(2016) 454 KLW 492
IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANTONY DOMINIC & A. HARIPRASAD, JJ.
W.A.No.1829 of 2015 & C.O.No.13 of 2016 and W.A.No.128 of 2016 & C.O.No.14 of 2016
Dated this the 4th day of February, 2016
AGAINST THE ORDER/JUDGMENT IN WP(C) 38533/2010 of HIGH COURT OF KERALA DATED 21-07-2015
APPELLANT(S)/ADDL.5TH RESPONDENT IN WP(C)
MUHAMMED K.B AGED 53 YEARS S/O.THE LATE BAVO, UPPER PRIMARY SCHOOL ASSISTANT (PRESENTLY WORKING AS HEADMASTER) MOULATHUL ISLAM HIGHER SECONDARY SCHOOL FOR GIRLS PUDUPONNANI, PONNANI SOUTH P.O. MALAPPURAM DISTRICT-679586
BY ADVS.SRI.O.V.RADHAKRISHNAN (SR.) SMT.K.RADHAMANI AMMA SRI.ANTONY MUKKATH
RESPONDENT(S)/PETITIONER IN THE WPC/RESPONDENTS 1 TO 4, ADDL.6
1. T.V.ACHUMMA, AGED 48 YEARS W/O. SRI.SUKKUR, HEADMISTRESS, M.I.U.P. SCHOOL PONNANI, PONNANI NAGARAM, MALAPPURAM DISTRICT-679583.
2. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001.
3. COMMISSIONER FOR GOVERNMENT EXAMINATIONS PAREEKSHA BHAVAN, POOJAPPURA THIRUVANANTHAPURAM-695012.
4. ASSISTANT EDUCATIONAL OFFICER PONNANI-679583, MALAPPURAM DISTRICT.
5. MANAGER M.I.U.P.SCHOOL, PONNANI, PONNANI NAGARAM MALAPPURAM DISTRICT-679583.
6. STATE OF KERALA REPRESENTED BY THE SECRETARY PERSONEL AND ADMINISTRATION REFORMS DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM.
R1 BY ADV. SRI.P.K.IBRAHIM R1 BY ADV. SMT.K.P.AMBIKA R1 BY ADV. SMT.A.A.SHIBI R2 TO R4, R6 BY SR GOVT PLEADER SRI.RINNIE STEPHAN CHAMAPARAMBIL
JUDGMENT
Antony Dominic, J.
1. These appeals and cross objections arise from the judgment in W.P(C).38533/10. That writ petition filed by the appellant in the cross objections was allowed by judgment dated 21.7.2015. Aggrieved by that judgment, the official respondents have filed WA.128/16 and the additional 5th respondent in the writ petition has filed W.A.1829/15. The cross objections are filed by the writ petitioner, aggrieved by the judgment, to the extent her challenge against Ext.P14(a) Government Order was not considered by the learned single Judge.
2. For the sake of convenience, we shall refer to the parties as they are arrayed in the writ petition.
3. Briefly stated facts of the case are that the writ petitioner joined service as UPSA in the school of the 5th respondent Manager on 16.7.1990. At the time of entry in service, on the basis of the entry in her SSLC Book, she declared 1.6.1959 as her date of birth and this was entered in the service records.
4. Subsequently, on 3.3.1993, she submitted Ext.P1 application for correction of date of birth in her school records and other certificates as 25.4.1962. This was placing reliance on the document obtained from the Registrar of Births and Deaths. That application was rejected by order dated 14.2.1996. This order was challenged in Ext.P2 appeal, which was disposed of by Ext.P3 order dated 17.12.1996, by which, the matter was remitted to the Commissioner for Government Examinations. Accordingly, the matter was reconsidered and order dated 11.3.1998 was passed, rejecting the application. Again, an appeal was filed before the Government, which was disposed of by Ext.P4 order dated 8.5.2000. As per this order, the Government again remanded the matter to the Commissioner for Government Examinations, who passed order dated 30.10.2002 rejecting the request once again. The petitioner pursued the matter by filing yet another appeal before the Government, which was disposed of by Ext.P5 order dated 20.4.2004. By this order, the Government allowed her request for correction of date of birth and accordingly set aside the order of the Commissioner for Government Examinations. The Commissioner was directed to take necessary action to correct the date of birth of the petitioner from 1.6.1959 to 25.4.1962 in the SSLC Book and school records. In compliance with Ext.P5 order, the Joint Commissioner for Government Examinations issued Ext.P6 order dated 13.6.2005, directing the Secretary to the Commissioner for Government Examinations to make necessary corrections in the entries regarding date of birth of the petitioner in the certificate issued to her and in the concerned Tabulation Registers. In Ext.P6 order, it was made clear that it did not necessarily entail in the alteration of date of birth in service records, for which, the petitioner should apply to the authorities concerned.
