IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 10TH AUGUST 2009 / 19TH SRAVANA 1931 WP(C).No. 6758 of 2008(D) ------------------------- PETITIONER(S): --------------- M.A. FRANCIS DEPUTY COMMISSIONER OF EXCISE EXCISE INTELLIGENCE & INVESTIGATION BUREAU THIRUVANANTHAPURAM. BY ADV. SRI.N.RAGHURAJ SMT.K.AMMINIKUTTY RESPONDENT(S): --------------- 1. STATE OF KERALA - REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT DEPARTMENT OF TAXES, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM. 3. THE COMMISSIONER FOR GOVERNMENT EXAMINATIONS, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/08/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.6758 of 2008 ================== 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