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2016 DIGILAW 943 (KER)

GENERAL MANAGER, HEAD OFFICE, DISTRICT CO-OP BANK, KOLLAM CHINNAKADA v. SUDHAKARAN . B. B S/O. BHASKARAN(LATE)

2016-11-04

MOHAN M.SHANTANAGOUDAR, SATHISH NINAN

body2016
JUDGMENT : MOHAN M.SHANTANAGOUDAR, C.J. Judgment dated 26.11.2015 passed in W.P(C) No.28185 of 2015 is the subject matter in this Writ Appeal. 2. By the impugned judgment, the learned single Judge has set aside Ext.P9 Government Order dated 16.06.2015 to the extent it imposes a limitation that the corrected date of birth shall not be used in the writ petitioner's service records. Consequently, the order, Ext.P13 by which the appellant-Bank has rejected the application filed by the employee/writ petitioner for correcting the date of birth in the service records is also set aside. A direction is issued by the learned single Judge to the appellant to effect necessary changes in the service records of the writ petitioner/respondent No.1 as regards his date of birth and to extend all consequential benefits to him which he is entitled to. 3. At the time of issuing notice in this appeal, this Court stayed the operation of the impugned judgment and consequently, correction of the date of birth of the writ petitioner in the service records is not effected. 4. Writ petitioner joined the service of the appellant on 09.04.1991. At the time of joining, he had given his date of birth as 30.11.1957 and the very date of birth was entered in his service records. The said entry in the service records was made based on the entry in the SSLC Book. The date of retirement of the writ petitioner was 30.11.2015, after attaining the age of 58 years (by that time the petitioner completed 24 years of service). These facts are not in dispute. 5. Writ petitioner made an application for correction of date of birth in his SSLC Book on 01.01.2007. He made a representation on 01.09.2009 before the concerned authority for condoning the delay in filing the application for making correction of date of birth in the SSLC Book. Thereafter certain clarification was sought for by the authority from the writ petitioner on 22.12.2009 as per Ext.P3. The Education Department once again sought for further details regarding the matter as is evident from Exts.P4 to P7 correspondences. The representation filed by the writ petitioner for condonation of delay in making the application seeking correction of date of birth in the SSLC book was allowed as per Ext.P9 dated 16.06.2015. The Education Department once again sought for further details regarding the matter as is evident from Exts.P4 to P7 correspondences. The representation filed by the writ petitioner for condonation of delay in making the application seeking correction of date of birth in the SSLC book was allowed as per Ext.P9 dated 16.06.2015. Ultimately, the Joint Commissioner for Government Examinations corrected the date of birth entry in the SSLC Book of the writ petitioner on 03.08.2015 as per Ext.P10. Thus, the date of birth of the writ petitioner was changed from 30.11.1957 to 21.11.1958 on 03.08.2015. The first page of the SSLC Book of the writ petitioner, after correction of his date of birth, is produced as Ext.P11. It is thereafter that the writ petitioner filed an application on 12.08.2015 as Ext.P12 to make necessary correction regarding his date of birth, in the service records. The appellant rejected the prayer of the writ petitioner for change of date of birth in its service records, as per Ext.P13 order. Questioning the said order, the writ petitioner filed W.P(C) No.28185 of 2015, which is allowed as per the impugned judgment. 6. Learned counsel appearing for the appellant, taking cue from the materials on record submits that Rule 197 of the Kerala Co-operative Societies Rules, 1969 (for short, "the Rules") cannot be made use of by the employees including the writ petitioner, after decades, as per their whims and fancies for correcting date of birth in service records. The benefit of Rule 197 may have to be granted to the persons who approach the authorities for change of date of birth within a reasonable period from their date of entry into service. 7. Per contra, learned Advocate appearing for the writ petitioner argued in support of the impugned judgment contending that the impugned judgment is in consonance with the Division Bench judgment of this Court in Kannadi Service Co- operative Bank Ltd. v. Viswanathan (1998[2] KLT 573) and the Full Bench judgment in Kunhikrishnan v. State of Kerala ( 1982 KLT 13 ). He further submitted that there is no limitation under Rule 197 of the Rules and therefore, it is open for the writ petitioner to approach the authorities at any time before his retirement. 8. He further submitted that there is no limitation under Rule 197 of the Rules and therefore, it is open for the writ petitioner to approach the authorities at any time before his retirement. 8. Before proceeding further, it will be relevant to note Rule 197 of the Rules which reads thus: "Rule 197: Maintenance of Service Register.- Every Society shall maintain a service register in the form prescribed by the Registrar for every employee to indicate his date of birth, qualifications, date of appointment, etc. The Chief Executive Officer shall authenticate the entries in the register and such register of the Chief Executive Officer shall be authenticated by the President/Chairman kept in his custody. Note.