5. In pursuance of Ext.P6, correction of date of birth was carried out in the SSLC Book of the petitioner, copy of which is Ext.P7. Following the correction of date of birth in the school records, on 21.6.2005, the petitioner applied to the competent authority for correction of date of birth in her service book. This was rejected by the Government as per Ext.P8 order dated 13.9.2007. In this order, placing reliance on Ext.P14(a) Government Order, G.O(P) No.45/91/P&ARD dated 30.12.1991, it was stated that Ext.P1 application for correction of date of birth in service book should have been made within 5 years of entry in service and therefore, the request of the petitioner did not merit consideration. Aggrieved by Ext.P8, the petitioner sought its review by filing an application on 6.8.2008, which again was rejected by the Government as per Ext.P10 order dated 28.12.2008. A further review filed by the petitioner was also rejected by the Government as per Ext.P11 order dated 21.10.2010. It was in this background that the petitioner filed W.P(C).38533/10 seeking to quash Exts.P8 and P11 and to direct the State Government to correct her date of birth in the service book as 25.4.1962. 6.During the pendency of the writ petition, she submitted Ext.P12 review petition dated 2.11.2013 before the Government, which again was rejected by the Government as per Ex.P13 order dated 9.2.2015. On its receipt, the petitioner filed IA.8532/15 seeking to amend the writ petition incorporating challenge against Ext.P13 [translated copy of which is Ext.P14(b)] and also to declare G.O(P) No.45/91/P&ARD dated 30.12.1991, which is marked as Ext.P14(a), as illegal and to quash the same.
7. In the judgment under appeal, though the learned single Judge did not examine the legality of Ext.P14 (a) Government Order, the writ petition was allowed quashing Exts.P8, P11 and P13 orders and directing to consider and pass orders on the application preferred by the petitioner for correction of her date of birth in service records by treating the same as one filed within the period stipulated in Ext.P14(a) G.O. Reading of the judgment shows that the learned single Judge drew support to his conclusions from the principles laid down by the Apex Court in
M.P.Steel Corporation v. Commissioner of Central Excise [(2015) 7 SCC 58].
It is aggrieved by this judgment, these appeals are filed.
8. We heard learned senior counsel for the appellant in W.A.1829/15, learned Government Pleader appearing for the appellants in W.A.128/16 and the learned counsel for the appellant in the cross objections.
9. Before we consider the writ appeals, it is appropriate to deal with the contentions raised in the cross objections filed by the writ petitioner. As we have already stated, in the writ petition, one of the reliefs sought for by the petitioner was to declare that Ext.P14(a) Government Order is arbitrary, illegal and ultra vires Rule 3 of Chapter VI of KER and Rule 143 of Part III KSR and consequently set aside the same. This contention of the petitioner was not considered in the judgment under appeal. It is aggrieved by this, the cross objections are filed.
10. Learned senior counsel appearing for the appellant in W.A.1829/15 raised an objection that having regard to section 141 of the Code of Civil Procedure, excluding the provisions thereof to proceedings under Article 226 of the Constitution of India, the cross objections filed in terms of the provisions of Order XLI CPC are not maintainable. However, Rule 159 of the Kerala High Court Rules provides that the procedure prescribed for appeals in Order XLIA of the Code, excluding Rule 2 thereof, shall, as far as may, be followed in appeals from decisions of single Judges in writ matters. Rule 1 of Order XLIA CPC further provides that the rules contained in Order XLI shall apply to appeals in this court with the modifications in Order XLIA. Order XLIA does not exclude Rule 22 of Order XLI. Therefore, cross objection in appeals filed against judgments in writ petitions is maintainable. For these reasons, we hold that the said objection raised by the learned senior counsel for the appellant does not merit acceptance.
11. However, in our view, the cross objections cannot be entertained for more reasons than one. First of all, in W.A.1829/15, the petitioner entered appearance when his counsel took notice on her behalf on 18.8.2015. C.O.13/2016 was filed only on 3.2.2016. This is beyond the one month period prescribed in Order XLI Rule 22 of CPC. Therefore, C.O.13/2016 has to be dismissed on the ground of delay.
