IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(C).No. 21194 of 2011(Y) -------------------------- PETITIONER(S): --------------- P.A.HUSSAIN,AGED 54 YEARS, S/O.MR.M.ABOOBACKER, ROLL NO.027,HMT ECCS LTD.NO. E 800,KALAMASSERY. BY ADV. SRI.C.A.MAJEED SRI.K.H.ASIF RESPONDENT(S): --------------- 1. STATE OF KERALA, REP.BY THE SECRETARY, CO-OPERATIVE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, 695001. 2. THE REGISTRAR OF CO-OPERATIVE SOCIETIES THIRUVANANTHAPURAM 695001. 3. HMT EMPLOYEES' CANTEEN CO-OPERATIVE SOCIETY LTD., NO.E-800,KALAMASSERY 683 503,REP. BY IT'S HONORARY SECRETARY. 4. HMT MACHINE TOOLS LTD.,KALMASSERRY, REP.BY IT'S GENERAL MANAGER 683503. BY BY GOVT. PLEADER SRI.G.GOPAKUMAR FOR R1 & 2 ADV. SRI.M.PATHROSE MATTHAI, SENIOR ADVOCATE FOR R4 SMT.MARIAM MATHAI FOR R4 SRI.SAJI VARGHESE FOR R4 SRI.JACOB P.ALEX FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No. 21194/2011 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPLICATION DATED 9.12.2009 SUBMITTED BY THE PETITIONER BEFORE THE SECRETARY OF THE 3RD RESPONDENT. EXT.P2 : COPY OF THE REPLY DATED 14.1.2010 ISSUED BY THE SECRETARY EXT.P3 : COPY OF THE EXTRACT OF THE ADMISSION REGISTER ISSUED FROM THE SCHOOL, H.E.H.M.M HIGH SCHOOL, MATTANCHERY DATED 20.10.2009. EXT.P4 : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. EXT.P5 : COPY OF THE REPRESENTATION DATED 16.5.2011 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS 2 TO 4. EXT.P6 : COPY OF THE POSTAL RECEIPTS EVIDENCING ISSUE OF EXT.P5 TO RESPONDENTS 2 TO 4. RESPONDENT'S EXHIBITS: EXT.R3(a) : COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER ON 21.8.1985 EXT.R3(b) : COPY OF THE NOTICE DATED 22.11.1988 ISSUED TO THE PETITIONER BY THIS RESPONDENT EXT.R3(c) : COPY OF THE DECLARATION FORM SUBMITTED BY THE PETITIONER (UNDATED) FOR JOINING IN THE FAMILY PENSION SCHEME EXT.R3(d) : COPY OF THE DECLARATION AND NOMINATION FORM FOR THE EMPLOYEES' PROVIDENT FUND SCHEME SUBMITTED BY THE PETITIONER (UNDATED) EXT.R3(e) : COPY OF THE DECLARATION AND NOMINATION FORM FOR THE EMPLOYEES' PROVIDENT FUND SCHEME SUBMITTED BY THE PETITIONER ON 7.12.1991 EXT.R3(f) : SALARY CERTIFICATE OF THE PETITIONER DATED 12.11.2001 EXT.R3(g) : SALARY CERTIFICATE OF THE PETITIONER DATED 15.11.2002 EXT.R3(h) SALARY CERTIFICATE OF THE PETITIONER DATED 11.01.2006 EXT.R3(i) SALARY CERTIFICATE OF THE PETITIONER DATED 11.04.2007 //TRUE COPY// P.A. TO JUDGE vps P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 21194 OF 2011 -------------------------- Dated this the 28th day of November, 2011 J U D G M E N T The petitioner is employed in a canteen run by the third respondent co-operative society. The canteen was initially being run by a contractor. The third respondent society took it over during the year 1985. In the records maintained by the third respondent society the date of birth of the petitioner is shown as 1.1.1954. In the year 2009, the petitioner submitted Ext.P1 representation dated 9.12.2009 to the Secretary of the third respondent society contending that his date of birth is 23.5.1956 and not 1.1.1954 as shown in the records maintained by the society. Along with the representation he also produced the original of Ext.P3 extract from the admission register issued by the Headmaster of H.E.H.M.M. High School, Mattanchery, Cochin. Upon receipt of the said representation, the Secretary of the third respondent society sent Ext.P2 letter dated 14.1.2010 in reply pointing out that in the application dated 21.8.1988 submitted by the petitioner for appointment as sweet WPC No.21194/2011 2 maker in the canteen run by the third respondent society his date of birth was given as 1.1.1954, his age as 31 years, that in various other service records also the same date of birth is given and that 24 years thereafter the date of birth cannot be altered in the records. The petitioner thereupon submitted Ext.P4 representation dated 30.1.2010 to the Secretary of the third respondent society followed by Ext.P5 representation dated 16.5.2011 to the Registrar of Co-operative Societies wherein he sought alteration of the date of birth. This writ petition was thereafter filed on 3.8.2011 seeking the following reliefs: (i) Issue a writ of certiorari or any other writ, order or direction calling for the records leading to Exts.P1 to P6 and direct the 2nd respondent to issue necessary directions to the 3rd respondent to effect entry of correct date of birth evidenced by Ext.P3 in the service records of the petitioner kept by the 3rd respondent. (ii) Declare that the non-entry of correct date of birth of the petitioner on the basis of Ext.P3 as illegal. 