IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 WP(C).No. 18278 of 2007(A) --------------------------------------- PETITIONER(S): ------------------------- N.RADHAMONY, LAB TECHNICIAN, TALUK HEAD QUARTERS HOSPITAL MUVATTUPUZHA, ERNAKULAM DISTRICT. BY ADVS. MR.T.A.SHAJI SMT.T.V.NEEMA RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. THE DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM. GOVERNMENT PLEADER MR.ANTONY MUKKATH FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.18278/2007 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.K.DIS 14829/80 EX.B2 DT. 13.7.81 ISSUED BY THE COMMISSIONER FOR GOVERNMENT EXAMINATION. P2:- COPY OF THE RELEVANT PAGE OF THE S.S.L.C BOOK EVIDENCING THE CORRECTION OF DATE OF BIRTH. P3:- COPY OF THE ORDER NO.EF(5) 12391/94/DHS DT. 4.4.94 ISSUED BY THE 2ND RESPONDENT. P4:- COPY OF THE APPLICATION DT. 19.11.97 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT. P5:_ COPY OF THE COMMUNICATION DT. NIL ISSUED BY THE GOVERNMENT. P6:- COPY OF THE COMMUNICATION DT. NIL ISSUED BY THE GOVERNMENT. P7:- COPY OF THE REVIEW PETITION DT. 11.6.03 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT, ADDRESSED TO THE CONCERNED MINISTER. P8:- COPY OF THE ORDER DT. 26.8.03 ISSUED BY THE GOVERNMENT. P9:- COPY OF THE JUDGMENT DT. 27.10.06 IN WPC. NO.29475/03 OF THIS HONOURABLE COURT. P10:- COPY OF THE REPRESENTATION DT. 12.12.06 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P11:- COPY OF THE GO(RT) NO.1787/07/H&FWD DT. 19.5.07 ISSUED BY THE GOVERNMENT. TRUE COPY P.A. TO JUDGE TSS P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.18278 of 2007 -------------------------------------- Dated 27th May, 2009 JUDGMENT Heard Sri.T.A.Shaji, the learned counsel appearing for the petitioner and Sri.Antony Mukkath, the learned Government Pleader appearing for the respondents. 2. Ext.P11 order dated 19.5.2007 passed by the Government rejecting the petitioner's request to correct her date of birth in the service records is under challenge in this writ petition. The petitioner entered service as Laboratory Technician in the Health Services Department in the year 1976. Her date of birth in the SSLC book and in the service records was 5.10.1951. According to the petitioner, her correct date of birth is 20.10.1952. After the petitioner entered service, she moved the Commissioner for Government Examinations to correct the date of birth in the school records and the Secondary School Leaving Certificate. That request was granted by Ext.P1 order dated 13.7.1981. The petitioner states that thereupon necessary corrections were made in the service book by the Lay Secretary of the hospital where she was then working. It appears that during audit, the correction carried out in the service book of the petitioner was objected to on the ground that such correction was WP(C).No.18278/2007 2 made without the permission of the Government. 3. In the meanwhile, the Government issued G.O.(P) No.45/91/P&ARD. dated 30.12.1991 stipulating that applications for correction of date of birth in the service records will have to be made within five years from the date of entry in service after the school records are corrected. As regards existing employees, it was ordered that such applications will have to be made within one year from the date of the Government order. By the time the correction carried out in the service book was objected to, the period of one year from 30.12.1991, the date of the Government order had expired. However, the date of birth in the school records had been corrected way back in the year 1981. The petitioner thereupon moved the Government for correction of the date of birth in the service records. That request was rejected by Ext.P8 letter dated 26.8.2003. The petitioner thereupon filed W.P.(C)No.29475 of 2003 in this Court. By Ext.P9 judgment delivered on 27.10.2006, this Court quashed Ext.P8 and directed the Government to reconsider the matter if necessary by invoking Rule 39 of Part II of the Kerala State & Subordinate Services Rules. This Court in Ext.P9 judgment held as follows: “6. Heard both sides. The correction already entered in the service book cannot be treated as valid. The respondents did the right thing in not acting upon that corrected entry. Technically, the application filed by the petitioner before the Government in the second instance was beyond the time stipulated in G.O. dated WP(C).No.18278/2007 3 30.12.1991. It is open to the Government to take into consideration the circumstances under which the petitioner happened to file the application in the year 1997. Had the first application been forwarded to the Government for correcting the entry made in the service book of the petitioner, consequent on the corrections made in the educational records, the request could have been considered in time. The petitioner who belongs to the category of Lab Technician may not be conversant with the orders issued on the administrative side. She might have thought that the correction made by the Lay Secretary was valid and therefore did not file any application before the Government. This is a relevant circumstance. If the petitioner was told that she ought to have approached the Government for correction of the date of birth entry in the service book, there is no reason to think that she would not have filed the application within the stipulated time limit and the same would have been entertained by the Government and considered on merits, instead of being rejected as belated. As per the orders of the Government which held the field prior to 30.12.1991, only those applications filed within 2 years before the date of retirement were liable to be rejected as time barred. The petitioner is due to retire from service, going by the date originally entered in the service book, on the A.N. of 31.10.2006. 