IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 11TH OCTOBER 2011 / 19TH ASWINA 1933 WP(C).No. 15967 of 2006(A) -------------------------- PETITIONER(S): --------------- S.LEELA, SELECTION GRADE LECTURER IN PHYSICS, SREE NARAYANA COLLEGE FOR WOMEN, KOLLAM, RESIDING AT KOTTATHAZHA HOUSE, MUNDAKKAL EAST, KOLLAM-1. BY ADVS. SRI.ELVIN PETER P.J. SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN SRI.ANTONY BENEDICT RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. 4. THE PRINCIPAL, S.N. COLLEGE FOR WOMEN, KOLLAM. 5. UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR,, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SRI.ANTONY MUKKATH. R5 BY ADVS. SRI.S.GOPAKUMARAN NAIR, SC KERALA UTY SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY . THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON 11/10/2011 DELIVERED THE FOLLOWING: WP(C).No. 15967 of 2006(A) APPENDIX PETITIONERS EXHIBITS :- EXT.P1 : TRUE COPY OF COMMUNICATION DATED 23-02-1993 ISSUED BY THE TALUK PANCHAYAT OFFICER, KOTTARAKKARA. EXT.P2 : TRUE COPY OF CERTIFICATE DATED 09-07-1992 ISSUED BY THE TALUK PANCHAYAT OFFICER, KOTTARAKKARA. EXT.P3 : TRUE COPY OF CERTIFICATE DATED 05-11-1992 ISSUED BY THE VILLAGE OFFICER, EZHUKONE. EXT.P4 : TRUE COPY OF CERTIFICATE DATED 23-01-1998 ISSUED BY THE TAHSILDAR, KOTTARAKKARA. EXT.P5 : TRUE COPY OF ORDER G.O(Rt.)NO.3791/96/G.EDN. DATED 25-11-2996. EXT.P6 : TRUE COPY OF ORDER DATED 26-03-1999 ISSUED BY THE COMMISSIONER FOR GOVERNMENT EXAMINATIONS. EXT.P7 : TRUE COPY OF RELEVANT PAGE OF THE CORRECTED SSLC BOOK OF THE PETITIONER. EXT.P8 : TRUE COPY OF CERTIFICATE DATED 02-09-2002 ISSUED BY THE PRINCIPAL, S.N.COLLEGE FOR WOMEN, KOLLAM. EXT.P9 : TRUE COPY OF THE REPRESENTATION DATED 09-10-2001 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. EXT.P10: TRUE COPY OF COMMUNICATION DATED 15-05-2002 ISSUED BY THE 2ND RESPONDENT. EXT.P11: TRUE COPY OF AMENDMENT TO THE STATUTES ISSUED AS PER NOTIFICATION DATED 23-11-2000 ISSUED BY THE UNIVERSITY OF KERALA EXT.P12: TRUE COPY OF JUDGMENT DATED 27TH MAY, 2005 IN O.P.NO.25454/2002 OF THIS HONOURABLE COURT. EXT.P13: TRUE COPY OF ORDER DATED 09-08-2005 ISSUED BY THE 2ND RESPONDENT. EXT.P14: TRUE COPY OF THE JUDGMENT DATED 20TH DECEMBER, 2005 IN O.P.NO.21226/2002 OF THIS HONOURABLE COURT. EXT.P15: TRUE COPY OF ORDER, G.O.(P) NO.45/91/P&ARD DATED 30-12-1991 ISSUED BY THE GOVERNMENT. EXT.P16: TRUE COPY OF THE AMENDMENT TO THE STATUTES ISSUED AS PER NOTIFICATION DATED 12-06-2000 ISSUED BY THE MAHATMA ` GANDHI UNIVERSITY. EXT.P17: TRUE COPY OF THE ORDER, G.O. DATED 28-03-2008 ISSUED BY THE GOVERNMENT EXT.P18 : TRUE COPY OF THE ORDER, G.O DATED 08-03-2007 ISSUED BY THE GOVERNMENT. RESPONDENTS EXHIBITS : NIL. //TRUE COPY// P.A TO JUDGE amk. S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.15967 of 2006 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11th day of October, 2011 J U D G M E N T At the time of filing this writ petition the petitioner was a Lecturer of S.N. College Cherthala. Subsequent to the filing of the writ petition she retired from service on 31.05.2005. This writ petition relates to correction of her date of birth in the service records. According to the petitioner, her correct date of birth is 24.6.1952, whereas, in the service records the date of birth is entered as 24.5.1950. The petitioner submitted Ext.P9 application for correction of date of birth on 9.10.2001. That was rejected. The petitioner approached this court by filing O.P. No.25454/2002, in which, I passed Ext.P12 judgment which reads as follows: “Petitioner is a Selection Grade Lecturer now working in the S.N.College for Women, Kollam. She got her date of birth in her S.S.L.C. Book corrected as per Ext.P6. Thereafter, she filed an application for correction of date of birth in the service book. The same is rejected by Ext.P10 in the following manner: "The DCE, Tvpm. has returned the proposal stating that there is no existing rules to correct W.P.(C)No.15967 of 2006 -2- the date of birth noted in the S.B". This observation does not appear to be correct because, in the Kerala University (Conditions of Service of Teachers and Members of Non-teaching Staff) First Statutes, 1979, there is a specific statute, namely, Statute 79 which contains the provision for correction of date of birth. In fact, it even gives a power to the appropriate authorities to correct the date of birth in exceptional cases where the request for correction or alteration of date of birth, could not be filed within the time stipulated therein. Therefore, Ext.P10 order on the face of it, is unsustainable and the same is liable to be quashed. Accordingly, Ext.P10 is quashed. 2. Counsel for the petitioner submits that subsequent to her filing of application, the statute was amended making the period of limitation prescribed for filing the application for correction of date of birth as within five years from the date of entry into service. Counsel for the petitioner would submit that, at the time of filing application, this amendment was not there. Therefore, she is entitled to have her application considered in accordance with the statute as obtaining at the time of application. He would also contend that at the time of amending the statute making the period of limitation as within five years of entering service, there was no saving provision in the case of persons who had already crossed the five years' period after their entering service. Therefore, there is apparent lacuna in the amended provision. He also brings to my attention that even in the Government Order in 1991, when the Government also brought similar amendments to the provisions regarding correction of date of birth, they had specifically provided that, in case of persons who had already crossed the five years limit, they will be entitled to make the application within one year from the date of the said order. 