State of Kerala v. Yoosuf Kunju — 1999 DIGILAW 269 (KER)

Judgment :- M.R. Hariharan Nair, J. The challenge herein made by the State is with regard to the reliefs granted in O.P. No. 2025/1998 quashing Ext. P3 and directing the State to consider afresh the application put in by the respondent in the appeal, treating it as a valid application filed within time. 2. The petitioner (respondent herein) was a Superintendent of Police working in the crime Branch, CID, Headquarters at Thiruvananthapuram as on the date of filing of the Original Petition. Alleging that the date of birth mentioned in his Service Register as 23.1.1943 was incorrect and that the correct date of birth is 6.1.1944, he sought necessary corrections in his Service Book. He succeeded in his request for correcting the date of birth as above in his SSLC Book on 29.6.1996. The request for consequent corrections in the Service Book was declined as per Ext. P4 order and it was challenged in O.P. 4480/97. The rejection of the request was mainly for the reason that the application was not supported by the production of the corrected SSLC Book. In Ext. P1 judgment passed therein, this Court noted that, according to the orders prevailing in 1985, when the application was made, it was not imperative that the application should be supported by the production of SSLC Book and consequently quashed the Government Orders denying the benefit, passed in that case and produced therein as Exts. P8 and P11. The matter was remitted for fresh consideration. The present respondent was directed to produce a copy of Ext. P2 application before the 1st respondent therein. 3. On a consideration of the application as directed in Ext. P1, Ext. P3 order was passed once again declining the application stating the reason that the application was not supported by corrected school records. It was also observed by the Government that the application was belated. 4. P2 application before the 1st respondent therein. 3. On a consideration of the application as directed in Ext. P1, Ext. P3 order was passed once again declining the application stating the reason that the application was not supported by corrected school records. It was also observed by the Government that the application was belated. 4. The learned Single Judge, on hearing both sides, found that this is a case where the respondent had already applied for correction of date of birth in the service records as early as on 2.8.1985; that at that time, the procedure for correction of date of birth insisted only to apply for such correction in the service records before two years from the date of retirement as per the existing entry in the Service Record and that in the circumstances, the application filed by the petitioner on 2.8.1985 was perfectly within time and that the denial of correction on that ground was unjustified. The Court also noticed that the requirement that the school records containing the corrected entry should accompany the application for correction of the date of birth in the service records was brought in only through Government Order dated 30.12.91 and that the said requirement was inapplicable to the case on hand in so far as the application had been filed as early as on 2.8.1985. 5. The learned Government Pleader placed reliance on R.143 of the Kerala Service Rules as also the decisions reported in AIR 1995 SC 1349 (Union of India v. Kantilal Hematram Pandya) & 1996 (6) SLR 633 (Commr. of Police v. Bhagwan V. Lahane) to contend that the applications received on the eve of retirement should not be considered. We have perused these decisions and considered their applicability. The former was a case where representation seeking corrections was made three decades after joining service and the correctness or genuineness of the certificate produced in support of the petitioner's application regarding correction of date of birth was not free from doubt. There was also unexplained and inordinate delay in filing the application. It was under those circumstances that the employee was found disentitled to get the relief sought for. That was a case where the correction was sought for just within three years of the date of retirement as per the original entry. 6. There was also unexplained and inordinate delay in filing the application. It was under those circumstances that the employee was found disentitled to get the relief sought for. That was a case where the correction was sought for just within three years of the date of retirement as per the original entry. 6. In the latter case, there was conflict between the date of birth in the School Register and in the Birth Register produced by the employee. There were reasons to doubt whether the date of birth in the Birth Register itself was corrected before production. It was on the particular facts of these two cases that the Court rejected the claim for correction of the date of birth. 7. Maintenance of Service Records is governed by Rr.140 to 143, Part III Kerala Service Rules. According to R.140, in the case of Gazetted Officers, the Audit Officer has to maintain a Record of Service. as per R. 141, the case of Non-Gazetted Officers, R.142 mandates that the Book must be kept in the custody of the Head of Office. R.143 insists that every step in an employee's official life must be recorded in his to Service Book. As per the instructions under the said R.143, the entry in the Service Book regarding regarding date of birth should indicate on what evidence date of birth was accepted and prescribes the documents to be considered as satisfactory proof of date of birth. Clause l(ii) of the aforesaid instructions reads as follows: "(ii) In the case of others an authorised extract from the birth register or the baptismal register or a certificate issued from a Muslim Jama-at the correctness of which is certified by a Gazetted employee or a certificate by a Magistrate or other well known or trustworthy person in the town or village or original copy of horoscope, or correspondence at the time of birth supported by a declaration before the head of the Office or an affidavit of the parent of the person or a close relative who has knowledge of the approximate date of birth of the person signed before an officer who is competent to administer oath". 