IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 WP(C).No. 5774 of 2010(V) ------------------------- PETITIONER(S): ---------------------- P.SAROJINI, W/O.SREEDHARAN, AGED 54 YEARS, KUNIYIL HOUSE, AMBILAD, MANGATTIDAM P.O., KUTHUPARAMBA, THALASSERI TALUK. BY ADVS. SRI.K.V.PAVITHRAN SRI.M.P.JAYANANDAN SRI.T.P.SAEED RESPONDENT(S): ------------------------ 1. THE COMMISSIONER FOR GOVERNMENT EXAMINATIONS, THIRUVANANTHAPURAM, P.O.THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER MR.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 5774 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P1(a) :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P1(b) :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P1(c) :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P1(d) :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P1(e) :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P1(f) :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P1(g) :- Copy of the birth extract of the children of Kunhambu & Kallu. Ext.P2 :- Copy of the death certificate of 6th child Raman. Ext.P3 :- Copy of the S.S.L.C. Book. Ext.P4 :- Copy of the order of the 1st respondent dated 2.3.2009. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge K.T.SANKARAN, J. ------------------------------ W.P.(C).No.5774 OF 2010 ------------------------------ Dated this the 1st day of October, 2010 JUDGMENT The petitioner is working as U.D.Clerk in the Primary Health Centre, Mokeri, Kannur District. She passed S.S.L.C in March, 1972. The date of birth of the petitioner was shown as 27.8.1955 in the school records and S.S.L.C. Book. The case of the petitioner is that she was born on 22.12.1956 and that her date of birth was wrongly entered in the school records. 2. The petitioner made an application to the Commissioner for Government Examinations for correction of date of birth in the S.S.L.C. book and school records. That application was rejected by the Commissioner as per Ext.P4 order dated 2.3.2009. The reasons stated for rejection of the application in Ext.P4 order are the following: “The applicant was admitted to Std.I on 28.5.1961 with date of birth 27.8.1955. The request of the applicant is to alter the date of birth from 27.8.1955 to 22.12.1956. W.P.(C).No.5774 OF 2010 2 If the request is allowed, the applicant would become an under aged student at the time of admission in Std.I ie only having 4 years 5 months and 6 days of age. As per rule 5 of Chapter VI of KER, no child who has not completed 5 years of age as on 1st June of the year of admission shall not be admitted to any school. And as per rule 10 B of Chapter VI of KER, such pupil will not be promoted from the standard, till he attains the age prescribed for the standard to which the pupil is to be promoted. In the above circumstances, the request of the applicant to alter her date of birth from 27.8.1955 to 22.12.1956 in the qualification certificate deserves no consideration and hence the request is rejected.” 3. The learned counsel for the petitioner relied on the decision of this court reported in Chandrika v. State of Kerala (2010 (1) KLT 223). In that case the learned Single Judge relied on the decision in 1976 KLN page 178 case no.158. 4. In Chandrika v. State of Kerala it was held as follows: “17. It is not the law that when a person's date of birth is allowed to be corrected, the advantage obtained by the said person based on the irregular entry, has to be W.P.(C).No.5774 OF 2010 3 forfeited. What is provided under the relevant rule is an opportunity to correct the date of birth in the school records on the basis of cogent materials which, if accepted, would lead to the conclusion that the original entry has to be corrected. Going by R.3 of Chap.VI K.E.R. a facility has been provided to correct the date of birth in the Admission Register and sub-r. (1A) also provides for a facility for correcting the date of birth in school records by the Commissioner of Government Examinations. Sub-r.(2) of R.3 is important. It provides that “if the authority referred to in sub-r.(1) is satisfied after necessary enquiries that the change applied for could be granted, he will issue an order to make the alternation....” Therefore, the enquiry is confined to the question whether the original entry requires alteration, in the light of the materials made available by the applicant. If the applicant can conclusively prove that the original entry does not tally with the correct date of birth, based on sufficient materials, power is given to the authority to order an alteration. It is not the law, therefore, that the advantage obtained by the irregular entry, if at all anything is there, will be detrimental to the applicant. The prohibition contained in R.5 of Chap.VI have to be understood in the light of the above fact. The admission of the child herein, viz. The petitioner, in the school at that point of time, would have been based on the entry, viz. 24.12.1954. The petitioner's case is that her correct date of birth is 14.1.1957 and in support of it, Ext.P1 certificate of birth issued by the Panchayat concerned and other records including the entries in relation to her brothers and sisters have been produced. As held by this Court in Ext.P17 judgment, if the date of birth of the petitioner is 24.12.1954 as entered in her SSLC book, the difference in age between her elder sister Smt.K.Radhamani and the petitioner would be less than one W.P.(C).No.5774 OF 2010 4 month and the petitioner will be elder to the said sister. When this Court directed the authority to consider the entire issue in the light of the above findings, the recourse now adopted by relying upon R.5 of Chap.VI cannot be appreciated. The prohibition for admission of a child in a school as provided in R.5 cannot have any relevance in the matter of considering the question of alteration of the date of birth. The petitioner cannot be penalized for that. As held by this Court, the crucial issue has to be adjudicated without recourse to those aspects.” 5. In view of the decision in 2010 (1) KLT 223, Ext.P4 order passed by the Commissioner is liable to be quashed. Accordingly, the Writ Petition is allowed. Ext.P4 order dated 2.3.2009 is quashed. The Commissioner shall consider the application for correction of date of birth submitted by the petitioner afresh, after affording an opportunity of being heard to the petitioner and in the light of the principles laid down in Chandrika v. State of Kerala [2010(1) KLT 223] and other binding precedents, as expeditiously as possible and at any W.P.(C).No.5774 OF 2010 5 rate within a period of three months from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the Commissioner for the Government Examinations. K.T.SANKARAN, JUDGE. cms