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1999 DIGILAW 308 (KER)

Bhaskaran v. State of Kerala

1999-07-14

M.R.HARIHARAN NAIR, P.A.MOHAMMED

body1999
JUDGMENT 1. The appellant who is a High School Assistant in the Girls High School, Anamangad, Malappuram District challenges the dismissal of the Original Petition. The prayer therein was to issue a writ of mandamus directing correction of his date of birth in his Service Book. 2. Following the entry regarding date of birth available in the S.S.L.C. Book of the appellant, the appellant's date of birth was recorded in his Service Book as 7th June 1944. As such his normal retirement date was 30th June 1999'. On 28th November 1992 alleging that the said date is mistaken he sought correction of his date of birth as 8th February 1945' in his S.S.L.C. Book. In view of the time limit applicable to such cases available in the K.E.R, the said application was belated and hence he sought condonation of the delay involved in the matter. This was allowed as per Ext. P-L Government Order dated 23rd April 1993. Based thereon, sanction for correction of the date of birth in the S.S.L.C Book was issued by competent authority as per Ext. P-2 order dated 18th August 1995. 3. On 1st December 1995, armed with the corrected S.S.L.C. Book, the petitioner applied for correction of his date of birth in the Service Book also. That was declined as per Ext. P-4 order of the Government dated 15th January 1997 for the reason that it was filed beyond time. Alleging that there was no want of diligence on the part of the present appellant in submitting the application and that he has approached the Government for correction immediately after the correction was carried out in the S.S.L.C. Book, he sought a writ of mandamus from this court directing implementation of the correction in his Service Book; but his arguments did not find favour with the learned Single Judge. 4. Learned council for the appellant stressed before us the fact that impossible conditions cannot at all be insisted on and that in view of the specific provision in the Government order No. G.O. (P) 26/91/P and ARD dated 27th August 1991 which governs correction in the Service Book that such application should always be supported by corrected copy of S S.L.C. Book, he could have applied for necessary correction only after issuance of Ext. P-2 order and consequent correction carried out vide Ext. P-2 order and consequent correction carried out vide Ext. P-3 and in such circumstances, the delay, if any, ought to have been condoned. 5. Learned Government Pleader laid stress on the conditions prescribed for carrying out such corrections as per G. O. (P) 45/91, dated 30th December 1991. It is useful to quote the relevant portions of the said G. O. here. "3. Still an opportunity can be granted during the initial periods of one's service to make corrections in bona fide cases Government are pleased to adopt the system followed by Government of India in this matter. They accordingly 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 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 Bock 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. S. L. C./S. S. C. 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 unchanged. Each case will be considered by Government on merits and orders passed. 5. Application for condonation of delay and for entertainment of applications in relaxation of the condition regarding time limit shall be summarily rejected." 6. It can be seen from the above that there are two time limits prescribed for entertaining such application. The first is that the application, should be made within 5 years from the date of entry in service. Application for condonation of delay and for entertainment of applications in relaxation of the condition regarding time limit shall be summarily rejected." 6. It can be seen from the above that there are two time limits prescribed for entertaining such application. The first is that the application, should be made within 5 years from the date of entry in service. In respect of persons who might already have passed 5 years from the date of entry as on the date of G. O. i. e., 30th December 1991, relaxation is allowed for a further period of one year and for persons like the present applicant the dead line would hence be 30th December 1992. The other condition is that the application should be filed beyond two years from the date of retirement. 7. In the instant case, the application was actually filed on 1st December 1995 and as such the latter time limit is not violated here. However, the application is hit by the former time limit albeit one of the conditions prescribed by the G. O. for entertaining such applications is that it should always be supported by corrected copy of S. S. L. C. Book or School record. In the instant case, it is the admitted case of both sides that the relevant correction in the S. S. L. C. Book was sanctioned only as per Ext. P-2 order dated 18th August 1995. That was after the expiry of the period of limitation allowed as per G. O. (P) 30th December 1991. 8. True, as evident from Ext. P-1, the Government itself has condoned the delay in submitting that application as per G. O. dated 23rd April 1993. The corrected copy of the S. S. L. C. Book is produced in the case as Ext. P-3 and the correction allowed under Ext. P-2 is seen carried out therein on 30th October 1995. It was only thereafter that the petitioner could have presented a valid application for consequent correction in the S. S. L. C. Book. With all promptness possible in the circumstances, the petitioner has approached the Government with his application. The contention therefore is that the petitioner should not be expected to perform impossible conditions and that the application filed in the case should therefore be dealt with on the merits treating it as one filed within time. 9. With all promptness possible in the circumstances, the petitioner has approached the Government with his application. The contention therefore is that the petitioner should not be expected to perform impossible conditions and that the application filed in the case should therefore be dealt with on the merits treating it as one filed within time. 9. Even though we find some force in the aforesaid submission, we do not think that the appellant can be granted the relief that he has prayed for; the reason being that the law of limitation has to be interpreted strictly. It is to be remembered here that the benefit of getting date of birth corrected in the Service Book is not a statutory right; but only a right that was conferred as per some Government Orders and as a matter of concession. That makes all the difference and unless his request comes strictly within the sweep of the conditions mentioned in the Government Order, he cannot have the benefits contemplated therein; whatever be the hardship that might be caused to him. 10. The appellant could have the benefit of early entry into service based on the date of birth mentioned in his application for