-The date of birth of the employee shall be that entered in the school admission register, Matriculation Book or S.S.L.C. Book. Provided that in the case of apex, federal or central societies, the entries on the service register of employees other than supervisory cadre shall be authenticated by the employee just subordinate to the Chief Executive Officer of the society." A bare reading of the aforementioned Rule makes it amply clear that the date of birth of an employee to be found in the service records shall be that entered in the School Admission Register, Matriculation Book or SSLC Book. It is also clear from the said Rule that no limitation whatsoever is prescribed for an employee to make an application for change of date of birth in the service records. Therefore, the learned Advocate appearing for the writ petitioner argues that it is open for the writ petitioner to make an application for correction of date of birth in the service records as and when he gets the entry regarding date of birth changed in his SSLC Book. According to him, the change of date of birth in the service records is automatic and the same shall follow the correction made in the entries in the SSLC Book. In other words, learned Advocate contends that whenever correction of entry relating to date of birth in the SSLC book is made, it is open for the employee to get such entry changed in the service records also. 9. In other words, learned Advocate contends that whenever correction of entry relating to date of birth in the SSLC book is made, it is open for the employee to get such entry changed in the service records also. 9. It is no doubt true that the Division Bench of this Court in Kannadi Service Co-operative Bank Ltd. v. Viswanathan and Kunhikrishnan v. State of Kerala (supra) interpreted Rule 197 and has concluded that once the date of birth is corrected in the SSLC Book, it has to be carried out in the service records. Even if there is delay in making the application for correction of the date of birth entry in the service records, the same cannot be a ground for rejecting the prayer of an employee, in the absence of any limitation prescribed under Rule 197 of the Rules. It is following the very judgment, the impugned judgment is passed by the learned single Judge. 10. It is no doubt true that no limitation is prescribed under Rule 197 of the Rules to make an application for change of date of birth entry in the service records. It is also clear from the said Rule that the date of birth of an employee in the service records shall be the same as that entered in the School Admission Register, Matriculation Certificate or SSLC Book, etc. But while considering the issue, this Court cannot ignore the consistent stand taken by the Apex Court in various judgments since more than two decades. 11. The Apex Court in Secretary and Commissioner, Home Department and Others v. R.Kirubakaran ( AIR 1993 SC 2647 ) while considering similar case of delay has observed as under: "An application for correction of the date of birth should not be dealt with by the Tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose the promotion for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable....." From the aforementioned observations, it is amply clear that if no rule or order has been framed prescribing the period of limitation for filing an application for correction of date of birth entry, such application must be filed within the time which can be held to be reasonable. Such dictum is followed by the Apex Court in various other judgments. We find that there is a tendency on the part of employees to get their date of birth corrected when they are due to retire. Such move has to be discouraged for reasons more than one. Courts do not come to the aid of persons who sleep over their rights. Further, change in the date of birth by an employee has a direct impact on the service conditions of persons working junior to him. We have been finding a number of instances wherein employees of the Government or its instrumentalities are approaching the courts of law/tribunals/authorities for getting their date of birth changed at the fag end of their service when they are due for retirement. Such action of the employees need to be curtailed. 12. In that Context, the Apex Court in Burn Standard Co. Ltd. v. Dinabandhi Majumdar ( AIR 1995 SC 1499 ), has observed thus: "10. Such action of the employees need to be curtailed. 