V.P.DAMODARAN v. ND KARTHIKA 1931

WP(C) No.24633/2003-2-Regulation 4 of the LIC (Staff) Regulations 1960, which was framedunder Section Section 48 of the Life Insurance Corporation Act.Clause 7(2) of Ext.P7 provides as follows:-“7(2).Where an entry has been made on the basis of alisted document and the employee subsequently comes inpossession of another listed document which was not consideredby the authority concerned while ordering the previous entry, hemay submit a representation to the competent authority whichmay, after obtaining or procuring such explanation anddocuments as it may consider necessary, pass orders confirmingor altering the previous entry.”The request made by the petitioner in Ext.P3 was considered andwas rejected by Ext.P6 dated 02/01/1998 stating that the petitionerhaving got the date of birth entered in the service records, on thebasis of the certificate, cannot later seek its correction and thusrewrite the contract of employment on the basis of an altered dateof birth. 4.He filed an appeal against Ext.P6 to the Chairman of theLIC. During the pendency of his appeal, by Ext.P8 order dated06/04/1998 of the Joint Commissioner of the GovernmentExaminations, the petitioner got his date of birth in the SSLC bookcorrected as 21/04/1944 and produced the same before the WP(C) No.24633/2003-3-appellate authority. However the appeal was rejected by theChairman and the same was communicated to the petitioner byExt.P13 dated 28/11/2001. Ext.P13 was challenged before thisCourt in O.P.No.18893/2002, where the LIC filed its counteraffidavit relying on Ext.P15 dated 15/09/1995, a circular issued byits Executive Director amending Clause 7(2) of Ext.P7, and imposinga complete embargo on correction of date of birth in the servicerecords. During the pendency of that original petition, thepetitioner was working as Principal of Staff Training College of theLIC at Kozhikkode and while so, on 30/09/2002 he attained the ageof superannuation and retired from service. On the eve of hisretirement, in order to safeguard his interests, this Court passedExt.P16 interim order clarifying that the retirement of the petitionerwill be subject to the result of the original petition. 5.While so, in Writ Appeal No.2752/1999, to which thepetitioner was not a party, this Court rendered Ext.P17 judgmentdated 23/10/2002 taking the view that Ext.P7 instructions, havingbeen issued by the Chairman exercising powers under Clause 4 ofthe Staff Regulations, could not have been modified by the WP(C) No.24633/2003-4-Executive Director by issuing Ext.P15, and therefore, Ext.P15 isillegal. Following that judgment, O.P.No.18893/2002 filed by thepetitioner was disposed of by Ext.P18 judgment dated 21/01/2003quashing Exts.P6 & P13 and directing the competent authority toreconsider the request of the petitioner. Accordingly, the matterwas reconsidered and Ext.P19 order dated 02/05/2003 was issuedby the 3rd respondent rejecting the request of the petitioner forcorrecting his date of birth. 6.In Ext.P19, three grounds are relied on for rejecting theapplication made by the petitioner. They are :-(1) That in terms of Clause 7(2) of Ext.P7 instructions, the requestfor correction can be entertained only if a listed document, otherthan the one on the basis of which the original entry was made, wasproduced. It was stated that the petitioner did not produce anotherlisted document and therefore his request cannot be entertained. (II)That although, for making an application for correction ofdate of birth no period has been prescribed, the petitioner, who hadentered service on 29/10/1971, made a valid request only on06/04/1998, and the request was a belated one made at the fag WP(C) No.24633/2003-5-end of his service. It is stated that for that reason also the requestcannot be entertained. (III)That by Ext.P20 order dated 01/04/2003 passed by theChairman of the LIC, Clause 7(2) of Ext.P7 instructions wasamended with effect from 15/09/1995, the date on which Ext.P15was issued. It is stated that with the amendment, correction of dateof birth in the service records has been totally prohibited and forthat reason also the request cannot be considered. 7.It is challenging Ext.P19, this writ petition is filed. 