appointment in Government Service which of course is now stated to be incorrect. But for that representation, he could not have possibly entered into service and reaped the benefits thereof from the particular date. The principle of estoppel would apply in such cases as held in Union of India and others v. C. Rama Swamy and others JT 1997 (4) SC 605. That was also a case where the applicant sought correction of date of birth. The Honourable Supreme Court observed that in such a case even in the absence of a statutory rule like R.16A invoked therein, the principle of estoppel would apply and the authorities concerned would be justified in declining to alter the date of birth. It was further held that if such a decision was challenged the court also ought not to grant any relief even if it is shown that the date of birth, as originally recorded, Was incorrect because the candidate concerned had represented a different date as the date of birth to be taken into consideration obviously with a view that, that would be to his advantage. Once having secured entry into the service, possibly in preference to other candidates, then the principle of estoppel, it was held, would clearly be applicable and hence relief of change of date of birth can be legitimately denied. 11. In the instant case, the normal date of superannuation for the appellant, as per the existing entry in his Service Book was 30th June 1999 and he has applied for correction of his date of birth in the Service Book only on 1st December 1995. In fact, he thought of even correcting his S.S.L.C. Book only when he was past 48. While disposing of a similar claim made by the applicant in Civil Appeal No. 3626,96 reported in J.T. 1996 (3) SC 72 (Union of India v. Ram Sua Sharma) the Honourable Supreme Court has observed that such belated claims should not be accepted. That was a case where the applicant had joined the service in 1962 and he moved for correction after 25 years. It appears that the correction was not governed by any specific rules "or Government Orders and the Administrative Tribunal had directed the consideration of the application by the Government. That direction was found to be per se illegal and hence set aside by the Honourable Supreme Court on the ground of belatedness. 12. The right of the Government to lay down the guidelines in the matter of such corrections and the nature of its applicability was also considered in Visakhapatanam Dock Labour Board v. E. Atchanna JT 1996 (3) SC 6. It was held that if the Government servant is in possession of irrefutable proof relating to his date of birth as different from the one earlier' recorded and even if there is no period of limitation prescribed for seeking correction of date of birth, the Government servant must do so without any unreasonable delay. If there is no rule governing the correction, the general principle of refusing relief on grounds of laches or as stale claims was held to be applicable. If there is no rule governing the correction, the general principle of refusing relief on grounds of laches or as stale claims was held to be applicable. It was further held that it was competent for the Government to fix a time limit after which no application for correction of date of birth of a Government servant could be entertained; and that a Government servant who makes an application for correction of date of birth beyond the time so fixed, cannot claim, as a matter of right, that the correction of his date of birth should be made even if he has good evidence to establish that the recorded date of birth is clearly erroneous. The Supreme Court also observed that the law of limitation may operate harshly; but it has to be applied with all Its rigour and that the courts or tribunals cannot come to the aid of those who sleep over their rights and allow the period of limitation to expire. The relevant order involved in the aforesaid case required that steps for correction should be taken within three years from the date of coming into force of the particular notification and even after the said date, the applicant therein had not approached the Government for correction. In the circumstances, the request for correction was found untenable by the Supreme Court. 13. A Division Bench of this Court also had occasion to decide a similar claim in WA 523/1998 (Rosa v. State of Kerala and another) (unreported). That was a case where an L. P. School Teacher due to retire on 31st March 1997 had applied for correction of her date of birth in the S.S.L C. Book on 9th April 1994. She has also contendedthat her date of birth had already been corrected as per an order passed on 21st August 1991. and that such correction itself was rendered possible because the Government condoned the delay in the application for correction in theS.S.L.C. Book. That was also a case where the corrected S.S.L.C. Book was available to the applicant for production before the Government as evidence in support of the claim for correction of date of birth in the Service Book only afterthe grace period of one year allowed as per G.O. 45/91, dated 30th December 1991 expired.Validity of the said Government Order itself was challenged therein. However, the Division Bench found, in agreement with the earlier finding of the learned Single Judge also, that the cut off date has to be rigorously applied and that the contention that it was discriminatory and arbitrary is only a misconceived one. The contentions of the appellant therein were negatived and the relief denied to her. 14. Yet another Division Bench of this Court in K. C. Mariamma v. State of Kerala and another WA No. 175 of 1997 (unreported) also had come to more or less the same conclusions. There, even though the Government had condoned the delay in the application for correction of date of birth in the S.S.L.C. Book on 30th December 1992 and even though the correction was effected only much later, as per Ext. P-4 order marked therein, the formal application supported by the S.S.L.C. Book was filed only on 22nd December 1996 which was much beyond the time limit prescribed in G.O. (P) 45/91. The Writ Appeal was dismissed in that case also finding that after the expiry of one year from the date of G.O. (P) 45/91 which expired on 30th December 1992, no application could be entertained from a Government servant for correction of date of birth in the Service Book. It was held that such applications should be filed strictly within the time limit fixed in the Government Order itself, namely, within 5 years from the date of entry into service; and as regards the persons who had already passed that limit as on the date of G.O. (P) 45/91 within one year therefrom i.e. before 30th December 1992. 15. In view of the aforesaid circumstances, we do not find any way to accept the appellant's contention that he is entitled to get his date of birth corrected in the Service Book. The application filed by him on 1st December 1995 was not within time and hence rightly rejected. The Appeal is found to be devoid of merit and it is accordingly dismissed.