GOPALAKRSIHNAN NAIR.D V. UNION OF INDIA

WA/1567/2020

AI Insights

The case involves Gopalakrishnan Nair.D, an ex-serviceman, who appealed against the judgment of a Single Judge of the High Court of Kerala, which had dismissed his writ petition challenging an order (Ext.P5) related to the correction of his wife's date of birth in pension records. The Single Judge had found the writ petition not maintainable, citing the availability of an alternative remedy before the Armed Forces Tribunal. The appellant argued that the order was without jurisdiction and cited a Supreme Court judgment supporting his right to file a writ petition under Article 226 of the Constitution. The respondents defended their position by highlighting the need for reliable documents to prevent false claims post-retirement. The Division Bench of the High Court found the conditions imposed by the respondents to be unreasonable and allowed the appeal.

• Counselvise Citation: [2020] 140 COUNSELVISE.COM (IT) 733948 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 01-12-2020
• Assessment Year: misc
• Other Referred Cases: Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India (AIR 1976 SC 1785)
• Laws Referred To: Armed Forces Tribunal Act, 2007, Article 226 of the Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: P VIJAYAKUMAR
• Assessee Lawyers: GEORGE VARGHESE; A R DILEEP; P J JOE PAUL; MANU SRINATH; RAJAN GEORGE
• Keywords: Alternative remedy; Date of birth correction; Jurisdiction; Writ Appeal; Pension correction
• Section: 14

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MR. JUSTICE GOPINATH P. TUESDAY, THE 01ST DAY OF DECEMBER 2020 / 10TH AGRAHAYANA, 1942 WA.No.1567 OF 2020 AGAINST THE JUDGMENT DATED 05.8.2020 IN WP(C) 8656/2020(F) OF HIGH COURT OF KERALA APPELLANT/WRIT PETITIONER IN THE WRIT PETITION: GOPALAKRSIHNAN NAIR.D, AGED 58 YEARS S/O.N.DAMODHARAN PILLAI, LAKSHMI PONNEZHA, THEKKEKKARA, MAVELIKKARA-690107. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SRI.P.J.JOE PAUL SRI.MANU SRINATH SRI.RAJAN G. GEORGE RESPONDENTS/RESPONDENTS IN THE WRIT PETITION: 1 UNION OF INDIA, REPRESENTED THROUGH SECRETARY, MINISTRY OF DEFENCE, RAJPATH, E BLOCK, CENTRAL SECRETARIAT, NEW DELHI, DELHI-1100111. 2 PRINCIPAL CONTROLLER DEFENCE ACCOUNTS (PENSIONS), OFFICE OF THE PRINCIPAL CONTROLLER DEFENCE ACCOUNTS (PENSIONS), ALLAHABAD, DRAUPADI GHAT, NEAR, SADAR BAZAR, PRAYAGRAJ, UTTAR PRADESH-211014. 3 RECORDS OFFICER, TOPKHANA ABHILEKH NASIK ROAD CAMP, C/O.56 APO, ARTILLERY RECORDS, NASIK, MAHARASHTRA- 908802. 4 DEPARTMENT OF EX-SERVICEMEN WELFARE, MINISTRY OF DEFENCE, GOVERNMENT OF INDIA, NEW DELHI-110011, REPRESENTED BY ITS SECRETARY. BY SRI. P. VIJAYAKUMAR ASGI THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 01.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.A.No.1567/2020 2 JUDGMENT Dated this the 1st day of December 2020 Gopinath, J This writ appeal has been filed challenging the judgment of the learned Single Judge in W.P.(C).No.8656/2020 through which the learned Single Judge found that the writ petition was not maintainable on account of the fact that the writ petitioner has an effective alternative remedy before the Armed Forces Tribunal under Section 14 of the Armed Forces Tribunal Act, 2007. 2. The appellant is an ex-serviceman. The case of the appellant is that when the orders issued are totally without jurisdiction, it is open for him to file a writ petition under Article 226 of the Constitution of India notwithstanding the availability of an alternative remedy. He relies on the judgment of the Supreme Court in Siemens Engineering and Manufacturing Co. of India Ltd. v. Union of India (AIR 1976 SC 1785), in support of his contention. 3. The writ petition was filed challenging Ext.P5 order issued by the 3rd respondent. Ext.P5 is a communication issued by the 3rd respondent intimating the appellant that while the name of his wife has been corrected as Saraswathi Amma R instead of Saraswathi in the pension papers, as W.A.No.1567/2020 3 requested, the correction of her date of birth from 1st December 1967 to 15th May, 1964 can only happen if the following documents are made available:- (a) DNA test determine the actual date of birth from the competent medical authority in the original; (b) Marriage certificate showing the date of birth issued by Registrar of Marriages duly attested; (c) Recommendation of the Office; and (d) An affidavit executed before 1st class Magistrate/Notary regarding change of date of birth in original 4. It is the case of the appellant that conditions (a) and (b) are totally unnecessary and incapable of being complied with. It is submitted that the DNA test to determine the date of birth is totally illogical on account of the fact that DNA test cannot be used to determine age with any certainty (the predictive error being +/- 5.2 years) whereas the correction sought for is from 1.12.1967 to 15.5.1964. Regarding the 2nd condition to produce a marriage certificate showing date of birth of the appellant’s wife issued by Registrar of Marriages is concerned, the learned counsel referred to Exts.P8 and P9 and submits that the statutory form under the Kerala State Hindu Marriage Rules does not contain any column where the date of birth of the persons who are getting married is recorded. It is submitted that only the age is recorded without reference to the date of birth. W.A.No.1567/2020 4 5. The learned ASGI appearing for the respondents would submit that they have been insisting on documents such as those required under Ext.P5 only on account of the fact that there have been several instances noticed where the persons concerned have been requesting for correction of name, date of birth, name of children etc. many years after retirement for making false claims. He submits that the department has to have reliable proof before permitting such corrections. Learned ASGI also submits that the judgment of the learned Single Judge is perfectly justified and the appellant, having an effective alternative remedy before the Armed Forces Tribunal, is precluded from challenging Ext.P.5 under Article 226 of the Constitution of India. 6. On a consideration of the issues raised, we are of the opinion that the contention of the learned ASGI that the Department is entitled to insist for reliable documents and proof before claims regarding change of name, date of birth, name of children/dependents etc. are allowed in the pension papers is well-founded. However such requirements have to be with reference to facts of individual cases. We have noticed from the facts of the present case that the request of the petitioner is to change the date of birth of his wife from 1.12.1967 to 15.5.1964. He has produced along with the writ petition, documents such as the Aadhar Card issued by the Unique Identification Authority of India, the PAN card issued by the Income Tax W.A.No.1567/2020 5 Department and the front page of the SSLC book of his wife Saraswathi Amma R to show that her actual date of birth is 15.5.1964. He has also produced Exts.P8 and P9 to show the details recorded by the Registrar of Marriages at the time of marriage and also the statutory form prescribed in the Kerala State Hindu Marriage Rules to show that there is no column therein to show the actual date of birth of his wife. 7. Considering all the aforesaid facts, we overrule the objection raised by the ASGI regarding the maintainability of the writ petition and hold that in circumstances like these we would be justified in entertaining the writ petition and issuing directions by exercising our jurisdiction under Article 226 of the Constitution of India for, it is well settled that refusal to entertain a writ petition when there is an effective alternative remedy is only a rule of prudence and not that of jurisdiction. It is only a self-imposed limitation. Here the appellant/writ petitioner is an ex-serviceman. His request appears to be genuine. The conditions imposed appear to be unreasonable. 8. We, therefore, allow this writ appeal and set aside the judgment of the learned Single Judge in W.P.(C).No.8656/2020. Ext.P5 stands quashed and the competent authority is directed to take into account Ext.P4 series and P8 and issue appropriate orders correcting the date of birth as requested for by the appellant. The appellant shall comply W.A.No.1567/2020 6 with all requirements in Ext.P5 except those specified under (a) and (b) of paragraph 3. On complying with such requirements, the competent authority shall carry out necessary correction. The needful shall be done within two months from the date of receipt of a copy of this judgment. Sd/- A.M.SHAFFIQUE JUDGE Sd/- GOPINATH P. kp True copy P.A. To Judge JUDGE W.A.No.1567/2020 7 APPENDIX APPELLANT'S EXHIBITS: ANNEXURE A1 A TRUE COPY OF THE PUBLICATION TITLED AS 'EPIGENETIC PREDICTOR OF AGE' CITED AS \"BOCKLANDT S, LIN W, SEHI ME, SANCHEZ FJ, SINSHEIMER JS, HORVATH S, ET AL.(2011) EPIGENETIC PREDICTOR OF AGE.PLoS ONE 6(6):e14821\" PUBLISHED ON 22.06.2011 IN THE PUBLIC LIBRARY OF SCIENCE JOURNAL. "