B K SUTHAR Vs. STATE OF GUJARAT
HIGH COURT OF GUJARAT
B K Suthar
STATE OF GUJARAT
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B.K.MEHTA, J. -
(1.) It is one of more such cases where a simple claim of correction of birth date is avoided by shunting the papers from pillar to post. The petitioner joined the services in P. W. D. in August 1951 and at all the relevant times of this petition was working as Executive Engineer in Building and Communication Division of P. W. D. at Surendranagar. The petitioner made an application for correction of his birth date in the month of January 1977 by making appropriate application annexing documentary evidence in support of the correct age which he was claiming to enter in his service records in place of the original date entered therein. The application was addressed to the Secretary and Chief Engineer Building & Communication Department in the P. W. D. The application was sought to be forwarded through proper channel and was therefore routed through the Superintending Engineer Baroda to the Government since the petitioner was working in Baroda division at that time. It appears that from January 1977 till the filing of this petition on 20/10/1982 no final decision had been taken by the competent authority on his application. It appears that the request of the petitioner for correction of the birth date was finally negatived by the Government as recorded in Government Resolution of 25/10/1982 issued in Building & Communication Department. The reason for turning down the request of the petitioner as stated in the said resolution is that the provisions contained in the Government resolution issued in General Administration Department dated 8/05/1978 read with Government notification issued in Finance Department dated 8/06/1982 do not permit such correction. The Government notification in the Finance Department is an amendment of rule 171 of the Bombay Civil Services Rules in exercise of the powers conferred by proviso to Art. 309 of the Constitution. In rule 171 the additional provision is sought to be introduced which reads as under:
"(2) In the Bombay Civil Services Rules 1959 in rule 171 after the words for is an obvious clerical error the following shall be added namely: Requests made for alteration of date of birth should not be entertained after the preparation of the service books of the Government servants concerned and in any event not after the completion of the probation period of five years continuous service whichever is earlier. In the case where there is no probation period such request should not be entertained after the completion of five years continuous service. The date of birth may however be permitted to be altered at a later stage if the government is satisfied that a bona fide clerical mistake has been committed and that it should be rectified." It should be recalled that a provision to the same effect as one to be found in this amended rule 171 was sought to be made by the State Government in its resolution dt. 8/05/1978 issued in General Administration Department. The said resolution recalled that its earlier resolution of 18/02/1974 issued in the General Administration Department provided that the extracts from the birth register regarding the birth date shall be accepted as true and final for all purposes including appointment in government service. It has been brought to the notice of the government that a number of applications have been made on the basis of such extracts by government servants some time before their retirement with a view to continue in service for a few years more and the government has considered these questions carefully and in order to avoid this practice of applying for correction of birth date on eve of retirement it has been decided that such request will not be entertained after the preparation of service book of the government servants concerned or after the completion of probation period of five years continuous service whichever is earlier. It is in light of this resolution and the amended rule 171 of the Bombay Civil Services Rules that the application of the petitioner for correction of the birth date has been rejected by the impugned government resolution of 2/10/1982 The operative part of the order reads as under:
"After considering the facts of the case as stated in the preamble government is pleased to order that the birth date i.e. Is 74 of Shri B. K. Suthar Executive Engineer should be considered as originally recorded in his service book and request of Shri Suthar to correct his birth date from 1-11-24 to 4-6-27 cannot be accepted as the reasons given by him to correct his birth date in his service book are not due to bona fide clerical mistake of anyone and his representation is also after the preparation of service book and not within five years of continuous service of Shri Suthar as laid down in G.R.G.A. No. RTR 1173. 40 1215. K.dt. 8 read with G.N.F.O. No. GN. 21/255. 