8.The learned counsel for the petitioner impugned theaforesaid findings in Ext.P19 order, while the learned counsel forthe LIC argued to sustain the same. 9.In so far as the first ground for rejection, that thepetitioner did not produce another listed document along with hisapplication for correction is concerned, I do not think that the saidfinding can be sustained. Originally, the date of birth was enteredin his service records on the basis of Ext.P1 extract of schooladmission register. Correction was sought on the basis of Ext.P8,by which his date of birth in the SSLC book was corrected. Both the WP(C) No.24633/2003-6-extract of admission register and the SSLC book are documentslisted in Ext.P8. If that be so, the petitioner having produced Ext.P8when he sought correction, it is erroneous to say that he did notproduce another listed document as provided in Clause 7(2) ofExt.P7 instructions. Therefore, this finding cannot be sustained.10.I shall now consider whether the request could havebeen rejected on the ground that there has been delay in seekingcorrection of date of birth in the service records. Ext.P7, eitherbefore or after amendment, do not specify any time limit for makingapplication for correction of date of birth. Although, the learnedcounsel for the petitioner does not dispute the fact that afterentering into service on 29/10/1971, the first application that hemade for correction was Ext.P3 dated 03/04/1996, he contendedthat so long as Ext.P7 does not provide for any time limit formaking an application, it is open to an employee to seek correctionof date of birth at any time of his service, and that such a requestcannot be rejected as belated. He also contended that his SSLCbook was got corrected only on 06/04/1998 and as his appeal waspending at that time, the appeal ought to have been entertained on WP(C) No.24633/2003-7-merits. 11.This submission of the learned counsel for the petitioneris sought to be contradicted by the learned counsel appearing forthe respondents. According to him, irrespective of whether anytime limit has been prescribed in the Rules, it is open to theemployer to reject an application, if it was a belated one and thattoo, made at the fag end of the service. 12.As could be seen from Ext.P19, it is the case of therespondents that the first valid and proper application was receivedfrom the petitioner only on 06/04/1998, and that by Ext.P3 all thatthe petitioner did was to intimate the Zonal Manager that there wasa mistake in the date of birth entered in the service records. 13.As already seen, it was on 29/10/1971, the petitionerjoined the service. Even going by his own pleadings, Ext.P3, thefirst application for correction of his date of birth, was made onlyon 03/04/1996. It is also the admitted case that he got the SSLCbook corrected only on 06/04/1998, when his appeal againstExt.P6 rejecting Ext.P3 was pending. Therefore, even if Ext.P3 isaccepted as an application, it was made almost after 25 years of WP(C) No.24633/2003-8-entry into service, and the correction of date of birth in the SSLCbook was got done, almost after 27 years of entry into service. 14.Though there is no time limit prescribed in the Rules,the question still is whether even in such a case, an applicationmade at any time is liable to be entertained. Despite the absence oftime limit in the Rules, it has been held by the Apex Court and thisCourt that if an employee wants to get his date of birth in hisservice book corrected, he is bound to make an application within areasonable time. In Burn Standard Co.Ltd and Others v.Dinabandhu Majumdar and Another (1995(4) SCC 172), afterpointing out the consequence of a belated entry of date of birth inthe service records, the Apex Court has pointed out that if a requestis made, the employer will be entitled to refuse to correct the dateof birth of its employee, if the facts in the given case do not warrantsuch correction. Again in State of Gujarat v. Vali Mohmed (2006(3)KLT Short Notes Case No.83, page 61) the Apex Court held that ifno rule or order has been framed or made, prescribing the periodwithin which the application has to be filed, then such applicationmust be made at least within a reasonable time, and that the WP(C) No.24633/2003-9-application made on the eve of retirement, questioning thecorrectness of the entries in respect of date of birth of an employeein the service book is not liable to be entertained. 