IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 2ND APRIL 2008 / 13TH CHAITHRA 1930 WP(C).No. 6999 of 2008(G) --------------------------------------- PETITIONER: -------------------- J.SAMSON, S/O.JOHN ROSE, AGED 52, DEPUTY SUPERINTENDENT OF POLICE, SPECIAL BRANCH C.I.D.HEAD QUARTERS, PATTOM PALACE P.O., TRIVANDRUM, RESIDING AT T.C.14/676, ROSE HOUSE, NANDAVANAM, VIKAS BHAVAN P.O., TRIVANDRUM 33. BY ADV. SRI.S.SREEKUMAR SRI.P.PRIJITH RESPONDENTS: ------------------------ 1. STATE OF KERALA REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY, HOME(A)DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLICE, POLICE HEAD QUARTERS, TRIVANDRUM. 3. I.MUHAMMED ASLAM, DEPUTY SUPERINTENDENT OF POLICE, P.R.O (IMMIGRATION WING) CALICUT INTERNATIONAL AIR PORT, KARIPPOOR, CALICUT. BY SR.GOVERNMENT PLEADER SRI. NANDAKUMAR BY ADV. SRI.S.KRISHNAMOORTHY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.6999/2008 G APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF GOVERNMENT ORDER G.O.P.NO.45/91/P & ARD DTD. 30/12/1991. EXT.P2: COPY OF GOVERNMENT ORDER G.O.(RT) NO.169/2008/HOME DTD. 16/01/2008. EXT.P3: COPY OF ORDER DTD. 7/11/01 ISSUED BY THE 1ST RESPONDENT. EXT.P4: COPY OF JUDGMENT IN WP(C) NO.32909 OF 2007 DTD. 06/11/2007. EXT.P5: COPY OF JUDGMENT IN WP(C) NO.30029 OF 2007 DTD. 11/10/07. EXT.P6: COPY OF REPRESENTATION DTD. 31/01/2008 TO THE 1ST RESPONDENT. 3RD RESPONDENT'S EXHIBIT: EXT.R3(A): COPY OF THE GOVERNMENT ORDER G.O.(RT) NO.148/06/HOME DTD. 19/01/2006. /TRUE COPY/ P.S.TO JUDGE Kss V.GIRI, J. ------------------------- W.P.(C).No.6999 of 2008 ------------------------- Dated this the 2nd day of April, 2008. JUDGMENT The issue involved in this case is, by no means, a 'unique' one. It relates to the correction of date of birth of the 3rd respondent. The Government has ordered that the date of birth of the 3rd respondent should be corrected in his service records. Though there is nothing unusual about such a direction, what is extraordinary is that, the Government has entertained an application filed by the 3rd respondent on 18.11.2007, in spite of the fact that the 3rd respondent was to attain the age of 55 years and therefore, retire on superannuation on 31.1.2008. The order is challenged on the premise that it militates against the Government order of 1991, which expressly prohibits entertainment of an application for correction of date of birth of a Government servant made beyond the period of 5 years of one's entry in service. 2. The petitioner is working as Deputy Superintendent of Police in the General Executive Branch. W.P.(C).NO.6999/08 :: 2 :: The 3rd respondent is also working as Deputy Superintendent of Police in the General Executive Branch. Apparently, the date of birth of the 3rd respondent, as originally entered in the school records, was 12.1.1953 and if that be so, he should have retired on superannuation on 31.1.2008. But it seems that the 3rd respondent felt that his correct date of birth is 12.6.1954 and he, therefore, moved the Commissioner for Government Examinations for correction of the date of birth in the year 2002. Apparently that application was allowed and an order was passed by the Commissioner for Government Examinations on 21.7.2003 for correction of his date of birth in the school records. Petitioner, thereafter, moved the Government for correction of his date of birth in his service records in the year 2007 and that ultimately resulted in Ext.P2 order dated 16.1.2008. The Government accorded sanction for the correction of his date of birth in the service book of the 3rd respondent as 12.6.1954, in the place of the existing entry i.e., 12.1.1953 “as a very special case”. W.P.(C).NO.6999/08 :: 3 :: But the Government made clear that this should not be quoted as a precedent. The Director General of Police was directed to take necessary action to effect the correction of the date of birth in the service book of the 3rd respondent. Ext.P2 has been challenged by the petitioner in this writ petition. 3. It is contended that Ext.P2 is vitiated by an illegal exercise of jurisdiction. The application for correction of date of birth of a Government servant will have to be entertained and disposed of in terms of Ext.P1 Government order dated 30.12.1991. As per Ext.P1 an application should be filed primarily within 5 years from the date of his/her entry into service. In the alternative, it will have to be filed within one year from the date of receipt of Ext.P1 Government order. Paragraph 5 of Ext.P1 order makes it clear that there shall be no entertainment of application in relaxation of the condition regarding the time limit and such applications shall be summarily rejected. If that be so, it is contended, Ext.P2 order is without jurisdiction. W.P.(C).NO.6999/08 :: 4 :: 4. It is further contended that the career prospects of the petitioner would have been positively advanced if the 3rd respondent had retired from service on 31.1.2008. 5. A counter affidavit has been filed by the 3rd respondent. It is pointed out that the petitioner is not detrimentally affected by Ext.P2. The petitioner's career cannot, in any manner, be advanced merely because the 3rd respondent would have retired on 31.1.2008. The Government has the power to relax a condition mentioned in Ext.P1 in suitable cases. The Government has relaxed such conditions in several orders, one of them being Ext.R3(a). The petitioner has no locus standi to challenge Ext.P2. 6. I heard learned counsel for the petitioner Mr.S.Sreekumar, learned Senior Government Pleader Mr.Nandakumar and Sri.S.Krishnamoorthy, learned counsel for the 3rd respondent. 7. The primary question is whether Ext.P2 order is vitiated either by lack of jurisdiction or W.P.(C).NO.6999/08 :: 5 :: an illegal exercise of jurisdiction or arbitrariness vitiating the exercise of power. Entertainment of applications for correction of date of birth submitted by Government servants is regulated by Ext.P1 order. The order, in detail, in paragraph 2 of the same, emphasises the need for furnishing correct date of birth at the time of one's entry into service. It also refers to the fact that one realises his date of birth on a number of occasions in his life --the moment he gets his S.S.L.C or secures extract of the School Admission Register, when he registers his name 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. The employee also signs the service book and thus gets an opportunity to verify whether the date of birth is correctly entered in the service book. In such circumstances, there is no rationale in granting an opportunity to any Government servant to request a correction of date of birth in the service records. Nevertheless, the Government thought it fit to grant an W.P.