7. I feel that the Government would do well by reconsidering Exts.P5 & P8, if the petitioner files a fresh application invoking Rule 39 of K.S. & S.S.R. which empowers the Government to deal with the case of any person in a just and equitable manner as warranted by the facts and circumstances. 8. The petitioner will retire from service by the end of this month. But the same will be subject to further orders to be passed by the Government after addressing itself to the WP(C).No.18278/2007 4 necessity of applying the provisions of Rule 39 of K.S. & S.S.R. in the case of the petitioner. 9. The petitioner is free to file a representation in this behalf along with a copy of this judgment, so that the Government will consider the same in the light of the statutory provision referred to above. Appropriate decision shall be taken by the Government within 3 months from the date of receipt of a copy of the judgment together with the representation.” 4. As directed by this Court in Ext.P9 judgment, the petitioner submitted Ext.P10 representation dated 12.12.2006 before the Government. That was rejected by Ext.P11 order dated 19.5.2007 merely stating that the Government finds no reason to apply Rule 39 of Part II of the K.S. & S.S.R. and to reconsider its earlier decision. Hence this writ petition. 5. Ext.P1 discloses that the petitioner's date of birth in the school records stood corrected from 5.10.1951 to 20.10.1952 as early as on 13.7.1981. As noticed by this Court in Ext.P9 judgment, it was given effect to and necessary corrections were made in the service book but by an incompetent authority as was detected later. However, in Ext.P9 judgment, this Court took the view that in the peculiar facts of the case, the Government ought to have exercised its power under Rule 39 of Part II of the K.S. & S.S.R. This Court also directed that the retirement of the petitioner (on 31.10.2006) will be subject to the orders to be passed by the Government. However, when Ext.P11 order was passed, the Government did not take note of the binding WP(C).No.18278/2007 5 effect of the observations made by this Court in Ext.P9 judgment. In Ext.P11 the Government merely stated as follows: “In the circumstances, Government have examined the matter in detail in accordance with the Honourable High Court direction in consultation with the Personnel and Administrative Reforms Department and found no reason to apply Rule 39 of KS & SS Rules in the case of the petitioner and to reconsider the decision taken earlier. The representation read as 2nd paper submitted to Smt.Radhamony N., Laboratory Technician (retired) is accordingly rejected.” 6. In my opinion, the Government have not properly considered the case of the petitioner in the light of the observations in Ext.P9 judgment. This Court had in Ext.P9 judgment which binds the Government held that had the petitioner been alerted in time about the necessity to move the Government, she could have in view of the fact that the date of birth in the school records stood corrected on 13.7.1981 moved the Government within the time stipulated in the Government order dated 30.12.1991 and that this is a relevant circumstance which the Government ought to take note of. In the light of the binding observations and findings in Ext.P9 judgment, I am of the opinion that the stand taken by the Government in Ext.P11 cannot be sustained. 7. It is brought to my notice that the petitioner retired from service on 31.10.2006 going by the original date of birth. Even going by the date of birth as corrected by Ext.P1, the petitioner would WP(C).No.18278/2007 6 have retired from service on 31.10.2007. Therefore, even if the date of birth is corrected, the petitioner cannot be reinstated in service. She would at best be entitled only to pensionary benefits for the extended period of service which she would have rendered, had her request been allowed. For the reasons stated above, I allow this writ petition, quash Ext.P11 and direct the Government to pass revised orders on Ext.P10 representation after notice to and affording the petitioner a reasonable opportunity of being heard. This shall be done within four months from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, Health and Family Welfare Department. It is clarified that in the event of the Government upholding the petitioner's claim, she would not be entitled to salary and allowances for the period from 31.10.2006 to 31.10.2007 and that she would be entitled only to have the said period of service reckoned for the purpose of pensionary benefits. The writ petition is allowed as above. No costs. P.N.RAVINDRAN Judge TKS