15.Considering the very same issue, in Kunjuraman v.Central Bank of India {2007(3) KLT SN 6 (C.No.7)}, this Court hasheld that if no rule or order has been framed prescribing the periodwithin which an application has to be made, then application forcorrection of date of birth must be made within a reasonable time.It has been held that in many cases, it is a part of the strategy onthe part of public servants to approach authorities on the eve oftheir retirement, questioning the correctness of the entries in theservice records. It has been held that, request for correction of dateof birth shall have to be made as early as possible and at any rate,within a reasonable time of entry into service, and that correction ofdate of birth cannot be claimed as a matter of right. Applying thelaw laid down in the aforesaid judgments to the facts of this case, itmust be held that the request for correction having been made bythe petitioner after more than 25 years of his entry into the service,was a highly belated one. Therefore, the reason of delay stated in WP(C) No.24633/2003-10-Ext.P19 for rejecting the application seeking correction of Date ofBirth deserves to be upheld.16.As far as the 3rd ground of rejection, that by Ext.P20dated 01/04/2003, Clause 7(2) of Ext.P7 was amended with effectfrom 15/09/1995 is concerned, the learned counsel for thepetitioner contended that such retrospective amendment isimpermissible. According to the learned counsel, Exts.P7 & P20 areexecutive instructions issued by the Chairman exercising his powerunder Clause 4 of the Staff Regulations, 1960, which reads asunder:-“The Chairman may, from time to time, issue such instructions ordirections as may be necessary to give effect to, and carry out, theprovisions of these regulations and in order to secure effectivecontrol over the staff employed in the Corporation”.Although, under Section 48 of the Life Insurance Corporation Act,1956, the Staff Regulations, can be implemented or amended withretrospective effect, according to learned counsel, Clause 4 of theStaff Regulations did not authorise the Chairman to issueinstructions with retrospective effect. On this basis, it is contendedthat Ext.P20 cannot have any retrospectivity and that the petitioner WP(C) No.24633/2003-11-having made his application in 1996, the application ought to beconsidered in the light of Clause 7(2) of Ext.P7, as it stood beforethe amendment. On this basis, it is argued that his request forcorrection of date of birth ought to have been allowed.17.The learned counsel contended that unless the parentstatute, viz. the Staff Regulations, expressly conferred power, it isnot possible to issue orders with retrospective effect and placedreliance on the judgments of the Apex Court in Regional TransportOfficer, Chittoor and Others v. Associated Transport Madras (P)Ltd. And Others (1980(4) SCC 597), Mahabir Vegetable Oils (P) Ltd.and Another v. State of Haryana and Others (2006(3) SCC 620) andVice-Chancellor, M.D.University, Rohtak v. Jahan Singh (2007(5)SCC 77). 18.In Regional Transport Officer, Chittoor and Others v.Associated Transport Madras (P) Ltd. And Others (1980(4) SCC597) it has been held that unlike a legislature, a delegate cannotexercise any power unless there is special conferment thereof to bespelled out from the express words of the delegation or bycompelling implication. The judgment in Mahabir Vegetable Oils WP(C) No.24633/2003-12-(P) Ltd. and Another v. State of Haryana and Others (2006(3) SCC620) has been followed, in the judgment in Vice-Chancellor,M.D.University, Rohtak v. Jahan Singh (2007(5) SCC 77). In thesejudgments it has been held that in the absence of specificconferment of power to issue Rules with retrospective effect,subordinate legislation cannot be given retrospective effect and thereasoning adopted is that a delegate can make rules only within thefour corners of the delegation contained in the parent Act. 19.However, the learned counsel for the LIC heavily reliedon the judgment of the Apex Court in T.R.Kapur and Others v. Stateof Haryana and Others (AIR 1987 SC 415), wherein it has been heldthus:-“16.It is well settled that the power to