IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 WP(C).No. 19643 of 2009(A) -------------------------------- PETITIONER: -------------- JOSHIL AVIKKAL, AGED 33 YEARS, AVIKKAL HOUSE, TEMPLE GATE P.O., KANNUR DISTRICT, REPRESENTED BY POWER OF ATTORNEY HOLDER BHARATHAN KUNNATH, AVIKKAL HOUSE, THALAYI, TEMPLE GATE, TELLICHERRY, KANNUR DISTRICT. BY MR.M.SASINDRAN, ADVOCATE. RESPONDENTS: ------------------ 1. THE COMMISSIONER FOR GOVERNMENT EXAMINATIONS, THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. BY MR. K. RAMESH, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.19643/2009 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE BIRTH CERTIFICATE ISSUED BY THALASSERY MUNICIPALITY. EXT. P2 : COPY OF RELEVANT PORTION OF SECONDARY SCHOOL LEAVING CERTIFICATE (SSLC). EXT. P3 : COPY OF APPLICATION ALONG WITH PROFORMA ANNEXURE I. EXT. P4 : COPY OF PASSPORT IN WHICH THE DATE OF BIRTH IS CORRECTED ALONG WITH THE OLD PASSPORT. EXT. P5 : COPY OF ORDER DTD. 19.1.09 ISSUED BY GOVT. CONDONING THE DELAY IN FILING THE APPLICATION FOR CORRECTION. EXT. P6 : COPY OF ORDER No.K.DIS/EX/B2/8966/2009/CGE. EXT. P7 : COPY OF JUDGMENT REPORTED IN 1976 KLN 178 (CASE No.158). 1ST RESPONDENT'S EXHIBITS: EXT. R1(a) : COPY OF JUDGMENT DTD. 15.2.08 IN W.P.(C) No.5499/08. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.19643 OF 2009 --------------------------------------- Dated this the 24th day of August, 2009. J U D G M E N T The petitioner is aggrieved by Exhibit P6 order by which the request of the petitioner to alter his date of birth from 23.05.1975 to 23.09.1975 was rejected. The petitioner is presently employed in U.S.A. His date of birth is 23.09.1975. In the records of the Thalassery Municipality, the same is entered correctly, which is evidenced by Exhibit P1. 2. It is the case of the petitioner that while admitting him in the school in the 1st standard, his date of birth was incorrectly furnished and consequently in the school records the date of birth was mentioned as 23.05.1975. The said entry is there in the S.S.L.C Book also. For getting a permanent resident visa in U.S.A, the petitioner applied for birth certificate in the Municipality and consequently Exhibit P1 was issued. It is only then the discrepancy was noticed, according to the petitioner. W.P.(C) No.19643/2009 2 The petitioner submitted Exhibit P3 application for correction of date of birth. In the passport also, the correct entry is mentioned, submits the petitioner. 3. By Exhibit P5, the Government condoned the delay in submitting the application for correction of date of birth. In Exhibit P6, the only reason stated for rejecting the application is that if the request is allowed, the applicant become an under aged student at the time of admission in standard I; that is having only 4 years 8 months and 8 days of age. The first respondent has filed a counter affidavit supporting Exhibit P6. 4. Learned counsel for the petitioner relies upon Exhibit P7, a judgment of this Court in K.K.Nandakumaran vs. Joint Commissioner for Government Examinations, Trivandrum (1976 KLN 178). In similar circumstances, the application for correction of date of birth was rejected on the ground that if it is corrected, the petitioner therein would have gained an advantage at the time of admission to Standard I. Relying upon the judgment of this Court in O.P.No.4350/1970, the order therein W.P.(C) No.19643/2009 3 was set aside. The relevant portion of the judgment in O.P.No.4350/1970, which is relied upon, is extracted below: “There is yet another reason given by the 2nd respondent in Ext.P4 for rejecting the petitioner's request and that in case the petitioners' date of birth is accepted as 5-12-1088 as claimed by him he would have been below 5 years of age at the time of his admission into Standard I. If on the basis of relevant and acceptable evidence the petitioner succeeds in establishing that he was actually born only on 5-12-1088 the fact that he would have been below 5 years of age at the time of his admission into Standard I cannot constitute a valid ground for turning down his request for correction of the entry in his S.S.L.C.........It is difficult to understand on what principle the petitioner can be penalised for the incorrectness of an entry given by his guardian at a time when he was a minor child of about four years and how it can be said that an advantage has been gained by the petitioner by making a wrong representation”. 5. I respectfully agree with the same. The question is whether on the materials produced by the petitioner, he is entitled for a correction of date of birth. If, on the basis of the W.P.(C) No.19643/2009 4 relevant materials, the date of birth is liable to be corrected, appropriate orders will have to be passed in the matter. Hence, Exhibit P6 cannot be supported. The petitioner cannot be said to have taken an advantage while he was admitted on the basis of the earlier entry which is sought to be corrected. 6. Learned Government Pleader relied upon the judgment of a learned Single Judge of this Court in W.P.(C) No.5499/2008. A reading of the same shows that this Court did not interfere with the order passed by the Joint Commissioner for Government Examinations mainly on the ground that the petitioner therein has not approached the Joint Commissioner of Government Examinations within the time prescribed under Sub Rule 1A of Rule 3 of Chapter VI of KER. It was found that the petitioner has not given any explanation for the delay in filing the application also. This Court held that the date of birth is sought to be corrected after about 40 years of joining the school. It was also observed that as rightly pointed out by the Joint Commissioner if the petitioner's date of birth is corrected, that would mean that W.P.(C) No.19643/2009 5 she has joined the school at the age of 3½ years, which is clearly prohibited under the KER and further, if the date of birth is corrected, the petitioner would get advantage at both ends, which cannot be permitted under law. 7. But, the decision of this Court in K.K.Nandakumaran vs. Joint Commissioner for Government Examinations, Trivandrum (1976 KLN 178) was not pointed out before the learned Single Judge. Apart from that, as already observed, I respectfully agree with the view taken in K.K.Nandakumaran's case (supra). This is not a case where there is any delay, going by the order Exhibit P6 passed by the Joint Commissioner for Government Examinations. The delay has already been condoned by the Government. Therefore, even though this Court in Exhibit R1(a) upheld the order passed by the Joint Commissioner for other reasons, including the ground of delay, the said dictum may not apply to the facts of this case. Therefore, Exhibit P6 is quashed. There will be a direction to the 1st respondent to pass fresh orders within a period of three W.P.(C) No.19643/2009 6 weeks from the date of receipt of a copy of this judgment. Since it is submitted by the learned counsel for the petitioner that the petitioner is having utmost urgency to produce the corrected certificate for employment in America, appropriate orders sanctioning the same will be issued if it is otherwise in order. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp