Kerala High Court

Josna Raphael Poovathingal vs Union Of India on 26 May, 2025

WP(C) NO. 17195 OF 2025                     1




                                                      2025:KER:36087


                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

              THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

         MONDAY, THE 26th DAY OF MAY 2025 / 5TH JYAISHTA, 1947

                           WP(C) NO. 17195 OF 2025

PETITIONER:

               JOSNA RAPHAEL POOVATHINGAL,
               AGED 51 YEARS
               D/O. P.K. RAPPAI, RESIDING AT &#8216;KAVYAM',
               PANAMPILLY NAGAR, CHERUR, THRISSUR, PIN - 680008



              BY ADVS.
              K.R.GANESH
              ELVIN PETER P.J. (SR.)
              AHSANA E.
              ADARSH BABU C.S.
RESPONDENTS:

              UNION OF INDIA,
              REPRESENTED BY ITS SECRETARY,MINISTRY OF EXTERNAL
     1
              AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI, PIN - 110001

              THE REGIONAL PASSPORT OFFICER,
     2        COCHIN,NEAR IDBI CORPORATE BANK,SHIHAB THANGAL
              ROAD,PANAMPILL NAGAR, KOCHI, PIN - 682036

              BY ADV SHRI.C.DINESH, CGC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
26.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 17195 OF 2025                     2




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                                JUDGMENT

The petitioner seeks a direction to the second respondent to

consider Ext.P16 application preferred for re-issue of her passport with

the date of birth corrected based on the Ext.P1 Birth Certificate. The

petitioner's request was not considered, as the respondents insisted on

correcting the date of birth in the service records before considering the

application.

2. The learned Senior Counsel appearing for the petitioner submits

that the petitioner cannot now seek a correction of the service records

as the period stipulated for the same has long expired, and therefore,

correcting the service record is impossible. The learned Senior Counsel

also points out that, as per Ext.P15 Rules [The Passports (Amendment)

Rules, 2025], all that is required for correction is an affidavit stating the

reason for change in the date of birth, and therefore, the

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guidelines/manual that run counter to the statutory provisions cannot

stand the scrutiny of law.

3. The learned counsel for the respondents brought to my notice a

judgment of this Court in W.P.(C) No. 894/2025, dated 21.02.2025, in an

identical situation wherein this Court directed the 2nd respondent to

consider the application filed by the petitioner therein for correction of

date of birth in the passport without insisting on the service records

being corrected before the application for change of date of birth can be

considered.

4. A correction of service records in the case of the petitioner is an

impossibility at this distance of time as seen from Ext.P11 Government

Order dated 30th December 1991 which fixed five years from entering

the service for correction of date of birth and for those who had not

made an application, one year from the date of issuance of Ext.P1,

namely 30th December 1991.

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5. Under such circumstances, the service book of the petitioner

cannot be corrected. As held by the Hon'ble Supreme Court in State

of Madhya Pradesh vs. Narmada Bachao Andolan and another

[(2011) 7 SCC 639] and by this Court in Sulfikar vs. The Kerala State

Election Commission (MANU/KE/2350/2024), the doctrine of

Impossibility is based on the doctrines "lex non cogit ad impossibilia"

(the law does not comple a man to do what he cannot possibly

perform), "impossibilium nulla obligatio est" (the law does not expect a

party to do the impossible) and "impotentia excusat legem" in the

qualified sense that there is a necessary or invincible disability to

perform the mandatory part of the law or to forbear the prohibitory.

These maxims are akin to the maxim of Roman Law Nemo Tenetur ad

Impossibilia (no one is bound to do an impossibility), which is derived

from common sense and natural equity and has been adopted and

applied in law from time immemorial. Therefore, when it appears that

the performance of the formalities prescribed by a statute has been

rendered impossible by circumstances over which the persons

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interested had no control, like an act of God, the circumstances will be

taken as a valid excuse. The above maxims are founded upon justice

and good sense and serve as a safe and certain guide for the

administration of law. The law itself and its administration are

understood to disclaim as it does in its general aphorisms, all intention

of compelling impossibilities, and the administration of law must

adopt the general exception in consideration of a particular case. Even

in the case of the performance of formalities prescribed by a statute,

the impossibility due to circumstances over which the persons

concerned have no control has to be taken as a valid excuse. Where the

law creates a duty or charge, and the party is disabled to perform it,

without any default in him, and has no remedy over it, there the law

will, in general, excuse him. It has to be treated at par with those

circumstances over which the person had no control, like the act of

God. As such, the insistence on a condition that is incapable of

performance cannot be accepted.

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6. It is also to be seen that the compendium of

Instructions/Guidelines relating to the issue of Passports in India/Abroad

cannot go against the provisions of the Passports Act, 1967 or the Rules

thereon or any other instrument having the force of law. In the absence

of any statutory provision indicating that the correction of date of birth

in the passport will have to be preceded by the correction of date of birth

in the service records in case of Government Servants, the stand of the

respondents has to be rejected.