2. Relying on Ext.P3 extract from the school admission register it is contended that the date of birth shown in the service records is incorrect and therefore the petitioner is entitled to have his date of birth corrected. It is contended that if his date WPC No.21194/2011 3 of birth is corrected he can continue in service till 31.5.2014. 3. The Secretary of the third respondent society has sworn to a counter affidavit dated 21.9.2011. It is stated that on several occasions during the past 25 years the petitioner had stated that his date of birth is 1.1.1954. It is stated that on 21.8.1985 the petitioner submitted the original of Ext.R3(a) application for appointment as sweet maker showing his date of birth as 1.1.1954, that later on 22.11.1988 Ext.R3(b) notice was issued to the petitioner in connection with his enrolment in the Provident Fund informing him that his date of birth is shown as 1.1.1954 and if he has any objection, he should produce necessary records to prove his age before 10.12.1988, that the petitioner did not produce any document to show that his date of birth is not 1.1.1954 and did not file any objection, that still later, the petitioner had given Ext.R3(c) declaration form for joining the Family Pension Scheme and Ext.R3(d) declaration and nomination form for the Employees Provident Fund Scheme, 1952 wherein also the same date of birth was given, that later on 7.12.1991, he had given the original of Ext.R3(e) declaration in WPC No.21194/2011 4 connection with the Employees Provident Fund Scheme wherein also the date of birth is shown as 1.1.1954, that on several occasions salary certificates, evidenced by Exts.R3(f) R3(g) R3(h) and R3(i) were issued to the petitioner on his request wherein it was stated that as per the records maintained by the society the petitioner’s date of birth is 1.1.1954 and that such being the situation, the petitioner cannot be heard to contend that his date of birth was erroneously entered in the records maintained by the third respondent society. The petitioner has filed a reply affidavit contending that the documents produced by the third respondent are not documents submitted by him and that the date of birth given therein is not his date of birth. The petitioner has not however denied the statement that Ext.R3(b) notice was served on him on 3.12.1988 and that he had not objected to the date of birth shown therein. 4. I heard Sri.C.A.Majeed, learned counsel appearing for the petitioner, Sri.G.Gopakumar, learned Government Pleader appearing for respondents 1 and 2, Sri.Jacob Alex, learned counsel appearing for the third respondent and Sri.Saji Varghese, WPC No.21194/2011 5 learned counsel appearing for the fourth respondent. I have also gone through the pleadings and the materials on record. Shorn of details, the claim made by the petitioner is that his date of birth is 23.5.1956 and not 1.1.1954 as entered in the records maintained by the third respondent society. Reliance is placed on Ext.P3 extract from the school admission register in support of this contention. Though the third respondent contends that for the past nearly 25 years the petitioner had no objection to the date of birth entered in the various records including the documents produced and marked as Ext.R3(a) to R3(i), the stand taken by the petitioner is that they are not documents submitted him and the date of birth mentioned therein is not his date of birth. He also contends that when he joined the canteen at a time when it was being run by a contractor there was no verification of his date of birth and he had not submitted any application along with the extract from the school admission register to prove