12. In that Context, the Apex Court in Burn Standard Co. Ltd. v. Dinabandhi Majumdar ( AIR 1995 SC 1499 ), has observed thus: "10. Entertainment by High Courts of writ applications made by employees of the Government or its instrumentalities at the fag end of their services and when they are due for retirement from their services, in our view, is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and prove to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extraordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their entitlement according to dates of birth accepted by their employers, placing reliance on the so-called newly found material. The fact that an employee of Government or its instrumentality who will be in service for over decades, with no objection whatsoever raised as to his date of birth accepted by the employer as correct, when all of a sudden comes forward towards the fag end of his service career with a writ application before the High Court seeking correction of his date of birth in his Service Record, the very conduct of non-raising of an objection in the matter by the employee, in our view, should be a sufficient reason for the High Court, not to entertain such applications on grounds of acquiescence, undue delay and laches. Moreover, discretionary jurisdiction of the High Court can never be said to have been reasonably and judicially exercised if it entertains such writ application, for no employee, who had grievance as to his date of birth in his 'Service and Leave Record' could have genuinely waited till the fag end of his service career to get it corrected by availing of the extraordinary jurisdiction of a High Court. Therefore, we have no hesitation, in holding, that ordinarily High Courts should not, in exercise of its discretionary writ jurisdiction, entertain a writ application/petition filed by an employee of the Government or its instrumentality, towards the fag end of his service, seeking correction of his date of birth entered in his 'Service and Leave Record' or Service Register with the avowed object of continuing in service beyond the normal period of his retirement." (emphasis supplied) 13. As mentioned supra, the Rules do not prescribe any limitation for making an application for such purpose. Merely because there is no limitation prescribed, it is not open for the employees to contend that they can approach the authorities as and when they require, that too, at the fag end of their service. In this context, the Apex Court in State of Punjab v. S.C. Chadha ([2004] 3 SCC 394) has observed thus: "9. Most of the States have framed statutory rules or in absence thereof issued administrative instructions as to how a claim made by a public servant in respect of correction of his date of birth in the service record is to be dealt with and what procedure is to be followed. In many such rules a period has been prescribed within which if any public servant makes any grievance in respect of error in the recording of his date of birth, the application for that purpose can be entertained. The sole object of such rules being that any such claim regarding correction of the date of birth should not be made or entertained after decades, especially on the eve of superannuation of such public servant." 14. In the case of State of M.P. v. Premlal Shrivas ( AIR 2011 SC 3418 ), the Apex Court has amply clarified that delay of about two decades in applying for the correction of date of birth is exfacie fatal notwithstanding the absence of specific rule or order framed or made prescribing the period within which such application could be filed. It is trite that even in such a situation, such an application should be filed within a time frame which can be held to be reasonable. In the said judgment, application was made after 25 years of the employee's induction into service which was held to be, by no standards, reasonable. 15. It is trite that even in such a situation, such an application should be filed within a time frame which can be held to be reasonable. In the said judgment, application was made after 25 years of the employee's induction into service which was held to be, by no standards, reasonable. 15. The Apex Court in the decision reported in M/s.Bharat Coking Coal Ltd. & Others v. Chhota Birsa Uranw ( AIR 2014 SC 1975 ) has observed as follows: "9. In the corpus of service law over a period of time, a certain approach towards date of birth disputes has emerged in wake of the decisions of this Court as an impact created by the change in date of birth of an employee is akin to the far reaching ripples created when a single piece of stone is dropped into the water". The Apex Court has accepted the law on the subject as succinctly laid down in Secretary and Commissioner, Home Department v. R. Kirubakaran ( AIR 1993 SC 2647 ) 16. From the aforementioned observations, it is clear that the Apex Court was shocked to find out the procedure adopted by the employees for getting their date of birth corrected at the fag end of their service. In that regard, the Apex Court has observed that the impact created by the change in date of birth of an employee is akin to the far reaching ripples created when a single piece of stone is dropped into the water. It is also amply clear that application for correction of date of birth should not be dealt with by the Tribunals or High Courts keeping in view only the public servant concerned. It is needless to observe that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as, others waiting for years below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned continues in office further, in some cases for years, within which time many officers who are below him in seniority and waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. Cases are not unknown when a person accepts appointment keeping in view the date of retirement of his immediate senior. This important aspect cannot be lost sight of by the Court or the Tribunal while examining the grievance of a public servant in respect of correction of his date of birth. 