1482/289(82) Ch dt. 8-6-82. " It is this government resolution which is the subject matter of this petition before me. The petition has been resisted by the respondents State and the Secretary in Building & Communication Department-respondents nos. 1 and 2 herein. On behalf of respondent no. 2 reply affidavit of one Shri J. P. Lade who happens to be the Under Secretary in the Building and Communication Department has been filed. It has been admitted that the petitioner applied for the correction of the date by his letter of January 1977 on the basis of the relevant circular dt. 18-2-1974 and while the request of the petitioner was under consideration and before a final decision could be taken the government has decided a new policy under the government resolution on 8/05/1978 It has been further admitted that the petitioner was advised to make a proper representation through the proper channel since the petitioner had applied for correction of date by addressing his application to the Secretary in C. A. W. It is also admitted that the file of the petitioner was lying in the Finance Department for a period of about a year for consideration for the reason that a new policy decision was under consideration effecting such applications for correction of date. It is also averred in the reply affidavit that General Administration Department has returned the file of the petitioner to building & Communication Department to obtain more information and by the time the particulars as called for mere furnished the new policy decision as contained in the government resolution of 8/05/1978 had become operative. The averment in petition that the Secretary in the P. W. D. has recommended the case of the petitioner is not specifically denied. But on the contrary it has been stated that such a recommendation at a stage of a case cannot be considered as final decision of the government unless it is approved by the competent authority. In para 25 of the reply affidavit it has been stated inter alia that it is correct that the Minister (B. & C.) has recommended to the Honble the Chief Minister to consider the request of the petitioner; however the Chief Minister has not considered it fit to put any exception in such cases in view of the government resolution of 8/05/1978 In the reply affidavit reliance has been placed also on the amendment in rule 171 of Bombay Civil Services Rules by urging that the provision contained in the resolution of 8/05/1978 were given statutory force under the government notification of 8/06/1982 An attempt has been made to justify the decision in the reply affidavit which is not relevant for the present purpose since the impugned decision is based on short ground that the application for the correction of date cannot be entertained since it has not been made within the prescribed period of limitation and no such application can be entertained if it is on ground other than bona fide clerical error.
(2.) The short but interesting question which arises in this petition is that whether the right of a government servant to seek the correction of his birth date as ensured in rule 171 of the Bombay Civil Services Rules at any time before his superannuation can be curtailed by an executive instruction or for that matter amendment in the statutory rules in exercise of the power under Art. 309 of the Constitution so as to destroy a cause of action which was vested in him or makes it impossible for him for exercise of his vested right of action. I am of opinion that the petition must be allowed obviously for the following reasons. In the first place it should be emphasised that rule 171 of the Bombay Civil Services Rules which provides for the service book before it was amended by the government notification of 8/06/1982 ensured the right to a government servant for correction of his birth date and if the ground on which the correction is sought is obvious clerical error the same can be allowed by the Principal District Officer in the Department concerned and if the correction is sought on any other ground the matter is to be referred to competent authority. The material part of rule 171 so far as relevant for our purpose read as under:
"The date of birth should be verified with reference to documentary evidence and a certificate recorded to that effect stating the nature of the document relied on. In the case of a Government servant the year of whose birth is known but not the date the 1st July should be treated as the date of birth. When both the year and the month of the birth are known but not the exact date the 16th of the month should be treated as the date of birth. In the case of a government servant who is only able to state his approximate age and who appears to the attesting authority to be of that age the date of birth should be assumed to be the corresponding date after deducting the number of years representing his age from his date of appointment When the date month and year of birth of a government servant are not known and he is unable to state his approximate age the age by appearance as stated in the medical certificate of fitness. In the form prescribed in Rule 11 should be taken as correct he being assumed to have completed that age on the date the certificate is given and his date of birth deduced accordingly. When once an entry of age or date of birth has been made in a service book no alteration of the entry should afterwards be allowed unless it is known that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error. Officers