his date of birth. He has also stated that the signature in the documents produced by the third respondent is not his signature. WPC No.21194/2011 6 5. The petitioner admittedly became an employee of the third respondent society in the year 1985. Prior to his becoming an employee of the third respondent co-operative society he had given the original of Ext.R3(a) application dated 21.8.1985, wherein his age was given as 31 years as on 21.8.1985 and the date of birth was given as 1.1.1954. The petitioner had also given two personal identification marks namely : a. A wound mark in the right leg. b. A wound mark in back. He had also stated that he has passed the fourth standard from Haji Easa Haji Moosa High School. Shortly thereafter with a view to enroll him as a member of Provident Fund, the Secretary of the society issued Ext R3(b) notice calling upon him to state whether he has any objection to his date of birth being given as 1.1.1954. Though the petitioner disputes having affixed his signature on any of the documents produced along with the counter affidavit filed by the respondents he has not denied having received the original of Ext.R3(b) notice. There is no averment in that regard in the reply affidavit. His only case is WPC No.21194/2011 7 that the documents produced by the third respondent along with the counter affidavit are not documents submitted by him. He has no case that he had given any other date as his date of birth for the purpose of enrollment as a member of the Employees Provident Fund Scheme and the Employees Family Pension Scheme. That apart the identification marks in Ext.P3 and in Ext.R3(a) produced by the third respondent do not tally, though the name of the school namely Haji Essa Haji Moosa Memorial High School and the name of the petitioner's father as given in Ext.R3(a) tally with the names given in Ext.P3. The Apex Court has in Birad Mal Singhvi v. Anand Purohit (1988 Suppl. SCC 604) held that the date of birth mentioned in the school register has no probative value unless the parents are examined or the person on whose information the entry may have been made is examined. The same view was reiterated by the Apex Court in Madan Mohan Singh & Others v. Rajnikant and another ((2010) 9 SCC 209) wherein it was held that though a document may be admissible, the question whether the entry contained therein has any probative value may still be required WPC No.21194/2011 8 to be examined. It was held that if a person wants to rely on a particular date of birth and wants to press a document into service, he has to prove its authenticity in terms of section 32 (5) or 50, 51, 59, 60, 61 etc. of the Evidence Act by examining the person having special means of knowledge, authenticity of the date, time etc. mentioned therein. In the instant case, the petitioner has not produced any material other than the extract from the school admission register to show that the entries therein relate to him. Why I say so is because of the difference in the identification marks set out in Ext.P3 and in Ext.R3(a) produced along with counter affidavit filed by the third respondent. Going by the documents produced by the third respondent especially Ext.R3(b) letter it cannot be said that no opportunity was ever given to the petitioner to prove that his date of birth is not 1.1.1954. The petitioner who claims that he had undergone studies up to fourth standard in Haji Eesa Haji Moosa Memorial High School, Mattanchery could have produced the extract from the school admission register even in the year 1985. The documents produced by the third respondent along WPC No.21194/2011 9 with the counter affidavit substantiate the third respondent's contention that the petitioner had never objected to his date of birth being taken as 1.1.1954. In such circumstances, I find no reason at this belated stage when proof of the contents of Ext.P1 is not forthcoming, to hold that the date of birth of the petitioner is 23.5.1956. I accordingly hold that there is no merit in the writ petition. The writ petition fails and it is accordingly dismissed. No costs. P.N.RAVINDRAN, JUDGE. vps WPC No.21194/2011 10