8. 8. Correction of date of birth in the Service Records, it is pointed out by the Government Pleader, is governed by G.O. (P) No. 45/91/P & ARD dated 30.12.1991, which is extracted hereunder: "According to the existing orders, a Government employee can apply for correction of date of birth entered in his Service Book upto the period beyond two years preceding his retirement reckoned with reference to the date of birth as originally entered in the Service Book. 2. Government feel that the growing tendency on the part of the Government employees to get date of birth corrected when they are about to retire has to be discouraged. They have therefore reviewed the entire matter with due regard to the system followed in the case of Central Government employees. Normally the need for correction should not arise at all once one's date of birth is entered in the Service Book because it is the date furnished by him for selection to the post and it is again based on the proof therefore, furnished by the employee himself that the entry is made. One realises his date of birth on a number of occasions in his life- the moment he gets his SSLC or secures extract from School Administration Register, when he registers h is 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. Thus one's date of birth is entered in his Service Book after full realisation thereof by that individual, over a reasonably long period. The employee also signs the Service Book and thus gets an opportunity to verify whether the date is correctly entered in his Service Book. There is therefore, no rationale in allowing a correction tall. 3. Still an opportunity can be granted during the initial period of one's service to make corrections in bonafide cases. Government are pleased to adopt the system followed by Government of Indian this mater. They accordingly order in the modification of existing orders that applications for corrections 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. Government are pleased to adopt the system followed by Government of Indian this mater. They accordingly order in the modification of existing orders that applications for corrections 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 period preceding retirement, reckoned with reference to the date of birth as recorded in the Service Book. The applications for correction of date of birth in Service Book shall be submitted to Government in the Administrative Department concerned, through proper channel. 4. The conditions that such applications, in the case of those who have attended a School, shall be supported by attested copies of S SLC/S SC Book or extract of school record as corrected and that mere correction of date of birth in the school record does not entitle the employee for consequential correction of date of birth in Service Book will remain uncharged. Each case will be considered by Government on merits and orders passed. 5. applications for condonation of delay and for entertainment of applications in relaxation of the condition regarding time limit shall be summarily rejected." 9. Two important conditions are prescribed in the Clause quoted above. Theyare:- (1) Application for correction should be made within 5 years of one's entry in service; and (2) the application should be supported by the SSLC Book. The said provisions, however, cannot apply to the instant case since the relevant application had been filed as early as on 2.8.1985. The restrictions applicable to applicants for correction in Service Book at the time was governed by G. O. (MS) 39/72/PD dated 22.1.72 which provided that application for correction shall be allowed only in exceptional circumstances and that too based only on school records. The further restriction imposed thereunder was only that no application should be allowed within two years of the date, of retirement. In G.O. (MS) 123/75/PD dated 16.6.75, it was further stipulated that correction of date of birth will not ipso facto, cast an obligation on the Government to carry out correction in the Service Book as a matter of course and that Government would have the right to consider each case independently. 10. In G.O. (MS) 123/75/PD dated 16.6.75, it was further stipulated that correction of date of birth will not ipso facto, cast an obligation on the Government to carry out correction in the Service Book as a matter of course and that Government would have the right to consider each case independently. 10. The appellant's request for correction of date of birth in Service Book filed on :n 2.8.1985 deserved to be considered in the light of the above provisions and independent at of the provisions in G.O. (P) 45/91 dated 30.12.91 relied on by the State and quoted') supra. That was to be done in an unprejudiced manner. 