12. Secondly, on the filing of these appeals, the writ petitioner being a respondent, entered appearance and it was at the request of the counsel that this Court agreed to hear these appeals out of turn. At no stage of the proceedings, the writ petitioner disclosed her intention to file cross objections. After the learned senior counsel for the appellant in W.A.1829/15 and the Government Pleader appearing for the appellants in W.A.128/16 concluded their arguments, the counsel for the writ petitioner had commenced his submissions. During the course of his arguments, when he pressed into service his contentions on the legality of Ext.P14(a) Government Order, an objection was raised by the counsel for the appellants that in the absence of challenge against the judgment to the extent her prayer against Ext.P14 (a) was not allowed, it was not open to the petitioner to raise that contention. It was only thereafter that on the next day the cross objections were filed and purpose of such belated filing of the cross objections, obviously, is to neutralise the contention raised by the appellants. In these circumstances, if we entertain the cross objections at this belated stage, that would be unfair to the appellants in the writ appeals and therefore, for reasons of propriety, we should not entertain these cross objections.
13. Thirdly, Order XLI Rule 22 of CPC permits the respondent in an appeal to file cross objection contending that a finding against him in the judgment of the court below in respect of any issue ought to have been in his favour. In other words, an adverse finding in the judgment under appeal alone can be challenged by a respondent in the appeal in a cross objection. In so far as this case is concerned, though the writ petitioner had impugned Ext.P14(a) Government Order, learned single Judge did not examine that contention. In other words, there is no finding in the judgment under appeal on her contentions with reference to Ext.P14(a). In such a situation, in terms of the statutory provision as contained in Order XLI Rule 22 of CPC, a cross objection cannot be maintained and therefore, the cross objections are liable to be rejected on that ground also.
14. Fourthly, we are satisfied that on merits also, the challenge raised against Ext.P14(a) Government Order is untenable. According to the learned counsel for the writ petitioner, Ext.P14(a) Government Order is against the provisions of Chapter VI Rule 3 of KER and also Rule 143 of Part III KSR. According to the learned counsel, these statutory provisions recognize the entitlement of the petitioner to have her date of birth in the admission register corrected and that once date of birth is corrected in the SSLC Book, such correction is liable to be carried out automatically in the service records also. It is stated that therefore, the fetters placed in Ext.P14 (a) Government Order in carrying out the correction made in the SSLC Book into the service records of an employee, particularly the time limit prescribed therein, are illegal and are in violation of the aforesaid statutory provisions.
15. Having considered this submission, we are unable to accept this contention. Chapter VI Rule 3 provides for alteration of date of birth in the admission register. This provision reads thus:-
“3. Alteration of Date of Birth etc.-
(1) The name of a pupil, his religion, his caste and his date of birth once entered in the Admission Register shall not be altered except with the sanction of the authority specified by Government in this behalf by notification in the Gazette. Applications for such alterations and corrections should be submitted by the parent or guardian, if the pupil is still on the rolls of any school and by the pupil himself if he is not on the rolls of any school. All such applications shall be forwarded through the Headmaster with satisfactory evidence. Court fee stamps to the value of One Rupee shall be affixed on such application. Provided that the authority notified by the Government shall not alter such details entered in the Admission Register without the support of a Certificate from the Competent Revenue Authority concerned or the Registrar of Birth and Death concerned, as the case may be.
(1A) A time limit of fifteen years from the date of leaving the school or the date of appearing for the S.S.L.C. Examination for the last time whichever is earlier is fixed for entertaining requests for correction of date of birth in school records by the Commissioner of Government Examinations.
Note: The Government shall consider requests for condonation of delay in making application for correction of date of birth in school records, in deserving cases, on merits, provided that the applicant is within 50 years of age as per the original entry in the school records.
(2) If the authority referred to in sub-rule (1) is satisfied after necessary enquiries that the change applied for could be granted, he will issue an order to make the alteration. The alteration shall then be made in the Admission Register and the other connected records of the schools previously attended by the pupil as well as in the school in which he was studying at the time.
(3) An appeal shall lie to Government against the orders of the authority referred to in sub-rule (1) within one month of the receipt of the order appealed against:-
Provided that the appellate authority may entertain the appeal after the expiry of the said period, if he is satisfied that the appellant had sufficient cause for not submitting the appeal in time.”
This rule provides that except with the sanction of the authority specified by Government in this behalf by notification in the gazette, date of birth once entered in the Admission Register shall not be altered. The procedure for making an application also has been laid down and it further fixes a time limit of 15 years from the date of leaving the school or the date of appearing for the SSLC examination for the last time whichever is earlier for entertaining request for correction of date of birth in school records by the Commissioner of Government Examinations. However, as per the Note to Rule 3, the Government is authorised to consider requests for condonation of delay in making application for correction of date of birth in school records in deserving cases on merits provided that the applicant is within 50 years of age as per the original entry in the school records.
