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2016 Supreme(Ker) 205

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANTONY DOMINIC And A. HARIPRASAD, JJ.
MUHAMMED K.B AGED - Appellant
Vs.
T.V.ACHUMMA - Respondent
W.A.No.1829 of 2015 & C.O.No.13 of 2016 and W.A.No.128 of 2016 & C.O.No.14 of 2016
Decided on : 04-02-2016

Advocates Appeared:
For the Appellant : SRI.O.V.RADHAKRISHNAN (SR.), SMT.K.RADHAMANI AMMA, SRI.ANTONY MUKKATH
For the Respondent: SRI.P.K.IBRAHIM, SMT.K.P.AMBIKA, SMT.A.A.SHIBI, SR GOVT PLEADER SRI.RINNIE STEPHAN CHAMAPARAMBIL

Headnote:

Rules of the High Court of Kerala 1971 - R.159 - Civil Procedure Code, 1908 - O.XLI & O.XLI A - Cross Objections - When maintainable - Whether if there is no finding in the judgment under appeal, a cross objection maintained or not - Held,Cross objections in appeals filed against judgment in Writ Petitions is maintainable and an adverse finding in the judgment under appeal alone can be challenged by a respondent in the appeal in a cross-objection - There is no finding in the judgment under appeal a cross objection cannot be maintained and therefore, the cross objections are liable to be rejected on that ground also.

JUDGMENT :

Antony Dominic, J.

1. These appeals and cross objections arise from the judgment in W.P(C).38533/10. That writ petition filed by the appellant in the cross objections was allowed by judgment dated 21.7.2015. Aggrieved by that judgment, the official respondents have filed WA.128/16 and the additional 5th respondent in the writ petition has filed W.A.1829/15. The cross objections are filed by the writ petitioner, aggrieved by the judgment, to the extent her challenge against Ext.P14(a) Government Order was not considered by the learned single Judge.

2. For the sake of convenience, we shall refer to the parties as they are arrayed in the writ petition.

3. Briefly stated facts of the case are that the writ petitioner joined service as UPSA in the school of the 5th respondent Manager on 16.7.1990. At the time of entry in service, on the basis of the entry in her SSLC Book, she declared 1.6.1959 as her date of birth and this was entered in the service records.

4. Subsequently, on 3.3.1993, she submitted Ext.P1 application for correction of date of birth in her school records and other certificates as 25.4.1962. This was placing reliance on the document obtained from the Registrar of Births and Deaths. That application was rejected by order dated 14.2.1996. This order was challenged in Ext.P2 appeal, which was disposed of by Ext.P3 order dated 17.12.1996, by which, the matter was remitted to the Commissioner for Government Examinations. Accordingly, the matter was reconsidered and order dated 11.3.1998 was passed, rejecting the application. Again, an appeal was filed before the Government, which was disposed of by Ext.P4 order dated 8.5.2000. As per this order, the Government again remanded the matter to the Commissioner for Government Examinations, who passed order dated 30.10.2002 rejecting the request once again. The petitioner pursued the matter by filing yet another appeal before the Government, which was disposed of by Ext.P5 order dated 20.4.2004. By this order, the Government allowed her request for correction of date of birth and accordingly set aside the order of the Commissioner for Government Examinations. The Commissioner was directed to take necessary action to correct the date of birth of the petitioner from 1.6.1959 to 25.4.1962 in the SSLC Book and school records. In compliance with Ext.P5 order, the Joint Commissioner for Government Examinations issued Ext.P6 order dated 13.6.2005, directing the Secretary to the Commissioner for Government Examinations to make necessary corrections in the entries regarding date of birth of the petitioner in the certificate issued to her and in the concerned Tabulation Registers. In Ext.P6 order, it was made clear that it did not necessarily entail in the alteration of date of birth in service records, for which, the petitioner should apply to the authorities concerned.

5. In pursuance of Ext.P6, correction of date of birth was carried out in the SSLC Book of the petitioner, copy of which is Ext.P7. Following the correction of date of birth in the school records, on 21.6.2005, the petitioner applied to the competent authority for correction of date of birth in her service book. This was rejected by the Government as per Ext.P8 order dated 13.9.2007. In this order, placing reliance on Ext.P14(a) Government Order, G.O(P) No.45/91/P&ARD dated 30.12.1991, it was stated that Ext.P1 application for correction of date of birth in service book should have been made within 5 years of entry in service and therefore, the request of the petitioner did not merit consideration. Aggrieved by Ext.P8, the petitioner sought its review by filing an application on 6.8.2008, which again was rejected by the Government as per Ext.P10 order dated 28.12.2008. A further review filed by the petitioner was also rejected by the Government as per Ext.P11 order dated 21.10.2010. It was in this background that the petitioner filed W.P(C).38533/10 seeking to quash Exts.P8 and P11 and to direct the State Governm

































































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