frame rules to regulatethe conditions of service under the proviso to Art.309 of theConstitution carries with it the power to amend or alter the ruleswith a retrospective effect : B.S.Vadhera v. Union of India, (1968) 3SCR 575 : (AIR 1969 SC 118), Raj Kumar v. Union of India, (1975) 3SCR 963 : (AIR 1975 SC 1116), K.Nagaraj v. State of A.P., (1985) 1SCC 523 : (AIR 1985 SC 551) and State of J & K v. Triloki NathKhosla, (1974) 1 SCR 771 : (AIR 1974 SC 1). It is equally wellsettled that any rule which affects the right of a person to beconsidered for promotion is a condition of service although merechances of promotion may not be. It may further be stated that an WP(C) No.24633/2003-13-authority competent to lay down qualifications for promotion, isalso competent to change the qualifications. The rules definingqualifications and suitability for promotion are conditions ofservice and they can be changed retrospectively. This rule ishowever subject to a well recognised principle that the benefitsacquired under the existing rules cannot be taken away by anamendment with retrospective effect, that is to say, there is nopower to make such a rule under the proviso to Art.309 whichaffects or impairs vested rights. Therefore, unless it is specificallyprovided in the rules, the employees who are already promotedbefore the amendment of the rules cannot be reverted and theirpromotions cannot be recalled. In other words, such rules layingdown qualifications for promotion made with retrospective effectmust necessarily satisfy the test of Arts.14 and 16(1) of theConstitution : State of Mysore v. M.N.Krishna Murty, (1973) 2 SCR575 : (AIR 1973 SC 1146), B.S.Yadav v. State of Punjab, (1981) 1SCR 1024 : (AIR 1981 SC 561), State of Gujarat v. RamanlalKeshavlal Soni, (1983) 2 SCR 287 : (AIR 1984 SC 161) andK.C.Arora v. State of Haryana, (1984) 3 SCR 623 : (1984 Lab IC1015).”20.The judgment in T.R.Kapur's case (supra) has beenfollowed by the Apex Court in S.S.Bola & Others v. B.D.Sardana &Others (AIR 1997 SC 3127) and O.P.Lather & Others v.Sathishkumar Kakkar & Others (AIR 2001 SC 821). It should bestated that all the three judgments relied on by the learned counselfor the petitioner do not refer to the previous judgments referred to WP(C) No.24633/2003-14-above. A reading of the judgment in T.R.Kapur's case (Supra) showthat the principle is well settled that if power to frame rules or itsamendment is available, such power can be exercised eitherprospectively or retrospectively and that the only limitation is thatby giving retrospectivity to a subordinate legislation, the vestedrights or benefit conferred under the existing Rules cannot be takenaway. This necessarily means that, under an existing regulation, ifpromotion has been given or a date of birth is corrected, it may notbe possible for the employer to undo it, based on a retrospectiveamendment in the service conditions. In this case, correction hasnot been carried out and no benefit has been conferred on thepetitioner to contend that he is deprived of any accrued benefit orvested right. This Court has, in Kunjuraman v. Central Bank ofIndia {2007(3) KLT SN 6 (C.No.7)}, held that correction of date ofbirth cannot be claimed as a matter of right. In that view of thematter the petitioner cannot contend that he has any vested right inthis behalf. In my view, the validity of the retrospectivity given toExt.P20 will depend upon the nature of the order that is issued. If itcan be said that the power exercised is a rule making power, the WP(C) No.24633/2003-15-rule can be implemented either prospectively or retrospectively, butsubject to the limitations mentioned in the decision in T.R.Kapur'scase. But if the order is merely an executive instruction, suchinstructions cannot be given retrospectivity. (See paragraph 15 ofthe judgment in I.C.A.R. v. Satish Kumar & Another (1998(4) SCC219). Since I have already held that the application made by thepetitioner for correction of his date of birth was belated and upheldits rejection on that ground, it is not necessary to finally pronounceon the validity of retrospectivity given to Ext.P20 order. I do not find any merit in the contentions raised by thepetitioner.The writ petition fails, and is accordingly dismissed. (ANTONY DOMINIC, JUDGE)jg