7. Accordingly, the petitioner has to succeed, and there will be a

direction to the 2nd respondent to consider Ext.P16 application without

insisting on the correction of the service records by the petitioner and in

terms of the affidavit preferred as per Ext.P15 Rules. This shall be done

within two weeks from the date of receipt of a copy of this judgment.

The Writ Petition is allowed as above.

Sd/-MOHAMMED NIAS C.P. JUDGE

lsn

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APPENDIX OF WP(C) 17195/2025

PETITIONER EXHIBITS

TRUE COPY OF THE BIRTH CERTIFICATE NO. BO130170-73061115223 DATED 06.05.2024 ISSUED EXHIBIT P1 BY THE REGISTRAR OF BIRTHS AND DEATHS.

TRUE COPY OF THE AADHAAR CARD NO. 6658 0816 EXHIBIT P1(a) 8295 OF THE PETITIONER.

TRUE COPY OF THE 3RD PAGE OF THE SSLC BOOK EXHIBIT P2 OF THE PETITIONER.

TRUE COPY OF THE SERVICE DETAILS OF THE PETITIONER INCLUDING HER DATE OF BIRTH EXHIBIT P3 ENTERED IN THE SERVICE AND PAYROLL ADMINISTRATION REPOSITORY FOR KERALA (SPARK)

TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT ISSUED TO THE PETITIONER EVIDENCING EXHIBIT P4 THE ENTRY OF HER DATE OF BIRTH

TRUE COPY OF THE JUDGMENT AND DECREE DATED 12.10.2022 IN O.P. NO. 729/2022 OF THE EXHIBIT P5 FAMILY COURT, THRISSUR.

TRUE COPY OF THE CERTIFICATE OF MARRIAGE OF THE PETITIONER ISSUED FROM THE ANNE ARUNDEL EXHIBIT P6 COUNTY, STATE OF MARYLAND, U.S.A.

TRUE COPY OF THE RELEVANT PAGES OF THE AMERICAN PASSPORT NO. 677101933 OF THE EXHIBIT P7 PETITIONER'S HUSBAND ISSUED BY THE U.S.A.

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TRUE COPY OF THE REQUEST SUBMITTED BY THE PETITIONER IN THE PRESCRIBED PROFORMA DATED 12.03.2024, ALONG WITH THE APPLICATION FOR EXHIBIT P8 RE-ISSUE OF HER PASSPORT WITH CORRECTED DATE OF BIRTH.

TRUE COPY OF THE REQUEST LETTER DATED 06.12.2024 ISSUED BY THE PETITIONER BEFORE EXHIBIT P9 THE 2ND RESPONDENT.

TRUE COPY OF THE COMMUNICATION DATED EXHIBIT P10 06.12.2024 ISSUED BY THE 2ND RESPONDENT.

TRUE COPY OF THE GOVERNMENT ORDER G.O.(P) EXHIBIT P11 45/91/P&ARD DATED 30.12.1991.

TRUE COPY OF THE GOVERNMENT ORDER G.O.(RT.) EXHIBIT P12 853/2011/G.EDN. DATED 01.03.2011.

TRUE COPY OF THE FORM EA(P)-13 OF INDIA PRESCRIBED THE FORM FOR PASSPORT APPLICATION EXHIBIT P13 IN SCHEDULE III.

TRUE COPY OF THE INSTRUCTIONS FOR FILLING UP EXHIBIT P14 EXT.P13 FORM, FOR RE-ISSUE OF PASSPORT.

TRUE COPY OF THE GAZETTE NOTIFICATION DATED 24.02.2025 PUBLISHED IN THE EXTRA ORDINARY EXHIBIT P15 GAZETTE.

TRUE COPY OF THE APPLICATION DATED 13.04.2024 SUBMITTED BY THE PETITIONER EXHIBIT P16 WITHOUT THE DOCUMENTS.

EXHIBIT P17 TRUE COPY OF THE VISA ISSUED FROM THE

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EMBASSY OF USA, KUALA LAMPUR.

TRUE COPY OF THE DECISION REPORTED IN 2007 EXHIBIT P18 (3) KLT 653.

TRUE COPY OF THE PRINT OUT FROM THE WEBSITE OF THE PASSPORT SEVA OF THE 1ST RESPONDENT EXHIBIT P19 SHOWING THE CURRENT STATUS OF THE APPLICATION SUBMITTED BY THE PETITIONER.

RESPONDENT ANNEXURES

True copy of the communication from the O/o Technical Education Directorate, Annexure R2(a) Thiruvananthapuram vide DTETVM/3539/2025-EAl dated 23/04/2025