IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 6758 of 2008(D)
1. M.A. FRANCIS
... Petitioner
Vs
1. STATE OF KERALA - REPRESENTED BY
... Respondent
2. THE EXCISE COMMISSIONER
3. THE COMMISSIONER FOR GOVERNMENT
For Petitioner :SRI.N.RAGHURAJ
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :10/08/2009
O R D E R
S.SIRI JAGAN, J.
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W.P(C).No.6758 of 2008
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Dated this the 10th day of August, 2009
J U D G M E N T
The petitioner is a Deputy Commissioner of Excise. In his SSLC
book, his date of birth is entered as 30.11.1956. According to the
petitioner, he was born on 25.12.1956. On 20.11.1991, the petitioner
filed Ext.P1 application seeking correction of his date of birth in the
SSLC book relying on his baptism certificate along with a request for
condonation of delay in filing the application. By Ext.P.2 order dated
20.1.1992, the delay in filing the application for correction of the date
of birth in his SSLC book was condoned by the Government. While so,
the Government passed Ext.P4 order dated 30.12.1991 regulating the
procedure for correction of date of birth recorded in service books of
the Government employees. As per the same, the application for
correction of the date of birth had to be filed either within five years of
entry into service or if that period is already over as on the date of the
Government order, within one year from the date of the Government
order. It was also mentioned therein that the application should be
accompanied by attested copies of appropriate documents as corrected
and that mere correction of date of birth in the school records does not
entitle the employee for consequential correction of date of birth in the
service book and each case would be considered by the Government
on merits and orders passed. The Government order also stipulated
W.P.C.6758/08 2
that the application for condonation of delay for entertainment of
application in relaxation of the condition regarding the time limit shall
be summarily rejected. The petitioner filed a further application,
Ext.P3 dated 11.5.1992, for correction of the date of birth in the SSLC
book. Since there was delay in getting the SSLC book corrected
appropriately and the last date prescribed by Ext.P4 Government order
was fast approaching, the petitioner filed Ext.P5 application dated
1.12.1992 for correction of the date of birth in the service book
unaccompanied by the attested copy of the corrected SSLC book,
which was a requirement as per the Government order. Neither Ext.P3
nor Ext.P5 was attended to by the Commissioner for Government
Examinations or the Government for a long time. By Ext.P6 order
dated 30.6.1997, the Commissioner for Government Examinations
allowed the petitioner’s application for correction of date of birth in the
SSLC book. Thereafter, the petitioner moved for correction of date of
birth in the service records in accordance with the corrected SSLC
book. It met with Exts.P8, P9 and P10 rejection orders. In the
meanwhile, the petitioner came across Ext.P11 judgment and P12
order in respect of another employee, who had filed application for
correction of date of birth in the service book long after the last date
fixed by Ext.P4 order. By Ext.P11 judgment, this Court directed
consideration of his application and, considering his application, by
W.P.C.6758/08 3
Ext.P12 order, the Government allowed such correction. Relying on
Exts.P11 and P12, the petitioner filed W.P.(C).No. 19264/2004
challenging Exts.P8 and P9. In the meanwhile, the revision petition
filed by the petitioner was rejected by Ext.P10 order. The petitioner
challenged the same also in the writ petition. In that writ petition, by
Ext.P13 judgment, this Court quashed Exts.P8, P9 and P10 orders and
directed the Government to reconsider the case of the petitioner in the
light of Ext.P11 judgment and, Ext.P12 order passed by the
Government consequent thereto. However, again by Ext.P14 order the
Government rejected the petitioner’s application for correction of date
of birth on the ground that the same has been filed without complying
with the requirements of Ext.P4 Government order as the application
was not accompanied by attested copy of the corrected SSLC book and
attested copy of the corrected SSLC book was filed long after the last
date stipulated in Ext.P4 Government order was over. The petitioner is
challenging Ext.P14 order in this writ petition.
2. According to the petitioner, delay, if any, cannot be
attributed to the petitioner at all. He would submit that he has done
every thing humanly possible to get the date of birth in his service
book corrected and every application was filed within time. It is only
because of the undue delay of the Commissioner for Government
Examinations in considering the petitioner’s application for correction
W.P.C.6758/08 4
of the SSLC book, that the petitioner could not produce the attested
copy of the corrected SSLC book along with Ext.P5 application dated
1.12.1992. The petitioner should not be denied relief because of the
delay on the part of the Commissioner for Government Examinations is
the submission made by the petitioner. According to him, he had filed
the application for correction of date of birth in the SSLC book prior to
Ext.P4 Government order, on 20.11.1991. At that time, going by the
Government orders in force, he could wait upto two years prior to his
retirement to make the application. It is thereafter, the limitation of
time was prescribed by Ext.P4 Government order. He tried to get the
date of birth in the SSLC book corrected before the time limit
prescribed in the Government order, which did not yield any result.