11. It is not uncommon that mistakes regarding date of birth occur in school records Ce at the time of admission. Very often, the mistake can be bonafide. In those days when the registration of births was not mandatory and the literacy rate in the State was poor and 2) births invariably took place in houses and not in hospitals as at now, many did not have is the details of date of birth readily available. Confronted with the question of supplying it date of birth at the time of admission of the pupil to the primary classes, parents or their Ja privies were often tempted to give appropriate dates. There is nothing improper in such Ve entries being corrected with reference to authentic records and when it became he available. At the same time, the tendency to falsify records in this regard by those who could have the benefit of early admission to school and early appointment in Government service with the help of such incorrect entries to alter the date at their convenience so that retirement to many is a nightmare can be put off conveniently has definitely to be discouraged. It is precisely to discourage this undesirable tendency and at the same time to enable genuine applications to be accomplished that the Government has introduced restriction in the matter through framing of Rules, amendments thereto from time to time and by issue of Government Orders to clarify ambiguities. Such Rules, nevertheless, must achieve their objective. Just as it is necessary to weed out or eliminate malafide applications, it is also necessary to enable genuine applications to be allowed. Blind application of Rules will not work out justice in the matter. Such Rules, nevertheless, must achieve their objective. Just as it is necessary to weed out or eliminate malafide applications, it is also necessary to enable genuine applications to be allowed. Blind application of Rules will not work out justice in the matter. In this background, the appellant's case for alteration of date of birth from 23.1.43 to 6.1.44 may be examined bearing in mind the State's contentions (i) that it is belated; and (ii) that an application, at the time of original presentation, had not been accompanied by the corrected SSLC book. 12. In the instant case, the date of retirement as per the original entry was only on 30.1.98. The application for correction in the Service Book was made 13 years before the said date. The correction of date of birth in the SSLC Book has been effected as per Ext. P10 order marked in O.P. 4480/97 and no reasons have been pointed out justifying a conclusion that correction is without proper basis or in doubtful circumstances. The delay in the matter of approaching the Government for correction of Service Book had been condoned by the Government itself as per Ext. P9 order produced in O.P. 4480/97. Moreover, Ext. P4 order rejecting the application on the ground that it was time barred was already quashed by this Court as per Ext. P1 judgment. In view of that judgment which remains unchallenged and thus became final, it is not any more open to the State to contend that the petitioner's application for correction is belated. Such a plea would be hit by res judicata. 12. The Government Order insisting that corrected SSLC Book should accompany the application for correction of date of birth in the Service Book was brought in only on 30.12.91 and it cannot at all apply to the application filed in the instant case as early as on 2.8.85. Here the application for correction was submitted well within time. Though it had been unaccompanied by the SSLC Book, the Original Book itself was produced subsequently. 13. Here the application for correction was submitted well within time. Though it had been unaccompanied by the SSLC Book, the Original Book itself was produced subsequently. 13. State of Kerala v. Gopalan Chettiar (1993 (2) KLT 169) relied on by the respondent is authority for the proposition that the claimant has a vested right even if the application is returned for the reason that it is not accompanied by SSLC Book and that as and when the defect is cured, the application has to be considered on the merits. That it was not mandatory that the SSLC Book should accompany the application for correction, is clear from the decision in Prabhakaran Nair v. State (1990 (1) KLT 85 8). 14. Giving anxious consideration to the facts of this case, we are convinced that there is absolutely no justification for denial of consideration of the petitioner* s case for correction on the merits. It was neither belated nor liable for rejection on the ground that it was not accompanied by the corrected SSLC Book. His request certainly deserves to be considered on the merits as directed in the impugned judgment. 15. Even though the petitioner was to retire according to the original entry regarding date of birth on 30.1.98, he continued in service till 27.3.98 pursuant to an interim order of this Court. If the date of birth is corrected as sought for, his date of retirement would become 30.1.1999. It is stated that the question of selection to the IPS cadre was liable to be taken up and if the petitioner were treated as continuing in service till 30.1.1999, he would be entitled to be selected to the IPS in which case, his date of retirement would be only 30.1.2001. In these circumstances, it is imperative that the petitioner's application for correction is disposed of without further delay. 16. According to the directions in the impugned judgment, reconsideration was to be made within two months from the date of receipt of a copy of the judgment dated 22.9.98, but such reconsideration never took place, obviously because an appeal was filed and the matter has been pending till now. There should not be any further delay in the reconsideration. 17. According to the directions in the impugned judgment, reconsideration was to be made within two months from the date of receipt of a copy of the judgment dated 22.9.98, but such reconsideration never took place, obviously because an appeal was filed and the matter has been pending till now. There should not be any further delay in the reconsideration. 17. In the circumstances, while dismissing the appeal, we direct the Government to pass fresh orders on the application for correction of the date of birth in the Service Book of the respondent within a period of two months from the date of receipt of a copy of this judgment. The appeal is dismissed with the above direction.