16. In so far as Rule 143 of Part III KSR is concerned, that rule occurs in Chapter X which deals with the Records of Service. This rule reads thus:-
“143. Every step in an employee's official life must be recorded in his Service Book, and each entry shall be attested by the Head of the Office, or, if he himself is the Head of an Office, by his immediate superior. The Head of the Office must see that all entries are duly made and attested, and that the book contains no erasure or overwriting, all corrections being neatly made and properly attested.”
This rule only provides that every step in an employee's official life must be recorded in his service book and each entry shall be attested by the head of the office or if he himself is the head of the office, by his immediate superior.
17. Though rule 143 of Part III KSR is not of any relevance, at best, Rule 3 of Chapter VI KER only recognizes the entitlement of a person to have his date of birth in the admission register corrected and it does not state anything regarding correction of date of birth in the service records of a Government servant or an aided school teacher.
18. On the other hand, in so far as teachers of aided schools like the writ petitioner are concerned, the relevant provision for correction of date of birth in service records is contained in Rule 28 of Chapter XIV A KER. Rule 28 as it originally stood read as follows:-
“28. The date of birth on of Service Book shall be entered in words as well as in figures. Note:-
The date of birth shall be that entered in the school Admission Register, Matriculation Book or S.S.L.C. Book.”
The provisions of this rule came up for interpretation before the Full Bench of this Court in
Kunhikrishnan v. State of Kerala [1982 KLT 13 (FB)]
and it was held that in view of the note to rule 28 in Chapter XIV A KER, on correction of the date of birth of a private aided school teacher in the school records, correction of his date of birth in the service book is automatic. Apparently, in order to neutralise the effect of the judgment of the Full Bench, rule 28 was substituted by G.O(P). 104/84/G.Edn. dated 11.6.1984 and rule 28 along with notes I and II and the proviso thereto, as it now stands read thus:-
“28. The date of birth on page one of the Service Book shall be entered in words as well as in figures. Once the date of birth has been accepted and recorded in the Service Book it shall form conclusive evidence of the same in respect of all future transactions on the matter.
Note I: The date of birth to be entered in the Service Book at the time of the entry in service shall be that entered in the school Admission Register, Matriculation Book or S.S.L.C.Book. For making alteration to such entries relating to date of birth in the Service Book subsequently, the procedure laid down in the case of Government employees under G.O.(Ms.) 39/72/PD dated the 22nd January 1972 and G.O.(Ms.) 123/75/PD dated the 16th June, 1975 which were made applicable to aided school staff (teaching and non-teaching) as per G.O.(Ms.) 139/76/G.Edn. dated the 17th July, 1976 and also G.O.(P) No.45/91/P&ARD dated 30th December, 1991, issued in modification of the existing orders in this matter shall be followed and the conditions stipulated in these G.O. in regard to correction of date of birth shall be applicable to aided school staff (teaching and nonteaching) as well.
Note II: The procedure laid down by the Government from time to time regarding alteration of date of birth in Service Book of Government employees shall, mutatis mutandis, be applicable to aided school staff (teaching and nonteaching) as well. Provided that the date of birth once entered and duly attested by the Educational Officer under Rule 29 shall be changed only under sanction obtained from Government.”
19. As per this rule, date of birth on page one of the service book shall be entered in words as well as in figures and that once date of birth has been accepted and recorded in the service book, it shall form conclusive evidence of the same in respect of all future transactions on the matter. Note I to this rule provides that date of birth to be entered in service book at the time of entry in service shall be that entered in the school Admission Register, Matriculation Book or SSLC Book. It further provides that for making alterations to such entries relating to date of birth in service book subsequently, the procedure laid down in the case of Government employees under the Government Orders mentioned therein, including Ext.P14(a) G.O(P) No.45/91/P&ARD dated 30.12.1991, issued in modification of the existing orders in the matter, shall be followed and the conditions stipulated in these Government Orders in regard to correction of date of birth shall be applicable to aided school staff (teaching and nonteaching) as well. It is further clarified in Note II that the procedure laid down by the Government from time to time regarding alteration of date of birth in service book of Government employees shall mutatis mutandis be applicable to aided school staff (teaching and non-teaching) as well. Therefore, the right, if any, of an aided school teacher like the writ petitioner herein, to get the date of birth in the service records corrected is only in terms of rule 28 of Chapter XIV A KER and not in rule 3 of Chapter VI KER or in rule 143 of Part III KSR. Such right of a correction of date of birth is regulated by the terms of G.O(P) No.45/91/P&ARD dated 30.12.1991, a copy of which is Ext.P14(a). In this context, it is also to be recalled that in
Annamma v. State of Kerala [1987 (1) KLT 882],
a Division Bench of this Court has taken note of the provisions of Rule 28 of Chapter XIVA KER and has taken the view that correction of date of birth in school records cannot lead to automatic correction in Service Register. This has been reiterated in
Sahadevan v. State of Kerala [1987 (2) KLT 143].