3. The Director of Collegiate Education shall take back the application for correction of date of birth filed by the petitioner on record and dispose it of in accordance with law within a period of one month from the date of receipt of a copy of this judgment. While disposing of the application for correction of date of birth filed by the petitioner, the D.C.E. will take into account the above factors also. Till final decision is taken by the D.C.E., the petitioner will be allowed to continue in service. However, she will not be entitled to any salary or allowance. If, ultimately, the D.C.E., for proper reasons, decides not to allow her claim, she will not be entitled to the salary and allowances for the period she worked pursuant to this judgment. The original petition is disposed of as above, without any order as to costs.” W.P.(C)No.15967 of 2006 -3- Subsequent to the same, the petitioner's claim was again rejected by Exts.P13 and P17 orders of the University and the Government respectively. The reason for rejecting the claim is limitation. The petitioner challenges those orders in this writ petition. According to the petitioner, the respondents have not considered the claim of the petitioner in accordance with the directions in Ext.P12 judgment. He points out that Ext.P11 amendment to the Kerala University First Statutes, 1970 prescribing a limitation for applying for correction of date of birth as five years from the date of entry into service came into force on 23.11.2000. Even the Government in respect of date of birth correction of Government servants who has already crossed the period of limitation at the time of passing of the Government order, had granted one year's time from the date of the Government order which also provided for five years limitation from the date of entry into service, for submitting applications for correction of date of birth. The petitioner has filed the application on 9.10.2001 within one year from the date of Ext.P11 amendment to the Kerala University W.P.(C)No.15967 of 2006 -4- First Statutes. Therefore, going by the spirit of Ext.P12 judgment, the respondents ought to have considered the claim of the petitioner for correction of date of birth on merits, without rejecting it on the ground of limitation, is the contention of the petitioner. 2. I have considered the rival contentions in detail. 3. I am constrained to observe that both the University and the Government have not considered Ext.P12 judgment in the correct perspective. There is no point in issuing Ext.P11 amendment to the Kerala University First Statutes directing that the application for correction of date of birth should be filed within five years of entry into service without providing a separate period of limitation at least in respect of persons who have already crossed that limit at the time of coming into force of the amendment. When suddenly such a prescription is brought in, it is only appropriate that the existing employees be given a reasonable time to file an application for correction of date of birth. In fact the Government themselves have chosen to give such an opportunity to existing Government employees W.P.(C)No.15967 of 2006 -5- by prescribing one year period as the limitation period for applying for correction of date of birth in respect of persons who have already crossed the period of limitation prescribed by the Government order. By Ext.P12 judgment, I wanted the respondents to consider the claim of the petitioner in that perspective. The petitioner has submitted Ext.P9 application for correction of date of birth within one year from the date of Ext.P11. That being so, I am of opinion that the respondents ought to have considered the claim of the petitioner on merits without rejecting the same on the ground of limitation. Accordingly the impugned orders are quashed. The 1st respondent shall consider the claim of the petitioner for correction of date of birth on merits based on the records produced by the petitioner and pass appropriate orders thereon and forward the same to the 5th respondent University within two months from the date of receipt of a copy of this judgment after affording an opportunity of being heard to the petitioner. Thereupon, within another month, the 5th respondent shall pass orders in accordance W.P.(C)No.15967 of 2006 -6- with the Government order to be passed as directed above. If the petitioner's claim for correction of date of birth is found to be genuine, the additional period of service of the petitioner which ought to have been given to the petitioner on correction of date of birth, shall be allowed to be counted for the purpose of determining the qualifying service for pension. But the petitioner will not be entitled to any other service benefits, even if the Government accepts the claim of the petitioner for correction of date of birth, except retirement benefits counting the additional period of service. The writ petition is allowed as above. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/