of a rank not lower than the Principal District Officer in the Department concerned may correct errors in the service book which are obviously clerical. Cases in which the correctness of the original entry is questioned on other grounds should be referred to a competent authority ." It is no doubt true that the rule prescribes that once an entry of age or date of birth has been made in the service books no alteration of entry should afterwards be allowed unless it is known that the entry was due to want of care on the part of some person other than the individual in question or is an obvious clerical error. In case of apparent clerical error it is the Principal District Officer in the Department concerned who has the right to correct the entry. But in cases in which the correctness of the original entry is questioned on other grounds should be referred to the competent authority. On the plain reading of the rule therefore it is manifestly clear that the government servant has a right to the correction of entry either on the ground of apparent clerical error or any other ground including the ground of want of care on the part of the person responsible for making the entry. The rule nowhere provides for any limitation for making such an application for correction of entry. It is therefore beyond the powers and the authority of the government to introduce a rule of limitation by an executive direction contained in the government resolution since the Bombay Civil Services Rules are Rules enacted in exercise of powers conferred by proviso to Art. 309 of the CONSTITUTION OF INDIA(VIDE NAGRAJAN V. STATE OF MYSORE A.I.R. 1966 S.C. 1942; KARUNANIS V. UNION OF INDIA A.I.R. 1974 S.C. 2302). The State Government has therefore by its notification of 8/06/1982 sought to amend rule 171 in exercise of its powers under Art. 309. The material part of the amended rule has been set out above. It in effect and substance provides for a period of limitation for making such application except in those cases where the government is satisfied about the bona fides of application made for correction of entry on ground of apparent clerical error. In other words the amended rule 171 prescribes for the period of limitation during which any government servant who desires a change of correction in the birth date entry has to move the government for appropriate relief. It is no doubt true that the amended rule 171 has prescribed that no application made beyond the period of limitation can be entertained. The term entertained has a recognised connotation and which means not only to physically receive but to decide and adjudicate upon such application (vide JADEJA SHIVUBHA DALUBHA V. GUJARAT STATE ROAD TRANSPORT CORPORATION AHMEDABAD (1977) 18 G.L.R. 656).
(3.) In the plain reading of amended rule 171 it is manifestly clear that the Legislature has not by express terms made this amended provision retrospective so as to effect the rights of the government servants to seek the corrections in the birth date entered in their service rolls at any time before their superannuation. The only problem which is posed before me is that by necessary implications whether this provision can be construed as evidencing the legislative intent that it should be retrospective. It is axiomatic to say that laws of limitation are procedural laws and it is also well recognised on principle and on authority that procedural laws have retrospective effect because no person has a vested right in the procedure. It is equally settled that when the Legislature alters the rights of parties by taking away or conferring any right of action its enactments unless in express terms they apply to pending actions do not effect them. But however there is an exception to this rule that where enactments merely affect procedure and do not extend to rights of action. (vide Craies on Statute Law 7 Edition page 401). The reason underlying the above exception is too well recognised since no party has a vested right in a procedure. It was therefore urged on behalf of the respondents that inasmuch as the Legislature provided in the amended rule 171 for limitation for making applications for correction of birth date in service rolls the Legislature was providing a procedure which is bound to affect the rights of the government employees seeking such correction and that there is no vested right of a government employees of seeking the alteration in the birth date in his service rolls under rule 171 since the relevant part of rule 171 provides for the procedure of correction of service rolls including the correction of birth date entries. In VEST V. GWYNERS (1911) 2 CH. D. 1 AT PAGE 12 Buckley L. J. pointed out the distinction between a vested right and an existing right in the following terms:
" It must be a vested right in the strict sense in order to raise the presumption for there is no presumption that an Act of Parliament is not intended to interfere with existing right. Most Acts of Parliament in fact do interfere with existing rights." The Court of Appeal in that case was concerned with the question whether the operation of sec. 3 of the Conveyancing Act 1892 which sought to prevent in future execution of fine by lessor for giving lessee a licence to assign should not be restricted to cases where lease was granted after commencement of the said Act. Cozens Hardy M.R. said that generally a statute is presumed not to have a retrospective operation unless by express language or necessary implications a contrary intention is manifested. He however failed to apply that principle to the statute in question before him. He observed as under:
"Retrospective operation is an inaccurate term. Almost every statute affects rights which would have been in existence but for the statute. I doubt whether the power to refuse consent to an assignment except upon the terms of paying a fine can fairly be called a vested right or interest. Upon the whole I think sec. 3 is a general enactment based on grounds of public policy and I decline to construe it in such a way as to render it inoperative for many years wherever leases for 99 years or it may be for 999 years are in existence." Buckley L.J. in his concurring opinion observed as under:
"To my mind the word retrospective is inappropriate and the question is not whether the section is retrospective. Retrospective operation is one matter. Interference with existing rights is another. If an Act provides that as at a past date the law shall be taken to have been that which it was not that Act I understand to be retrospective. That is not this case. The question here is whether a certain provision as to the contents of leases is addressed to the case of all leases or only of some namely leases executed after the passing of the Act. The question is as to the ambit and scope of the Act and not as to the date as from which the new law as enacted by the Act is to be taken to have been the law." In CRAXFORDS (RAMSGATE) LTD. V. WILLIAMS & STEER MANUFACTURING COMPANY LTD. (1954) 3 ALL. E.R. 17 the Queens Bench Division was concerned with the question whether sec. 2 of the Law Reform (Enforcements of Contracts) Act 1954 repealing sec. 4 of the Sale of Goods Act 1893 which required a note or a memorandum in writing evidencing a contract was retrospective or not inasmuch as it deprived of the defendant in that case of the plea which he had raised in his written statement in a suit brought by the plaintiff claiming damages for breach of an oral contract for sale of goods it was held that no vested right of the defendant which he could have been said to have acquired by raising a plea in the written statement was disturbed because sec. 4 which was procedural had been repealed before the action commenced. Pilcher J. in that connection held as under:
" It is conceded that if a party to litigation has acquired a vested right or interest in an action the right or interest Will not be destroyed by a subsequent statutory enactment unless the subsequent statutory enactment specifically so provides. The authority for that proposition is HITCHOCK V. WAY (1837) 6 AD. E. E1. 943." In Halsburys Laws of England 2 Edition Vol. 31 there is a discussion about the effects of statutes on right of action. It is observed in para 672 at page 516 as under:
"Although an existing right of action is not prima facie taken away by a new statute there is no insuperable objection to construing the language of a statute so as to make it apply to pending proceedings if such a construction is rendered necessary by the proper interpretation of the language used by the Legislature. Express words are unnecessary to take away vested rights of action for which legal proceedings have been commenced. Clear language is sufficient. There is no rule that when a person has commenced an action he has a vested right in the then State of law." In District School Board of BELGAUM V. MOHAMAD MULLA A.I.R. 1945 BOMBAY 377 a similar question arose as to what is the effect of an amending Act which provides period of limitation in the parent Act where there was no such limitation prescribed for a cause of action. Sec. 26(B) of the Bombay Primary Education Act 1923 was amended by Act No. 12 of 1938 which provided a period of limitation for a suit against the District Board for anything done or purporting to be done in pursuance of the Act and the period of limitation was six months from the date of the act complained of. Act No. 12 of 1938 which introduced sec. 26E(1) was published in the Gazette on 27/05/1938 and was to come into force on 1/07/1938 In that context Chagla J. (as he then was) observed as under:
"Laws of limitation are procedural laws and the general principle is that procedural laws have a retrospective effect because no person has a vested right in procedure. The Privy Council in two cases. SONI RAM V. KANHAIYA LAL 40 I. A. 74 and MASJID SHAID GANJ MOSQUE V. SHIROMANI GURDWARA PURBANDHAK COMMITTEE AMRITSAR. 671.A. 251 has laid down that the law of limitation applicable to a suit or proceeding is the law in force at the date of the institution of the suit unless there is some distinct provision to the contrary; and therefore as Act 12 of 1938 was in force at the date when the respondents suit was filed that law of limitation has got to be given effect to and under the provisions of that Act the claim of the respondents to the extent that I have indicated would be barred by limitation.