17. Here, we take note of the judgment of the Full Bench of this Court reported in Kunhikrishan v. State of Kerala (supra) taking a contrary view on a related issue. In that case Education Rules, 1959 (Kerala) Cha.XIV R.28 was the subject matter in issue. The Full Bench finding that the Rules and the notes to the Rules are to prevail over the Government Orders held that correction of date of birth is to be granted to the petitioner therein notwithstanding the restriction sought to be imposed by the Government Order to the effect that such correction shall not be entertained unless it is made two years prior to the date of retirement on the basis of date of birth already entered in the service book. There cannot be any dispute that the statutory rules prevail over the Government Order. But, in the said case, the issue regarding delay and laches, the consequences and the after math of effecting such correction at the fag end of the career was not an issue for consideration. As has been noted earlier, the consistent view adopted by the Apex Court which is the law of land is to the effect that the application for correction of date of birth shall be made within a reasonable period. We are bound to follow the law as laid down by the Apex Court on the issue and accordingly we do so. At this juncture, it is relevant to note that another Division Bench of this Court had in fact adopted the view that we are taking, in the decision reported in Geevarghese v. State (1996 [2] KLT 194) wherein also it is held that entertaining writ applications made by employees of the Government or its instrumentalities at the fag end of their service and when they are due for retirement from their service is unwarranted. It would be so for the reason that no employee can claim a right to correction of birth date and entertainment of such writ applications, for correction of dates of birth of some employees of Government or its instrumentalities will mar the chances of promotion of his juniors and proved to be an undue encouragement to the other employees to make similar applications at the fag end of their service careers with the sole object of preventing their retirements when due. Extra-ordinary nature of the jurisdiction vested in the High Courts under Article 226 of the Constitution, in our considered view, is not meant to make employees of Government or its instrumentalities to continue in service beyond the period of their entitlement according to dates of birth accepted by their employers. 18. It cannot be said that the writ petitioner is uneducated or illiterate. On the other hand, he entered service and has retired in the Managerial Cadre. It is not open for him to contend that he did not know his exact date of birth till he made application in the year 2007. As mentioned supra, he entered service on 09.04.1991. He ought to have taken steps within the reasonable period thereafter for getting his date of birth corrected if really such entry made was by mistake. Though he made an application for correction in the SSLC Book on 01.01.2007, virtually he did not pursue the same and ultimately, it came to be allowed on 03.08.2015 changing the date of birth from 30.11.1957 to 21.11.1958. We have already mentioned that his date of retirement was 30.11.2015. He made an application for correction of the date of birth in the service records as per Ext.P12 application on 12.08.2015, i.e., just three months prior to his date of retirement. He expects his employer to change his date of birth by making correction in the service records in the last three months of his career, which is rightly negatived by bank authorities. It is relevant to note here itself that the delay in filing application for correction of date of birth in the SSLC Book was condoned by order Ext.P9 dated 16.06.2015. Absolutely no reasons are assigned for condonation of delay. It is relevant to note here itself that the delay in filing application for correction of date of birth in the SSLC Book was condoned by order Ext.P9 dated 16.06.2015. Absolutely no reasons are assigned for condonation of delay. Even otherwise, such order will not be helpful for the writ petitioner inasmuch as it is made specific in the very order that the corrected date of birth will not be considered for any employment/service benefits/extension of service in Government/Public Sector Undertakings/Semi Government Institutions. 19. Having regard to the totality of the facts and circumstances, particularly having regard to the consistent dictum laid down by the Apex Court, we are of the conclusion that the learned single Judge is not justified in allowing the writ petition filed seeking correction of date of birth entry in the service records on the eve of his retirement. Hence the impugned judgment is liable to be set aside and we do so. Writ Appeal is accordingly allowed. Before we part with the case, we place on record our hope that the State Government will bring in necessary amendment to Rule 197 of the Co- operative Societies Rules, 1969 restricting the period for correction of the date of birth in the service records as five years or so, in tune with Government Order G.O(P) No.45/91/P&ARD dated 30.12.1991 (in order to avoid any confusion at least in future). The registry shall forward of copy of this judgment to the Principal Secretary to Government, Department of Co-operation.