to in Ext.P4, government circular dated 3-12-1987. The circular clarifies some of the doubts which arose on a reading of the Government Orders. Paragraph 4 of the circular clarifies that '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/s.s.c. Book. Requests made by the employees to the government in the concerned Administrative Departments for the correction of date of birth noted in their Service Register before two years of their retire relent 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'. A doubt arose whether by "date of retirement" is meant the dale of retirement according to the date of birth in the service records or the corrected date of birth in the school records. This doubt was set at rest by Ext.P5 circular dated 24-10-19 s8 stating that two years restriction could only be with reference to the date of retirement as per the original entries in the service book. It is, therefore, clear that any application made within two years of the date of retirement as calculated on the basis of the original entry in the service register is liable to be rejected on that ground, except of course, in exceptional cases. In other words, any application made prior to the two years from such dale of retirement cannot be rejected on the ground of delay and has lobe considered on merits and disposed of according to the guidelines. In other words, any application made prior to the two years from such dale of retirement cannot be rejected on the ground of delay and has lobe considered on merits and disposed of according to the guidelines. The various Government Orders speak not of the date on which an officer completes 55 years, not even the date of superannuation, but the 'date of retirement*. As we have already indicated, so far as teaching staff in an educational institution are concerned they retire, except in the exceptional cases, on the 31st March of the academic year. When the Government Orders and circulars use the expression 'date of retirement' that expression must carry the same meaning as is given in R.60(c). The expression 'date of retirement' cannot be taken to mean the dale on which an officer completes 55 years or even the last day of the month in which the officer completes 55 years. 7. In the present case the dale of birth recorded in the Service Register is 20-2-1937. The appellant completes 55 years of age on 19-2-1992. Under sub-rule (c) of R.60 she is to continue in service and retire on 31-3-1992. She submitted Ext.P2 application on 30-3-1990, that is, one day prior to the period of two years before the date of retirement. The application satisfies the lime limit prescribed by the government in the various Government Orders and circulars. Therefore, the orders in Exts.P3, P7 and P8 in as much as they treat Ext.P2appliation as violating the time limit prescribed by the government in the various Government Orders is unsustainable. The learned Single Judge was in error in holding that the date of retirement is the last day of the month in which the officer completes 55 years. That may be so in a case not governed by sub-rule (c) of Rule 60, but governed by sub-rule (a) of R.60. In the result, we set aside the impugned judgment of the learned Single Judge and quash Exts.P3, P7 and P8 and direct the second respondent to consider Ext.P2 application afresh after giving an opportunity of hearing to the appellant and dispose of the same on merits as expeditiously as possible and, at any rate, within four months from today. The appeal is allowed, but without costs.