It is true that there are cases in the books where a law of limitation destroys a cause of action which has accrued to a party and does not merely curtail the period of limitation within which he must enforce that cause of action and the authorities have laid down that where a party is deprived of his right of action or his cause of action is destroyed by a statute of limitation then the court would hesitate before giving such a statute a retrospective effect." The learned single Judge referred to earlier decision of the Division Bench of the Bombay High Court in KHUSALBHAI V. KABHAI (1981) 6 BOM. 26 comprising of Melvill J. and Kemball J. where it was held that provisions of Art. 171-B of Limitation Act of 1877 should not be given retrospective effect and the principle there enunciated was that as a general rule an act of limitation being of a law of procedure governs all proceedings to which its terms are applicable from the moment of its enactment except to the extent that its operation is expressly excluded. Subject however to one qualification that when the retrospective application of a statute of limitation destroys vested rights or inflicts such hardships or injustice as could not have been within the contemplation of the Legislature then the statute should not be construed retrospectively. The learned single Judge emphasised that one consideration which weighed with the Division Bench in Khusalbhais case (supra) in refusing to give retrospective effect to that particular statute of limitation was that the Act came into force at the moment at which it received the assent of the Governor General and the plaintiffs therefore in that suit had no such notice as might have enabled them to anticipate the divestiture of their right of revival of the suit. Chagla J. quoted the observations of Lord Campbell from REG. V. LEEDS AND BRADFORD RAILWAY COMPANY (1852) 21 L.J. M.C. 193 as under:
"If the Act had come into operation immediately after the time of its being passed the hardship would have been so great that we might have inferred an intention on the part of the legislature not to give it a retrospective operation; but when we see that it contains a provision suspending its operation for six weeks that must be taken as an intimation that the Legislature has provided that as the period of time within which proceedings respecting antecedent damages or injuries might be taken before the proper tribunal." The Full Bench of Madras High Court in RAJAH OF PITTAPUR V. VENKATA SUBBA ROW 39 MADRAS 645 has also taken the similar view. The Full Bench of Rajasthan High Court in GOVERNMENT OF RAJASTHAN AND ANOTHER V. SANGRAM SINGH AND OTHERS A.I.R. 1962 RAJASTHAN 43 has also taken the view that it is settled position in law that the new law of limitation cannot be construed retrospectively so as to destroy altogether the remedy of litigant to enforce his right in a court of law. In view of this settled legal position so far as this court is concerned since the Division Bench of the Bombay High Court as well as the learned single Judge of the same court have ruled that if the new law of limitation destroys cause of action which was vested in a party or makes it impossible for that party for the exercise of its vested right of action then courts would not read legislative intent of giving retrospectivity to the new provision. It should be noted that so far as the present application was concerned by the petitioner for correction of his birth date entry in his service roll was made in 1977. And it is an accepted position that the Secretary as well as the Minister concerned of that department have made recommendation to accept the application of the petitioner for the correction of his birth date. For one reason or the other the application was kept pending under consideration of G.A.D. and/or the Finance Department of the State Government. If during the pendency of these proceedings a new provision prescribing limitation for enter taining such application is introduced in the statutory rules I do not think that it can be urged successfully that the rights of the Government employees which they enjoined hitherto under unamended rule 171 of Bombay Civil Services Rules at least where the application is already filed for correction of birth date entry were sought to be destroyed. It cannot be gainsaid that the amended provisions of limitation cannot affect the pending actions (vide MT. ALLAH RAKHI AND OTHERS V. SHAH MOHAMMAD ABDUR RAHIM AND OTHERS A.I.R. 1934 P.C. 77 though the principle was enunciated in respect of the rights of the parties to a suit in a civil court). In that view of matter therefor I am of opinion that present petition should be allowed and the impugned government resolution dt. 25/10/1982 Ann.- I to the petition resolving that the request of the petitioner is to correct his birth date cannot be accepted since the grounds urged in support of his application were not due to bona fide clerical mistake of anyone and also because his representation was after the prescribed period under the government resolution of 8/05/1978 and the government notification of 8/06/1982 should be quashed and set aside and the matter should be remanded to the competent authority as defined in Bombay Civil Service Rules to decide the application of the petitioner on merits according to correct principles of law and in accordance with the government resolutions and circulars in that behalf for correction of the birth date in force at the relevant time of his application after giving opportunity to the petitioner in that behalf to substantiate his prayer for correction of birth date. The competent authority shall dispose of the application of the petitioner for correction of birth date by reasoned order latest by 30/06/1983 The interim relief granted by this court by its order sIt. 29-10-1982 shall continue till one week after the application of the petitioner is disposed of and in the case the petitioners application is accepted for correction of birth date he may be continued accordingly. Rule is made absolute accordingly with no order as to costs. Petition allowed.;
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