IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 WA.No. 178 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.32807/2007 Dated 13/11/2008 .................... APPELLANT: PETITIONER IN THE WPC: ------------------------------------ B.SASIDHARAN PILLAI, ADDITIONAL SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): RESPONDENTS IN THE WPC: -------------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, FINANCE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, P & A.R.D.DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & HARUN-UL-RASHID, JJ. ----------------------------------------- W.A.No.178 of 2009 ----------------------------------------- Dated this the 2nd day of February, 2009 JUDGMENT Kurian Joseph,J. Appellant is the petitioner. The dispute pertains to the issue regarding the correction of date of birth. The writ petition was dismissed mainly on the ground of delay and laches on the part of the petitioner and hence the writ appeal. 2. Short facts. The date of birth as originally entered in the school records of the petitioner is 20-11-1953. The writ petitioner joined service as Typist on 25-6-1976. By order dated 5-9-1977 of the Commissioner of Examinations the date of birth was corrected as 27-10-1954. The consequential correction was effected in the school records as per Ext.P3. Petitioner made Ext.P6 submission dated 1-10-1977 for correction in the service records. It is seen that the corrected date of birth as 27-10-1954 was entered in the service records as per Ext.P7. The correction is seen to have been made by the Under Secretary to Government, Law Department and the same was attested by the W.A.No.178 of 2009 -:2:- Under Secretary to Government, Finance Department. After about ten years an objection was raised as per Ext.P9 memo dated 19-5-1989 stating that for effecting the correction in the date of birth prior sanction of the Government was required. Petitioner submitted Ext.P10 representation before the Secretary to Government and as per Ext.P11 communication dated 4-10- 1989, he was informed that without permission from the Government the service book cannot be altered. He was also permitted to move the Government. He submitted Ext.P12 representation dated 12-1-1990. In the meanwhile Ext.P13 government order, G.O(P)No.45/91/P&ARD dated 30-12-1991 was issued prescribing guidelines for correction of date of birth. It was stipulated that the employees in service as on that date should apply for correction of date of birth within one year, that is prior to 30-12-1992. Petitioner again submitted Ext.P14 representation dated 10-3-1992 within the time limit of Ext.P13. By a cryptic order, without stating any reason, the same was rejected as per communication dated 20-3-1993 as per Ext.P15. True, the petitioner did not challenge Ext.P15 at that time. W.A.No.178 of 2009 -:3:- Instead, he moved the Government, better advised, by Ext.P16 representation dated 16-4-2003. The same was rejected as per Ext.P17 stating only that the request “merits little consideration”. Petitioner again moved the Government by Ext.P18 representation seeking reconsideration of the stand. That was also turned down as per Ext.P21 and thus the writ petition. 2. The learned single Judge dismissed the writ petition holding that the petitioner is guilty of delay and laches. There is no timely challenge on Ext.P15 issued in 1993 and Ext.P17 issued in 2003 and that the challenge on Ext.P21 is belated. 3. Heard the learned counsel appearing for the appellant and the learned Senior Government Pleader for the State. It has to be seen that in any of the impugned orders passed by the Government, Exts.P15, P17 and P21, there is hardly any reference to the history of the case of the petitioner. There is no case for the Government that the petitioner did not take any steps within the time permitted in G.O.(P)No.45/91/P&ARD dated 30-12-1991. As a matter of fact, in the case of the appellant it is not a last minute attempt. He entered service in W.A.No.178 of 2009 -:4:- 1976, records were corrected in 1977 and the service book also was corrected in the same year by none other than the under Secretary to Government, Law Department and attested by the Under Secretary to Government, Finance Department. Only after 12 years, an objection was raised to the effect that there is no Government sanction. Whether Government sanction is required at all at that time is one question. But as rightly contended by the learned Government Pleader, correction of date of birth is not automatic. However, at the same time, it has also to be noted that there is no case for the Government that the correction could not have been made on merits, in 1977. In Ext.P15 also the Government does not say that the application is either belated or that the same cannot be otherwise considered. Petitioner can be accused of delay and laches in approaching the court. But such an attribute cannot be made against the petitioner in approaching the Government. It is seen that he had approached the Government hoping that his case would be considered by the Government on merits, atleast prior to his retirement. Realising that there is no hope even towards the fag W.A.No.178 of 2009 -:5:- end of his service only, he approached this court. We are of the view that in the peculiar facts and circumstances of this case, the petitioner having submitted an application for correction of date of birth within the permitted time prescribed as per G.O.(P) No.45/91/P&ARD dated 30-12-1991 and as early as in 1977 the Controlling Authority having corrected the service book in terms of the corrected date of birth as appearing in the school records, the case certainly requires a deeper consideration by the Government with reference to the history and background. It is also brought to our notice that the P & AR Department is in seizin of the matter as can be seen from the files. In that view of the matter we are of the view that the Government should be directed to consider the case of the petitioner with reference to the entire history and background of the case, some of which are referred to above. 4. Accordingly we set aside the judgment of the learned single Judge, set aside the impugned orders passed by the Government and direct the Government to consider the case of the petitioner on the request made by the petitioner in the light W.A.No.178 of 2009 -:6:- of the peculiar facts and circumstances of the case and in the light of the observations made by us in this judgment. The needful shall be done within two months from the date of production of a copy of the judgment. The writ appeal is disposed of as above. (KURIAN JOSEPH, JUDGE) (HARUN-UL-RASHID, JUDGE) ahg. KURIAN JOSEPH & HARUN-UL-RASHID, JJ. --------------------------- W.A.No.178 of 2009 ---------------------------- JUDGMENT 2nd February, 2009