20. Turning to Ext.P14(a), this order was issued by the Government on 30.12.1991 and it reads thus:-
GOVERNMENT OF KERALA Abstract PUBLIC SERVICES - CORRECTION OF DATE OF BIRTH IN SERVICE BOOKS - REVISED ORDERS ISSUED
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PERSONNEL & ADMINISTRATIVE REFORMS (ADVICE-C) DEPARTMENT G.O.(P) No.45/91/P&ARD. Dated, Thiruvananthapuram, 30th December, 1991.
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Read- 1. Circular No.11980/SC3/87/P&ARD dated 3-12-1987.
2. Circular No.6644/Adv. C3/88/P&ARD dated 24-10-1988 3. G.O. (P) No.26/91/P&ARD dated 27-8-1991. ORDER 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 realizes his date of birth on a number of occasions in his life - the moment he gets his S.S.L.C. or secures extract from School Admission Register, when he registers his name in the Employment Exchange, applies for higher studies or furnishes the date of birth 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 at all.
3. Still an opportunity can be granted during the initial periods of one's service to make corrections in bonafide cases Government are pleased to adopt the system followed by Government of India in this matter. They accordingly order in the 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 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.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. Applications for condonation of delay and for entertainment of applications in relaxation of the condition regarding time limit shall be summarily rejected.
6. Heads of Departments/Offices shall circulate this order to employees.
7. Appointment orders issued in future should also mention the time limit provision as per this order for correction of date of birth so that new entrants to service should not complain later that they were not aware of this provision. By order of the Governor, 21.From this Government Order, it is obvious that the Government wanted to discourage the tendency on the part of the Government employees to get the date of birth corrected when they were about to retire and therefore, the Government reviewed the entire matter with due regard to the system followed in the case of central government employees. It was accordingly that in modification of the existing orders, the Government ordered that applications for correction of date of birth if any needed in the case of a Government employee shall thereafter be made within 5 years of one's entry into service. It was further ordered that in the case of those who had already crossed this time limit when the order was issued, one year time from the date of the 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. In clause 4, it was specifically ordered that the application shall be supported by attested copies of SSLC/SSC book or extract of school record as corrected and that mere correction of date of birth in the school record did not entitle the employee for consequential correction of date of birth in service book and that each case would be considered by the Government on merits and orders would be passed. It was also made clear in clause 5 that application for condonation of delay and for entertainment of applications for relaxation of the condition regarding the time limit should be summarily rejected.
22. A survey of the above statutory provisions and the Government Order reveal the following:-
The provisions of Rule 3 of Chapter VI KER or rule 143 of Part III KSR do not confer any right on a Government servant or aided school teacher to get his service record corrected, that the only right that is recognized in rule 3 of Chapter VI of KER is for correction of date of birth in the school admission register. However, rule 28 of Chapter XIV A KER makes provision for the correction of date of birth in the service book of an aided school teacher. While recognizing that right, it is also provided that for making alteration of entries relating to date of birth in the service book, subsequent to the entry in service, the procedure laid down in the case of Government employees, viz., Ext.P14(a), issued in modification of the then existing orders, shall be followed. The rule further clarifies that the procedure laid down by the Government from time to time regarding alteration of date of birth in service book shall be applicable to aided school teachers as well. In terms of Ext.P14(a) Government Order, the fact that the date of birth has been corrected in the SSLC Book does not entitle the employee for subsequent correction of date of birth in the service book. It also prescribes that applications for correction of date of birth, if any, needed in the case of a Government employee shall, from the issuance of Ext.P14(a), be made within 5 years of one's entry in service and in the case of those who had already entered service, such application should be made within one year from the date of the Government Order, provided the application is made beyond the two year period preceding the date of retirement with reference to the date of birth as recorded in the service book. It is also clarified that the fact that date of birth in school records has been correct does not entitle an employee for consequential correction in service records and that requests in that behalf are to be considered on merits of each case. It also states that belated applications will be summarily rejected.