Therefore, he was forced to file the application for correction of date of
birth in the service records before the time limit prescribed by Ext.P4
Government order expired. Therefore, he filed application on
1.12.1992 without attested copy of the corrected SSLC book, which
was the only thing he could do in the circumstances. The petitioner
would submit that he should not be penalised for the delay caused by
the Commissioner for Government Examinations in processing his
application for correction of date of birth in the SSLC book, which was
the only reason why he could not produce the attested copy of the
corrected SSLC book in time.
W.P.C.6758/08 5
3. A counter affidavit has been filed on behalf of the 1st
respondent. It is submitted therein that, after Ext.P4 Government
order, for correction of the date of birth in service records, no
application unaccompanied by the prescribed documents could be
entertained. It is submitted that in view of the judgment in W.P.(C).
No. 9619/2005, frowning upon the practice of correcting of date of
birth after the time limit fixed in Ext.P4 Government order, the
Government could not have validly corrected the date of birth of the
petitioner in the service records.
4. I have considered the rival contentions in detail.
5. I am also of opinion that the request for correction of date
of birth should be dealt with very strictly and should not be allowed, if
the same does not conform to the procedure and time limit prescribed
in Ext.P4 Government order. But the petitioner’s case is different. On
20.11.91, he filed Ext.P1 application for correction of date of birth in
the SSLC book. As per the Government orders applicable then, he
could have waited till two years prior to his date of retirement to make
the application for correction of date of birth of in the service records.
It is thereafter, Ext.P4 Government order dated 30.12.1991 came to
be passed prescribing more strict procedures and limitation for
applying for correction of date of birth in the service records. He got
the delay in filing Ext.P1 application condoned by Ext.P2 dated
W.P.C.6758/08 6
20.1.1992. Even thereafter, he had almost 11 months to file the
application for correction of date of birth in the service records even
going by Ext.P4 Government order, had the Commissioner for
Government Examinations processed his application within a
reasonable time, which the Commissioner for Examinations did not.
Therefore, he was forced to file the application for correction of date of
birth in the service records before the expiry of the period of limitation
prescribed in Ext.P4, on 1.12.1992 sans the attested copy of the
corrected SSLC Book. He did the best what, in the circumstances, by
any Government employee could do. It was purely because of the
undue delay in the Commissioner for Government Examinations
disposing of the application for correction of date of birth in the SSLC
book, he could not produce the attested copy of the corrected SSLC
book within the time stipulated by Ext.P4. I am of opinion that the
petitioner should not be prejudiced because of the delay on the part of
the Commissioner for Government Examinations. That being so, the
Government could not have validly rejected the application only on the
ground of delay, as has been done in Ext.P14. For that reason, Ext.P14
is liable to be quashed. I do so. There would be a direction to the
Government to consider Ext.P5 application of the petitioner, as if he
had filed that application with attested copy of the SSLC book in time,
on merits, and pass appropriate orders thereon, as expeditiously as
W.P.C.6758/08 7
possible, at any rate, within three months from the date of receipt of a
certified copy of this judgment, after affording an opportunity of being
heard to the petitioner.
The writ petition is allowed as above.
Sd/-
sdk+ S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
W.P.C.6758/08 8
W.P.(C). No.6758/2008
APPENDIX
PETITIONER'S EXHIBITS:
P1. COPY OF THE APPLICATION DTD.20.11.91 BEFORE THE GOVT.
P2. COPY OF THE GOVT. ORDER DTD.20.1.92.
P3. COPY OF THE APPLICATION BEFORE R4.
P4. COPY OF THE GOVT. ORDER DTD.30.12.1991.
P5. COPY OF THE APPLICATION DTD.1.12.91 BEFORE R2.
P6. COPY OF THE ORDER DTD.30.6.97 BY R4.
P7. COPY OF THE LETTER DTD.19.8.97 OF THE DY. COMMISSIONER
OF EXCISE, CENTRAL ZONE.
P8. COPY OF THE ORDER DTD.4.2.99 BY THE JOINT EXCISE
COMMISSIONER.
P9. COPY OF THE ORDER DTD.30.12.03 BY R1.
P10. COPY OF THE ORDER DTD.20.10.05 BY R1.
P11. COPY OF THE JUDGEMENT IN O.P.NO.18119/97 OF THIS COURT.
P12. COPY OF THE GOVT. ORDER DTD.3.3.2006.
P13. COPY OF THE JDUGMENT DTD.6.12.2000 IN W.P.(C). No.
19264/2004.
P14. COPY OF THE GOVT. ORDER DTD.29.5.07.
Sdk+
///True copy///
P.A. to Judge
W.P.C.6758/08 9