(C).NO.6999/08 :: 6 :: opportunity, in the initial period in one's service and it is accordingly that a time limit was fixed for applying for correction of date of birth in the service as '5 years from the date of entry' in the first instance. But in cases where some of the Government servants would have completed 5 years by the time Ext.P1 was issued, one year from the date of Ext.P1 is also allowed to seek correction of date of birth of such Government employees. It is in conjunction with this stipulation that the condition in paragraph 5 of the order is relevant. That is to say, that “all applications for relaxation of the period regarding the time limit shall be summarily rejected”. 8. It cannot be gainsaid that the Government has the power to stipulate conditions regarding entertainment and disposal of application for correction of date of birth in the service records. In fact, the Government could have declared that under no circumstances it will entertain an application for correction of date of birth. This is within the competence W.P.(C).NO.6999/08 :: 7 :: of the Government. If that be so, it is also within the competence of the Government to say that an application for correction of date of birth, if it is to be entertained, will have to be filed within one year from the date of Ext.P1 order. The stipulation contained in Ext.P1 order is, therefore, one with jurisdiction. Once this position is clear, then it also follows that the Government has evolved unto itself a system for entertaining and disposing of applications for correction of date of birth. Prescription of a time frame in that regard is part of the system, which the Government has adopted. The order is publicised (it is in fact Gazetted) and going by the very nature of the implications that would come about, whenever there is an order accepting the application for correction of date of birth, it can be said that the order contemplates civil consequences to many. It can, even, be said to be one regulating the service conditions of the Government servants in the sense that even if there has to be a change in correction of date of birth in the service records, the application is to be considered and disposed W.P.(C).NO.6999/08 :: 8 :: of strictly in terms of Ext.P1. Ext.P1 would be binding not only on the Government Servants, but on the Government also, subject, of course, to the competence of the Government to amend Ext.P1 or modify the same. But, as long as Ext.P1 is in force, the Government, as also the Government servants, would be bound by the same. 9. If that be so, a deviation from Ext.P1 would be justified only if there is a residuary discretion reserved by the Government unto itself either under Ext.P1 Government order or in any supervening order. There is no such power to entertain cases of deviation in relaxation of the stipulation contained therein. In other words, if the Government acts in deviation of Ext.P1, the action will have to be branded as one vitiated by an illegal exercise, which could, even, be termed as an abuse of power. Such orders would fit into the description of orders that are unconstitutional, in the sense that they are violative of Article 14 of the Constitution. W.P.(C).NO.6999/08 :: 9 :: 10. I have read Ext.P2 carefully. Obviously since there is no provision in Ext.P1 for relaxation of the time frame mentioned therein, Ext.P2 is vitiated on that score itself in the first instance. But, even otherwise, I am not able to discern one single factor on the face of Ext.P2 which would justify this extraordinary exercise of power by the Government. The Government says that sanction is accorded for correction of date of birth of the 3rd respondent 'as a very special case'. What could make the correction of date of birth of the 3rd respondent 'a special case? Is it special for the 3rd respondent or is it special for the Government? What could be the public interest, which must have informed the Government in deviating from the standards that are laid down in Ext.P1. I am not able to discern anyone. At the same time, the Government is conscious of the necessity to treat Ext.P2 as an isolated instance, when it says that Ext.P2 should not be quoted as a precedent. Why did the Government state that Ext.P2 need not be treated as a precedent by similarly situated persons in future? Why should any W.P.(C).NO.6999/08 :: 10 :: Government relax its own standards? I do not find any extraordinary circumstance which must have compelled the Government to resort to this extraordinary exercise of power. 11. Learned counsel for the 3rd respondent Sri.Krishnamoorthy submits that there are several other orders of a similar nature and refers to Ext.R3(a) in that regard. May be, similar illegal one might have been passed by the Government. May be they have not been challenged as such. But, after all, an order which has been demonstrated as a patently illegal order is frontally challenged before this court. There must be some good reason why this court should not exercise its jurisdiction. I do not find any reason not to interfere with an order in the nature of Ext.P2. 12. For all these reasons, the writ petition is allowed. Ext.P2 is quashed. But, in the circumstances of the case, it is made clear that the services rendered by the 3rd respondent from 31.1.2008 till today shall be treated as regular service, for the purpose of his pay and W.P.(C).NO.6999/08 :: 11 :: allowances and not for any other purpose including his retirement benefits. In the nature of the above discussion, there will be a direction to the Registry to forward a copy of this judgment to the Chief Secretary to Government and it is hoped that there will be no occasion for this court, in future, to come across any order in the nature of Ext.P2. Sd/- (V.GIRI) JUDGE sk/ //true copy//