23. A comparative reading of the statutory provisions contained in Rule 3 of Chapter VI KER and Rule 143 of Part III KSR and the provisions of Rule 28 of Chapter XIVA KER and Ext.P14(a) Government Order show that the former and the latter operate in totally different and separate areas and that correction of date of birth in school records would not entitle an aided school teacher for correction in service records. That the issue of a Government servant to get his date of birth corrected in service register is independent of the correction of his date of birth in the school records has been recognized by this Court in
Ramachandran Nair v. State of Kerala [1990 (2) KLT SN case No.26].
Evidently therefore, the provisions of Ext.P14(a) Government Order do not, in any manner, run counter or contrary to the provisions contained in rule 3 of Chapter VI of KER or rule 143 of Part III KSR as contended by the learned counsel. Therefore, the challenge against Ext.P14(a), as being contradictory to Rule 3 of Chapter VI KER and Rule 3 of Part III KSR, has to be rejected and we do so.
24. In this context, we may also mention that though the writ petitioner has challenged Ext.P14(a) Government Order, she has not challenged the provisions of Note II to rule 28 of Chapter XIVA KER, which provides that the procedure laid down in Ext.P14(a) shall govern the procedure for correction of date of birth of aided school teachers also. In the absence of any challenge against Note II to rule 28 of Chapter XIVA KER and by confining challenge only against Ext.P14 (a), the petitioner cannot get any effective relief. For all these reasons, we do not find any substance in the contention raised against Ext.P14(a) Government Order. For all the aforesaid reasons, the cross objections filed are only to be rejected and we do so.
25. Turning to the contentions raised in the writ appeals, the first contention raised by the learned counsel for the appellants is that the learned single Judge ought not to have ignored the contentions relying on Ext.P14(a) Government Order. According to the counsel, the rigour of Ext.P14(a) cannot be relaxed and that the principles laid down by the Apex Court in M.P.Steel Corporation (supra) have no relevance in the facts of the case. Although this contention was vehemently refuted by the learned counsel for the writ petitioner, having considered the submissions made in the bar, we do find force in what is argued. As we have already seen, it is rule 28 of Chapter XIV A KER which recognises the right in favour of a teacher of an aided school to have her date of birth corrected. As per Note I, the procedure laid down in the case of a Government employee vide Ext.P14(a) Government Order issued in modification of the existing orders shall be followed and the conditions stipulated in the Government Orders shall be applicable to aided school teaching staff as well. Once the Government have recognized the right for seeking correction of date of birth for an aided school teacher, it is always open to the Government to impose conditions subject to which such a right can be availed of. Those conditions thus validly imposed are the conditions that are incorporated by the Government in Ext.P14(a). The relevant condition, in so far as this case is concerned, is that “the application for correction of date of birth shall hereafter be made within five years of one's entry in service”. In so far as existing Government employees are concerned, the Government Order prescribes “one year time limit from the date of this order” provided the application is made beyond two year period preceding the retirement reckoned with reference to the date of birth as recorded in his service book. The Government Order also makes two other things clear. One is that mere correction of date of birth in the school records does not entitle the employee for consequential correction in service records vide clause 4 thereof. The other is that application for condonation of delay and for entertaining the application for relaxation of the condition regarding time limit shall be summarily rejected, vide clause 5 thereof.
26. Evidently therefore, going by these prescriptions, the application made by the writ petitioner who entered service on 16.7.1990, as late as on 21.6.2005, is beyond the time limit prescribed in the Government Order. However, it is true that though she had applied for correction of her date of birth by Ext.P1 application dated 3.3.1993, sanction was finally accorded for the same as per Ext.P6 order dated 13.6.2005 and her SSLC Book was corrected only as per Ext.P7. The question is whether the learned single Judge was justified in directing that the period spent for correction of date of birth in the SSLC Book from 3.3.1993 to 13.6.2005 is liable to be excluded while reckoning the time limit prescribed in Ext.P14(a) Government Order. While examining the correctness of the finding of the learned single Judge, we have to take note of the prescription in Ext.P14(a) Government Order that in the case of those who have attended a school, application for correction of date of birth shall be supported by attested copies of SSLC Book or extract of school records as corrected. In other words, correction in the service book is permissible only in accordance with the correction carried out in the SSLC Book and that application for correction shall be made within the time limit specified. The fact that the period spent for getting the date of birth in the SSLC Book corrected cannot be excluded, has been accepted by the Division Bench of this Court in the judgment in
Vijayan K. v. Jacob Job [ILR 2015 (1) Ker 989],
where, a similar case was considered and it was held thus in paragraphs 23 and 24:-
“23. Going by Annexure A1 order dated 30.12.1991, the Government issued the said order in order to discourage the growing tendency of the employees to get the date of birth in service book corrected at the fag end of their career. It is made clear in Annexure A1 that, the applications for correction of date of birth in service book, in the case of those who have attended a school, shall be supported by attested copies of SSLC/SSC book or extract of school record as corrected. Further, applications for condonation of delay and for entertainment of applications in relaxation of the conditions regarding time limit shall be summarily rejected. When the action of the Government in the matter of correction of date of birth in service book is governed by the provisions in Annexure A1 order, it should be compelled to follow those provisions on pain of invalidation of an act in violation of those provisions. In
Ramana Dayaram Shetty v. International Airport Authority of India (1979 (3) SCC 489)
the Apex Court held that, “it is well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them.”
The Apex Court reiterated this principle in
B.S.Minhas v. Indian Statistical Institute (1983 (4) SCC 582).
In
Home Department v. R. Kirubakaran (1994 Supp (1) SCC 155)
the Apex Court held that, “correction of the date of birth of public servant is permissible, but that should not be done in a casual manner. Any such order must be passed on materials produced by the public servant from which the irresistible conclusion follows that the date of birth recorded in the service book was incorrect. While disposing of any such application, the Court or the Tribunal, has first to examine, whether the application has been made within the prescribed period under some rule or administrative order. If there is no rule or order prescribing any period, then the Court or Tribunal has to examine, why such application was not made within a reasonable time after joining the service.”
24. Therefore, in the matter of correction of date of birth in service book, there has to be strict compliance of the provisions in Annexure A1 Government Order. Submitting necessary documents upon which reliance is placed for correction of date of birth in service book is one of the important aspect an applicant has to follow at the time of submitting an application. Therefore, the mere fact that petitioner has submitted an application within one year from the date of Annexure A1 Government Order dated 30.12.1991 would not suffice. He has to submit the application supported by attested copies of SSLC/SSC book or extract of school record as corrected, which are necessary to establish his case. It is the responsibility of the petitioner to see that all necessary documents are collected and produced along with the application submitted before the Government within one year from the date of Annexure A1 Government Order. He cannot put in some application before the Government, and then go on collecting evidence. Further, the delay occurred in the office of the Commissioner for Government Examinations in correcting the SSLC book is not a valid ground to entertain his request for correction of date of birth in service book in gross violation of the provisions in Annexure A1 Government Order. In such circumstances, we find absolutely no illegality or irregularity in the conclusion made by the Tribunal in its order dated 30.4.2014 that Annexure A7 Government Order dated 19.8.2010 has been issued in gross violation of the provisions in Annexure A1 Government Order dated 30.12.1991 and that the said order is manifestly illegal in the light of the law laid down by the Apex Court as well as this Court, in the decisions referred to in the order of the Tribunal.”
27. Although from the judgment under appeal, it is seen that the binding precedent in Vijayan's case (supra) was noticed in paragraph 13, without adverting to that judgment in greater detail, learned single Judge placed reliance on the Apex Court judgment in M.P.Steel Corporation (supra) and disposed of the writ petition. M.P.Steel Corporation (supra) was a case where against an order passed by the Superintendent of Customs and Central Excise, appeals were filed before the Customs, Excise and Gold (Control) Appellate Tribunal which allowed the appeal. The order of the Tribunal was challenged before the Apex Court. The Apex Court allowed the department's appeal holding that the Tribunal had no jurisdiction to entertain the appeal and that the appeal should have been filed before the Commissioner (Appeals) under section 128 of the Customs Act. Thereupon, the assessee filed appeal before the Commissioner (Appeals) along with an application for condonation of delay in filing the appeal. The Commissioner (Appeals) dismissed the appeal on the ground of delay and that order was confirmed by the Tribunal. The order of the Tribunal was challenged before the Apex Court. In its judgment, the Apex Court relied on the provisions of section 14 of the Limitation Act and held that in reckoning the period of limitation for filing the appeal before the Commissioner (Appeals), the period during which the appellant therein was prosecuting his appeal before the incompetent forum should have been excluded. On that basis, the matter was remanded to the Tribunal for deciding the appeal on merits. This is evident from paragraph 49 of the judgment of the Apex Court, which reads thus:-
“49. The language of Section 14, construed in the light of the object for which the provision has been made, lends itself to such an interpretation. The object of Section 14 is that if its conditions are otherwise met, the plaintiff/applicant should be put in the same position as he was when he started an abortive proceeding. What is necessary is the absence of negligence or inaction. So long as the plaintiff or applicant is bona fide pursuing a legal remedy which turns out to be abortive, the time beginning from the date of the cause of action of an appellate proceeding is to be excluded if such appellate proceeding is from an order in an original proceeding instituted without jurisdiction or which has not resulted in an order on the merits of the case. If this were not so, anomalous results would follow. Take the case of a plaintiff or applicant who has succeeded at the first stage of what turns out to be an abortive proceeding. Assume that, on a given state of facts, a defendant-appellant or other appellant takes six months more than the prescribed period for filing an appeal. The delay in filing the appeal is condoned. Under Explanation (b) of Section 14, the plaintiff or the applicant resisting such an appeal shall be deemed to be prosecuting a proceeding. If the six month period together with the original period for filing the appeal is not to be excluded under Section 14, the plaintiff/applicant would not get a hearing on merits for no fault of his, as he in the example given is not the appellant. Clearly therefore, in such a case, the entire period of nine months ought to be excluded. If this is so for an appellate proceeding, it ought to be so for an original proceeding as well with this difference that the time already taken to file the original proceeding i.e. the time prior to institution of the original proceeding cannot be excluded. Take a case where the limitation period for the original proceeding is six months. The plaintiff/applicant files such a proceeding on the ninetieth day i.e. after three months are over. The said proceeding turns out to be abortive after it has gone through a chequered career in the appeal courts. The same plaintiff/applicant now files a fresh proceeding before a court of first instance having the necessary jurisdiction. So long as the said proceeding is filed within the remaining three month period, Section 14 will apply to exclude the entire time taken starting from the ninety-first day till the final appeal is ultimately dismissed. This example also goes to show that the expression “the time during which the plaintiff has been prosecuting with due diligence another civil proceeding” needs to be construed in a manner which advances the object sought to be achieved, thereby advancing the cause of justice.”
28. In our view, the principles laid down by the Apex Court in the judgment in M.P.Steel Corporation (supra) can have relevance to a case where a litigant has initially prosecuted his case before an incompetent forum and thereafter before a competent forum having jurisdiction. What the judgment lays down is that the period that the appellant lost before the forum which did not have jurisdiction or the incompetent forum, is liable to be excluded in reckoning the period of limitation for filing appeal before the competent forum, provided the appellant was litigating before the incompetent form with bona fides. This obviously applies to cases where a litigant was initially before an incompetent forum and later, continues his litigation before the competent forum.
29. In so far this case is concerned, the aforesaid principles can have no application for the reason that during the period from 3.3.1993 when Ext.P1 was submitted, till 13.6.2005 when Ext.P6 order was issued by the Commissioner for Government Examinations, the writ petitioner was prosecuting her request for correction of her date of birth before the Commissioner for Government Examinations and the Government, which are the competent authorities in that matter. Secondly, the application made by the petitioner for correction of her date of birth in the service records is not a continuation of the proceedings. Therefore, the principles of section 14 of the Limitation Act or the principles that are laid down by the Apex Court in M.P.Steel Corporation (supra) could not have been applied to the case in hand.
30. However, counsel for the writ petitioner argued that if time spent before an incompetent forum can be excluded, there is no justification to deny such extension of period to the period spent before the competent forum. This contention also cannot be accepted. Firstly, there is no such enabling provision in the Limitation Act or elsewhere. Secondly, it has been stated long ago that a judgment is an authority for what it actually decides and not what logically follows therefrom. See
Ambica Quarry Works v. State of Gujarat [AIR 1987 SC 1073].
Therefore, the principles laid down in M.P.Steel Corporation (supra) also do not warrant such a conclusion.
31. Learned counsel for the writ petitioner referred us to the judgments in
Jayarama @ Mamma v. State of Karnataka [2009 Crl LJ 4470],
Satpal Singh v. State of Haryana [2010) 8 SCC 714]
and
Madan Mohan Singh v. Rajni Kant [(2010) 9 SCC 209]
to highlight the sanctity of the entries made in the Birth Register. Though the propositions laid down in the aforesaid judgments are not open to doubt, according to us, the birth register or the entries therein or its sanctity, has no relevance in so far as this case is concerned. We say so for the reason that correction of date of birth in terms of rule 28 of Chapter XIVA KER, which is regulated by Ext.P14(a) Government Order, can be made based only on the correction carried out in the SSLC Book or school records. Whether such correction in SSLC Book is carried out on the basis of the entries in the Birth Register or not, has no relevance in so far as the correction of date of birth in the service book is concerned. For that reason, we do not see any relevance for those judgments.
32. For all these reasons, we are unable to sustain the judgment of the learned single Judge. Accordingly, we set aside the judgment under appeal. Writ appeals are allowed and cross objections are dismissed.
Sd/- ANTONY DOMINIC, Judge.
Sd/- A. HARIPRASAD, Judge.
kkb. /True copy/